BILL ANALYSIS Ó
AB 1167
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 1167 (Dickinson)
As Amended July 1, 2013
Majority vote
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|ASSEMBLY: |77-0 |(April 15, |SENATE: |32-0 |(July 8, 2013) |
| | |2013) | | | |
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Original Committee Reference: JUD.
SUMMARY : Permits a court to issue, and a levying officer to
accept, instructions and a writ of attachment as an electronic
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 each judgment creditor and each judgment
debtor.
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.
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 original writ.
AB 1167
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3)Expands the list of documents that may be electronically
signed or verified to include a writ, subpoena, or other legal
process.
The Senate amendments expand the list of documents that may be
electronically signed or verified to include a writ, subpoena,
or other legal process, and incorporate provisions of AB 1352
(Levine) that would become operative if this bill and AB 1352
are enacted, and this bill is chaptered last.
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.
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
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.
3)Provides that levying officer instructions may be transmitted
electronically to the levying officer pursuant to the Levying
Officer Electronic Transaction Act.
4)Requires the levying officer to act in accordance with the
AB 1167
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written instructions to the extent permitted by law.
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.
FISCAL EFFECT : None
COMMENTS : According to the author, this bill 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.
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 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 (Brownley), 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
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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."
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.
As amended in the Senate, this bill would additionally expand
the list of court documents that may be electronically signed or
verified to include a writ, subpoena, or other legal process.
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334
FN: 0001419