BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 1322
                                                                  Page  1

          Date of Hearing: June 4, 2002

                           ASSEMBLY COMMITTEE ON JUDICIARY
                               Ellen M. Corbett, Chair
                   SB 1322 (Ackerman) - As Amended: March 13, 2002

                                  PROPOSED CONSENT

           SENATE VOTE  :  38-0
           
          SUBJECT  :  WRITS OF POSSESSION; DISPOSITION OF JUDGMENT PROPERTY
          
          KEY ISSUE  :  SHOULD THE LAW REGARDING PRE-JUDGMENT CLAIM AND  
          DELIVERY OF DISPUTED PROPERTY AND POST-JUDGMENT SATISFACTION OF  
          JUDGMENTS BE CLARIFIED IN ORDER TO RESOLVE TECHNICAL PROBLEMS  
          AND AMBIGUITIES?

                                      SYNOPSIS
          
          This non-controversial bill, sponsored by the California Law  
          Revision Commission, is designed to resolve several  
          incongruities that arise for levying officers in the law  
          regarding the execution of pre-judgment writs of possession and  
          post-judgment seizures of property to satisfy a judgment.

           SUMMARY  :   Makes technical changes to the statutes regarding  
          claim, exemption and delivery of property pre and post-judgment.  
           Specifically,  this bill  :   

          1)Requires the levying officer to deliver a copy of the court  
            order issuing the writ, and clarifies that the levying officer  
            need not deliver a copy of the undertaking when the  
            undertaking requirement has been waived by the court.

          2)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.

          3)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.

          4)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.








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           EXISTING LAW  :  

          1)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  
            further requires an officer levying the writ of possession to  
            deliver a copy of the undertaking along with the writ of  
            possession and 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").  (Code of Civil  
            Procedure section 511.010 et seq.)

          2)Provides that certain property is exempt from judgment  
            creditors and provides that property seized by a levying  
            officer shall be released from judgment upon a court's  
            determination that the property qualifies as exempt.  (Code of  
            Civil Procedure section 680.010 et seq.)

           FISCAL EFFECT  :  As currently in print, this bill is keyed  
          non-fiscal.

           COMMENTS  :  According to the author, this bill is designed to  
          address 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.

          Existing law provides procedures for pre-judgment claim and  
          delivery of disputed property through writs of possession and/or  
          temporary restraining orders.  When 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 (a "redelivery undertaking").

          The California Law Revision Commission (CLRC) 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  








                                                                  SB 1322
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          has no interest in the property.  However, if the plaintiff's  
          undertaking is waived, certain problems are created for the  
          levying officer under current law: (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 by the plaintiff.
           
          In addition, 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 occurs only 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 plaintiff's undertaking.  This bill  
          would grant discretion to the courts to fix an amount for the  
          defendant's undertaking when the plaintiff's undertaking has  
          been waived.  While 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,  
          the CLRC believes this discretion is warranted.  The court's  
          discretion would be limited by the existing statutory standard  
          for setting a defendant's undertaking - i.e., 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.  In addition, 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.  Finally, the CLRC believes that granting courts this  
          discretion is justified because it arises only where a court has  
          made a determination of the probable validity of the plaintiff's  
          claim after notice and hearing.
           
          Lastly, the bill addresses the disposition of property that is  
          claimed to be exempt from the satisfaction of a judgment.   
          Existing law provides that property that might be used to  
          satisfy a judgment may be released upon a determination by the  
          court that the property is exempt.  The CLRC states 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 determination  
          has not been made by the court, property claimed to be exempt  
          should be released from judgment.  This clarification is said to  








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          codify existing practice and not to 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 noted, some  
          exemptions are resolved informally.  This bill would expand the  
          circumstances when a levying officer is allowed to release,  
          sell, or otherwise dispose of property to accommodate informal  
          resolutions.
           
          REGISTERED SUPPORT / OPPOSITION  :

           Support 
           
          California Law Revision Commission (sponsor)
          Los Angeles County Sheriff's Department
           
            Opposition 
           
          None on file

           Analysis Prepared by  :    Kevin G. Baker / JUD. / (916) 319-2334