BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 1167
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          Date of Hearing:   April 9, 2013

                           ASSEMBLY COMMITTEE ON JUDICIARY
                                Bob Wieckowski, Chair
                   AB 1167 (Dickinson) - As Amended:  April 3, 2013

                                  PROPOSED CONSENT
           
          SUBJECT  :  Civil Procedures: Levies 

           KEY ISSUE  :  Should a levying officer be expressly authorized to  
          accept written instructions and a writ of attachment in an  
          electronic form, and should the requirements for written  
          instructions that accompany an electronic writ be specified?

           FISCAL EFFECT  :  As currently in print this bill is keyed  
          non-fiscal. 

                                      SYNOPSIS

          Under existing law, when a judgment creditor seeks to execute a  
          lien upon real or personal property, he or she must give to the  
          county "levying officer" - typically a sheriff acting under a  
          writ of execution - written instructions that will allow the  
          officer to serve the writ of attachment, or other appropriate  
          writ, upon the judgment debtor who holds the subject property.   
          Existing law requires that these instructions, and the  
          accompanying writ, must be in writing.  Traditionally, these  
          written instructions and accompanying writs have been issued and  
          served in paper form.  Because of this, the author contends,  
          there is some ambiguity where the court has issued the writ in  
          the form of an electronic file, or even a printout of an  
          electronic file.  Yet it appears that an increasing number of  
          courts are creating and issuing these documents as electronic  
          records, or as a printout of an electronic record.  Indeed, the  
          Levying Officer Electronic Transactions Act of 2010 encourages  
          the courts to do so.  This non-controversial bill simply sets  
          forth the procedure by which the court issues, and the levying  
          officer accepts, written instructions and writs of attachment as  
          an electronic record or printout thereof.  The bill is sponsored  
          by the California State Sheriff's Association.  There is no  
          known opposition to this bill. 

           SUMMARY  :  Permits a court to issue, and a levying officer to  
          accept, instructions and a writ of attachment as an electronic  








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          record and makes corresponding procedural changes.   
          Specifically,  this bill  :  

          1)Provides that if instructions directing a levying officer to  
            perform a levy are accompanied by a writ of attachment issued  
            by the court as an electronic record, or a document printed  
            from an electronic record issued by the court, the  
            instructions given to the levying officer by the judgment  
            creditor shall also include all of the following information,  
            as stated in the electronic writ:

             a)   The date of issuance of the writ. 
             b)   The name of the defendant or defendants whose property  
               is subject to levy under the writ. 
             c)   The amount to be secured by the attachment. 
             d)   A statement indicating that the accompanying writ is  
               either an original writ not already in possession of the  
               levying officer, or a copy of a writ already in possession  
               of the levying officer. 

          2)Provides that unless the levying officer has actual knowledge  
            that the information in the electronic writ has been altered,  
            the levying officer may proceed in the manner as if in  
            possession of a paper version of the writ. 

           EXISTING LAW:  

          1)Authorizes, under the Levying Officer Electronic Transactions  
            Act, a levying officer to create, store, print, or transmit an  
            electronic record in the place of, and in the same manner as,  
            the paper record or document on which the electronic record is  
            based, and sets forth procedures which electronic records may  
            be transmitted, retained, or made available to the public.   
            (Code of Civil Procedure Section 263 et seq.)  

          2)Requires a judgment creditor to give the levying officer  
            instructions in writing.  The instructions shall be signed by  
            the judgment creditor's attorney of record or, if the judgment  
            creditor does not have an attorney of record, by the judgment  
            creditor.  The instructions shall contain the information  
            needed or requested by the levying officer to serve the writ,  
            notice, or other paper upon the appropriate person, including  
            but not limited to:

             a)   An adequate description of any property to be levied  








                                                                  AB 1167
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               upon. 
             b)   A statement whether the property is a dwelling.
             c)   If the property is a dwelling, whether it is real or  
               personal property. 
             d)   The name of the judgment debtor.  If the judgment debtor  
               is other than a natural person, the type of legal entity  
               shall be stated.  (Code of Civil Procedure Section 687.010  
               (a).) 

          3)Provides that levying officer instructions may be transmitted  
            electronically to the levying officer pursuant to the Levying  
            Officer Electronic Transaction Act.  (Code of Civil Procedure  
            Section 687.010 (d).) 

          4)Requires the levying officer to act in accordance with the  
            written instructions to the extent permitted by law.  (Code of  
            Civil Procedure Section 687.010 (b).) 

          5)Provides that except to the extent that the levying officer  
            has actual knowledge that the information is incorrect, the  
            levying officer may rely on any information contained in the  
            written instructions.  (Code of Civil Procedure Section  
            687.010 (c).) 

           COMMENTS  :  According to the author, this measure will clearly  
          allow courts to issue, and levying officers to accept, written  
          instructions and a post-judgment writ of attachment in the form  
          of an electronic file, or a printout of an electronic file.   
          Because existing law appears to require only "written"  
          instructions and writs of attachment, which have traditionally  
          been issued in paper form, it is not clear, according to the  
          author and supporters, whether levying officers have the  
          authority to accept and act upon written instructions and writs  
          of attachment that are issued in electronic form.  This bill  
          would make it clear that they do, so long as specified  
          information accompanies the electronic writ, or a printout of an  
          electronic writ. 

           Levying Officers and Electronic Transactions  :  Under existing  
          law, when a judgment creditor is entitled to execute a lien on a  
          defendant's real or personal property, the court will issue a  
          writ of attachment in order to recover property from the  
          defendant.  Existing law requires the judgment creditor to  
          direct the writ and accompanying written instructions to a  
          county levying officer - which is typically a county sheriff  








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          authorized by a writ of execution to levy (or seize) the  
          property.  The written instructions that accompany the writ  
          should provide whatever information the levying officer needs to  
          carry out the order, including a description of the property and  
          the name of the judge debtor.  Because existing law requires  
          that the instructions are in writing, both the written  
          instructions and the underlying writ have traditionally been in  
          paper form.  However, in order to benefit from the efficiencies  
          to be reaped by the use and transmission of electronic  
          documents, an increasing number of courts issue legal documents  
          in electronic form, including the documents provided to levying  
          officers.  Indeed, in 2010, AB 2394 (Chapter 680) created the  
          Levying Officer Electronic Transactions Act.  This legislation  
          declared legislative intent to encourage and accommodate the  
          shift from a paper-based system to the creation, storage, and  
          transmission of electronic documents where feasible.  Among  
          other things, that legislation expressly authorized a levying  
          officer to "create, store, print, or transmit an electronic  
          record in the place of, and in the same manner as, the paper  
          record or document upon which the electronic record is based."   
          (Code of Civil Procedure Section 263.4 9a).) 

          While existing law arguably already authorizes a levying officer  
          to accept written instructions and an electronic writ of  
          attachment (or a printout thereof), this bill would make that  
          clear and, more important perhaps, specify the written  
          instructions must be included if accompanied by a writ in  
          electronic format or printout.  

           ARGUMENTS IN SUPPORT  :  According to the sponsor, the California  
          State Sheriff's Association, "AB 1167 [will] codify the practice  
          of some courts to print writs from electronic records, and  
          provides for levying officers to receive writs in electronic  
          form, thereby creating efficiencies using electronic records."   
          Current law, the sponsor claims, requires that instructions be  
          given to a levying officer in paper form, even though "this does  
          not reflect the practice of some courts to print writs from  
          electronic forms."  In addition, the sponsor argues, this  
          measure "would allow the levying officers to accept written  
          instructions and an original post judgment writ in the form of  
          an electronic file or a printout of an electronic file.  This  
          measure uses the technological capabilities of court and levying  
          officers to create efficiencies and streamline processes."   The  
          bill is supported by several county sheriffs' offices for  
          substantially the same reasons. 








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           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California State Sheriff's Association (sponsor)
          Alameda County Sheriff's Office 
          Amador County Office of the Sheriff-Coroner
          Santa Barbara County Sheriff's Office 
          Shasta County Sheriff's Office 
          Yolo County Sheriff's Office 



           Opposition 
           
          None on file 
           
          Analysis Prepared by  :    Thomas Clark / JUD. / (916) 319-2334