BILL ANALYSIS SENATE JUDICIARY COMMITTEE Senator Ellen M. Corbett, Chair 2009-2010 Regular Session SB 556 S Committee on Judiciary B As Introduced Hearing Date: March 31, 2009 5 Code of Civil Procedure; Revenue and Taxation Code 5 ADM:jd 6 SUBJECT Court Operations: Post-judgment Fees; Unpaid Bail DESCRIPTION This bill would require the clerk of the court in a small claims court judgment to charge and collect all fees associated with the enforcement of judgments under the Enforcement of Judgments Law (EJL). This bill would provide that bail is included among the unpaid court-ordered fines and penalties that the court may refer to the Franchise Tax Board (FTB) for collection after 90 days of delinquency. BACKGROUND Post-judgment fees in small claims proceedings The Small Claims Act (SCA) (Code of Civil Procedure Section 116.110 et seq.) states that small claims judgments may be enforced like other judgments as provided in the EJL. However, the SCA specifies post-judgment fees only with regard to the issuance of a writ of execution, application for an order of examination of a judgment debtor, and issuance of an abstract of judgment. The fee charged in such matters is the same as that charged for the enforcement of any civil judgment. This bill would clarify that a court is authorized to charge the same fees for post-judgment enforcement motions of small claims judgments as is charged for enforcement of civil judgments. Collection of unpaid bail amounts (more) SB 556 (Committee on Judiciary) Page 2 of ? There are two Franchise Tax Board (FTB) programs courts use to assist in the collection of court-ordered debt. The FTB's Tax Intercept Program (FTB-TIP) collects debt by sweeping state tax refunds. The FTB's Court-Ordered Debt Program (FTB-COD) collects debt by sweeping bank accounts and lottery winnings. Currently, although courts have explicit statutory authority to send unpaid bail amounts to the FTB-TIP, the statute is silent regarding whether courts may send similar amounts to the FTB-COD. This bill would clarify that unpaid bail amounts may be sent to the FTB, regardless of which FTB program, for collection. CHANGES TO EXISTING LAW 1.Existing law provides for the enforcement of a small claims court judgment and requires the clerk to charge and collect specified fees for the issuance of a writ of enforcement, an abstract of judgment, or an order of examination of a judgment debtor. (Code of Civil Procedure (CCP) Section 116.820.) Existing law , the EJL, generally governs the enforcement of monetary, non-monetary, and third-party claims, and the satisfaction of judgments. (CCP Section 680.010 et seq.) This bill would require the clerk of the court in a small claims court judgment to charge and collect all fees associated with the enforcement of judgments under the EJL. 2.Existing law provides that fines, state or local penalties, forfeitures, restitution orders, or any other amounts imposed by a superior court upon a person or any other entity that are due and payable in an amount totaling no less than $100, in the aggregate, for criminal offenses, may, no sooner than 90 days after payment of that amount becomes delinquent, be referred by the court, the county, or the state to the FTB for collection. (Revenue and Taxation Code Section 19280.) This bill would add bail to the list of unpaid debt permitted to be referred to the FTB for collection. COMMENT 1.Stated need for the bill The sponsor, the Judicial Council (JC), writes: SB 556 (Committee on Judiciary) Page 3 of ? Post-judgment fees clarification The [SCA] does not identify a fee for a variety of post-judgment motions, including a motion opposing a claim of exemption or a motion to "reset" or continue examination of a judgment debtor, which occur routinely in the enforcement of a small claims judgment. Since such motions are similar to motions for the enforcement of any other civil judgment, the fee for such a motion in a general civil case would also be the appropriate fee to be charged in small claims cases. As a result of the lack of clarity in the statute, practices differ from court to court. SB 556 would clarify that a court is authorized to charge the same fees for post-judgment motions related to the enforcement of a small claims judgment as a court charges for the enforcement of a regular civil judgment under [the EJL]. Senate Bill 556 would bring uniformity to court practices across all small claims courts. Collection of unpaid bail amounts There are two FTB programs courts use to assist in the collection of court-ordered debt. [See Background for details.] [While] courts have explicit statutory authority to send unpaid bail amounts to the FTB-TIP, the statute is silent regarding whether the courts may send similar amounts to the FTB-COD. There is no apparent basis (either in legislative history or court practice) for allowing certain debts to be collected by FTB-TIP, but not FTB-COD. Most courts currently refer failure-to-appear (FTA) cases to either FTB-TIP or FTB-COD, and the amount owed as bail is collected by either program. Recently, however, some courts have been concerned that they might not have the statutory authority to send FTA cases to the FTB-COD. This bill would explicitly authorize the courts to send unpaid bail amounts to either FTB program for collection. 2.Both provisions of SB 556 passed the Legislature in 2008 The identical post-judgment fee provision that is in SB 556 was included in AB 1873 (Lieu, 2008). The bill was vetoed on grounds other than the post-judgment fee provision. With respect to unpaid bail amounts, the Legislature clarified SB 556 (Committee on Judiciary) Page 4 of ? its intent to allow courts to send FTB collection cases to either FTB-TIP or FTB-COD in AB 1389 (Committee on Budget, Chapter 751,Statutes of 2008). Although AB 1389 was enacted into law, it was inadvertently chaptered out by the subsequent enactment of AB 2928 (Spitzer, Chapter 752, Statutes of 2008). Interestingly, because AB 1389 was an urgency statute that took effect immediately upon the Governor's signature and AB 2928 did not take effect until January 1, 2009, the JC-sponsored clarification was in effect from September 30 to December 31, 2008. 3.Post-judgment fees The JC reports that post-judgment related fees range from $15 to $40 depending upon the nature of the motion or application. Support : American Federation of State, County and Municipal Employees Opposition : None Known HISTORY Source : Judicial Council of California Related Pending Legislation : None Known Prior Legislation : AB 1873 (Lieu, 2008), among other provisions, required the clerk of the court to charge and collect all fees associated with the enforcement of judgments as provided in the Code of Civil Procedure, Enforcement of Judgments. This bill was vetoed. AB 1389 (Committee on Budget, Chapter 751, Statutes of 2008), among other things, clarified that bail is included among the unpaid court-ordered fines and penalties that the court may refer to the FTB for collection after 90 days of delinquency. ************** SB 556 (Committee on Judiciary) Page 5 of ?