BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 1167|
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THIRD READING
Bill No: AB 1167
Author: Dickinson (D)
Amended: 7/1/13 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE : 6-0, 6/4/13
AYES: Evans, Anderson, Corbett, Jackson, Leno, Monning
NO VOTE RECORDED: Walters
ASSEMBLY FLOOR : 77-0, 4/15/13 - See last page for vote
SUBJECT : Court records: electronic forms
SOURCE : California State Sheriff's Association
Los Angeles County Sheriff's Department
DIGEST : This bill provides 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 must also include
specified information. This bill also provides 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.
Senate Floor Amendments of 7/1/13 add double-jointing language
to avoid chaptering out issues in the event that both this bill
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and AB 1352 (Levine) are enacted, and also make technical
changes.
ANALYSIS :
Existing law:
1.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.)
2.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).)
3.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).)
4.Permits the levying officer's instructions to be 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.)
5.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/her actions are taken
in conformance with the EJL, the officer must act in
accordance with the written instructions. (Code Civ. Proc.
Sec. 687.010 (b),(c).)
6.Provides that the levying officer is not liable for actions
taken in conformance with the provisions of the EJL, including
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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).)
7.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).)
8.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.)
9.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 for neglect
or refusal to perform duties under the writ. (Code Civ. Proc.
Sec. 701.560(b), 701.680(c)(2), 701.820(e); Gov. Code Sec.
26664.)
This bill:
1.Provides 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:
A. The date of issuance of the writ;
B. The name of each judgment creditor and judgment debtor;
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C. 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
D. A statement indicating that the accompanying writ is
either of the following:
(1) An original writ, or a copy of the writ issued by
the court as an electronic record, not already in the
possession of the levying officer; and
(2) A copy of the original writ already in possession of
the levying officer.
1.Provides 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.
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 adds writ, subpoena, or other legal process to the
list of specified court documents above.
This bill contains double-jointing language to avoid chaptering
out issues with AB 1352 (Levine).
Background
The 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
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a judgment against a judgment debtor, a judgment creditor must
give the levying officer written instructions, with the writ of
execution, that contains 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.
(Civ. Proc. Code. Sections 687.010(a), 699.530(a); 8 Witkin Cal.
Prof. Enf. Judg. Sec. 29)
In 2010, AB 2394 (Brownley, Chapter 680, Statutes of 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.
Prior Legislation
AB 2394 (Brownley, Chapter 680, Statutes of 2010) See
Background.
AB 578 (Leno, Chapter 621, Statutes of 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, Chapter 428, Statutes of 1999) enacted the Uniform
Electronic Transactions Act to regulate the electronic
transmission of documents and signatures.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No Local:
No
SUPPORT : (per Senate Floor Analysis of 6/11/13- -unable to
reverify at time of writing)
California State Sheriffs' Association (co-source)
Los Angeles County Sheriffs' Department (co-source)
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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
ARGUMENTS IN SUPPORT : Proponents of the bill state that, 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.
ASSEMBLY FLOOR : 77-0, 4/15/13
AYES: Achadjian, Alejo, Allen, Ammiano, Atkins, Bigelow, Bloom,
Blumenfield, Bocanegra, Bonilla, Bonta, Bradford, Brown,
Buchanan, Ian Calderon, Campos, Chau, Chávez, Chesbro, Conway,
Cooley, Dahle, Daly, Dickinson, Donnelly, Eggman, Fong, Fox,
Frazier, Beth Gaines, Garcia, Gatto, Gomez, Gordon, Gorell,
Gray, Grove, Hagman, Hall, Roger Hernández, Holden, Jones,
Jones-Sawyer, Levine, Linder, Logue, Maienschein, Mansoor,
Medina, Melendez, Mitchell, Morrell, Mullin, Muratsuchi,
Nazarian, Nestande, Olsen, Pan, Patterson, Perea, V. Manuel
Pérez, Quirk, Quirk-Silva, Rendon, Salas, Skinner, Stone,
Ting, Torres, Wagner, Waldron, Weber, Wieckowski, Wilk,
Williams, Yamada, John A. Pérez
NO VOTE RECORDED: Harkey, Lowenthal, Vacancy
AL:ej 7/2/13 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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