BILL NUMBER: AB 2364 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 21, 2012
AMENDED IN SENATE AUGUST 6, 2012
AMENDED IN ASSEMBLY APRIL 30, 2012
INTRODUCED BY Assembly Member Wagner
FEBRUARY 24, 2012
An act to amend Sections 482.070, 488.455, 488.460, 488.600,
488.610, 684.110, 700.140, 700.150, 700.160, 701.030, and 703.570 of,
and to add Section 684.115 to, the Code of Civil Procedure, to amend
Sections 1450 and 1620 of the Financial Code, and to amend Sections
1755 and 1755.1 of the Unemployment Insurance Code, relating to civil
procedure.
LEGISLATIVE COUNSEL'S DIGEST
AB 2364, as amended, Wagner. Civil procedure: attachment.
Existing law establishes procedures for service of various legal
processes on financial institutions, and procedures for attachment
and execution of levies served on financial institutions. Existing
law requires service in connection with a levy to be made upon the
branch or at the office that has actual possession of the property
levied upon, or where the deposit account levied upon is carried, as
specified.
This bill would instead require a financial institution that has
more than 9 branch offices in California to designate one or more
central locations for service of legal process within the state, and
would authorize a financial institution with fewer than 9 branch
offices in California to do the same. The bill would establish
procedures for service of process and execution of levies at a
financial institution's central locations and other branches. The
bill would require financial institutions designating central
locations to file a notice of the designation with the Department of
Financial Institutions. The bill would require the department to
update its online records to reflect the designation, and would
require the department to provide a copy of the current notice to any
person upon request, as specified. The bill would establish
procedures for a judgment creditor to engage in a levy action against
a specific deposit account or safe deposit box at a financial
institution, including by filing a written request with the financial
institution for enforcement against the account or safe deposit box.
The bill would require the request to contain specified information.
The bill would require a levying officer to give at least 3 days'
notice to the judgment creditor regarding opening and seizing the
contents of a safe deposit box pursuant to these provisions, as
specified.
The bill would make additional conforming changes.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 482.070 of the Code of Civil Procedure is
amended to read:
482.070. (a) (1) Except as otherwise provided in this title,
legal process required or permitted to be served under this title may
be served personally or by mail.
(2) For purposes of this title, the term "legal process" shall
refer to each and all of the writs, notices, orders, or other papers
required or permitted to be served pursuant to this title.
(b) Except as otherwise provided in this section, service of legal
process under this title is governed by Article 1 (commencing with
Section 684.010) and Article 2 (commencing with Section 684.110) of
Chapter 4 of Division 1 of Title 9, including the provisions of
Section 684.120 extending time when service is made by mail.
(c) For the purpose of subdivision (b), in Article 1 (commencing
with Section 684.010) and Article 2 (commencing with Section 684.110)
of Chapter 4 of Division 1 of Title 9:
(1) References to the "judgment debtor" shall be deemed references
to the defendant.
(2) References to the "judgment creditor" shall be deemed
references to the plaintiff.
(3) References to a "writ" shall be deemed references to a writ of
attachment.
(4) References to a "notice of levy" shall be deemed references to
a notice of attachment.
(d) If the defendant has not appeared in the action and legal
process is required to be personally served on the defendant under
this title, service shall be made in the same manner as a summons is
served under Chapter 4 (commencing with Section 413.10) of Title 5.
(e) Except for service of a subpoena or other process to require
the attendance of the defendant or service of a paper to bring the
defendant into contempt, if the defendant has an attorney of record
in the action, service shall be made on the attorney rather than on
the defendant.
(f) Proof of service under this title is governed by Article 3
(commencing with Section 684.210) of Chapter 4 of Division 1 of Title
9.
SEC. 2. Section 488.455 of the Code of Civil Procedure is amended
to read:
488.455. (a) Subject to Sections 488.465 and 684.115, to attach a
deposit account, the levying officer shall personally serve a copy
of the writ of attachment and a notice of levy
attachment on the financial institution with which the
deposit account is maintained.
(b) The attachment lien that arises upon service of a writ of
attachment and notice of levy attachment
reaches only amounts in a deposit account at the time of
service on the financial institution, including the amount of any
deposit not yet finally collected, unless the deposit is returned
unpaid to the financial institution.
(c) The levying officer shall serve a copy of the writ of
attachment and a notice of levy attachment
on any third person in whose name any deposit account described
therein stands. That service shall be made personally or by mail as
follows:
(1) At the time of levy or promptly thereafter, if the party
seeking the levy informs the levying officer of that person and his,
her, or its residence or business address.
(2) Promptly following the levying officer's receipt of a
garnishee's memorandum if service was not accomplished pursuant to
paragraph (1), if the garnishee's memorandum identifies that person
and his, her, or its residence or business address.
(d) The financial institution shall not honor a withdrawal request
or a check or other order for the payment of money from the deposit
account if presentation of that withdrawal request or item to the
financial institution occurs during the time the attachment lien is
in effect unless, following that withdrawal or payment, sufficient
funds are available to cover the levy. For these purposes, a
withdrawal from the deposit account to cover the financial
institution's standard fee or charge for processing the levy shall
not be considered a payment of money from the account in violation of
this subdivision.
(e) During the time the attachment lien is in effect, the
financial institution is not liable to any person for any of the
following:
(1) Performance of the duties of a garnishee under the levy.
(2) Nonpayment of a check or other order for the payment or
transfer of money drawn or presented against the deposit account if
the nonpayment is pursuant to the requirements of subdivision (d).
(3) Refusal to pay a withdrawal from the deposit account if the
refusal is pursuant to the requirements of subdivision (d).
(f) For the purposes of this section, none of the following is a
third person in whose name the deposit account stands:
(1) A person who is only a person named as the beneficiary of a
Totten trust account.
(2) A person who is only a payee designated in a pay-on-death
provision in an account pursuant to Section 18318.5 of the Financial
Code or Section 5140 of the Probate Code, or other similar provision.
(3) A person who is only acting in a representative or custodial
capacity with respect to benefits paid or payable by the United
States government. Rather, accounts maintained by the representative
or custodian shall be deemed to stand in that beneficiary's name, and
the amounts therein shall be covered by a levy against that
beneficiary.
(g) For purposes of this section, final payment of a deposit shall
be deemed to have occurred in accordance with Section 4215 or 11210
of the Commercial Code or with automated clearinghouse or Federal
Reserve System rule, regulation, operating circular, or similar
governing document, as applicable to the deposit. If, for any reason,
a deposit is returned by the financial institution upon which it is
drawn, that deposit shall not be deemed finally collected for
purposes of this subdivision regardless of any later payment by the
financial institution upon which the deposit is drawn.
(h) When a deposit account has been attached, as an alternative to
paying the amount of the deposit account that is attached to the
levying officer as required by Section 488.600, the financial
institution may continue to hold the deposit account until the
deposit account is levied upon after judgment in the action or is
earlier released, the deposit account to be held in one of the
following manners:
(1) If the entire deposit account is attached, the financial
institution may hold the deposit account on the terms applicable
before the attachment, subject to the requirements of subdivision
(d).
(2) If less than the entire deposit account is attached:
(A) With the consent of the defendant, and any third person in
whose name the deposit account stands, the financial institution may
hold in the deposit account on the same terms an amount larger than
the attached amount as necessary to avoid a penalty or a reduction of
the rate of interest.
(B) If the defendant, and any third person in whose name the
deposit account stands, do not consent as provided in subparagraph
(A), the financial institution may hold the attached amount on the
same terms affecting the deposit account before the attachment,
subject to the requirements of subdivision (d).
(3) The financial institution may hold the attached deposit
account in any other manner agreed upon by the plaintiff, the
defendant, and any third person in whose name the deposit account
stands.
(i) Subdivision (h) does not prevent a financial institution that
is holding an attached deposit account as provided in subdivision (h)
from paying the attached amount to the levying officer before the
time the financial institution otherwise is required to pay the
amount under subdivision (h).
SEC. 3. Section 488.460 of the Code of Civil Procedure is amended
to read:
488.460. (a) Subject to Section Sections
488.465 and 684.115 , to attach property in a
safe-deposit box, the levying officer shall personally serve a copy
of the writ of attachment and a notice of attachment on the financial
institution with which the safe-deposit box is maintained.
(b) At the time of levy or promptly thereafter, the levying
officer shall serve a copy of the writ of attachment and a notice of
attachment on any third person in whose name the safe-deposit box
stands.
(c) During the time the attachment lien is in effect, the
financial institution may not permit the removal of any of the
contents of the safe-deposit box except as directed by the levying
officer.
(d) Upon receipt of a garnishee's memorandum from the financial
institution, as required by Section 488.610, indicating a
safe-deposit box is under levy, the levying officer shall promptly
mail a written notice to the judgment creditor demanding an
additional fee as required by Section 26723 of the Government Code,
plus the costs to open the safe-deposit box and seize and store the
contents. The levying officer shall release the levy on the
safe-deposit box if the plaintiff does not pay the required fee, plus
costs, within three business days plus the extended time period
specified in subdivision (a) of Section 1013 for service by mail by
the levying officer.
(e) The levying officer may first give the person in whose name
the safe-deposit box stands an opportunity to open the safe-deposit
box to permit the removal pursuant to the attachment of the attached
property. The financial institution may refuse to permit the forcible
opening of the safe-deposit box to permit the removal of the
attached property unless the plaintiff or levying officer pays in
advance the cost of forcibly opening the safe-deposit box and of
repairing any damage caused thereby.
(f) During the time the attachment lien is in effect, the
financial institution is not liable to any person for any of the
following:
(1) Performance of the duties of a garnishee under the attachment.
(2) Refusal to permit access to the safe-deposit box by the person
in whose name it stands.
(3) Removal of any of the contents of the safe-deposit box
pursuant to the attachment.
(g) If the levying officer removes any property from the
safe-deposit box to satisfy the levy, but allows other property to
remain in the safe-deposit box, the attachment lien is released
automatically with respect to any property that remains in the
safe-deposit box.
SEC. 4. Section 488.600 of the Code of Civil Procedure is amended
to read:
488.600. (a) Sections 701.010, 701.015,
701.020, 701.040, 701.050, 701.060, and 701.070 prescribe duties and
liabilities of a third person under a levy made under this title.
(b) For the purposes of this section, references in Sections
701.010, 701.015, 701.020, 701.040, 701.050, and
701.060 to:
(1) "Amount required to satisfy the judgment" shall be deemed
references to the amount required to satisfy the amount to be secured
by the attachment.
(2) "Execution lien" or "lien" shall be deemed references to the
attachment lien.
(3) "Judgment creditor" shall be deemed references to the
plaintiff.
(4) "Judgment debtor" shall be deemed references to the defendant.
(5) "Levy" shall be deemed references to levy of attachment.
(6) "Notice of levy" shall be deemed references to notice of
attachment.
(7) "Release" of property shall be deemed references to release of
property pursuant to this title.
(8) "Satisfaction or discharge of the judgment" shall be deemed
references to the satisfaction or termination of the attachment.
(9) "Writ" or "writ of execution" shall be deemed references to a
writ of attachment.
(c) For the purposes of this section, references in Section
701.070 to:
(1) "Levy" shall be deemed references to levy of attachment.
(2) "Notice of the levy" shall be deemed references to notice of
attachment.
SEC. 5. Section 488.610 of the Code of Civil Procedure is amended
to read:
488.610. (a) At the time of service of a copy of the writ of
attachment and a notice of attachment on a third person, the levying
officer shall request the third person to give the levying officer a
garnishee's memorandum containing the information required by this
section. Within 10 days after the request is made, the third person
shall mail or deliver the garnishee's memorandum to the levying
officer whether or not the levy is effective.
(b) The garnishee's memorandum shall be executed under oath and
shall contain the following information:
(1) A description of any property of the defendant sought to be
attached that is not delivered to the levying officer and the reason
for not delivering the property.
(2) A statement of the amount and terms of any obligation to the
defendant sought to be attached that is due and payable and is not
paid to the levying officer and the reason for not paying the
obligation.
(3) A statement of the amount and terms of any obligation to the
defendant sought to be attached that is not due and payable at the
time of levy.
(4) A description of claims and rights of other persons to the
attached property or obligation that are known to the third person
and the names and addresses of those other persons.
(5) A statement that the garnishee holds neither any property nor
any obligations in favor of the judgment debtor.
(6) Any information required to be included pursuant to paragraph
(1) of subdivision (b) of Section 701.015.
(c) If a garnishee's memorandum is received from the third person,
the levying officer shall promptly mail or deliver a copy of the
memorandum to the plaintiff and attach the original to the writ when
it is returned to the court. If a garnishee's memorandum is not
received from the third person, the levying officer shall so state in
the return.
(d) Except as provided in subdivisions (e) and (f), if a third
person does not give the levying officer a garnishee's memorandum
within the time provided in subdivision (a) or does not provide
complete information, the third person may, in the court's
discretion, be required to pay the costs and reasonable attorney's
fees incurred in any proceedings to obtain the information required
in the garnishee's memorandum.
(e) Notwithstanding subdivision (a), where a deposit account or
property in a safe-deposit box is attached, the financial institution
need not give a garnishee's memorandum to the levying officer if the
financial institution fully complies with the levy and, if a
garnishee's memorandum is required, the garnishee's memorandum need
provide information with respect only to property which is carried on
the records available at the office or branch where the levy is
made, unless the levy has been served at a central location
designated by a financial institution in accordance with Section
684.115, in which case the garnishee's memorandum shall apply to all
offices and branches of the financial institution except to the
extent acceptance of the levy at that central location is limited
pursuant to paragraph (3) of subdivision (a) of Section 684.115.
(f) Notwithstanding subdivision (a), the third person need not
give a garnishee's memorandum to the levying officer if both of the
following conditions are satisfied:
(1) The third person has delivered to the levying officer all of
the property sought to be attached.
(2) The third person has paid to the levying officer the amount
due at the time of levy on any obligation to the defendant that was
attached and there is no additional amount that thereafter will
become payable on the obligation levied upon.
SEC. 6. Section 684.110 of the Code of Civil Procedure is amended
to read:
684.110. (a) (1) Subject to subdivisions (b), (c), and (d), if
legal process is required to be personally served under this title,
service shall be made in the same manner as a summons is served under
Chapter 4 (commencing with Section 413.10) of Title 5.
(2) For purposes of this title, the term "legal process" shall
refer to each and all of the writs, notices, orders, or other papers
required or permitted to be served pursuant to this title.
(b) If the legal process is required to be personally served under
this title and service on an attorney is required under Article 1
(commencing with Section 684.010), service shall be made on the
attorney in the manner provided in Section 684.040.
(c) If the legal process is required to be personally served on
(1) a financial institution in connection with a deposit account or
with property held for safekeeping, as collateral for an obligation
owed to the financial institution or in a safe-deposit box, (2) a
title insurer (as defined in Section 12340.4 of the Insurance Code)
or underwritten title company (as defined in Section 12340.5 of the
Insurance Code), or (3) an industrial loan company (as defined in
Section 18003 of the Financial Code), service shall be made at the
office or branch that has actual possession of the property levied
upon or at which a deposit account levied upon is carried and shall
be made upon the officer, manager, or other person in charge of the
office or branch at the time of service. For purposes of this
section, the office or branch at which a deposit account levied upon
is carried shall mean the branch, office, or other location where the
financial institution maintains the account.
(d) Notwithstanding subdivision (c), with respect to legal process
served on a financial institution, if the financial institution has
designated a central location for service of legal process pursuant
to Section 684.115, unless the financial institution elects to treat
legal process served at a branch or office as effective, that legal
process so served on the branch or office will not reach those
accounts or property and need not be reported on the financial
institution's garnishee memorandum.
(e) Notwithstanding subdivision (c), a financial institution,
title insurer, or industrial loan company, in its discretion and
without violating any obligation to its customer, may act upon
service of legal process at any of its offices or branches, whether
or not the office or branch is the location wherein accounts or
property that may be reached by the process is or are maintained or
located.
SEC. 7. Section 684.115 is added to the Code of Civil Procedure,
to read:
684.115. (a) A financial institution may, and if it has more than
nine branches or offices at which it conducts its business within
this state, shall, designate one or more central locations for
service of legal process within this state. Each designated location
shall be referred to as a "central location." If a financial
institution elects or is required to designate a central location for
service of legal process, the financial institution shall file a
notice of its designation with the Department of Financial
Institutions, which filing shall be effective upon filing and shall
contain all of the following:
(1) The physical address of the central location.
(2) The days and hours during which service will be accepted at
the central location.
(3) If the central location will not accept service of legal
process directed at deposit accounts maintained or property held at
all of the financial institution's branches or offices within this
state, or if the service accepted at the central location will not
apply to safe-deposit boxes or other property of the judgment debtor
held by or for the judgment debtor, the filing shall also contain
sufficient information to permit a determination of the limitation or
limitations, including, in the case of a limitation applicable to
certain branches or offices, an identification of the branches or
offices as to which service at the central location will not apply
and the nature of the limitation applicable to those branches or
offices. If the limitation will apply to all branches or offices of
the financial institution within this state, the filing may indicate
the nature of the limitation and that it applies to all branches or
offices, in lieu of an identification of branches or offices as to
which the limitation applies. To the extent that a financial
institution's designation of a central location for service of legal
process covers the process directed at deposit accounts, safe-deposit
boxes, or other property of the judgment debtor held by or for the
judgment debtor at a particular branch or office located within this
state, the branch or office shall be a branch or office covered by
central process.
(b) Should a financial institution required to designate a central
location fail to do so, each branch of that institution located in
this state shall be deemed to be a central location at which service
of legal process may be made, and all of the institution's branches
or offices located within this state shall be deemed to be a branch
or office covered by central process.
(c) Subject to any limitation noted pursuant to paragraph (3) of
subdivision (a), service of legal process at a central location of a
financial institution shall be effective against all deposit accounts
and all property held for safekeeping, as collateral for an
obligation owed to the financial institution or in a safe-deposit box
if the same is described in the legal process and held by the
financial institution at any branch or office covered by central
process and located within this state. However, while service of
legal process at the central location will establish a lien on all
property, if any property other than deposit accounts is physically
held by the financial institution in a county other than that in
which the designated central location is located, the financial
institution shall include in its garnishee's memorandum the location
or locations of the property, and the judgment creditor shall obtain
a writ of execution covering the property and directed to the levying
officer in that county to accomplish the turnover of the property
and shall forward the writ and related required documentation to the
levying officer in the county in which the property is held.
(d) A financial institution may modify or revoke any designation
made pursuant to subdivision (a) by filing the modification or
revocation with the Department of Financial Institutions. The
modification or revocation shall be effective when the Department of
Financial Institutions' records have been updated to reflect the
modification or revocation, provided that the judgment creditor may
rely upon the superseded designation during the 30-day period
following the effective date of the revocation or modification.
(e) (1) The Department of Financial Institutions shall update its
online records to reflect a filing by a financial institution
pursuant to subdivision (a) or a modification or revocation filed by
a financial institution pursuant to subdivision (d) within 10
business days following the filing by the financial institution. The
Department of Financial Institutions' Internet Web site shall reflect
the date its online records for each financial institution have most
recently been updated.
(2) The Department of Financial Institutions shall provide any
person requesting it with a copy of each current filing made by a
financial institution pursuant to subdivision (a). The Department of
Financial Institutions may satisfy its obligation under this
subdivision by posting all current designations of a financial
institution, or the pertinent information therein, on an Internet Web
site available to the public without charge, and if that information
is made available, the Department of Financial Institutions may
impose a reasonable fee for furnishing that information in any other
manner.
(f) As to deposit accounts maintained or property held for
safekeeping, as collateral for an obligation owed to the financial
institution or in a safe-deposit box at a branch or office covered by
central process, service of legal process at any location other than
a central location designated by the financial institution shall not
be effective unless the financial institution, in its absolute
discretion, elects to act upon the process at that location as if it
were effective. In the absence of an election, the financial
institution may respond to the legal process by mailing or delivery
of the garnishee's memorandum to the levying officer within the time
otherwise provided therefor, with a statement on the garnishee's
memorandum that the legal process was not properly served at the
financial institution's designated location for receiving legal
process, and, therefor, was not processed, and the address at which
the financial institution is to receive legal process.
(g) If any legal process is served at a central location of a
financial institution pursuant to this section, all related papers to
be served on the financial institution shall be served at that
location, unless agreed to the contrary between the serving party and
the financial institution.
(h) This subdivision shall apply whenever a financial institution
operates within this state at least one branch or office in addition
to its head office or main office, as applicable, or a financial
institution headquartered in another state operates more than one
branch or office within this state, and no central location has been
designated or deemed to have been designated by the institution for
service of legal process relating to deposit accounts maintained at
the financial institution's head office or main office, as
applicable, and branches located within this state. If a judgment
creditor reasonably believes that, pursuant to Section 700.140 and,
if applicable, Section 700.160, any act of enforcement would be
effective against a specific deposit account maintained at a
financial institution described in this subdivision, the judgment
creditor may file with the financial institution a written request
that the financial institution identify the branch or office within
this state at which a specified account might be maintained by the
financial institution. The written request shall contain the
following statements or information:
(1) The name of the person reasonably believed by the judgment
creditor to be a person in whose name the specified deposit account
stands.
(2) If the name of the person reasonably believed by the judgment
creditor to be a person in whose name the specified deposit account
stands is not a judgment debtor identified in the writ of execution,
a statement that a person reasonably believed by the judgment
creditor to be a person in whose name the specified deposit account
stands will be appropriately identified in the legal process to be
served pursuant to Section 700.160, including any supplementary
papers, such as a court order or affidavit if the same will be
required by Section 700.160.
(3) The specific identifying number of the account reasonably
believed to be maintained with the financial institution and standing
in the name of the judgment debtor
or other person.
(4) The address of the requesting party.
(5) An affidavit by the judgment creditor or the judgment creditor'
s counsel stating substantially the following:
I hereby declare that this deposit account location request
complies with Section 684.115 of the Code of Civil Procedure, that
the account or accounts of the judgment debtor or other person or
persons appropriately identified in the legal process and specified
herein are subject to a valid writ of execution, or court order, that
I have a reasonable belief, formed after an inquiry reasonable under
the circumstances, that the financial institution receiving this
deposit account location request has an account standing in the name
of the judgment debtor or other person or persons appropriately
identified in the legal process, and that information pertaining to
the location of the account will assist the judgment creditor in
enforcing the judgment.
(i) The affidavit contemplated by subdivision (h) shall be signed
by the judgment creditor or the judgment creditor's counsel and filed
at the financial institution's head office located within this state
or, if the financial institution's head office is in another state,
at one of its branches or offices within this state. Failure to
comply with the requirements of subdivision (h) and this subdivision
shall be sufficient basis for the financial institution to refuse to
produce the information that would otherwise be required by
subdivision (j).
(j) Within 10 banking days following receipt by a financial
institution at the applicable location specified in subdivision (i)
of a request contemplated by subdivision (h), as to each specific
deposit account identified in the request contemplated by subdivision
(h), the financial institution shall respond by mailing, by
first-class mail with postage prepaid, to the requester's address as
specified in the request a response indicating the branch or office
location of the financial institution at which the specified deposit
account might be maintained, or, if the specified deposit account, if
it exists, would not be maintained at a specific location, at least
one place within this state at which legal process relating to the
deposit account should or may be served. The response to be furnished
pursuant to this subdivision shall not require the financial
institution to determine whether an account exists or, if an account
does exist, whether it would be reached by the legal process, rather,
the branch or office location shall be determined and reported by
the financial institution based solely upon its determination that an
account with the identifying number provided by the requester would
be maintained at that branch if an account did exist, and the
response shall not contain any information about the name in which
the account stands or any other information concerning the account,
if it exists. If more than one account number is specified in the
request, the financial institution's responses as to some or all of
those account numbers may be combined in a single writing.
(k) A response furnished in good faith by the financial
institution pursuant to subdivision (j) shall not be deemed to
violate the privacy of any person in whose name the specified deposit
account stands nor the privacy of any other person, and shall not
require the consent of the person in whose name the account stands
nor that of any other person.
(l) A financial institution shall not notify the person in whose
name the specified deposit account stands or any other person related
to the specified account of the receipt of any request made pursuant
to subdivision (h) and affecting that person's or persons' accounts
at the financial institution, provided that the financial institution
shall have no liability for its failure to comply with the
provisions of this subdivision.
SEC. 8. Section 700.140 of the Code of Civil Procedure is amended
to read:
700.140. (a) Subject to Sections 684.115 and 700.160, to levy
upon a deposit account, the levying officer shall personally serve a
copy of the writ of execution and a notice of levy on the financial
institution with which the deposit account is maintained.
(b) The execution lien that arises upon service of a writ of
execution and notice of levy reaches only amounts in a deposit
account at the time of service on the financial institution,
including the amount of any deposit not yet finally collected unless
the deposit is returned unpaid to the financial institution.
(c) The levying officer shall serve a copy of the writ of
execution and a notice of levy on any third person in whose name any
deposit account described therein stands. Service shall be made
personally or by mail as follows:
(1) At the time of levy or promptly thereafter, if the party
seeking the levy informs the levying officer of the person and his,
her, or its residence or business address.
(2) Promptly following the levying officer's receipt of a
garnishee's memorandum if service was not accomplished pursuant to
paragraph (1) if the garnishee's memorandum identifies the person and
his, her, or its residence or business address.
(d) The financial institution shall not honor a withdrawal request
or a check or other order for the payment of money from the deposit
account if presentment of the withdrawal request or item to the
financial institution occurs during the time the execution lien is in
effect unless, following the withdrawal or payment, sufficient funds
are available to cover the levy. For these purposes, a withdrawal
from the deposit account to cover the financial institution's
standard fee or charge for processing the levy shall not be
considered a payment of money from the account in violation of this
subdivision.
(e) During the time the execution lien is in effect, the financial
institution is not liable to any person for any of the following:
(1) Performance of the duties of a garnishee under the levy.
(2) Nonpayment of a check or other order for the payment or
transfer of money drawn or presented against the deposit account if
the nonpayment is pursuant to the requirements of subdivision (d).
(3) Refusal to pay a withdrawal from the deposit account if the
refusal is pursuant to the requirements of subdivision (d).
(f) When the amount levied upon pursuant to this section is paid
to the levying officer, the execution lien on the deposit account
levied upon terminates.
(g) For the purposes of this section, none of the following is a
third person in whose name the deposit account stands:
(1) A person who is only a person named as the beneficiary of a
Totten trust account.
(2) A person who is only a payee designated in a pay-on-death
provision in an account pursuant to Section 18318.5 of the Financial
Code or Section 5140 of the Probate Code, or other similar provision.
(3) A person who is only acting in a representative or custodial
capacity with respect to benefits paid or payable by the United
States government. Rather, accounts maintained by the representative
or custodian shall be deemed to stand in the beneficiary's name, and
the amounts therein shall be covered by a levy against the
beneficiary.
(h) For purposes of this section, final payment of a deposit shall
be deemed to have occurred in accordance with Section 4215 or 11210
of the Commercial Code or with automated clearinghouse or Federal
Reserve System rule, regulation, operating circular, or similar
governing document, as applicable to the deposit. If, for any reason,
a deposit is returned by the financial institution upon which it is
drawn, the deposit shall not be deemed finally collected for purposes
of this subdivision regardless of any later payment by the financial
institution upon which the deposit is drawn.
SEC. 9. Section 700.150 of the Code of Civil Procedure is amended
to read:
700.150. (a) Subject to Section 700.160, to levy upon property in
a safe-deposit box, the levying officer shall personally serve a
copy of the writ of execution and a notice of levy on the financial
institution with which the safe-deposit box is maintained.
(b) At the time of the levy or promptly thereafter, the levying
officer shall serve a copy of the writ of execution and a notice of
levy on any third person in whose name the safe-deposit box stands.
Service shall be made personally or by mail.
(c) During the time the execution lien is in effect, the financial
institution may not permit the removal of any of the contents of the
safe-deposit box except as directed by the levying officer.
(d) Upon receipt of a garnishee's memorandum from the financial
institution indicating a safe-deposit box is under levy, the levying
officer shall promptly mail a written notice to the judgment creditor
demanding an additional fee as required by Section 26723 of the
Government Code, plus the costs to open the safe-deposit box and
seize and store the contents. The levying officer shall release the
levy on the safe-deposit box if the judgment creditor does not pay
the required fee, plus costs, within three business days plus the
extended time period specified in subdivision (a) of Section 1013 for
service by mail by the levying officer.
(e) The levying officer may first give the person in whose name
the safe-deposit box stands an opportunity to open the safe-deposit
box to permit the removal pursuant to the levy of the property levied
upon. The financial institution may refuse to permit the forcible
opening of the safe-deposit box to permit the removal of the property
levied upon unless the levying officer or the judgment creditor pays
in advance the cost of forcibly opening the safe-deposit box and of
repairing any damage caused thereby.
(f) The levying officer shall give the judgment creditor at least
three court days' advance notice of the date and time the levying
officer will open the safe-deposit box and seize the contents
thereof, and the judgment creditor shall be entitled to be present at
that time.
(g) During the time the execution lien is in effect, the financial
institution is not liable to any person for any of the following:
(1) Performance of the duties of a garnishee under the levy.
(2) Refusal to permit access to the safe-deposit box by the person
in whose name it stands.
(3) Removal of any of the contents of the safe-deposit box
pursuant to the levy.
(h) If the levying officer removes any property from the
safe-deposit box to satisfy the levy, but allows other property to
remain in the safe-deposit box, the execution lien is released
automatically with respect to any property that remains in the
safe-deposit box.
SEC. 10. Section 700.160 of the Code of Civil Procedure is amended
to read:
700.160. (a) Except as provided in subdivision (b), a deposit
account or safe-deposit box standing in the name of a person other
than the judgment debtor, either alone or together with third
persons, is not subject to levy under Section 700.140 or 700.150
unless the legal process served on the third party includes a court
order authorizing the levy.
(b) A court order is not required to levy on a deposit account or
safe-deposit box standing in the name of any of the following:
(1) The judgment debtor, whether alone or together with third
persons.
(2) The judgment debtor's spouse or registered domestic partner,
whether alone or together with other persons, provided an affidavit
is delivered to the financial institution at the time of levy showing
that person is the judgment debtor's spouse or registered domestic
partner.
(3) A fictitious business name, provided a copy of an unexpired
statement certified in accordance with Section 17926 of the Business
and Professions Code is delivered to the financial institution at the
time of levy, the fictitious business name statement does not list
any person other than the judgment debtor, the judgment debtor's
spouse or the judgment debtor's registered domestic partner as the
person or persons doing business under the fictitious business name,
and, if a person other than the judgment debtor is listed in the
statement, an affidavit stating that the other person is the judgment
debtor's spouse or registered domestic partner is delivered to the
financial institution at the time of the levy.
(4) The additional name of a judgment debtor listed on the legal
process pursuant to an affidavit of identity as provided by Section
680.135, whether alone or together with third persons.
(c) In any case where a deposit account in the name of a person
other than the judgment debtor, whether alone or together with the
judgment debtor, is levied upon, the financial institution shall not
pay to the levying officer the amount levied upon until being
notified to do so by the levying officer. The levying officer may not
require the financial institution to pay the amount levied upon
until the expiration of 15 days after service of notice of levy on
the third person.
SEC. 11. Section 701.030 of the Code of Civil Procedure is amended
to read:
701.030. (a) At the time of service of a copy of the legal
process on a third person, the levying officer shall request the
third person to give the levying officer a garnishee's memorandum
containing the information required by this section. Within 10 days
after the legal process is served, the third person shall mail or
deliver the garnishee's memorandum to the levying officer whether or
not the levy is effective.
(b) The garnishee's memorandum shall be executed under oath and
shall contain the following information, as applicable:
(1) A description of any property of the judgment debtor sought to
be levied upon that is not delivered to the levying officer and the
reason for not delivering the property.
(2) A description of any property of the judgment debtor not
sought to be levied upon that is in the possession or under the
control of the third person at the time of levy.
(3) A statement of the amount and terms of any obligation to the
judgment debtor sought to be levied upon that is due and payable and
is not paid to the levying officer, and the reason for not paying the
obligation.
(4) A statement of the amount and terms of any obligation to the
judgment debtor sought to be levied upon that is not due and payable
at the time of levy.
(5) A statement of the amount and terms of any obligation to the
judgment debtor at the time of levy not sought to be levied upon.
(6) A description of claims and rights of other persons to the
property or obligation levied upon that are known to the third person
and the names and addresses of those other persons.
(7) A statement that the garnishee holds neither any property nor
any obligations in favor of the judgment debtor.
(8) Any information required to be included pursuant to paragraph
(1) of subdivision (b) of Section 701.015.
(c) If a garnishee's memorandum is received from the third person,
the levying officer shall retain a copy and promptly mail or deliver
a copy of the memorandum to the judgment creditor.
(d) Except as provided in subdivisions (e) and (f), if a third
person does not give the levying officer a garnishee's memorandum
within the time provided in subdivision (a), or does not provide
complete information, the third person may, in the court's
discretion, be required to pay the costs and reasonable attorney's
fees incurred in any proceedings to obtain the information required
in the garnishee's memorandum.
(e) Notwithstanding subdivision (a), when the levy is made upon a
deposit account or upon property in a safe-deposit box, the financial
institution need not give a garnishee's memorandum to the levying
officer if the financial institution fully complies with the levy
and, if a garnishee's memorandum is required, the garnishee's
memorandum needs to provide information with respect only to property
that is carried on the records available at the office or branch
where the levy is made provided that if a levy has been served at a
central location designated by a financial institution in accordance
with Section 684.115, the garnishee's memorandum shall apply to all
offices and branches of the financial institution except to the
extent acceptance of the levy at those central locations is limited
pursuant to paragraph (3) of subdivision (a) of Section 684.115.
(f) Notwithstanding subdivision (a), the third person need not
give a garnishee's memorandum to the levying officer if both of the
following conditions are satisfied:
(1) The third person has delivered to the levying officer all of
the property sought to be levied upon.
(2) The third person has paid to the levying officer the amount
due at the time of levy on any obligation to the judgment debtor that
was levied upon, and there is no additional amount that thereafter
will become payable on the obligation levied upon.
(g) The garnishee may electronically transmit the garnishee's
memorandum to the levying officer pursuant to Chapter 2 (commencing
with Section 263) of Title 4 of Part 1.
SEC. 12. Section 703.570 of the Code of Civil Procedure is amended
to read:
703.570. (a) The hearing on the motion shall be held not later
than 30 days from the date the notice of motion was filed with the
court unless continued by the court for good cause.
(b) Not less than 10 days prior to the hearing, the judgment
creditor shall serve a notice of the hearing and a copy of the notice
of opposition to the claim of exemption on the claimant and on the
judgment debtor, if other than the claimant. Service shall be made
personally or by mail.
SEC. 13. Section 1450 of the Financial Code is amended to read:
1450. Notice to any bank of an adverse claim (the person making
the adverse claim being hereafter called "adverse claimant") to a
deposit standing on its books to the credit of or to personal
property held for the account of any person shall be disregarded, and
the bank, notwithstanding the notice, shall honor the checks, notes,
or other instruments requiring payment of money by or for the
account of the person to whose credit the account stands and on
demand shall deliver that property to, or on the order of, the person
for whose account the property is held, without any liability on the
part of the bank; subject, however, to the exceptions provided in
subdivisions (a) and (b):
(a) If an adverse claimant delivers to the bank at the office at
which the deposit is carried or at which the property is held an
affidavit of the adverse claimant stating that of the adverse
claimant's own knowledge the person to whose credit the deposit
stands or for whose account the property is held is a fiduciary for
the adverse claimant and that the adverse claimant has reason to
believe the fiduciary is about to misappropriate the deposit or the
property, and stating the facts on which the claim of fiduciary
relationship and the belief are founded, the bank shall refuse
payment of the deposit and shall refuse to deliver the property for a
period of not more than three court days (including the day of
delivery) from the date that the bank received the adverse claimant's
affidavit, without liability on its part and without liability for
the sufficiency or truth of the facts alleged in the affidavit.
(b) If at any time, either before, after, or in the absence of the
filing of an affidavit by the adverse claimant, the adverse claimant
procures and serves upon the bank at the office at which the deposit
is carried or at which the property is held a restraining order,
injunction, or other appropriate order against the bank from a court
of competent jurisdiction in an action in which the adverse claimant
and all persons in whose names the deposit stands or for whose
account the property is held are parties, the bank shall comply with
the order or injunction, without liability on its part.
(c) This section shall be applicable even though the name of the
person appearing on the bank's books to whose credit the deposit
stands or for whose account the property is held is modified by a
qualifying or descriptive term such as "agent," "trustee," or other
word or phrase indicating that the person may not be the owner in his
or her own right of the deposit or property.
(d) Nothing in the California Multiple-Party Accounts Law
contained in Part 2 (commencing with Section 5100) of Division 5 of
the Probate Code limits the applicability of this section.
(e) For purposes of this section, the term "office at which the
deposit is carried" shall mean the branch, office, or other location
where the account containing the subject deposit is carried or
maintained.
(f) Notwithstanding subdivisions (a) and (b), if a central
location has been designated by the bank pursuant Section 684.115 of
the Code of Civil Procedure for service of legal process, as that
term is defined in Section 684.110 of the Code of Civil Procedure,
the adverse claimant shall serve a notice of adverse claim or related
affidavit, order, injunction, or other order contemplated herein at
the central location. If a central location has not but should have
been designated by the bank pursuant Section 684.115 of the Code of
Civil Procedure for service of legal process, as that term is defined
in Section 684.110 of the Code of Civil Procedure, the adverse
claimant may serve a notice of adverse claim or related affidavit,
order, injunction, or other order contemplated herein at any branch
or office of the institution located in
California this state .
SEC. 14. Section 1620 of the Financial Code is amended to read:
1620. Notice to a bank operating a safety deposit department or
to a company conducting a safety deposit business of an adverse claim
(the person making the adverse claim being hereafter in this section
called "adverse claimant") to any personal property in a
safe-deposit box maintained by a bank or company and rented to any
person, or to any personal property held by the bank or company in
safekeeping or storage for any person shall be disregarded, and the
bank or company, notwithstanding such notice, shall permit access to
the box to the person to whom it is rented or shall deliver the
contents thereof to or on the order of the person or shall deliver
the property held in storage or safekeeping to or on the order of the
person for whom it is held, without any liability on the part of the
bank or company; subject, however, to the exceptions provided in
subdivisions (a) and (b) of this section:
(a) If an adverse claimant delivers to the bank at the office at
which the safe-deposit box is maintained or the property is held his
or her affidavit stating that of his or her own knowledge the person
in whose name the box stands or for whom the property is held is a
fiduciary for the adverse claimant and that he or she has reason to
believe that fiduciary is about to misappropriate the contents of the
box or the property, and stating the facts upon which the claim of
fiduciary relationship and the belief are founded, the bank or
company shall refuse access to the safe-deposit box or refuse to
deliver the personal property for a period of not more than three
court days (including the day of delivery) from the date that the
bank or company received the adverse claimant's affidavit, without
liability on its part and without liability for the sufficiency or
truth of the facts alleged in the affidavit.
(b) If at any time, either before, after, or in the absence of the
filing of an affidavit by the adverse claimant, the adverse claimant
procures and serves upon the bank or company at the office at which
the safe-deposit box is maintained or the property is held a
restraining order, injunction, or other appropriate order against the
bank or company from a court of competent jurisdiction in an action
in which the adverse claimant and all persons in whose names the box
stands or for whom the property is held are parties, the bank or
company shall comply with that order or injunction, without liability
on its part.
(c) The provisions of this section shall be applicable even though
the name of the person appearing on the bank's or company's books as
the renter of the box or as the depositor of the property held in
storage or safekeeping is modified by a qualifying or descriptive
term such as "agent," "trustee," or other word or phrase indicating
that the person may not be the owner in his or her own right of the
contents of the box or of the property held in storage or
safekeeping.
(d) Before giving access to any safe-deposit box, the bank or
company may demand payment to it of all costs and expenses of opening
the safe-deposit box and all costs and expenses of repairing any
damage to the safe-deposit box caused by the opening thereof.
(e) Notwithstanding subdivisions (a) and (b), if a central
location has been designated by the bank pursuant Section 684.115 of
the Code of Civil Procedure for service of legal process, as that
term is defined in Section 684.110 of the Code of Civil Procedure,
the adverse claimant shall serve a notice of adverse claim or related
affidavit, order, injunction, or other order contemplated herein at
the central location. If a central location has not but should have
been designated by the bank pursuant Section 684.115 of the Code of
Civil Procedure for service of legal process, as that term is defined
in Section 684.110 of the Code of Civil Procedure, the adverse
claimant may serve a notice of adverse claim or related affidavit,
order, injunction, or other order contemplated herein at any branch
or office of the institution located in
California this state .
SEC. 15. Section 1755 of the Unemployment Insurance Code is
amended to read:
1755. (a) If any person or employing unit is delinquent in the
payment of any contributions, penalties, or interest provided for in
this division, the director may, not later than three years after the
payment became delinquent or within 10 years after the last entry of
a judgment under Article 5 (commencing with Section 1815) or within
10 years after the last recording or filing of a notice of state tax
lien under Section 7171 of the Government Code, collect the
delinquency or enforce any liens by levy served either personally or
by first-class mail, to all persons having in their possession or
under their control any credits or personal property belonging to the
delinquent person or employing unit, or owing any debts to the
person or employing unit at the time of the receipt of the notice of
levy or coming into their possession or under their control for the
period of one year from the time of receipt of the notice of levy.
Any person upon whom a levy has been served having in his or her
possession or under his or her control any
credits or personal property belonging to the
delinquent person or employing unit or owing any debts to the person
or employing unit at the time of the receipt of the levy or coming
into his or her possession or under his or her control for the period
of one year from the time of receipt of the notice of levy, shall
surrender the credits or personal property to the director or pay to
the director the amount of any debt owing the delinquent employer
within five days of service of the levy, and shall surrender the
credits or personal property, or the amount of any debt owing to the
delinquent employer coming into his or her possession or under his or
her control within one year of receipt of the notice of levy within
five days of the date of coming into possession or control of the
credits or personal property, or the amount of any debt owing to the
delinquent employer is incurred. Any person in possession of any
credits or personal property or owing any debts to the delinquent
person or employing unit who surrenders the credits or personal
property or pays the debts owing the delinquent person or employing
unit shall be discharged from any obligation or liability to the
delinquent person or employing unit with respect to the credits or
personal property surrendered or debts paid to the director.
(b) (1) If the levy is made on a deposit or credits or personal
property in the possession or under the control of a financial
institution the notice of levy shall be served on that financial
institution at the same location as legal process is required to be
served pursuant to Section 684.115 of the Code of Civil Procedure,
and the levy will apply to all credits or personal property in the
deposit account only at the time that notice of levy is received by
the financial institution.
(2) For purposes of this section:
(A) "Deposit account" has the same meaning as in paragraph (29) of
subdivision (a) of Section 9102 of the Commercial Code.
(B) "Financial institution" has the same meaning as in Section
481.113 of the Code of Civil Procedure.
(C) "Legal process" has the same meaning as in Section 482.070 of
the Code of Civil Procedure.
SEC. 16. Section 1755.1 of the Unemployment Insurance Code is
amended to read:
1755.1. (a) In order to implement Section 1755, the department
may serve notice to an address for any financial institution, as
defined in Section 481.113 of the Code of Civil Procedure, by means
of magnetic media, electronic transmission, or other electronic
technology.
(b) For purposes of this section, the term "address" shall mean a
telephone or modem number, facsimile machine, or any other reference
number designated by the financial institution to receive data by
electronic means.