BILL ANALYSIS
AB 680
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 680 (Hall)
As Amended June 22, 2009
Majority vote
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|ASSEMBLY: |64-13|(May 28, 2009) |SENATE: |26-9 |(September 9, |
| | | | | |2009) |
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Original Committee Reference: JUD.
SUMMARY : Increases, by amounts ranging from $5 to $20, various
fees for serving, executing, and processing required court
notices, writs, orders, and other services provided by county
sheriffs and marshals, generally effective 2011. Specifically,
this bill :
1)Increases to $35 the current amount of $30 for the following
fees:
a) The fee for serving or executing any process or notice
required by law or the litigants to be served;
b) The fee for service of a summons, complaint, and
prejudgment claim of right to possession, in an action for
unlawful detainer;
c) The fee for serving, executing, or processing a writ of
attachment, writ of execution, writ of sale, or order on
real estate, as to the initial service or posting of a
continuous unbroken parcel or tract, and the fee for
serving a record owner other than the defendant;
d) The fee for preparing and posting the initial notice of
personal property sale under a writ of attachment,
execution, or sale or order of court;
e) 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;
f) The fee for executing and delivering any other
instrument (other than a certificate or deed of sale; deed
or certificate of redemption);
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g) The fee for subpoenaing a witness;
h) 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; and,
i) The fee for making a not found return on specified
documents required to be served, certifying that the person
or property cannot be found at the given address.
2)Increases to $140 the current $120 fee for keeping and caring
for property under a writ of attachment, execution,
possession, or sale when the sheriff is necessarily employed
for any eight-hour period or any part thereof. Further
provides that the same fee may be collected for any additional
sheriff who performs keeping services that are required, but
prohibits any individual sheriff from receiving more than $280
(double the fee amount) during any 24-hour period when so
employed as a keeper.
3)Provides that the sheriff keeping or caring for property under
a writ of attachment, execution, possession, or sale shall
receive $50 when a levying officer prepares a not-found return
on specified process or notice required to be served.
4)Increases to $15, from a current amount of $10, the amount of
any fee collected by the sheriff's civil division or marshal
for performing specified services that must be deposited in a
special fund in the county treasury.
5)Increases to $35 the current $28 fee for cancellation of
service or execution of any process or notice prior to its
completion.
6)Increases the fees paid by the moving party for processing a
warrant for the arrest of a witness who fails to appear
pursuant to a subpoena or a court order, as provided:
a) An increase to $35, from the current $30 fee, to receive
and process the warrant;
b) An increase to $35, from the current $28 fee, to cancel
the service of the warrant;
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c) An increase to $75, from the current $60 fee, if the
sheriff, using due diligence, is unable to find the person
at the address specified on the document to be served; and,
d) An increase to $85, from the current $75 fee, to arrest
the person.
7)Increases to $12 the current processing fee of $10 that is
assessed for each disbursement of money collected under a writ
of attachment, execution, possession, or sale, subject to
existing guidelines for collection and handling.
8)Increases to $17 the current $15 fee that is assessed by the
sheriff or marshal for certification of correctable violations
of the Vehicle Code on each citation that requires inspection
for proof of correction.
9)Provides that the operative date of all of these proposed fee
increases, with the exception of the processing fee that is
assessed for each disbursement of money collected (Section 8
of the bill), will be January 1, 2011.
10) Requires the levying officer, in the case of a levy under
a writ to enforce a judgment, to adjust the amount of daily
interest entered on the writ to reflect the partial
satisfactions where such amounts collected do not fully
satisfy the money judgment.
11) Requires the levying officer, in the case where proceeds
after a sale or collection are received in more than one
payment during a 30-day period, to pay the persons entitled to
the proceeds not later than 10 days after the expiration of
the 30-day period.
12) Authorizes a judgment creditor to file an ex-parte
application for an order directing the levying officer who to
show cause why relief should not be granted as provided in
Government Code Section 26680, when the levying officer has
failed to pay the judgment creditor proceeds to which he is
entitled within 10 days of written demand.
13) Provides that if the levying officer pays all proceeds to
the judgment creditor no later than 10 days prior to the
hearing specified by the order, the judgment creditor shall
notify the court of full payment no later than three days
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prior to the hearing and the court shall withdraw the order
and vacate the hearing.
14) Provides that if the court finds the facts alleged in the
ex-parte application filed by the judgment creditor to be
knowingly false or made in bad faith, the court may award
costs and reasonable attorney fees to the levying officer.
15) Exempts claims made against a levying officer for failure
to promptly pay proceeds from a sale or collection to the
person entitled to those proceeds from the requirement that a
claim for money or damages be filed with the local public
entity.
16) Provides that, if on demand the sheriff neglects or
refuses to pay over to the person entitled any money which
comes into his hands by virtue of his office, after deducting
all legal fees, the person may recover costs, including
reasonable attorney fees, in addition to the amount thereof,
25% damages, and interest at the rate of 10% per month from
the time of demand.
The Senate amendments remove provisions repealing the $50 fee
for serving or executing a bench warrant arising from an order
of appearance, as specified by Government Code Section 26744,
and make other technical changes.
AS PASSED BY THE ASSEMBLY , this bill was substantially similar
to the version approved by the Senate.
FISCAL EFFECT : None
COMMENTS : This bill seeks to increase, by amounts ranging from
$5 to $20, various fees for services provided by county sheriffs
and marshals. The increases proposed by this bill apply to fees
that a county sheriff's office is authorized to collect for
serving, executing, and processing required court notices,
writs, orders, and other process, among other things. In order
to address opposition concerns, this bill clarifies certain
procedures followed by sheriffs in collecting funds from
judgment debtors and paying the proceeds to judgment creditors
entitled to these funds.
A review of the different fees that this bill proposes to
increase shows that many of the fees have not been increased
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since passage of AB 1768 (Steinberg), Chapter 629, Statutes of
2000. According to the Consumer Price Index (CPI), a $30 fee in
2000 would equal $37.06 at present, adjusting for inflation. In
that light, the set of fee increases proposed here appear to be
reasonably in line with inflation as measured by the CPI.
Nevertheless, this bill must be viewed in context with other fee
increases for court users - most notably those sought by the
courts for first-paper civil filings, both by the Uniform Civil
Fees measure in 2005 (AB 145 (Budget), Chapter 75) which
increased these fees significantly in some instances, and then
again most recently last year by SB 1407 (Perata), Chapter 311,
Statutes of 2008, which further increased these fees by $25 to
$30, along with increases in the fees for appeals, applications
to appear pro hac vice (for out-of-state lawyers), as well as
much larger increases for probate filings. SB 1407 also imposed
an assessment of $30 on every felony or misdemeanor criminal
conviction and $35 for every criminal infraction, including
traffic offenses, but not including parking offenses, and
increased the fee applied to corrections of violations of
license, registration or mechanical requirements of the Vehicle
Code and raised the amount when a parking penalty, fine, or
forfeiture is imposed, as well as the fee for a person ordered
to traffic violator school for a moving violation. In light of
the fee increase for these other worthy purposes, and to provide
for an orderly schedule for the future, the effective date of
most of the increases proposed in this bill will be delayed one
year until January 1, 2011.
Under Government Code Section 26720.5, in any case in which the
litigant is permitted by the court to proceed in forma pauperis
under rules adopted by the Judicial Council pursuant to
Government Code Section 68631, the fees identified by this bill
shall be waived. In other words, under California Rules of
Court 3.52 and 3.61, payment of the sheriff's and marshal's fees
in question must be waived for a litigant who can demonstrate,
under existing standards of eligibility in the Government Code,
that he or she cannot afford to pay such fees.
This bill does not affect the right of a person to petition the
court for a fee waiver to be exempt from paying the fees,
although any broad set of fee increases may lead to a
corresponding increase in the number of people petitioning the
court for a fee waiver because they cannot afford the increased
fee amounts.
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Analysis Prepared by : Kevin Baker and Anthony Lew / JUD. /
(916) 319-2334
FN: 0001890