BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 1322|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 445-6614 Fax: (916) | |
|327-4478 | |
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CONSENT
Bill No: SB 1322
Author: Ackerman (R)
Amended: 3/13/02
Vote: 21
SENATE JUDICIARY COMMITTEE : 7-0, 3/19/02
AYES: Escutia, Ackerman, Haynes, Kuehl, O'Connell, Peace,
Sher
SUBJECT : Writs of possession; disposition of judgment
property
SOURCE : California Law Revision Commission
DIGEST : This bill 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.
ANALYSIS : California law provides procedures for
pre-judgment claim and delivery of disputed property
through writs of possession and/or temporary restraining
orders. 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.
CONTINUED
SB 1322
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2
Existing law, in the claim and delivery statutes, 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 requires 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 provides that when the plaintiff's undertaking
has been waived by the court, the court may set the amount
of the defendant's redelivery undertaking.
Existing law 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 clarifies 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 also allows the levying officer to release seized
property absent an exemption determination by the court if
an appeal is waived or the time to file an appeal has
expired.
SB 1322
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3
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 3/20/02)
California Law Revision Commission (source)
ARGUMENTS IN SUPPORT : According to the author's office,
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.
RJG:cm 3/20/02 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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