BILL ANALYSIS                                                                                                                                                                                                    






                             SENATE JUDICIARY COMMITTEE
                           Senator Ellen M. Corbett, Chair
                              2009-2010 Regular Session


          AB 680
          Assemblymember Hall
          As Amended June 22, 2009
          Hearing Date: July 1, 2009
          Code of Civil Procedure; Government Code
          BCP:jd
                    

                                        SUBJECT
                                           
                        Local Government: Fees and Judgments

                                      DESCRIPTION  

          Existing law provides that a specified amount of any fee  
          collected by the sheriff's civil division or marshal for  
          performing specified services must be deposited in a special  
          fund in the county treasury for the exclusive use of the  
          sheriff's civil division, while the remainder of the fee goes to  
          the county.  This bill would increase that amount from $10 to  
          $15, and increase various fees for serving, executing, and  
          processing required court notices, writs, orders, and other  
          services provided by county sheriffs and marshals.  Those  
          increases would generally become effective January 1, 2011.

          This bill would revise several provisions relating to the  
          collection of funds from judgment debtors, create an ex-parte  
          application for relief when a levying officer has not paid funds  
          to a person entitled to a money judgment, and exempt those  
          actions from the Tort Claims Act.  

                                      BACKGROUND  

          The sheriff of a county is required under existing law to  
          perform certain duties in addition to law enforcement, such as  
          service of process, evictions, and the keeping and maintaining  
          of property.  Current law allows the sheriff to charge and  
          collect fees to offset their costs.  The fees that a sheriff may  
          charge are set by statute.

          Periodically, the statutes governing the fees that a sheriff may  
                                                                (more)



          AB 680 (Hall)
          Page 2 of ?



          charge are revised to reflect increases in costs to the sheriff.  
           This bill would revise various fees to reflect increased costs,  
          and revise several provisions relating to the ability of a  
          judgment creditor to collect amounts owed to them by a levying  
          officer.



                                CHANGES TO EXISTING LAW
           
          1.    Existing law  prescribes the amounts of fees that may be  
            charged for various services performed by county sheriffs and  
            marshals.  (Gov. Code Sec. 26720 et seq.)

             This bill  , effective January 1, 2011, would increase the  
            following fees from $30 to $35:
                 The fee for serving or executing any process or notice.   
               (Gov. Code Sec. 26721.)
                 The fee for service of a summons, complaint, and  
               prejudgment claim of right to possession in an action for  
               unlawful detainer. (Gov. Code Sec. 26721.1.)
                 The fee for serving, executing, or processing a writ of  
               attachment, writ of execution, writ of sale, or order on  
               real estate, and the fee for serving a record owner other  
               than the defendant.  (Gov. Code Sec. 26725.)
                 The fee for preparing and posting the initial notice of  
               personal property sale under a writ of attachment,  
               execution, sale, or order of court. (Gov. Code Sec. 26728.)
                 The fee for making a levy on personal property already  
               in possession of the officer who is holding it under  
               attachment in the same action. (Gov. Code Sec. 26734.)
                 The fee for executing and delivering any other  
               instrument (other than a certificate or deed of sale; deed  
               or certificate of redemption).  (Gov. Code Sec. 26742.)
                 The fee for subpoenaing a witness.  (Gov. Code Sec.  
               26743.)
                 The fee for maintaining custody of property under levy  
               by the use of a keeper for each day custody is maintained  
               after the first day.  (Gov. Code Sec. 26726(b).)
                 The fee for making a not found return on specified  
               documents required to be served, and certifying that the  
               person or property cannot be found at the given address.   
               (Gov. Code Sec. 26738.)

             This bill  , effective January 1, 2011, would increase the fee  
            for keeping and caring for property under a writ of  
                                                                      



          AB 680 (Hall)
          Page 3 of ?



            attachment, execution, possession, or sale from $120 to $140,  
            when employed for any eight-hour period or any part thereof.   
            This bill would permit that increased fee to be charged by any  
            additional sheriff who performs keeping services that are  
            required, and increase the maximum amount a sheriff may  
            receive in a 24-hour period from $240 to $280 (double the fee  
            amount). (Gov. Code Sec. 26726(a).)

             This bill  , effective January 1, 2011, would increase the fee  
            that a keeper receives from $40 to 50, when, pursuant to  
            Section 26738, a levying officer prepares a not-found return.   
            (Gov. Code Sec. 26726(c).)

             This bill  , effective January 1, 2011, would increase the fee  
            for cancellation of service, or execution of any process or  
            notice prior to its completion, from $28 to $36.  (Gov. Code  
            Sec. 26736.)

          2.    Existing law  permits a court to issue a warrant for failure  
            to appear pursuant to a subpoena or failure to appear pursuant  
            to a court order, as an alternative to issuing a warrant for  
            contempt, if certain statutory requirements are met.  (Code  
            Civ. Proc. Sec. 1993.)  Existing law prescribes the fees for  
            processing a warrant pursuant to Section 1993 that must be  
            paid by the moving party.  (Gov. Code Sec. 26744.5.)
           
            This bill  , effective January 1, 2011, would increase those  
            fees as follows:
                 $30 to $35 to receive and process a warrant;
                 $28 to $35 to cancel the service of the warrant;
                 $60 to $75 if, using due diligence, the sheriff is  
               unable to find the person at the address specified; and
                 $75 to $85 to arrest the person.

          3.    Existing law provides that a $15 fee shall be assessed by  
            the sheriff or marshal for certification of correction on each  
            citation that requires inspection for proof of correction, as  
            specified.  (Gov. Code Sec. 26746.1.)

             This bill  , effective January 1, 2011, would increase that fee  
            to $17.

          4.    Existing law  provides that $10 of any fee collected by the  
            sheriff's civil division or marshal for performing specified  
            services must be deposited in a special fund in the county  
            treasury.  (Gov. Code Sec. 26731.)
                                                                      



          AB 680 (Hall)
          Page 4 of ?




             This bill  , effective January 1, 2011, would increase that  
            amount to $15.

          5.    Existing law authorizes the sheriff to charge a $10  
            processing fee for each disbursement of money collected under  
            a writ of attachment, execution, possession, or sale (except  
            child support collections). (Gov. Code Sec. 26746.)

             This bill  would increase that fee to $12.

          6.    Existing law  provides that if a writ is issued to enforce a  
            judgment, a levying officer must, among other things, compute  
            and collect the amount of additional interest accrued on the  
            principal amount of the judgment remaining unsatisfied from  
            the date of issuance of the writ until the date interest  
            ceases to accrue.  Existing law permits the levying officer to  
            adjust the amount of daily interest to reflect partial  
            satisfaction, if the amounts collected periodically do not  
            fully satisfy the money judgment. (Code Civ. Proc. Sec.  
            685.050.)

             This bill  would, instead, require the levying officer to make  
            that adjustment.

          7.    Existing law  requires a levying officer to distribute the  
            proceeds or collection of a money judgment by a writ of  
            execution in order of priority, including to the judgment  
            creditor to: (1) satisfy costs and interest accruing after the  
            issuance of the writ pursuant to which the sale or collection  
            is conducted; and (2) satisfy the amount due on the judgment  
            with costs and interest, as entered on the writ.  (Code Civ.  
            Proc. Sec. 701.810.)

            This bill  would clarify that the distribution of proceeds or  
            collection from a money judgment to a judgment creditor must  
            be in the following order: (1) any costs and interest accruing  
            on the judgment after issuance of the writ, as specified; and  
            (2) the principal amount due on the judgment with costs and  
            interest as entered on the writ.

          8.    Existing law  authorizes a person entitled to a money  
            judgment held by a sheriff to make a demand for that money,  
            and if the sheriff neglects or refuses to pay over to that  
            person the amount owed, the person is authorized to recover  
            the amount owed, 25 percent damages, and interest at a rate of  
                                                                      



          AB 680 (Hall)
          Page 5 of ?



            10 percent per month. (Gov. Code Sec. 26680.)  Those  
            provisions apply to a levying officer if: (1) the officer  
            fails to pay the proceeds or deposit them with the court, as  
            specified; (2) a person entitled to any of the proceeds has  
            filed a written demand for payment with the levying officer;  
            and (3) the levying officer has failed, within 10 days after  
            the demand is filed, to pay the person that filed the demand  
            the proceeds to which the person is entitled.  (Code Civ.  
            Proc. Sec. 701.820.)

             This bill  would authorize a judgment creditor to file an  
            ex-parte application for an order directing the levying  
            officer to show cause why relief should not be granted  
            pursuant to Section 26680 of the Government Code, as  
            specified.

             This bill  would provide that if the court finds the facts  
            alleged in the ex-parte application to be knowingly false, or  
            made in bad faith, the court may award costs and reasonable  
            attorney fees to the levying officer.  This bill would  
            similarly allow the recovery of costs, including reasonable  
            attorney's fees, under Section 26680.

          9.    Existing law  requires the levying officer to promptly  
            distribute the proceeds of a sale or collection to the  
            entitled parties, and authorizes the levying officer, if  
            proceeds are not to be received in one payment, to accumulate  
            proceeds received during a 30 day period and make payment of  
            those proceeds to the entitled parties within 20 days of the  
            end of the 30-day period. (Code Civ. Proc. Sec. 701.820(c).)

             This bill  would require the levying officer, if proceeds are  
            not received in one payment, to make payment of those proceeds  
            to the entitled parties within 10 days of the end of the  
            30-day period.

          10.   Existing law , the Tort Claims Act, provides that a claim  
            for money or damages against the state or a local public  
            entity must be presented in accordance with the terms of the  
            Act.  (Gov. Code Secs. 905, 905.2.)  Existing law provides  
            that thirteen specified claims against local public entities  
            are exempted from the Act, including claims under the Revenue  
            and Taxation Code, claims by public employees regarding salary  
            and benefits, and worker's compensation claims.  (Gov. Code  
            Sect. 905.)

                                                                      



          AB 680 (Hall)
          Page 6 of ?



             This bill  would exempt claims for the recovery of money from a  
            levying officer pursuant to a money judgment under Section  
            26680, as specified, from the Act.

                                        COMMENT
           
          1.   Stated need for the bill  

          According to the author:

            Under current law, a county sheriff's office is authorized to  
            collect various civil fees for serving, executing, and  
            processing required court notices, writs, orders and other  
            services provided by a sheriff's order.

            While the costs associated with these services has increased  
            dramatically in recent years, most of the civil fees have  
            remained stagnant since 2000.  Fuel prices alone have  
            skyrocketed and personnel costs, such as pay, benefits, and  
            other administrative costs have also increased significantly.

          2.   Increase in most of the fees consistent with inflation

           The Los Angeles County Sheriff's Department, sponsor, states  
          that "[b]ased on the increased costs to conduct business, a  
          moderate increase to some of the fees would greatly enhance our  
          ability to continue to provide the same high level of service to  
          the community."  The proposed fee increases would range from  
          five to twenty dollars for the various services provided by  
          county sheriffs and marshals.  

          Many of the proposed fees have not been increased since the  
          passage of AB 1768 (Steinberg, Chapter 629, Statutes of 2000),  
          and generally reflect their present amount adjusted for  
          inflation.  (For reference, the Bureau of Labor Statistics' CPI  
          inflation calculator states that $30 in 2000 is the equivalent  
          of $37.26 today.)  The numerous sections for which a $30 fee  
          would be increased to $35 reflect that change in value due to  
          inflation.  On the other hand, other sections, such as the fee  
          for keepers (those who keep and care for property under a  
          specified writ), were increased between 2001 and 2005.  Those  
          sections, and the date the current fee was implemented, are in  
          the chart below.

           ----------------------------------------------------------------- 
          |Government Code      |Current fee / Date   |Proposed fee         |
                                                                      



          AB 680 (Hall)
          Page 7 of ?



          |Section              |imposed              |                     |
          |---------------------+---------------------+---------------------|
          |26726 - Keeping and  |$120 for an 8 hour   |$140 for an 8 hour   |
          |caring for property  |period, with a $240  |period, with a $280  |
          |                     |maximum in a 24 hour |maximum in a 24 hour |
          |                     |period. (2004)       |period. (2004)       |
          |---------------------+---------------------+---------------------|
          |26738 - Fee for a    |$30 (2003)           |$35                  |
          |not found return     |                     |                     |
          |---------------------+---------------------+---------------------|
          |26744.5 - Fees for   |$30 to receive and   |$35 to receive and   |
          |processing a warrant |process the warrant  |process the warrant  |
          |pursuant to CCP 1993 |$28 to cancel        |$35 to cancel        |
          |                     |service              |service              |
          |                     |$60 if unable to     |$75 if unable to     |
          |                     |find the person at   |find the person at   |
          |                     |the address          |the address          |
          |                     |$75 to arrest the    |$85 to arrest the    |
          |                     |person               |person               |
          |                     |(enacted in 2005)    |                     |
          |---------------------+---------------------+---------------------|
          |26746 - Processing   |$10 (2003)           |$12                  |
          |fee for disbursement |                     |                     |
          |of money             |                     |                     |
           ----------------------------------------------------------------- 

          This bill would provide that all of the above fees would go into  
          effect on January 1, 2011 with the exception of the increase  
          proposed by Section 26746.  That delayed enactment would prevent  
          the imposition of the greater fees at a time when many  
          individuals are already struggling due to decreased income and  
          increased costs.  Despite that delayed enactment, these proposed  
          fee increases do follow several increases in civil filing fees,  
          and present the committee with the fundamental policy choice  
          about whether fees should be used to address a fiscal shortfall  
          in a recession. 

          It should be noted that nothing in this bill would affect the  
          current ability of a litigant to seek a waiver of the above  
          sheriffs' and marshals' fees if he or she cannot afford to pay  
          those fees.  (Gov. Code Sec. 26720.5, 68631; California Rules of  
          Court 3.52, 3.61.)  Given the current economic climate, it is  
          unknown whether the proposed fee increases could increase the  
          number of individuals seeking those waivers.

          3.   From every fee collected, sheriff may keep $15 as of January  
                                                                      



          AB 680 (Hall)
          Page 8 of ?



          1, 2011  

          Current law directs $10 of specified fees collected by the  
          sheriff to a special fund in the county treasury, for the  
          exclusive use of the sheriff's civil division. (Gov. Code Sec.  
          26731.)  These are the fees for service of process, garnishments  
          and levies, writs, keepers, etc that are performed by the  
          sheriff's civil division or marshal.  Section 26731 specifies  
          that 95 percent of this special fund shall be used for equipment  
          deemed necessary by the sheriff or marshal to execute this civil  
          function, and 5 percent shall be used for administering the  
          funds.

          AB 680 would increase this set-aside to $15 as of January 1,  
          2011.

          4.   Provisions relating to collection of funds from judgment  
          debtors  

          The author accepted the following provisions in the Assembly  
          Judiciary Committee to address concerns of the California  
          Association of Collectors (CAC) that some levying officers are  
          not disbursing monies within the existing statutorily specified  
          time periods.  CAC states that the "failure to timely disburse  
          the money delays payment to the judgment creditor, causes  
          additional interest to accrue on the judgment to the detriment  
          of the judgment debtor, and delays the filing of a satisfaction  
          of the judgment." 




            a.   Ability for a judgment creditor to file an ex-parte  
            application  

            Existing law requires a levying officer to distribute the  
            proceeds of a sale, or collection, to the persons entitled to  
            them within 30 days after they are received.  (Code Civ. Proc.  
            Sec. 701.820.)  If the levying officer (sheriff) fails to pay  
            the proceeds in a timely manner, the person entitled to the  
            proceeds has filed a written demand for payment, and the  
            levying officer fails to pay within 10 days after that demand,  
            the provisions of Section 26680 of the Government Code apply.   
            That section provides that if a sheriff neglects or refuses to  
            pay a person entitled to money, that person may recover that  
            amount and 25 percent damages and interest at the rate of 10  
                                                                      



          AB 680 (Hall)
          Page 9 of ?



            percent per month from the time of demand.

            In addition to clarifying that the demand may be filed in  
            person, or by certified mail, this bill would allow a judgment  
            creditor to file an ex-parte application for an order  
            directing the levying officer to show cause why relief should  
            not be granted pursuant to Section 26680 of the Government  
            Code.  That order must name a date and time for the levying  
            officer to appear not less than 20 and not more than 30 days  
            after the filing of the application.  

            This bill would also specify the contents of the ex-parte  
            application and provide that if a court finds those facts to  
            be knowingly false, or made in bad faith, the court may award  
            costs and reasonable attorney's fees to the levying officer.   
            Although attorney's fees are generally awarded to facilitate  
            access to the court system, they are sometimes awarded to a  
            defendant in the case of a frivolous or unwarranted action.   
            In this case, the proposed attorney's fees serve to both deter  
            judgment creditors from making false claims and to compensate  
            levying officers for their time spent defending those claims.   
            (This bill would also amend Section 26680 to permit the  
            recovery of costs and reasonable attorney's fees when the  
            sheriff has failed to pay over money entitled to the person,  
            as specified.) 

            b.   Exemption from the Tort Claims Act  

            Under the requirements of the Tort Claims Act, a claim must be  
            filed with a government entity to describe the person's basis  
            for seeking money or damages.  (Gov. Code Sec. 910.)  Claims  
            must be presented within six months or one year of the accrual  
            of the cause of action, as specified.  (Gov. Code  Sec.   
            911.2.) Upon timely receipt of a claim, the entity must grant  
            or deny the claim.  (Gov. Code  Sec. 911.6.)  Where compliance  
            with the Tort Claims Act is required, no suit may be brought  
            against the public entity for money or damages until the  
            entity has acted on the claim filed with the entity.  (Gov.  
            Code  Sec. 945.4.)  

            Under existing law, there are thirteen specified claims  
            against local public entities that are exempted from the Act.   
            This bill would add claims for the recovery of a money  
            judgment, as described in Comment 4(a).  That allowance would  
            ensure that a judgment creditor could bring their claim  
            pursuant to the proposed ex-parte process without having to  
                                                                      



          AB 680 (Hall)
          Page 10 of ?



            first submit their claim under the Tort Claims Act.

           Support  :  California Association of Legal Support Professionals;  
          Association for Los Angeles Deputy Sheriffs; Sacramento County  
          Sheriff's Department; Perry L. Reniff, Sheriff of Butte County;  
          Tom Bosenko, Sheriff of Shasta County; Keith Royal, Sheriff of  
          Nevada County; Gregory Ahern, Sheriff of Alameda County; Brian  
          Muller, Sheriff of Mariposa County; Warren Rupe, Sheriff of  
          Contra Costa County; Peace Officers Research Association of  
          California (PORAC); California State Association of Counties  
          (CSAC); Regional Council of Rural Counties (RCRC); California  
          Correctional Supervisors Organization (CCSO); Bill Lutze,  
          Sheriff of Inyo County; Office of the Sheriff, San Bernardino  
          County; Phil Wowak, Acting Sheriff of Santa Cruz County; Santa  
          Clara County Board of Supervisors; Riverside Sheriffs'  
          Association; Jeff Neves, Sheriff of El Dorado County 

           Opposition  : None Known

                                        HISTORY
           
           Source  : Los Angeles County Sheriff's Department

           Related Pending Legislation  :  None Known

           Prior Legislation  :

          AB 1768 (Steinbeg, Chapter 629, Statutes of 2000), revised and  
          increased prescribed fees charged for serving, executing and  
          processing required court notes, writs, orders, and other  
          services provided by sheriffs and marshals.

          AB 394 (Montanez, Chapter 888, Statutes of 2003), adjusted and  
          designated the fees charged for certain civil process functions  
          provided by sheriffs.

          AB 2137 (Steinberg, Chapter 327, Statutes of 2004), increased  
           various law enforcement fees.

          AB 1150 (La Suer, Chapter 474, Statutes of 2005), enacted a  
          series of requirements to govern the issuance and execution of  
          civil arrest warrants for failure to appear pursuant to a  
          subpoena or a court order, and established that the sheriff may  
          obtain specified fees for the processing and execution of a  
          warrant.

                                                                      



          AB 680 (Hall)
          Page 11 of ?



           Prior Vote  :

          Assembly Judiciary Committee (Ayes 8, Noes 2)
          Assembly Floor (Ayes 64, Noes 13)

                                   **************