BILL ANALYSIS �
AB 1167
Page 1
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
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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.
AB 1167
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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