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)



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                             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  
                                                                       




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            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  
                                                                       




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               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;  
                                                                       




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              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
          
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