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)



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          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:
                                                                      



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             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  
                                                                      



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          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. 

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