BILL NUMBER: AB 2394 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Brownley
FEBRUARY 19, 2010
An act to amend Sections 262, 262.1, 262.2, 262.4, 684.130,
687.010, 687.040, 699.060, 699.510, 699.520, 699.530, 699.560,
701.030, 701.660, 706.026, 706.108, 712.020, 712.030, and 1993 of, to
add Chapter 2 (commencing with Section 263) to Title 4 of Part 1 of,
and to repeal Section 706.033 of, the Code of Civil Procedure,
relating to civil procedure.
LEGISLATIVE COUNSEL'S DIGEST
AB 2394, as introduced, Brownley. Civil process and notices:
ministerial officers.
(1) Existing law provides for the service of process and notices,
including a writ or summons issued in the course of judicial
proceedings, by the sheriff or other ministerial officer. Certain
documents and records relating to the service of process and notices,
including any direction or authority by a party or his or her
attorney to a sheriff in respect to the execution or return of
process and instructions from a judgment creditor to a levying
officer, are required to be in writing, as specified.
This bill would generally authorize a levying officer, as defined,
to electronically transmit and receive documents and records
relating to service of process and notices, including any writ,
order, notice, or other paper relating to enforcement of judgments.
The bill would require specified information to be included with the
electronic transmission, and would require a levying officer to
exclude or redact certain identifiers from any document or record
made available to the public. The bill would provide additional
safeguards and procedures relating to the electronic transmission of
documents and records, and make other conforming changes.
(2) Existing law requires a writ of execution, possession, or
sale, and written instructions from a judgment creditor to a levying
officer relating to the enforcement of a judgment, to include
specified information.
This bill would require those process documents to specify certain
additional information, including the type of legal entity of the
judgment debtor, if other than a natural person. The bill also would
require a writ of execution, possession, or sale to include a
statement indicating whether the case is limited or unlimited.
(3) Existing law specifies procedures for issuance and return of,
and a 180-day-expiration period for, postjudgment writs of execution.
Among other things, the levying officer is required to return the
writ to the court, together with a report of his or her actions and
an accounting of amounts collected and costs incurred, within
specified time periods.
This bill would revise and recast these provisions by, among other
things, deleting the 180-day-expiration period and, instead,
authorizing a levying officer to enforce a writ in his or her
possession. The bill would authorize the levying officer to file with
the court a return of his or her actions, amounts collected, and
costs incurred, in lieu of returning the paper version of an original
writ of execution. The return would be required to be filed, and the
writ would expire, within those specified time periods. The bill
also would require the levying officer to file with the court an
accounting of his or her actions upon the request of the creditor.
The bill would make other conforming changes.
(4) Existing law requires an earnings withholding order to be
served by personal delivery or by registered or certified mail.
This bill would authorize a levying officer to electronically
serve a garnishment levy, including an earnings withholding order, as
specified.
(5) The Documentary Transfer Tax Act authorizes the board of
supervisors of a county or city and county to impose a tax upon
specified instruments that transfer specified interests in real
property.
Existing law requires the levying officer conducting the sale of
real property that has been levied upon, when the purchaser pays the
amount due, to execute and deliver a deed of sale to the purchaser
and record a duplicate of the deed of sale in the office of the
county recorder.
This bill would clarify that the purchaser of levied upon real
property is responsible for paying the documentary transfer tax.
(6) Existing law establishes procedures, as specified, as an
alternative to issuing a warrant for contempt, pursuant to which a
court may issue an arrest warrant for a witness who failed to appear
pursuant to a subpoena or a person who failed to appear pursuant to a
court order. Existing law specifies the contents of the arrest
warrant, including the signature of the magistrate issuing the
warrant.
This bill, instead, would require the arrest warrant to include
the signature or name of the judicial officer issuing the warrant.
(7) By increasing the duties of local ministerial officers
relating to the service of process and notice, this bill would impose
a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 262 of the Code of Civil Procedure is amended
to read:
262. No The direction or authority
by of a party or his or her
attorney to a sheriff, in respect to the execution of process or
return thereof, or to any related act or omission
relating thereto , is not available to
discharge or excuse the sheriff from a liability for neglect or
misconduct, unless it is contained in a writing , signed
by the attorney of the party , including the signature
or name of the attorney of the party , or by the party, if he
or she has no attorney. Documents or records
described by this section may be transmitted
electronically pursuant to Chapter 2 (commencing with Section 263).
SEC. 2. Section 262.1 of the Code of Civil Procedure is amended to
read:
262.1. A sheriff or other ministerial officer is justified in the
execution of, and shall execute, all process and orders regular on
their face and issued by competent authority, whatever may be the
defect in the proceedings upon which they were issued. Documents
or records described by this section may be transmitted
electronically pursuant to Chapter 2 (commencing with Section 263).
SEC. 3. Section 262.2 of the Code of Civil Procedure is amended to
read:
262.2. Except as otherwise provided, the officer executing
process shall, so long as he or she retains the original
process, show it to any interested person
interested therein , upon request. He
The officer shall show it
the process , with all papers attached, at his or her
office whenever the office is open for business.
Documents or records described by this section may be
transmitted electronically pursuant to Chapter 2 (commencing with
Section 263).
SEC. 4. Section 262.4 of the Code of Civil Procedure is amended to
read:
262.4. When If the sheriff sells
real estate, under and by virtue of an execution or order of court,
he the sheriff, or his or her
successors in office , shall execute and deliver to
the purchaser or purchasers all such deeds and
conveyances as are required by law and necessary
for the purpose, and such those deeds
and conveyances shall be as valid in law as if
they had been executed by the sheriff who made the sale.
Documents or records described by this section may be
transmitted electronically pursuant to Chapter 2 (commencing with
Section 263).
SEC. 5. Chapter 2 (commencing with Section 263) is added to Title
4 of Part 1 of the Code of Civil Procedure, to read:
CHAPTER 2. LEVYING OFFICER ELECTRONIC TRANSACTIONS ACT
263. (a) This chapter may be cited as the Levying Officer
Electronic Transactions Act.
(b) The Legislature finds and declares that modern technologies
offer alternatives to paper-based systems and provide the means to
create, store, retrieve, and transmit records and documents in
electronic form resulting in increased efficiency, taxpayer savings,
and improved public access to levying officers. It is the intent of
the Legislature in enacting this act to accommodate current and
future technologies based on industry standards.
263.1. As used in this chapter, the following terms have the
following definitions:
(a) "Document" includes, but is not limited to, instructions,
release, notice to financial institution, earnings withholding order,
modification of an earnings withholding order, garnishment, writ,
subpoena, court order, warrant of arrest, or other judicial process
electronically created as an original document or as a copy of a
paper document.
(b) "Electronic" means relating to technology having electrical,
digital, magnetic, wireless, optical, electromagnetic, or similar
capabilities.
(c) "Electronic record" means a document or record created,
generated, sent, communicated, received, or stored by electronic
means.
(d) "Electronic signature" means an electronic sound, symbol, or
process attached to, or logically associated with, an electronic
record and executed or adopted by a person with the intent to sign
the electronic record.
(e) "Fax" is an abbreviation for "facsimile" and refers, as
indicated by the context, to a facsimile transmission or to a
document so transmitted.
(f) "Fax machine" means a machine that can send and receive a
facsimile transmission using industry standards and includes a fax
modem connected to a computer.
(g) "Fax transmission" means the electronic transmission and
reconstruction of a document that prints a duplicate of the original
document at the receiving end. "Fax transmission" includes, but is
not limited to, the use of a facsimile machine or the process of
integrating an electronic fax software application to automate the
sending and receiving of a faxed document as an electronic record, in
portable data format, by e-mail or similar electronic means.
(h) "Feasible" means a levying officer is required to utilize an
information processing system only to the extent that the levying
officer has the resources and technological capacity to do so.
(i) "Information processing system" means an electronic system for
creating, generating, sending, receiving, storing, displaying,
retrieving, or processing information.
(j) "Instructions" means a written request to a levying officer to
serve process, perform a levy, execute an arrest warrant, or perform
some other act.
(k) "Legal entity" means the legal form of an artificial person
and includes a corporation, defunct corporation, unincorporated
association, partnership, public agency, limited liability company,
joint stock company or association, and limited liability
partnership.
(l) "Levying officer" means the sheriff or marshal acting as a
ministerial officer pursuant to Section 26608 of the Government Code.
(m) "Person" means a natural or artificial person.
(n) "Public access" means the ability of a levying officer to
receive and transmit records or documents in electronic form to and
from the public by means of an information processing system that is
based on industry standards or is in the public domain.
(o) "Record" means information that is inscribed on a tangible
medium, or that is stored in an electronic or other medium and is
retrievable in perceivable form.
(p) "Release" means a written instruction to a levying officer to
release property under levy.
(q) "Technical problem" means the inability of the levying officer
to receive an electronic transmission during regular business hours
on a particular court day.
(r) "Transaction" means an action or set of actions occurring
between two or more persons relating to the conduct of business,
commercial, or governmental affairs.
(s) "Transmission record" means the electronic record or document
printed by the sending fax machine, stating the telephone number of
the receiving fax machine, the number of pages sent, the transmission
time and date, and an indication of any errors in transmission.
263.2. (a) A levying officer may utilize an information
processing system to create, generate, send, receive, store, display,
retrieve, or process information, electronic records, and documents
when feasible and based on industry standards.
(b) If a technical problem prevents the levying officer from
receiving an electronic transmission during regular business hours on
a particular court day, and the electronic sender demonstrates an
attempt to electronically transmit the document on that day, the
levying officer may deem the document or record as filed on that day.
263.3. (a) A levying officer may process an electronic record or
document transmitted by a facsimile machine in the same manner as the
paper record or document upon which the electronic record or
document is based.
(b) A facsimile cover sheet shall accompany the faxed record or
document and include all of the following information:
(1) The name of the sender.
(2) The fax number of the sender.
(3) The name of the levying officer.
(4) The fax number of the levying officer.
(5) A description of the record or document, including its name,
if any, and the number of pages.
(c) The person faxing the record or document shall do all of the
following:
(1) Retain the paper version of the record or document.
(2) Print or otherwise retain a transmission record of the fax
transmission.
(3) Deliver the paper version of the record, document, or
transmission record to the levying officer within five days after a
request to do so has been mailed to the sender by the levying
officer.
(d) The levying officer shall retain the facsimile cover sheet
together with the faxed record or document.
(e) The levying officer may electronically copy and store the
printed cover sheet, record, or document as an electronic record.
(f) The fax is deemed to be received by the levying officer at the
time of transmission if both of the following apply:
(1) The transmission is made between 8 a.m. and 4 p.m., inclusive,
on a day other than Saturday, Sunday, or a court holiday.
(2) The levying officer does not receive an electronic reply
indicating the transaction was unsuccessful.
(g) The fax is deemed to be received by the levying officer on the
next court day after the transmission if both of the following
apply:
(1) The transmission is made after 4 p.m., or on Saturday, Sunday,
or a court holiday.
(2) The levying officer does not receive an electronic reply
indicating the transaction was unsuccessful.
263.4. (a) A levying officer may print or process an electronic
record in the place of, and in the same manner as, the paper record
or document upon which the electronic record is based.
(b) An electronic record sent to a levying officer shall be
accompanied with all of the following information:
(1) The name of the sender.
(2) The electronic address of the sender.
(3) The name of the levying officer.
(4) The electronic address or fax number of the levying officer.
(c) The person transmitting the electronic record shall do both of
the following:
(1) Retain the paper version of the record or document.
(2) Deliver the paper version of the record or document to the
levying officer within five days after a request to do so has been
mailed to the sender by the levying officer.
(d) An electronic signature is not required for any electronic
record transmitted to or from the levying officer.
263.5. (a) In addition to any other law, a levying officer may
electronically serve a garnishment levy, including an earnings
withholding order, if all of the following apply:
(1) The garnishee provides the levying officer with an electronic
address or fax number at which the garnishee agrees to accept
service.
(2) The garnishee is located within the county of the levying
officer.
(3) The garnishee has not notified the levying officer that the
garnishee will no longer accept service electronically.
(4) The levying officer retains an electronic record of the
transaction.
(b) Electronic service is deemed complete at the time of
transmission if both of the following apply:
(1) The transmission is made between 8 a.m. and 4 p.m., inclusive,
on a day other than Saturday, Sunday, or a court holiday.
(2) The levying officer does not receive an electronic reply
indicating the transaction was unsuccessful.
(c) Electronic service is deemed complete on the next court day
after the transmission if both of the following apply:
(1) The transmission is made after 4 p.m., or on Saturday, Sunday,
or a court holiday.
(2) The levying officer does not receive an electronic reply
indicating the transaction was unsuccessful.
(d) A garnishee may electronically transmit a memorandum of
garnishee, employer's return, or other document, in a portable data
format, to the levying officer at the electronic address or fax
number provided by the levying officer.
(e) The levying officer may electronically transmit additional
orders and documents, including instructions to release some or all
funds under levy to the garnishee.
(f) An electronic signature is not required for any document
electronically transmitted to or from the levying officer.
(g) The software for reading electronic documents shall be in the
public domain or generally available at a reasonable cost.
263.6. (a) In lieu of returning to court the paper version of an
original writ of execution, the levying officer may retain the
original writ or an electronic copy of the original writ and file
only a return of the levying officer's actions.
(b) If the original writ is not returned to court as provided in
subdivision (a), the levying officer shall retain, for not less than
two years after the levying officer's return is filed with court,
each of the following, as applicable:
(1) The original paper writ or digital image of the writ.
(2) The memorandum of garnishee.
(3) The employer's return.
(4) An inventory of the levied property.
(c) A creditor seeking the issuance of a writ directed to another
county may direct the levying officer to file an accounting of the
levying officer's actions with the court.
(1) The filing of the accounting described in this subdivision
does not constitute a return of the writ.
(2) The accounting shall indicate that the levying officer is in
possession of an active writ.
263.7. (a) A levying officer shall exclude or redact the
following identifiers from any record or document made available to
the public:
(1) Social security number.
(2) Financial account number.
(b) If an identifier is redacted, only the last four digits of the
number may be used.
(c) A levying officer also shall exclude or redact the identifiers
listed in subdivision (a) from any writ return filed with the court.
(d) The term "public" does not include the creditor, debtor,
garnishee, or third-party claimant.
(e) The levying officer shall not be liable for inadvertently
failing to exclude or redact an identifier after making a reasonable
effort to do so.
SEC. 6. Section 684.130 of the Code of Civil Procedure is amended
to read:
684.130. (a) If the levying officer is required by any
provision of this title to serve any writ, order, notice,
or other paper on any person, the judgment creditor shall include in
the instructions to the levying officer the correct name and address
of the person. The judgment creditor shall use reasonable diligence
to ascertain the correct name and address of the person.
(b) Unless the levying officer has actual knowledge that the name
or address included in the instructions is incorrect, the levying
officer shall rely on the instructions in serving the writ, order,
notice, or other paper on the person.
(c) Documents or records described by this section may be
transmitted electronically pursuant to Chapter 2 (commencing with
Section 263) of Title 4 of Part 1.
SEC. 7. Section 687.010 of the Code of Civil Procedure is amended
to read:
687.010. (a) The judgment creditor shall give the levying officer
instructions in writing. The instructions shall be signed
by include the signature or name of the judgment
creditor's attorney of record or, if the judgment creditor does not
have an attorney of record, by the judgment creditor. The
instructions shall contain the information needed or requested by the
levying officer to comply with the provisions of
this title, including but not limited to:
(1) An adequate description of any property to be levied upon.
(2) A statement whether the property is a dwelling.
(3) If the property is a dwelling, whether it is real or personal
property.
(4) The name of the judgment debtor. If the judgment debtor is
other than a natural person, the type of legal entity shall be
stated.
(b) Subject to subdivision (c), the levying officer shall act in
accordance with the written instructions to the extent the actions
are taken in conformance with the provisions of this title.
(c) Except to the extent the levying officer has actual knowledge
that the information is incorrect, the levying officer may rely on
any information contained in the written instructions.
(d) Documents or records described by this section may be
transmitted electronically pursuant to Chapter 2 (commencing with
Section 263) of Title 4 of Part 1.
SEC. 8. Section 687.040 of the Code of Civil Procedure is amended
to read:
687.040. (a) The levying officer or registered process server is
not liable for actions taken in conformance with the
provisions of this title, including actions taken in
conformance with the provisions of this title in
reliance on information contained in the written instructions of the
judgment creditor, or in reliance on information provided to the
levying officer by a registered process server pursuant to
subdivision (d) of Section 699.080 or ,
subdivision (e) of Section 706.101 or ,
subdivision (b) of Section 715.040 , or any
other provision, except to the extent the levying officer or
registered process server has actual knowledge that the information
is incorrect. Nothing in this subdivision limits any liability the
judgment creditor may have if the levying officer or registered
process server acts on the basis of incorrect information given in
the written instructions.
(b) Unless the levying officer is negligent in the care or
handling of the property, the levying officer is not liable to either
the judgment debtor or the judgment creditor for loss by fire,
theft, injury, or damage of any kind to personal property while (1)
in the possession of the levying officer , either in a
warehouse or other storage place or in the custody of a keeper ,
or (2) in transit to or from a warehouse or other storage
place.
(c) Documents or records described by this section may be
transmitted electronically pursuant to Chapter 2 (commencing with
Section 263) of Title 4 of Part 1.
SEC. 9. Section 699.060 of the Code of Civil Procedure is amended
to read:
699.060. (a) The levying officer shall release property levied
upon when the levying officer receives a written direction to release
the property from the judgment creditor's attorney of record or, if
the judgment creditor does not have an attorney of record, from the
judgment creditor, or when the levying officer receives a certified
copy of a court order for release , or when otherwise
required to release the property. The release shall include the
signature or name of the attorney or judgment creditor issuing the
release. The release extinguishes any execution lien or
attachment lien in favor of the judgment creditor on the property
released.
(b) If the property to be released has been taken into custody
under the levy, it shall be released to the person from whom it was
taken unless otherwise ordered by the court. If the person does not
claim the property to be released, the levying officer shall retain
custody of the property and shall serve on such
the person a notice of where possession of the property
may be obtained. Service shall be made personally or by mail. If the
person does not claim the property within 30 days after the notice is
served, the levying officer shall sell the property (other
than cash which does not have a value exceeding its face value)
in the manner provided by Article 6 (commencing with
Section 701.510) , other than cash, which does not have a value
exceeding its face value . The levying officer shall deposit
the proceeds of sale and cash, after first deducting the levying
officer's costs, with the county treasurer of the county where the
property is located, payable to the order of the person. If the
amount deposited is not claimed by the person, or the legal
representative of the person, within five years after the deposit is
made , by making application to the treasurer or
other official designated by the county, it shall be paid into the
general fund of the county.
(c) If the property to be released has not been taken into custody
under the levy, the levying officer shall release the property by
issuing a written notice of release and serving it on the person who
was served with a copy of the writ and a notice of levy to create the
lien. Service shall be made personally or by mail.
(d) If the property to be released was levied upon by recording or
filing a copy of the writ and a notice of levy, the levying officer
shall record or file a written notice of release in the same office.
(e) The levying officer is not liable for releasing property in
accordance with this section nor is any other person liable for
acting in conformity with the release.
(f) Documents or records described by this section may be
transmitted electronically pursuant to Chapter 2 (commencing with
Section 263) of Title 4 of Part 1.
SEC. 10. Section 699.510 of the Code of Civil Procedure is amended
to read:
699.510. (a) Subject to subdivision (b), after entry of a money
judgment, a writ of execution shall be issued by the clerk of the
court , upon application of the judgment creditor ,
and shall be directed to the levying officer in the county
where the levy is to be made and to any registered process server.
The clerk of the court shall give priority to the application for,
and issuance of, writs of execution on orders or judgments for child
support and spousal support. A separate writ shall be issued for each
county where a levy is to be made. Writs may be issued successively
until the money judgment is satisfied, except that a new writ may not
be issued for a county until the expiration of 180 days
after the issuance of a prior writ for that county unless
the prior writ is first returned.
(b) If the judgment creditor seeks a writ of execution to enforce
a judgment made, entered, or enforceable pursuant to the Family Code,
in addition to the requirements of this article, the judgment
creditor shall satisfy the requirements of any applicable provisions
of the Family Code.
(c) (1) The writ of execution shall be issued in the name of the
judgment debtor as listed on the judgment and may
shall include the additional name or names , and the
type of legal entity, by which the judgment debtor is known
, as set forth in the affidavit of identity, as defined in
Section 680.135, filed by the judgment creditor with the application
for issuance of the writ of execution. Prior to the clerk of the
court issuing a writ of execution containing any additional name or
names by which the judgment debtor is known that are not listed on
the judgment, the court shall approve the affidavit of identity. If
the court determines, without a hearing or a notice, that the
affidavit of identity states sufficient facts upon which the judgment
creditor has identified the additional names of the judgment debtor,
the court shall authorize the issuance of the writ of execution with
the additional name or names.
(2) In any case where the writ of execution lists any name other
than that listed on the judgment, the person in possession or control
of the levied property, if other than the judgment debtor, shall not
pay to the levying officer the amount or deliver the property being
levied upon until being notified to do so by the levying officer. The
levying officer may not require the person, if other than the
judgment debtor, in possession or control of the levied property to
pay the amount or deliver the property levied upon until the
expiration of 15 days after service of notice of levy.
(3) If a person who is not the judgment debtor has property
erroneously subject to an enforcement of judgment proceeding based
upon an affidavit of identity, the person shall be entitled to the
recovery of reasonable attorney's fees and costs from the judgment
creditor incurred in releasing the person's property from a writ of
execution, in addition to any other damages or penalties to which an
aggrieved person may be entitled to by law, including the
provisions of Division 4 (commencing with Section 720.010).
SEC. 11. Section 699.520 of the Code of Civil Procedure is amended
to read:
699.520. The writ of execution shall require the levying officer
to whom it is directed to enforce the money judgment and shall
include the following information:
(a) The date of issuance of the writ.
(b) The title of the court where the judgment is entered and the
cause and number of the action.
(c) The name and address of the judgment creditor and the name and
last known address of the judgment debtor. If the judgment
debtor is other than a natural perso n, the type of legal
entity shall be stated.
(d) The date of the entry of the judgment and of any subsequent
renewals and where entered in the records of the court.
(e) The total amount of the money judgment as entered or renewed,
together with costs thereafter added to the judgment pursuant to
Section 685.090 and the accrued interest on the judgment from the
date of entry or renewal of the judgment to the date of issuance of
the writ, reduced by any partial satisfactions and by any amounts no
longer enforceable.
(f) The amount required to satisfy the money judgment on the date
the writ is issued.
(g) The amount of interest accruing daily on the principal amount
of the judgment from the date the writ is issued.
(h) Whether any person has requested notice of sale under the
judgment and, if so, the name and mailing address of such
that person.
(i) The sum of the fees and costs added to the judgment pursuant
to Section 6103.5 or 68511.3 of the Government Code , and
which is in addition to the amount owing to the judgment creditor on
the judgment.
(j) Whether the writ of execution includes any additional names of
the judgment debtor pursuant to an affidavit of identity, as defined
in Section 680.135.
(k) A statement indicating whether the case is limited or
unlimited.
SEC. 12. Section 699.530 of the Code of Civil Procedure is amended
to read:
699.530. (a) Upon delivery of the writ of execution to the
levying officer to whom the writ is directed, together with the
written instructions of the judgment creditor, the levying officer
shall execute the writ in the manner prescribed by law.
(b) The levying officer may shall
not levy upon , sell, or file a lien on any property
under the writ after the expiration of 180 days from the
date the writ was issued
unless the writ is in the levying officer's possession
.
(c) Documents or records described by this section may be
transmitted electronically pursuant to Chapter 2 (commencing with
Section 263) of Title 4 of Part 1.
SEC. 13. Section 699.560 of the Code of Civil Procedure is amended
to read:
699.560. (a) Except as provided in subdivisions (b) and (c),
the writ expires, and the levying officer to whom the writ of
execution is delivered shall return the writ to the court,
together with a report of or store the writ as
provided in Section 263.6, and file a return with the court reporting
the levying officer's actions and an accounting of
, amounts collected , and costs
incurred, at the earliest of the following times:
(1) Two years from the date of issuance of the writ , unless
paragraph (1) of subdivision (a) of Section 706.022 is applicable
.
(2) Promptly after all of the duties under the writ are performed.
(3) When return is requested in writing by the judgment creditor.
(4) If no levy takes place under the writ within 180 days after
its issuance, promptly after the expiration of the 180-day period.
(5) Upon expiration of the time for enforcement of the money
judgment.
(b) If a levy has been made under Section 700.200 upon an interest
in personal property in the estate of a decedent, the writ shall be
returned within the time prescribed in Section 700.200.
(c) If a levy has been made under Section 5103 of the Family Code
on the judgment debtor's right to the payment of benefits from an
employee pension benefit plan, the writ shall be returned within the
time prescribed in that section.
(d) If a levy has been made under the Wage Garnishment Law
(Chapter 5 (commencing with Section 706.010)), and the earnings
withholding order remains in effect, the writ of execution shall be
returned as provided in subdivision (a) and a supplemental return
shall be made as provided in Section 706.033.
(d) A levying officer shall file an accounting containing the
information required in a levying officer's return, as provided by
subdivision (a), if both of the following apply:
(1) The levying officer continues to retain possession of the
writ.
(2) The judgment creditor requests the levying officer to file an
accounting with the court in anticipation of applying for the
issuance of a writ to another county.
The accounting may be transmitted electronically pursuant to
Chapter 2 (commencing with Section 263) of Title 4 of Part 1.
SEC. 14. Section 701.030 of the Code of Civil Procedure is amended
to read:
701.030. (a) At the time of service of a copy of the writ of
execution and a notice of levy on a third person, the levying officer
shall request the third person to give the levying officer a
garnishee's memorandum containing the information required by this
section. Within 10 days after the request is made, the third person
shall mail or deliver the garnishee's memorandum to the levying
officer whether or not the levy is effective.
(b) The garnishee's memorandum shall be executed under oath and
shall contain the following information:
(1) A description of any property of the judgment debtor sought to
be levied upon that is not delivered to the levying officer and the
reason for not delivering the property.
(2) A description of any property of the judgment debtor not
sought to be levied upon that is in the possession or under the
control of the third person at the time of levy.
(3) A statement of the amount and terms of any obligation to the
judgment debtor sought to be levied upon that is due and payable and
is not paid to the levying officer, and the reason for not paying the
obligation.
(4) A statement of the amount and terms of any obligation to the
judgment debtor sought to be levied upon that is not due and payable
at the time of levy.
(5) A statement of the amount and terms of any obligation to the
judgment debtor at the time of levy not sought to be levied upon.
(6) A description of claims and rights of other persons to the
property or obligation levied upon that are known to the third person
and the names and addresses of such those
other persons.
(c) If a garnishee's memorandum is received from the third person,
the levying officer shall retain a copy and promptly mail
or deliver a copy of the memorandum to the judgment creditor
and attach the original to the writ when it is returned to
the court. If a garnishee's memorandum is not received from the third
person, the levying officer shall so state in the return .
(d) Except as provided in subdivisions (e) and (f), if a third
person does not give the levying officer a garnishee's memorandum
within the time provided in subdivision (a) , or does not
provide complete information, the third person may, in the court's
discretion, be required to pay the costs and reasonable attorney's
fees incurred in any proceedings to obtain the information required
in the garnishee's memorandum.
(e) Notwithstanding subdivision (a), when the levy is made upon a
deposit account or upon property in a safe deposit box, the financial
institution need not give a garnishee's memorandum to the levying
officer if the financial institution fully complies with the levy
and, if a garnishee's memorandum is required, the garnishee's
memorandum need provide information with respect only to property
which that is carried on the records
available at the office or branch where the levy is made.
(f) Notwithstanding subdivision (a), the third person need not
give a garnishee's memorandum to the levying officer if both of the
following conditions are satisfied:
(1) The third person has delivered to the levying officer all of
the property sought to be levied upon.
(2) The third person has paid to the levying officer the amount
due at the time of levy on any obligation to the judgment debtor that
was levied upon , and there is no additional amount that
thereafter will become payable on the obligation levied upon.
(g) Documents or records described by this section may be
transmitted electronically pursuant to Chapter 2 (commencing with
Section 263) of Title 4 of Part 1.
SEC. 15. Section 701.660 of the Code of Civil Procedure is amended
to read:
701.660. When the purchaser of an interest in real property pays
the amount due to the levying officer, including any amount
required to be paid as a documentary transfer tax pursuant to Section
11911 of the Revenue and Taxation Code , the levying officer
conducting the sale shall execute and deliver a deed of sale to the
purchaser and , record a duplicate of
the deed of sale in the office of the county recorder , and
forward to the county or city and county any documentary transfer tax
paid by the purchaser .
SEC. 16. Section 706.026 of the Code of Civil Procedure is amended
to read:
706.026. (a) The levying officer shall receive and account for
all amounts paid by the employer pursuant to Section 706.025 and
shall pay the amounts so received over to the person entitled thereto
at least once every 30 days.
(b) At least once every two years, the The
levying officer shall file an account a
return with the court , as provided by Section
699.560, for all amounts collected under the earnings
withholding order, including costs and interest added to the amount
due.
SEC. 17. Section 706.033 of the Code of Civil Procedure is
repealed.
706.033. If the writ is returned before the earnings withholding
order terminates, on termination of the earnings withholding order
the levying officer shall make a supplemental return on the writ. The
supplemental return shall contain the same information as an
original return pursuant to Section 699.560.
SEC. 18. Section 706.108 of the Code of Civil Procedure is amended
to read:
706.108. (a) If a writ of execution has been issued to the county
where the judgment debtor's employer is to be served ,
and the time specified in subdivision (b) of Section 699.530
for levy on property under the writ has not expired
writ has not been returned to the court by the levying officer
, a judgment creditor may deliver an application for issuance of an
earnings withholding order to a registered process server who may
then issue an earnings withholding order.
(b) If the registered process server has issued the earnings
withholding order, the registered process server, before serving the
earnings withholding order, shall deposit with the levying officer a
copy of the writ of execution, the application for issuance of an
earnings withholding order, and a copy of the earnings withholding
order, and shall pay the fee provided by Section 26750 of the
Government Code.
(c) A registered process server may serve an earnings withholding
order on an employer whether the earnings withholding order was
issued by a levying officer or by a registered process server
, but no earnings withholding order may be served after the
time specified in subdivision (b) of Section 699.530 . In
performing this function, the registered process server shall serve
upon the designated employer all of the following:
(1) The original and one copy of the earnings withholding order.
(2) The form for the employer's return.
(3) The notice to the employee of the earnings withholding order.
(4) A copy of the employer's instructions referred to in Section
706.127, except as otherwise prescribed in rules adopted by the
Judicial Council.
(d) Within five court days after service under this section, all
of the following shall be filed with the levying officer:
(1) The writ of execution, if it is not already in the hands of
the levying officer.
(2) Proof of service on the employer of the papers listed in
subdivision (c).
(3) Instructions in writing, as required by the provisions of
Section 687.010.
(e) If the fee provided by Section 26750 of the Government Code
has been paid, the levying officer shall perform all other duties
required by this chapter as if the levying officer had served the
earnings withholding order. If the registered process server does not
comply with subdivisions subdivision
(b), where applicable, and subdivision (d), the service of
the earnings withholding order is ineffective , and the
levying officer is not required to perform any duties under the order
and may terminate the order and may release any
withheld earnings to the judgment debtor.
(f) The fee for services of a registered process server under this
section shall be allowed as a recoverable cost pursuant to Section
1033.5.
SEC. 19. Section 712.020 of the Code of Civil Procedure is amended
to read:
712.020. A writ of possession or sale issued pursuant to this
division shall require the levying officer to whom it is directed to
enforce the judgment and shall include the following information:
(a) The date of issuance of the writ.
(b) The title of the court where the judgment for possession or
sale is entered and the cause and number of the action.
(c) The name and address of the creditor and the name and last
known address of the judgment debtor. If the judgment debtor is
other than a natural person, the type of legal entity shall be
stated.
(d) The date the judgment was entered, and the date of any
subsequent renewals, and where entered in the records of the court.
(e) If the judgment for possession or sale includes a money
judgment, the amount required to satisfy the money judgment on the
date the writ is issued , and the amount of interest
accruing daily on the principal amount of the judgment from the date
the writ is issued may be included on the writ at the option of the
creditor.
(f) Whether any person has requested notice of sale under the
judgment and, if so, the name and address of such
that person.
(g) Any other information required to be included in the
particular writ.
(h) A statement indicating whether the case is limited or
unlimited.
SEC. 20. Section 712.030 of the Code of Civil Procedure is amended
to read:
712.030. (a) Upon delivery of the writ of possession or sale to
the levying officer to whom the writ is directed, together with the
written instructions of the judgment creditor, the levying officer
shall execute the writ in the manner prescribed by law.
(b) The levying officer may shall
not levy upon or otherwise seize property under the writ
after the expiration of 180 days from the date the writ was issued
sell any property unless the writ is in the levying
officer's possession .
(c) Documents or records described by this section may be
transmitted electronically pursuant to Chapter 2 (commencing with
Section 263) of Title 4 of Part 1.
SEC. 21. Section 1993 of the Code of Civil Procedure is amended to
read:
1993. (a) (1) As an alternative to issuing a warrant for contempt
pursuant to paragraph (5) or (9) of subdivision (a) of Section 1209,
the court may issue a warrant for the arrest of a witness who failed
to appear pursuant to a subpoena or a person who failed to appear
pursuant to a court order. The court, upon proof of the service of
the subpoena or order, may issue a warrant to the sheriff of the
county in which the witness or person may be located and the sheriff
shall, upon payment of fees as provided for in
Section 26744.5 of the Government Code, arrest the witness or person
and bring him or her before the court.
(2) Before issuing a warrant for a failure to appear pursuant to a
subpoena pursuant to this section, the court shall issue a "failure
to appear" notice informing the person subject to the subpoena that a
failure to appear in response to the notice may result in the
issuance of a warrant. This notice requirement may be omitted only
upon a showing that the appearance of the person subject to the
subpoena is material to the case and that urgency dictates the person'
s immediate appearance.
(b) The warrant shall contain all of the following:
(1) The title and case number of the action.
(2) The name and physical description of the person to be
arrested.
(3) The last known address of the person to be arrested.
(4) The date of issuance and county in which it is issued.
(5) The signature of the magistrate or
name of the judicial officer issuing the warrant, the title of
his or her office, and the name of the court.
(6) A command to arrest the person for failing to appear pursuant
to the subpoena or court order, and specifying the date of service of
the subpoena or court order.
(7) A command to bring the person to be arrested before the
issuing court, or the nearest court if in session, for the setting of
bail in the amount of the warrant or to release on the person's own
recognizance. Any person so arrested shall be released from custody
if he or she cannot be brought before the court within 12 hours of
arrest, and the person shall not be arrested if the court will not be
in session during the 12-hour period following the arrest.
(8) A statement indicating the expiration date of the warrant as
determined by the court.
(9) The amount of bail.
(10) An endorsement for nighttime service if good cause is shown
, as provided in Section 840 of the Penal Code.
(11) A statement indicating whether the person may be released
upon a promise to appear , as provided by Section 1993.1.
The court shall permit release upon a promise to appear, unless it
makes a written finding that the urgency and materiality of the
person's appearance in court precludes use of the promise to appear
process.
(12) The date and time to appear in court if arrested and released
pursuant to paragraph (11).
SEC. 22. If the Commission on State Mandates determines that this
act contains costs mandated by the state, reimbursement to local
agencies and school districts for those costs shall be made pursuant
to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of
the Government Code.