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)
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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
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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.)
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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
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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.)
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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.
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|Government Code |Current fee / Date |Proposed fee |
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|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 | | |
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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
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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
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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
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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.
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Prior Vote :
Assembly Judiciary Committee (Ayes 8, Noes 2)
Assembly Floor (Ayes 64, Noes 13)
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