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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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
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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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