BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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          |SENATE RULES COMMITTEE            |                  AB 2394|
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                                 THIRD READING


          Bill No:  AB 2394
          Author:   Brownley (D)
          Amended:  6/14/10 in Senate
          Vote:     21

           
           SENATE JUDICIARY COMMITTEE  :  4-0, 6/22/10
          AYES:  Corbett, Harman, Hancock, Leno
          NO VOTE RECORDED:  Walters

           SENATE APPROPRIATIONS COMMITTEE  :  8-0, 8/2/10
          AYES:  Kehoe, Ashburn, Corbett, Emmerson, Leno, Price,  
            Wolk, Yee
          NO VOTE RECORDED:  Alquist, Walters, Wyland
           
          ASSEMBLY FLOOR  :  72-0, 5/20/10 (Consent) - See last page  
            for vote


           SUBJECT  :    Civil process and notices:  ministerial  
          officers

           SOURCE  :     Los Angeles County Sheriffs Department


           DIGEST  :    This bill establishes the Levying Officer  
          Electronic Transactions Act, whereby a levying officer  
          could use electronic methods to create, generate, send,  
          receive, store, display, retrieve, or process information,  
          electronic records, and documents, as specified.  This bill  
          authorizes an earnings withholding order to be served by  
          first class mail rather than certified mail on an employer.  
           This provision requires the employer to execute the  
                                                           CONTINUED





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          "employer's return" form within 15 days of receipt of the  
          first class mail service.  This bill also makes clarifying  
          amendments to various provisions of the Code of Civil  
          Procedure as it pertains to levying officers and execution  
          of writs for the enforcement of money judgments.  This bill  
          also makes technical revisions regarding the provision for  
          the issuance of a warrant for failure to appear pursuant to  
          a subpoena.

           ANALYSIS  :    Existing law, the California Uniform  
          Electronic Transactions Act (UETA), provides rules and  
          procedures for the sending and receiving of electronic  
          records and signatures, the formation of contracts using  
          electronic records, and procedures governing changes and  
          errors in electronically transmitted records.  The UETA  
          applies to all transactions in which records or signatures  
          are electronically transmitted by parties who have agreed  
          to conduct the transaction electronically.  (Section  
          1633.1, et seq. of the Civil Code)

          This bill establishes the Levying Officer Electronic  
          Transactions Act (LOETA) and provide rules and procedures,  
          as specified, for levying officers in the utilization of an  
          information processing system to create, generate, send,  
          receive, store, display, retrieve, or process information,  
          electronic records, and documents to the extent the levying  
          officer has the resources and technological capacity to do  
          so. 

          This bill provides an "opt-in" provision requiring both the  
          court and the levying officer to have the technological  
          resources with which to administer the information  
          processing system and mutually agree to electronically  
          process the documents specified in this Act.

          This bill requires levying officers to exclude or redact,  
          as specified, from any record or document made available to  
          the public all social security and financial account  
          numbers.

          Existing law, the Electronic Recording Delivery Act of  
          2004, provides rules and regulations of electronic  
          recording of documents pertaining to reconveyance,  
          substitution of trustee, or an assignment of deed of trust.  







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           (Section 27390, et seq. of the Government Code)

          This bill authorizes levying officers, pursuant to an  
          execution order pertaining to the sale of real property, to  
          electronically record the deeds and conveyances.
                     
          Existing law provides for requirements for the direction or  
          instructions by the levying party for the execution of  
          process by the levying officer.  (Sections 262, 687.010,  
          and 699.060 of the Code of Civil Procedure [CCP])

          This bill makes technical revisions to these provisions and  
          authorize the levying party to electronically transmit to  
          the levying officer the written instructions for the  
          execution of process.

          Existing law provides a list of information that must be  
          included on a writ of execution or writ of possession or  
          sale.  (CCP Sections 699.510, 699.520, and 712.020)

          This bill adds to this list (1) if the judgment debtor is  
          not a natural person, the type of legal entity must be  
          stated on the writ of execution, and (2) a statement  
          indicating whether the case from which the writ of  
          execution stems is limited or unlimited.

          Existing law requires the levying officer to return the  
          original writ of execution to the court along with a report  
          detailing the actions taken by the levying officer, the  
          amounts collected pursuant to the writ, and the costs  
          incurred.

          This bill provides that the levying officer can either  
          return the original writ to the court or store the writ as  
          specified under the LOETA and file the report separately  
          with the court.

          Existing law requires the levying officer to attach the  
          original garnishee's memorandum to the original writ of  
          execution for return to the court and deliver a copy to the  
          judgment creditor, unless no memorandum was received which  
          information shall be conveyed to the court.  (CCP Section  
          701.030(c))








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          This bill removes the requirements to attach the original  
          garnishee's memorandum to the original writ for return to  
          the court or advise the court of the absence of the  
          garnishee's memorandum.

          This bill authorizes the employer to electronically  
          transmit the garnishee's memorandum to the levying officer.

          Existing law requires the levying officer, upon sale of  
          real property, to execute and deliver a deed of sale to the  
          purchaser and record a duplicate deed of sale with the  
          county recorder.  (CCP Section 701.660)

          This bill adds the requirement that the levying officer  
          collect the documentary transfer tax with the purchase  
          amount from the purchaser and transmit the documentary  
          transfer tax to the county or city and  county.

          Existing law requires a levying officer at least once every  
          two years to account to the court all amounts collected  
          under an earnings withholding order.  (CCP Section 706.026)

          This bill authorizes the levying officer to electronically  
          file the accounting with the court, as specified. 

          Existing law requires the service of an earnings  
          withholding order on an employer to be delivered by  
          personal delivery, as specified, or by registered or  
          certified mail with return receipt requested.  Service  
          would be deemed completed at the time the return receipt is  
          executed by or on behalf of the recipient.  (CCP Section  
          706.101(b))

          Existing law requires an employer receiving an earnings  
          withholding order to complete under oath and return within  
          15 days a Judicial Council form indicating information  
          about the garnishee/employee, as specified.  This form is  
          referred to as the "employer's return."  (CCP Sections  
          706.125 and 706.126)

          This bill authorizes the levying officer to serve the  
          earnings withholding order on an employer by first class  
          mail.  Service would be complete at the time of the receipt  
          of the withholding order as indicated by the employer on  







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          the employer's return.  If the employer's return is not  
          returned by the employer within 15 days, the levying  
          officer must personally serve the earnings withholding  
          order on the employer.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  Yes

          According to the Senate Appropriations Committee:

                          Fiscal Impact (in thousands)

           Major Provisions        2010-11    2011-12    2012-13         Fund  

          Authorizes electronic          Potentially significant  
          savings, if adopted            Local
            transmittal

          Mandates: levying officers     Negligible; unlikely to be  
          reimbursable          General
                                       Potential net savings    
          Local/General

          Modifies notice delivery       Likely substantial ongoing  
          savings               Local

           SUPPORT :   (Verified  8/3/10)

          Los Angeles County Sheriff's Department (source)
          California Law Enforcement Association of Records  
          Supervisors
          California State Sheriffs' Association


           ARGUMENTS IN SUPPORT  :    The author writes:

            "[Existing law] [g]enerally 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.

            "This bill seeks to make more efficient Sheriff's  
            Departments in regards to their Civil Law Enforcement  







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            operations.  This bill seeks to allow the Sheriff and  
            Courts to work together to streamline civil process  
            operations and bring [these operations] more into line  
            with technology available.  [T]his bill would provide a  
            cost saving by allowing the sheriff to serve Earnings  
            Withholdings Orders (EWO) by first class mail rather than  
            by certified mail.  It typically costs $5.88 to serve  
            [an] EWO by certified mail, of which $2.20 is charged by  
            the post office for a return receipt.  By contrast [it]  
            costs just $0.73 to send the same EWO by first class  
            mail.  This alone would save an estimated $500,000 to the  
            LA County Sheriff alone."
          

           ASSEMBLY FLOOR  : 
          AYES:  Adams, Ammiano, Anderson, Arambula, Bass, Beall,  
            Bill Berryhill, Tom Berryhill, Blakeslee, Block,  
            Blumenfield, Bradford, Brownley, Buchanan, Caballero,  
            Charles Calderon, Carter, Chesbro, Conway, Cook, Coto,  
            Davis, De Leon, DeVore, Emmerson, Eng, Feuer, Fong,  
            Fuentes, Fuller, Furutani, Gaines, Galgiani, Garrick,  
            Gilmore, Hagman, Hall, Hayashi, Hernandez, Hill, Huber,  
            Huffman, Jeffries, Jones, Knight, Lieu, Logue, Bonnie  
            Lowenthal, Ma, Mendoza, Miller, Monning, Nestande,  
            Niello, Nielsen, Norby, V. Manuel Perez, Portantino,  
            Ruskin, Salas, Saldana, Silva, Skinner, Smyth, Solorio,  
            Audra Strickland, Swanson, Torlakson, Torres, Torrico,  
            Tran, Yamada
          NO VOTE RECORDED:  De La Torre, Evans, Fletcher, Harkey,  
            Nava, Villines, John A. Perez, Vacancy


          RJG:mw  8/4/10   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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