BILL ANALYSIS SENATE JUDICIARY COMMITTEE Martha M. Escutia, Chair 2001-2002 Regular Session SB 1322 S Senator Ackerman B As Introduced Hearing Date: March 12, 2002 1 Code of Civil Procedure 3 MTY:cjt 2 2 SUBJECT Writs of Possession; Disposition of Judgment Property DESCRIPTION This bill is sponsored by the California Law Revision Commission. It seeks to resolve various technical difficulties, stemming from conflicting statutes and ambiguous terminology, that have arisen in the administration of writs of possession and the disposition of property subject to a judgment. BACKGROUND California law provides procedures for pre-judgment claim and delivery of disputed property through writs of possession and/or temporary restraining orders [Code Civ. Proc. 511.010 et seq.]. Generally speaking, while a dispute is awaiting final judgment, courts may order local law enforcement to take and temporarily resolve the possession of disputed property after the filing of a claim, notice and hearing, and the filing of financial security (an "undertaking"). Defendants are entitled to retain possession of the disputed property if they contest the claim and file an undertaking. California's Enforcement of Judgments Law [Code Civ. Proc. 680.010 et seq.] exempts certain property from being seized by judgment creditors. In some cases, levying officers will take temporary possession of disputed property until the dispute has been resolved. (more) SB 1322 (Ackerman) Page 2 CHANGES TO EXISTING LAW 1. Existing law , in the claim and delivery statutes [Civil Procedure Code Sec. 511.010 et seq.], provides that prior to the issuance of a writ of possession, a plaintiff must file an "undertaking" which provides financial security for costs if the property to be seized must ultimately be returned to the defendant. Under existing law, courts waive the undertaking requirement when the defendant is found to have no interest in the property. Existing law requires an officer levying the writ of possession to deliver a copy of the undertaking along with the writ of possession. This bill would require the levying officer to deliver a copy of the court order issuing the writ, and clarify that the levying officer need not deliver a copy of the undertaking when the undertaking requirement has been waived by the court. Existing law provides that prior to final judgment a defendant may retain property subject to a writ if he/she files an undertaking equal in value to the plaintiff's undertaking ('redelivery undertaking"). This bill would provide that when the plaintiff's undertaking has been waived by the court, the court may set the amount of the defendant's redelivery undertaking. 2. Existing law , in the Enforcement of Judgments Law [Civil Procedure Code Sec. 680.010 et seq.], provides that certain property is exempt from judgment creditors. Existing law provides that property seized by a levying officer shall be released from judgment upon a court's determination that the property qualifies as exempt. This bill would clarify that property seized by a levying officer shall be released from judgment if there is no exemption determination by the court within the time allotted. This bill would also allow the levying officer to release SB 1322 (Ackerman) Page 3 seized property absent an exemption determination by the court if an appeal is waived or the time to file an appeal has expired. COMMENT 1. Need for the bill This bill addresses several problems that have arisen in the execution of writs of possession and the disposition of property seized by levying officers prior to final judgment. a. Undertaking delivery provisions The California Law Revision Commission explains that under current claim and delivery law: Courts may issue prejudgment writs of possession without requiring the plaintiff to post an undertaking, if the court finds that the defendant has no interest in the property. Consequently, the levying officer is faced with two problems: (1) the plaintiff's undertaking cannot be served on the defendant as required by statute, and (2) the amount and effect of the defendant's undertaking for redelivery is problematic, since the redelivery bond is in an amount "equal to the amount of the plaintiff's undertaking." This bill would clarify that the levying officer need not deliver the plaintiff's undertaking if there is no undertaking. b. Setting of defendant's undertaking amount The bill would allow the courts to set the amount of defendant's undertaking if the plaintiff's undertaking requirement has been waived. This waiver only occurs when the court finds that defendant has no interest in the property. Under existing law, the amount of the defendant's undertaking is tied to the value of the SB 1322 (Ackerman) Page 4 plaintiff's undertaking. This provision would grant the courts discretion to set an undertaking amount for the defendant when the plaintiff's undertaking has been waived. Thus, in certain limited circumstances, this provision would depart from existing law by giving courts the discretion to require an undertaking from the defendant when one is not required of the plaintiff. However, the additional discretion would be limited by the existing statutory standard for setting a defendant's undertaking [Civil Procedure Code Sec. 515.020 provides that the undertaking be sufficient to pay damages associated with the plaintiff's loss of possession of the property if the plaintiff wins the case]. The courts' discretion would also be limited by provisions of existing law allowing parties to object to the amount or value of undertakings filed by opposing parties [Civil Procedure Code Sec. 515.030]. Finally, the Commission believes that this additional discretion is justified because it only arises in situations where a court has made a determination of the probable validity of the plaintiff's claim after notice and hearing. c. Exemption from judgments provisions Existing law provides that property that might be used to satisfy a judgment may be released from judgment upon a determination by the court that the property is exempt. The Commission writes that "The statute does not address the situation where an exemption hearing is taken 'off calendar' and not adjudicated by the court." This bill would clarify that when a final, official determination is not made by the court, property claimed as exempt should be released from judgment. This clarification merely codifies existing practice and does not represent a substantive change in the disposition of property held by levying officers. Existing law also prohibits a levying officer from releasing, selling, or otherwise disposing of property until a final determination of an exemption is made. As just noted, some exemptions are resolved informally; SB 1322 (Ackerman) Page 5 this bill would expand the circumstances when a levying officer is allowed to release, sell, or otherwise dispose of property to accommodate informal resolutions. Support: None Known Opposition: None Known HISTORY Source: California Law Revision Commission Related Pending Legislation: None Known Prior Legislation: None Known **************