BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2013-2014 Regular Session
AB 1167 (Dickinson)
As Amended May 6, 2013
Hearing Date: June 4, 2013
Fiscal: No
Urgency: No
RD
SUBJECT
Court Records: Electronic Forms
DESCRIPTION
This bill would provide that, if a judgment creditor's
instructions directing the levying officer to perform a levy are
accompanied by a writ of execution for money, possession, or
sale of personal or real property issued by the court as an
electronic record, or a document printed from an electronic
record issued by the court, the instructions shall also include
specified information.
This bill would also provide that, except to the extent the
levying officer has actual knowledge that the information in the
electronic writ has been altered, the levying officer may
proceed in the same manner as if in possession of a paper
version of the original writ.
BACKGROUND
The Enforcement of Judgment Law (EJL) provides for procedures by
which parties may enforce their judgments to receive
satisfaction of outstanding debts, including by way of writs of
execution. Under the EJL, levying officers are required to
process writs on personal and real property and wage
garnishments. The officer enforces those writs by levying on
the property, i.e., by actually or constructively seizing the
property under the writ. (8 Witkin Cal. Proc. Enf. Judg. Sec.
99.) In order to seek enforcement of a judgment against a
judgment debtor, a judgment creditor must give the levying
officer written instructions, with the writ of execution, that
(more)
AB 1167 (Dickinson)
Page 2 of ?
contain the information needed or requested by the officer,
including an adequate description of the property to be levied
on, and a statement whether the property is a dwelling, and if
so, whether it is real or personal property. (Code. Civ. Proc.
Secs. 687.010(a), 699.530(a); 8 Witkin Cal. Prof. Enf. Judg.
Sec. 29.)
In 2010, AB 2394 (Brownley, Ch. 680, Stats. 2010) enacted the
Levying Officer Electronic Transactions Act, whereby a levying
officer could use electronic methods to create, generate, send,
receive, store, display, retrieve, or process information,
electronic records, and documents, to the extent that both the
court and levying officer have the resources and technological
capacity to do so and mutually agree to electronically process
the documents.
This bill seeks to codify the reported practice of a court
providing a judgment creditor with an electronic writ or a
printed copy of the electronic writ, which the creditor then
delivers to the levying officer with written instructions.
CHANGES TO EXISTING LAW
1. Existing law , the Enforcement of Judgments Law (EJL),
provides procedures governing the execution of writs for the
enforcement of money and non-money judgments (judgments for
possession or sale of real or personal property), except for
those judgments or orders made or entered pursuant to the
Family Code or for money judgments against a public entity
under specified law. (Code Civ. Proc. Sec. 680.010 et seq.)
Existing law requires a judgment creditor to provide the
levying officer with written instructions that contain the
information needed or requested by the levying officer,
including an adequate description of the property to be levied
on, and a statement whether the property is a dwelling, and if
so, whether it is real or personal property. (Code Civ. Proc.
Sec. 687.010(a).)
Existing law requires the levying officer, upon delivery of
the writ of execution to the levying officer to whom the writ
is directed, together with the written instructions of the
judgment creditor, to execute the writ in the manner
prescribed by law. (Code Civ. Proc. Sec. 699.530(a).)
Existing law permits the levying officer's instructions to be
AB 1167 (Dickinson)
Page 3 of ?
transmitted electronically to the levying officer pursuant to
the Levying Officer Electronic Transactions Act. (Code Civ.
Proc. Sec. 687.010(d); see Code Civ. Proc. Sec. 263 et seq.
for the Levying Officer Electronic Transactions Act.)
Existing law provides that except to the extent that the
levying officer has actual knowledge that information
contained in the written instructions is incorrect, the
officer may rely on the instructions, and to the extent that
his or her actions are taken in conformance with the
Enforcement of Judgments Law, the officer must act in
accordance with the written instructions. (Code Civ. Proc.
Sec. 687.010(b), (c).)
Existing law provides that the levying officer is not liable
for actions taken in conformance with the provisions of the
EJL, including actions taken in reliance on information
contained in the written instructions of the judgment
creditor, or in reliance on information provided to the
levying officer, except to the extent the levying officer has
actual knowledge that the information is incorrect. Nothing
in this provision limits any liability the judgment creditor
may have if the levying officer acts on the basis of incorrect
information given in the written instructions. (Code Civ.
Proc. Sec. 687.040(a).)
Existing law provides that unless the levying officer is
negligent in the care or handling of the property, the levying
officer is not liable to either the judgment debtor or the
judgment creditor for loss by fire, theft, injury, or damage
of any kind to personal property while (1) in the possession
of the levying officer either in a warehouse or other storage
place or in the custody of a keeper or (2) in transit to or
from a warehouse or other storage place. (Code Civ. Proc.
Sec. 687.040(b).)
Existing law provides that a sheriff or other ministerial
officer is justified in the execution of, and shall execute,
all process and orders regular on their face and issued by
competent authority, whatever may be the defect in the
proceedings upon which they were issued. (Code Civ. Proc.
Sec. 262.1.)
Existing law provides for the liability of a levying officer
in limited scenarios involving unauthorized or improper sale,
failure to pay or deposit proceeds of sale or collection, or
AB 1167 (Dickinson)
Page 4 of ?
for neglect or refusal to perform duties under writ. (Code
Civ. Proc. Sec. 701.560(b), 701.680(c)(2), 701.820(e); Gov.
Code Sec. 26664.)
This bill would provide that if the instructions directing the
levying officer to perform a levy are accompanied by a writ of
execution for money, possession, or sale of personal or real
property issued by the court as an electronic record, as
defined, or a document printed from an electronic record
issued by the court, the instructions must also include all of
the following information, as stated in the writ:
the date of issuance of the writ;
the name of each judgment creditor and judgment debtor;
the amount of the total judgment for money, a
description of the property subject to a judgment for
possession or sale, or both the amount and the description;
and
a statement indicating that the accompanying writ is
either of the following:
o an original writ not already in the possession of
the levying officer; and
o a copy of the original writ already in possession of
the levying officer.
This bill would provide that, except to the extent the levying
officer has actual knowledge that the information in the
electronic writ has been altered, the levying officer may
proceed in the same manner as if in possession of a paper
version of the original writ.
2. Existing law authorizes any notice, order, judgment,
decree, decision, ruling, opinion, memorandum, warrant,
certificate of service, or similar document issued by a trial
court or by a judicial officer of a trial court to be signed,
subscribed, or verified using a computer or other technology,
as specified. (Gov. Code Sec. 68150.)
This bill would add writ, subpoena, or other legal process to
the list of specified court documents above.
3. Existing law defines "court record" for purposes of the
management of trial court records as follows:
all filed papers and documents in the case folder, but
if no case folder is created by the court, all filed papers
and documents that would have been in the case folder if
one had been created;
administrative records filed in an action or proceeding,
AB 1167 (Dickinson)
Page 5 of ?
depositions, transcripts, including preliminary hearing
transcripts, and recordings of electronically recorded
proceedings filed, lodged, or maintained in connection with
the case, unless disposed of earlier in the case pursuant
to law; or
other records listed under specified law. (Gov. Code
Sec. 68151(a).)
This bill would revise the above definition to specify that
"all filed papers and documents in the case folder," include,
but are not limited to, a writ, subpoena, or other legal
process.
COMMENT
1. Stated need for the bill
According to the author:
Existing law requires that instructions and the accompanying
writ must be in writing. These written instructions and
accompanying writs have traditionally been issued and served
in paper form[,] although AB 2394 (Brownley[, Ch. 680, Stats.
2010]) also authorized the use of electronic writs as agreed
upon between the court and the levying officer. This has
created ambiguity where courts have issued the writ in the
form of an electronic file, or even when a printout of an
electronic file to the creditor or their attorney[,] and not
to the levying officer. An increasing number of courts are
issuing these as an electronic record file and as such, the
levying officer is unable to determine if any changes have
been made to the writ after issuance and prior to receipt.
As such, this bill sets forth the procedure by which the court
issues, and the levying officer accepts, written instructions
and writs of execution as an electronic record or printout
thereof. [Additionally, t]his bill takes the liability off
the levying officer and places it on the creditor with regard
to the authenticity of the writ itself. If the court and
levying officer have the ability to electronically transmit
the writ between themselves, these changes are still necessary
as to the creditor identifying if the levying officer is
already in possession of the writ so as not to duplicate their
records and[,] if so[,] which writ they are providing
additional instructions on.
AB 1167 (Dickinson)
Page 6 of ?
2. Codifying the use of printouts of writs issued
electronically
In 2010, the Levying Officer Electronic Transactions Act (LOETA)
was enacted to accommodate the fact that modern technologies
offer alternatives to paper-based systems, so long as the both
court and the levying officer have the resources and
technological capacity to do this and mutually agree to send and
receive these documents and records electronically. (See Code
Civ. Proc. Sec. 263.) As part of that Act, Section 687.010 of
the Code of Civil Procedure, relating to the written
instructions that the judgment creditor must provide to the
levying officer together with the writ of execution, was amended
to specifically authorize the judgment creditor to transmit the
written instructions electronically to the levying officer in
accordance with the LOETA.
The LOETA also authorized the levying officer to retain the
original writ or electronic copy of the original writ and only
file a return of his or her actions, in lieu of returning to
court the paper version of an original writ of execution. In
that scenario, if the original writ is not returned to the
court, the levying officer is required to retain, for not less
than two years after the levying officer's return is filed with
court, specified information, including the original paper writ
or digital image of the writ. (Code Civ. Proc. Sec.
263.6(a)-(b).)
According to the proponents of the bill, an ambiguity has arisen
as to printouts of writs from electronic files. The sponsors,
the California State Sheriffs' Association and Los Angeles
County Sheriffs' Department, report that courts have been
issuing the writ of execution in the form of an electronic file,
or even a printout of an electronic file to the creditor or
their attorney-and then a printout (as opposed to the electronic
file) is given to the levying officer (sheriff). As such, the
levying officer is unable to determine if any changes have been
made to the writ after issuance and prior to receipt, unlike
with the original paper writ, which is sealed and signed by the
court, and easily distinguishable from a copy thereof.
This bill seeks to codify the practice of providing levying
officers with electronic writs or printouts of electronically
transmitted writs in place of the original writ in a manner that
would provide levying officers the information needed to avoid
AB 1167 (Dickinson)
Page 7 of ?
potential confusion that can be caused by print-outs.
Specifically, the bill would require that the judgment
creditor's written instructions include specified information,
including a statement indicating whether the accompanying writ
is: (1) an original writ not already in the possession of the
levying officer; or (2) a copy of the original writ already in
possession of the levying officer.
By doing so, with the amendment offered by the author under
Comment 4, the provided statement should make clear to the
levying officer whether they are receiving the original paper
writ (though this is typically easily distinguishable on its
face), or whether they are receiving a copy of the original writ
that is issued by the court as an electronic record (i.e. a
printout that serves as the original writ), or whether they are
receiving a copy of an original writ (regardless of whether the
original was the paper writ, electronic file, or a printout of
the writ from an electronic file) that was previously provided
to the levying officer.
3. Providing assurance to levying officers to rely on written
instructions that include a printout in place of the original,
electronically-transmitted, writ
This bill would provide that except to the extent the levying
officer has actual knowledge that the information in the
electronic writ has been altered, the levying officer may
proceed in the same manner as if in possession of a paper
version of the original writ. In doing so, the author asserts
this provision will take the liability off the levying officer
and place it on the creditor with regard to the authenticity of
the writ itself. Staff notes that current law similarly
provides that the levying officer is not liable for actions
taken in conformance with existing law in reliance on
information contained in the written instructions of the
judgment creditor except to the extent the levying officer has
actual knowledge that the information is incorrect. Under that
provision of law, the judgment creditor may be held liable if
the levying officer acts on the basis of incorrect information
given in the written instructions. (Code Civ. Proc. Sec.
687.040(a).)
Accordingly, this bill would appear to be consistent with
existing law, and provide the levying officer the assurance that
they can perform their ministerial duties without fear of a new
liability if a printout of an electronic writ, serving as the
AB 1167 (Dickinson)
Page 8 of ?
original writ, is improperly altered by a creditor without their
knowledge. The bill in no way affects the potential liability
of a levying officer pursuant to existing law. (See e.g. Code
Civ. Proc. Secs. 687.040(b), 701.560(b), 701.680(c)(2),
701.820(e); Gov. Code Sec. 26664.)
4. Amendments
The author offers the following amendment to help clarify that a
print-out of the electronic writ may be provided to the levying
officer, potentially where the levying officer does not have the
technology or resources to receive the writ electronically:
Author's amendment
On page 3, line 16, after "An original writ" insert: ", or a
copy of the original writ issued by the court as an electronic
record,"
Also, because the current definition of court records under the
Section 68151 of the Government Code should already encompass
writs, subpoenas, or other legal process, the following
amendment would also remove language added by the bill to amend
that definition of court record to explicitly name those items:
Suggested amendment
On page 5, line 34, strike "including,"
On page 5, line 35, strike "but not limited to a writ,
subpoena, or other legal process,"
5. Chaptering-out issues
Staff notes that AB 1352 (Levine), relating to the destruction
of court records, would amend sections of the Government Code
also being amended by this bill and that language should be
added to the bill before it leaves the Senate to avoid
chaptering-out issues.
Support : Alameda County Sheriff's Office; Amador County Office
of the Sheriff; Santa Barbara County Office of the Sheriff;
Shasta County Office of the Sheriff; Yolo County Sheriff's
Office
Opposition : None Known
AB 1167 (Dickinson)
Page 9 of ?
HISTORY
Source : California State Sheriffs' Association; Los Angeles
County Sheriffs' Department
Related Pending Legislation : None Known
Prior Legislation :
AB 2394 (Brownley, Ch. 680, Stats. 2010) See Background.
AB 578 (Leno, Ch. 621, Stats. 2004) enacted the Electronic
Recording Delivery Act of 2004 in recognition of a need for an
efficient, cost-effective means of maintaining and transmitting
records by public agencies. That Act regulates the electronic
delivery, recording, and return of instruments affecting right,
title, or interest in real property.
SB 820 (Sher, Ch. 428, Stats. 1999) enacted the Uniform
Electronic Transactions Act (UETA) to regulate the electronic
transmission of documents and signatures.
Prior Vote :
Assembly Floor (Ayes 77, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
**************