BILL ANALYSIS
SB 1322
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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
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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