BILL ANALYSIS                                                                                                                                                                                                    

                                                                  AB 2394
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          AB 2394 (Brownley)
          As Amended June 14, 2010
          Majority vote
          |ASSEMBLY:  |72-0 |(May 20, 2010)  |SENATE: |34-0 |(August 18,    |
          |           |     |                |        |     |2010)          |
           Original Committee Reference:    JUD.  

           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 (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 act  
            upon 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  
            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  


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            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  

          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; and,

             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. 

          9)Requires the levying officer to exclude or redact identifying  
            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  


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            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  

             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 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  
            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  


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            natural person; and (2) whether the case is limited or  

          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.

           The Senate amendments  clarify that the authority of the levying  
          officer to electronically file with the court the return and  
          accounting of amounts collected under an EWO is subject to  
          certain statutory limitations, as specified (i.e., summary 2)  
           AS PASSED BY THE ASSEMBLY  , this bill was substantially similar  
          to the version approved by the Senate.
          FISCAL EFFECT  :  According to the Senate Appropriations analysis,  
          in the provisions of this bill that authorize electronic  
          transmittal of documents, superior courts "will likely achieve  
          savings related to reduced paper-base transactions and records  
          storage, to the extent that those courts enter into agreements  
          with levying officers."  In addition, any provisions under this  
          bill that can be considered to be state mandates on local  
          ministerial officers "are unlikely to constitute reimbursable  
          mandates," while there may be potential net local and general  
          savings from increased efficiency for levying officers or other  
          county staff.  Finally, the Senate Appropriations analysis notes  
          that the provision of the bill that modifies service of an EWO  
          upon an employer bill is "likely to result in substantial local  
          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, believe that there are significant  
          potential time and cost savings associated with increased use of  


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          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.  In support, the author writes:  "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."

          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 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.  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.  

          Significantly, this bill would instead 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  


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          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.

          Under current law, an EWO must be made either by personal  
          delivery or by registered or certified mail, postage prepaid.  
          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."  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.

          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  

          However, because first class mail, by definition, does not  
          involve any "green card" return receipt,  the bill now  
          substitutes, 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 bill specifies that:  1) an employer's return is the  
          Judicial Council-issued form (WG-005) specified by Code of Civil  


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          Procedure Section 706.126; (2) service is deemed complete based  
          on information indicated by the employer in the employer's  
          return; and, (3) the levying officer must serve the EWO by  
          personal delivery if the employer's return is not received  
          within 15 days of the initial mailing.

          Analysis Prepared by  :    Anthony Lew / JUD. / (916) 319-2334 

                                                              FN:  0005388