BILL ANALYSIS Ó 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 AB 1167 Page 2 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 Page 3 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 AB 1167 Page 4 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 Page 5 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