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. SB 1322 Page 2 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 Page 3 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 SB 1322 Page 4 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