BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 2394
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          Date of Hearing:   April 20, 2010

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                  Mike Feuer, Chair
                AB 2394 (Brownley) - As Introduced:  February 19, 2010

                    PROPOSED CONSENT (As Proposed to Be Amended)
           
          SUBJECT  :  CIVIL PROCESS AND NOTICES: MINISTERIAL OFFICERS

           KEY ISSUE  :  IN ORDER TO REDUCE OPERATING COSTS ASSOCIATED WITH  
          DEPENDENCE ON PAPER DOCUMENTS, SHOULD ASSORTED SECTIONS OF THE  
          CODE OF CIVIL PROCEDURE BE UPDATED TO ESTABLISH NEW PROCEDURES  
          FOR SHERIFFS AND MARSHALS TO SEND, RECEIVE, AND MAINTAIN CERTAIN  
          ELECTRONIC RECORDS AND DOCUMENTS RELATING TO ENFORCEMENT OF  
          CIVIL JUDGMENTS?

           FISCAL EFFECT :  As currently in print this bill is keyed fiscal.

                                      SYNOPSIS
          
          This bill, the Levying Officer Electronic Transaction Act,  
          represents a broad, early effort to adapt the Code of Civil  
          Procedure to modern information technology and promote systemic  
          migration away from a paper-based model of civil law  
          enforcement.  Generally, this bill establishes new procedures  
          for sheriffs and marshals to send, receive, and maintain certain  
          electronic records and documents relating to their duties in  
          enforcing civil judgments.  However, as proposed to be amended,  
          this bill does not authorize the sheriff to use electronic means  
          to serve papers upon a person that otherwise require service by  
          personal delivery or mail.  This bill permits a sheriff to  
          retain the original paper version of a writ of execution and  
          instead file only an electronic return and accounting with the  
          court-changing the previous rule that the sheriff must attach  
          and file with the court only the paper versions of both  
          documents.  In addition, this bill would allow the sheriff to  
          serve an earnings withholding order by first class mail rather  
          than by certified mail, and substitutes return by mail of the  
          Judicial Council-issued "Employer's Return" form for the U.S.  
          Post Office return receipt, for the purpose of determining when  
          service is complete or when personal service must be made when  
          service by mail has been unsuccessful.  This bill makes a number  
          of other clarifying and technical changes relating to the  
          contents of certain notices and process documents.








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          The sponsor of this bill, the Los Angeles County Sheriff's  
          Department, and other supporters believe that there are  
          significant potential time and cost savings associated with  
          increased use of electronic records and documents, and that this  
          bill will increase the efficiency of the sheriffs generally by  
          saving time and money spent transporting paper documents to the  
          courthouse or the county recorder's office that may otherwise be  
          transmitted by fax or email.  As proposed to be amended, no  
          court shall be required by this bill to receive or  process  
          electronic records or documents from the sheriff unless that  
          court has mutually agreed with the sheriff that both parties are  
          able and ready to abide by these provisions.  This so-called  
          "opt-in provision", developed in conjunction with the Judicial  
          Council, is intended to provide time for courts to address  
          workability problems in advance.  There is no formal opposition  
          to this bill.

           SUMMARY  :  Establishes procedures for sheriffs and marshals to  
          transmit, receive, and maintain certain electronic records and  
          documents related to civil law enforcement, in order to reduce  
          operating costs and promote systemic migration away from a  
          paper-based model of doing business.  Specifically,  this bill,   
          the Levying Officer Electronic Transaction Act ("the Act"):   

          1)States Legislative findings 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.   
            Further states Legislative intent to accommodate current and  
            future technologies based on industry standards.

          2)Provides that nothing in this Act shall be construed to  
            require a court or levying officer to comply with any of its  
            provisions unless the court and the levying officer have (a)  
            jointly determined that both the court and the sheriff's  
            department have the resources and the technological capacity  
            to do so, and (b) have mutually agreed to electronically  
            process documents as provided in the Act.

          3)Authorizes sheriffs and marshals (also referred to as "levying  
            officers") to utilize an information processing system to  
            create, generate, send, receive, store, display, retrieve, or  
            process information, electronic records, and documents when  








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            based on industry standards and only to the extent that the  
            levying officer has the resources and technological capacity  
            to do so.  

          4)Provides that if a technical problem with the levying  
            officer's system prevents receipt of an electronic  
            transmission, and the sender demonstrates an attempt to  
            electronically transmit the document on that day, then the  
            levying officer must deem the document as received on that  
            day.

          5)Permits a levying officer to create, store, print or process  
            transmit an electronic record, including an electronic mail  
            message ("email") in the place of, and in the same manner as,  
            the paper record or document upon which the electronic record  
            is based. 

          6)Provides that whenever fax transmission of a document or  
            record to a levying officer is authorized by this act, the  
            levying officer may act upon an electronic record transmitted  
            by a fax machine in the same manner as the paper record or  
            document upon which the electronic version is based.

          7)Requires a person transmitting an electronic record to the  
            levying officer by fax or email pursuant to this Act to:

             a)   Include with the record certain information, as  
               specified (in either a cover sheet or within the record  
               itself), that identifies the name and fax or email contact  
               information of the sender.

             b)   Retain the paper version of the record or document and  
               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.

          8)Provides that, with respect to deeds and conveyances that the  
            sheriff must execute and deliver to the purchaser of real  
            estate sold by the sheriff under authority of law, the deeds  
            and conveyances may be recorded electronically pursuant to  
            this Act if they comply with the Electronic Recording Delivery  
            Act of 2004 (commencing with Section 27390 of the Government  
            Code). 

          9)Requires the levying officer to exclude or redact identifying  








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            information, including SSN and financial account numbers, from  
            any electronic record or document made available to the  
            public, as well as any writ return filed with the court.

          10)Provides that in lieu of returning the paper version of an  
            original writ of execution to a court, the levying officer may  
            retain the original writ, or an electronic copy of the  
            original writ, and electronically file with the court only a  
            return reporting the levying officer's actions, amounts  
            collected, and costs incurred, by a specified deadline.

          11)Requires a levying officer, at least once every two years, to  
            file an accounting with the court for all amounts collected  
            under an earnings withholding order (EWO), including costs and  
            interest, and authorizes the levying officer to file the  
            accounting with the court by electronic means.

          12)Repeals the requirement that a levying officer make a  
            supplemental return on the writ of execution upon termination  
            of an EWO when the writ is returned to the court before such  
            time that the EWO terminates.

          13)Permits a judgment creditor or his or her attorney to  
            electronically transmit to the levying officer the following  
            documents:

             a)   Written levying officer instructions (generally,  
               providing information necessary to enforce a judgment, e.g.  
               an adequate description of property to be levied on.)

             b)   Written directions to release property ("the release").

          14)Permits a garnishee to electronically transmit the  
            garnishee's memorandum to the levying officer.

          15)Authorizes the sheriff to serve an earnings withholding order  
            (EWO), if not by personal delivery, then by first class mail,  
            postage prepaid (instead of via registered or certified mail.)  
             Further provides that when service is made by mail, service  
            is complete at the time of receipt of the EWO as indicated in  
            the employer's return, or the date of mailing if the date of  
            receipt is not indicated on the employer's return.

          16)Provides that if the levying officer attempts service by mail  
            and does not receive the employer's return within 15 days from  








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            the date of mailing, then the levying officer shall make  
            personal delivery of service.

          17)Requires a writ of execution and a writ of possession or sale  
            of property to state: (1) the type of legal entity of the  
            judgment debtor, if the judgment debtor is other than a  
            natural person; and (2) whether the case is limited or  
            unlimited.

          18)Provides that any amount of money required to be paid by the  
            purchaser of real property to the levying officer as a  
            documentary transfer tax must then be forwarded to the county  
            and is not considered to be added to the judgment.

          19)Allows the name of the judicial officer, as an alternative to  
            his or her signature, to appear on the specified notice  
            informing a person subject to subpoena that failure to appear  
            may result in issuance of a warrant.

           EXISTING LAW  :  

          1)Generally requires that certain documents and records relating  
            to service of process and notices be in writing, and, when  
            required to be served on a party, must be served by personal  
            delivery or by certified mail in some cases.

          2)Provides that if a technical problem with a court's electronic  
            filing system prevents the court from accepting an electronic  
            filing during its regular filing hours on a particular court  
            day, and the electronic filer demonstrates that he or she  
            attempted to electronically file the document on that day, the  
            court must deem the document as filed on that day.   
            (California Rule of Court 2.259(d).)

          3)Provides that, when the sheriff sells real estate, under and  
            by virtue of an execution or order of court, the sheriff shall  
            execute and deliver to the purchaser all such deeds and  
            conveyances as are required by law and necessary for the  
            purpose, and such deeds and conveyances shall be as valid in  
            law as if they had been executed by the sheriff who made the  
            sale.  (Code of Civil Procedure Section 262.4.  All further  
            references will be to this Code unless otherwise noted.)

          4)Pursuant to the Electronic Recording Delivery Act of 2004,  
            authorizes a county recorder to enter into a contract with  








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            certain other parties for the delivery for recording, and  
            return to the party requesting recording, of a digitized  
            electronic record that is an instrument affecting a right,  
            title, or interest in real property.  Permits the use of  
            digitized electronic records for this purpose only if the  
            county recorder has established an electronic recording  
            delivery system that has been certified by the Attorney  
            General.  (Government Code Section 27391.) 

          5)Requires a separate writ of execution to be issued for each  
            county where a levy is to be made.  Allows for writs to 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 to the  
            court by the levying officer.  (Section 699.510(a).)

          6)Provides that 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, but may not levy upon any property under the writ after  
            the expiration of 180 days from the date the writ was issued.   
            (Section 699.530.)

          7)Requires the levying officer to whom a writ of execution is  
            delivered to return the writ to the court, together with a  
            report of the levying officer's actions and an accounting of  
            amounts collected and costs incurred, at the earliest of the  
            following times:

             a)   Two years from the date of issuance of the writ.
             b)   Promptly after all of the duties under the writ are  
               performed.
             c)   When return is requested in writing by the judgment  
               creditor.
             d)   If no levy takes place under the writ within 180 days  
               after its issuance, promptly after the expiration of the  
               180-day period.  (Section 699.560.)

          8)Requires a levying officer, at least once every two years, to  
            file an account with the court for all amounts collected under  
            an earnings withholding order (EWO), including costs and  
            interests added to the amount due.  (Section 706.026.)









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          9)Provides that if a writ of execution is returned before the  
            associated earnings withholding order terminates, on  
            termination of the earnings withholding order the levying  
            officer shall make a supplemental return on the writ.   
            (Section 706.033.)

          10)Requires the judgment creditor to give the levying officer  
            instructions in writing that are signed by the judgment  
            creditor's attorney of record or, if the judgment creditor  
            does not have an attorney of record, by the judgment creditor.  
             (Section 687.010.)

          11)Provides that no direction or authority by a party or his  
            attorney to a sheriff, in respect to the execution of process  
            or return thereof, or to any act or omission relating thereto,  
            is 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, or by the  
            party, if he has no attorney.  (Section 262.)

          12) Requires a person from whom the sheriff has requested a  
            garnishee's memorandum to mail or deliver the memorandum to  
            the levying officer within 10 days of the request, whether or  
            not the levy is effective.  (Section 701.030.)

          13)Authorizes the sheriff to serve an earnings withholding order  
            by personal delivery or by registered or certified mail,  
            postage prepaid, with return receipt requested.   Further  
            provides that when service is made by mail, service is  
            complete at the time the return receipt is executed by or on  
            behalf of the recipient.  (Section 706.101(b).)

          14)Provides that if the levying officer attempts service by mail  
            and does not receive a return receipt within 15 days from the  
            date the EWO was mailed, then the levying officer shall make  
            personal delivery of service.  (Section 706.101(b).)

          15)Specifies the information that must be stated on a writ of  
            execution (Section 699.520) and a writ of possession or sale  
            of property.  (Section 712.020.)

          16)Provides that when the purchaser of an interest in real  
            property pays the amount due, 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  








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            office of the county recorder.  (Section 701.660.)

          17)Requires the signature of the magistrate issuing the warrant  
            to appear on the specified notice informing a person subject  
            to subpoena that failure to appear may result in issuance of a  
            warrant.  (Section 1993.)

           COMMENTS  :  This bill, the Levying Officer Electronic Transaction  
          Act, represents one of the first, but certainly not one of the  
          last, comprehensive efforts to adapt the Code of Civil Procedure  
          to modern information technology and promote systemic migration  
          away from a paper-based model of civil law enforcement.  The  
          author and the Los Angeles County Sheriff's Department, the  
          sponsor of this bill, have admirably volunteered to take the  
          lead in starting this daunting task.  They and other supporters  
          of the bill believe that there are significant potential time  
          and cost savings associated with increased use of electronic  
          records and documents, and that this bill will increase the  
          efficiency of the Sheriff's Office by saving countless number of  
          trips to the courthouse or the county recorder's office to  
          transport original paper versions of documents that may  
          otherwise be transmitted by fax or email.  This lengthy bill  
          would update numerous sections of the Code of Civil Procedure to  
          establish new procedures for sheriffs and marshals to send,  
          receive, and maintain certain electronic records and documents  
          relating to their duties in enforcing civil judgments.

           Author's Statement:   The author writes in support: "This bill  
          provides a means for the Sheriff and Marshal to reduce civil law  
          enforcement operating costs by migrating from a paper based  
          business model to a modern system that makes extensive use of  
          electronic records, e.g., digitized writs, and communication,  
          e.g., websites and email.  Today's information technologies  
          increase productivity and minimize errors by avoiding data entry  
          redundancies.  The reduced processing time for electronic  
          documents and data exchanged between courts, sheriffs and  
          marshals, and litigants presents an opportunity for staff to do  
          more with fewer people."

           Author's amendments  :  The author and sponsor of the bill have  
          worked closely with the Committee and various stakeholders,  
          including the Judicial Council, registered process servers, and  
          legal support professionals, to address potential due process  
          and workability concerns with the bill, which, as introduced,  
          proposed a broad, ambitious slate of changes to the Code of  








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          Civil Procedure.  The author now proposes to amend the bill to  
          focus primarily on a select number of areas in which there was  
          consensus that time and cost savings for sheriffs could be  
          achieved without upsetting the balance between due process and  
          business convenience concerns.

           As Proposed to be Amended, Courts and Sheriffs Must Both Opt-In  
          to the Act  .  There is a common expression that "it takes two to  
          tango."  In the case of the exchange of electronic records and  
          documents, that is certainly true because no matter how  
          technologically up-to-speed the sender of an electronic document  
          may be, it is of little use unless the intended recipient of the  
          electronic document is also equipped to receive and work with  
          documents in the same electronic format.  Even if the recipient  
          possesses the same technological capabilities as the sender, the  
          recipient may need time to adjust its organizational business  
          practices to reflect the fact that documents may now exist in  
          multiple formats, and there may not necessarily be the guarantee  
          of an available hard-copy document.  

          For these reasons, at the request of the Judicial Council, the  
          author has appropriately proposed to amend the bill to provide  
          that nothing in this Act shall be construed to require a court  
          or levying officer to comply with any of its provisions unless  
          the court and the levying officer have: (1) jointly determined  
          that both the court and the sheriff's department have the  
          resources and the technological capacity to do so; and (2) have  
          mutually agreed to electronically process documents as provided  
          in the Act.  In other words, no court shall be required by this  
          bill to receive and process electronic records or documents from  
          the sheriff unless that court has mutually agreed with the  
          sheriff that both parties are able and ready to abide by these  
          provisions.  This so-called "opt-in" provision is intended to  
          address workability problems expressed by the courts and ensure  
          a smoother transition in complying with this bill, particularly  
          with respect to the change in return of writ procedure also  
          proposed by this bill (and discussed below.)  The Judicial  
          Council has not yet taken a position on this bill, but it is  
          anticipated that the court opt-in provision at least ensures  
          that the Council will not oppose this bill in this Committee.
           
          Background on Mandatory Return of Original Writs and the Problem  
          This Causes Sheriffs.  Under current law, a separate writ of  
          execution must be issued for each county where a levy is to be  
          made. Furthermore, while writs may be issued successively until  








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          the money judgment is satisfied, 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.  (Section 699.510(a).)  In practice, the writ is  
          "returned" to the court only when the sheriff physically brings  
          the original paper version of the writ, along with the  
          accounting document (the "return"), to the court and files the  
          documents.  The main purpose of the return is to provide updated  
          accounting information to the court clerk so that any  
          subsequently issued writ will accurately reflect the balance of  
          the judgment to be collected. Courts commonly treat the  
          sheriff's return of the original paper writ as the necessary  
          triggering event that permits the court to issue another  
                                                                             subsequent writ.  This practice, although inefficient from the  
          sheriff's perspective, is intended to alleviate the court's  
          constant concern that two writs of execution with different  
          terms may be issued in the same county in the same case.  

          Sheriffs' associations, on the other hand, contend that it is  
          simply unnecessary to continue to require the original paper  
          writ to be returned to the court, when the key information the  
          court needs is the accounting information contained in the  
          return.  The result of this outdated rule, the sheriffs'  
          associations argue, is a massive backlog of unreturned writs.   
          According to the California State Sheriffs' Association:

               Many Sheriff Offices are anywhere from six months to  
               three years behind in filing their writ returns with  
               the court. Sacramento County, for example, is three  
               years behind in writ returns-a total of 25,650 writs.  
               Sacramento sheriffs also have 2,292 unprocessed RUSH  
               requests for writ returns (where the plaintiff has  
               requested the writ be returned prior to the normal  
               expiration).  The reason for the backlog of returns is  
               the time it takes to physically locate and associate  
               the "original writ" with the "writ return" prior to a  
               court visit.  Simply put, it takes staff time and  
               effort to locate the physical file, pull the writ from  
               the file, associate the writ with the return, and  
               return the file to the shelf. When the Sheriff has  
               multiple offices, the physical files may be at an  
               off-site location, causing a further delay. With  
               recent budget cuts and layoffs, Sheriffs have less  
               staff than ever before to accomplish these tasks.









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               Eliminating the need for the "original writ" to  
               accompany the writ return to court frees the Sheriff  
               from a time-consuming and cumbersome task, thereby  
               allowing a quicker return. The writ return (not the  
               writ) serves to alert the court that the writ is no  
               longer in play. The courts are already familiar with  
               the writ return document.  Filing a writ return with  
               the court becomes a "push button" process (via fax or  
               email) that can be accomplished by any Sheriff's staff  
               in any location, regardless of where the physical file  
               is located.  Everyone benefits.

          Additionally, the Los Angeles County Sheriff's Department also  
          reports being many months behind in the return of writs. These  
          sheriffs write:

               Since we also are many weeks behind in processing  
               applications for earnings withholding orders, which  
               are higher priority, writs were only returned using  
               overtime.  But overtime has been curtailed.  LASD has  
               40,549 writs that must be returned at a cost of 5,400  
               hours or 5.5 full time employees (FTE).  The ability  
               to submit a return without the original writ reduces  
               processing time by more than 95%.

           As Proposed to be Amended, Sheriffs May Retain the Original  
          Paper Writ of Execution and File With The Court Only an  
          Electronic Return and Accounting.   The author has proposed to  
          amend the bill to permit the levying officer to (a) retain the  
          original writ of execution, or an electronic copy of the  
          original writ, in lieu of returning the original paper version  
          to the court; and (b) file with the court only the return  
          reporting the levying officer's actions, amounts collected, and  
          costs incurred, by a specified deadline.  If the court has  
          "opted-in" to this Act, then the sheriff may file the return  
          electronically with the court pursuant to the mutually  
          agreed-upon rules for sending and receiving electronic records  
          at that time.

          The blanket opt-in provision for courts was especially important  
          here in addressing concerns expressed by Judicial Council and  
          court personnel that removing the requirement for the return of  
          the original paper writ poses a workability problem for many  
          courts whose workflow is often premised on receipt of both the  
          original writ and writ return in paper form.








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          Because there was consensus that the physical return of the  
          original paper writ does not in itself provide essential  
          information to the court-all of which is conveyed in the return  
          and accounting-the Committee finds the proposed amendment to be  
          reasonably aimed and is less concerned about pure workability  
          concerns that can be negotiated to resolution between sheriffs  
          and the courts.

           180-day expiration period for writs.   Of greater concern to the  
          Committee were provisions contained in the as-introduced version  
          of the bill that essentially deleted the long-standing  
          requirement that a writ of execution expires after a set number  
          of days (in this case, 180 days.)  The Committee's research  
          indicated that the Legislature has long maintained a clear  
          policy under which all writs must expire after some set time  
          period, only after which a new writ may be issued in the case.  
          Although the sponsor contended that deleting the 180-day  
          expiration period for writs would help prevent certain  
          problematic scenarios where two writs could be issued in the  
          same case in the same county, it was not clear that this  
          deletion is necessary to effectuate the objective of this  
          bill-namely, to provide sheriffs with a more cost-effective  
          alternative to having to file original paper writs and returns  
          with the court.  The author has now proposed to amend the bill  
          to remove provisions that delete the 180-day expiration period,  
          essentially preserving this requirement in existing law.

           As Proposed to be Amended, Sheriffs May Serve an Earnings  
          Withholding Order by First Class Mail Rather Than by Certified  
          Mail.   Under current law, an earnings withholding order (EWO)  
          must be made either by personal delivery or by registered or  
          certified mail, postage prepaid. (Section 706.101(b).)  When  
          service is made by registered of certified mail, service is  
          deemed complete at the time the "return receipt is executed by  
          or on behalf of the recipient." (Id.)  The return receipt refers  
          to the "green card" that the U.S. Post Office returns by mail to  
          customers who purchase registered or certified mail service,  
          after someone at the recipient's address has signed the card to  
          acknowledge receipt of the registered or certified letter.  If  
          service by mail has been made but the return receipt has not  
          been received back by the levying officer after 15 days from the  
          date of mailing, then the levying officer must serve the EWO by  
          personal delivery (Id.)









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          As proposed to be amended, this bill would allow the sheriff to  
          serve EWOs by first class mail rather than by certified mail.   
          According to the sponsor, it typically costs $5.88 to serve an  
          EWO by certified mail, of which $2.20 is charged by the Post  
          Office for return receipt service.  By contrast, it typically  
          costs just $0.73 to send the same EWO materials by first class  
          mail-a significant cost savings.  

          However, because first class mail, by definition, does not  
          involve any "green card" return receipt,  the author proposes  
          amendments to that substitute, in place of the return receipt,  
          the "employer's return" included in the papers accompanying  
          every EWO.  The employer is instructed on the employer's return  
          form to provide specified information about the employee on the  
          form and deliver or mail the form back to the levying officer  
          within 15 days.  The author's proposed amendments: (1) clarify  
          that an employer's return is the Judicial Council-issued form  
          (WG-005) specified by Section 706.126; (2) specify that service  
          is deemed complete based on information indicated by the  
          employer in the employer's return; and (3) require the levying  
          officer to serve the EWO by personal delivery if the employer's  
          return is not received within 15 days of the initial mailing.

          The use of the employer's return not only provides a significant  
          cost-savings to levying officers serving EWOs by mail, it  
          potentially represents a more trustworthy mechanism to serve  
          these documents by mail when they are not personally served.   
          Because the Post Office return receipt may be signed by any  
          person at the employer's address-a secretary, visitor, or even  
          the person who is the subject of the EWO-there is perhaps a  
          greater potential for mischief or unintentional loss of the card  
          before it is returned.  The employer's return, on the other  
          hand, is a two-page form addressed by name to the employer of  
          the person who is the subject of the EWO, and contains  
          instructions to the employer to complete, sign, and return the  
          form to the levying officer within 15 days or be subject to  
          civil penalty.  Finally, the Committee is not aware of any  
          evidence that first class mail is significantly less reliable  
          than either registered or certified mail.  For these reasons,  
          the Committee believes the author's proposed amendments probably  
          do not compromise due process standards associated with service  
          by mail of EWOs under current law.

           As Proposed to be Amended, Sheriffs May Not Electronically Serve  
          Papers That Otherwise Require Service by Personal Delivery or  








                                                                 AB 2394
                                                                  Page  14

          Mail.   The introduced version of this bill, currently in print,  
          contains a number of provisions that the author has chosen to  
          remove from the bill as reflected by the proposed amendments.   
          Among the provisions the author proposes to amend out of the  
          bill are provisions that would have authorized levying officers,  
          for the first time, to electronically serve a number of legal  
          documents that, because of due process concerns, must be served  
          personally (or in some cases, by certified mail) under current  
          law.  Among these documents are wage garnishment orders,  
          earnings withholding orders, EWO modification notices,  
          subpoenas, and other judicial process documents.

          During discussion among the stakeholders, the Committee  
          expressed concerns that neither fax nor email technology was  
          sufficiently reliable or trustworthy to authorize electronic  
          service of process for documents as important as an order for  
          wage garnishment or an earnings withholding order.  The reason  
          that California law requires personal service of certain notices  
          and judicial process reflects the Legislature's judgment that  
          the guarantee of due process requires no less when important  
          personal rights are at stake.  In this case, it is not clear to  
          the Committee that a person's due process rights to receive  
          notice and process of actions against the person are necessarily  
          fulfilled when those documents are electronically transmitted  
          via email or fax technology.  For example, automatic spam filter  
          programs can cause important emails to never be received by the  
          email account holder.  Documents can easily be forged or altered  
          when rendered electronically, and email accounts can be "hacked"  
          to delete or intercept messages.  Fax machines present their own  
          set of reliability issues because they can easily jam, run out  
          of paper, drop the connection, or otherwise malfunction during  
          an important transmission.  In many offices, fax machines are  
          shared among many employees, raising privacy concerns, and  
          important faxes can get mixed with "junk faxes" and  
          unintentionally get discarded.  For both fax and email methods,  
          there are competing theories as to what set of conditions, if  
          true, shall constitute confirmation that a fax or email  
          transmission was "received" (and thus "served") unless there is  
          a human acknowledgment of receipt. If there is a technical  
          problem that prevents an email or fax message from being  
          received, unless the recipient was expecting the message, he or  
          she would never know to contact the sender to inquire about the  
          absence of the message.  For these reasons, the author has  
          prudently proposed to amend the bill so that levying officers  
          are not permitted to electronically serve EWOs, wage garnishment  








                                                                  AB 2394
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          orders, or other judicial process that otherwise require service  
          by personal delivery or mail, as provided.

          As proposed to be amended, this bill still permits sheriffs to  
          send and receive by fax or email other types of documents, not  
          required to be served, as provided in the bill.  For example, a  
          judgment creditor or his attorney may fax levying officer  
          instructions to the sheriff instead of mailing or delivering the  
          written instructions required to levy pursuant to Section 262. 

           REGISTERED SUPPORT / OPPOSITION :   

           Support (for the introduced version of the bill)
           
          Los Angeles County Sheriff's Department (sponsor)
          California State Sheriffs' Association
          California Law Enforcement Association of Records Supervisors

           Opposition 
           
          None on file
           
          Analysis Prepared by  :    Anthony Lew / JUD. / (916) 319-2334