California Legislature—2015–16 Regular Session

Assembly Bill No. 2211

Introduced by Assembly Member Linder

February 18, 2016

An act to amend Sections 488.080, 699.080, and 706.108 of the Code of Civil Procedure, relating to civil procedure.

LEGISLATIVE COUNSEL’S DIGEST

AB 2211, as introduced, Linder. Registered process servers.

Existing law establishes a process for the enforcement of money judgments, and authorizes a registered process server to levy under a writ of attachment or writ of execution on specified types of property. Existing law requires the registered process server, before levying under the writ, to deposit a copy of the writ with the levying officer and pay a specified fee. Existing law also permits a registered process server to serve an earnings withholding order on an employer and requires that the process server deposit specified documents with the levying officer and pay a specified fee.

This bill would provide that the registered process server is authorized to have the required documents and fee delivered to the levying officer by someone other than the process server himself or herself.

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

SECTION 1.  

Section 488.080 of the Code of Civil Procedure
is amended to read:

488.080.  

(a) A registered process server may levy under a writ
of attachment on the following types of property:

(1) Real property, pursuant to Section 488.315.

(2) Growing crops, timber to be cut, or minerals or the begin delete like
(including end delete begin insert like, including end insert oil and begin delete gas) end delete begin insert gas, end insert to be extracted or
accounts receivable resulting from the sale thereof at the wellhead
or minehead, pursuant to Section 488.325.

(3) Personal property in the custody of a levying officer,
pursuant to Section 488.355.

(4) Equipment of a going business, pursuant to Section 488.375.

(5) Motor vehicles, vessels, mobilehomes, or commercial
coaches used as equipment of a going business, pursuant to Section
488.385.

(6) Farm products or inventory of a going business, pursuant to
Section 488.405.

(7) Personal property used as a dwelling, pursuant to subdivision
(a) of Section 700.080.

(8) Deposit accounts, pursuant to Section 488.455.

(9) Property in a safe-deposit box, pursuant to Section 488.460.

(10) Accounts receivable or general intangibles, pursuant to
Section 488.470.

(11) Final money judgments, pursuant to Section 488.480.

(12) Interest of a defendant in personal property in the estate of
a decedent, pursuant to Section 488.485.

(b) Before levying under the writ of attachment, the registered
process server shall begin delete deposit end delete begin insert cause to be deposited with the levying
officer end insert a copy of the writ begin delete with the levying officer end delete and begin delete pay end delete the fee begin insert ,
as end insert provided by Section 26721 of the Government Code.

(c) If a registered process server levies on property pursuant to
subdivision (a), the registered process server shall do both of the
following:

(1) Comply with the applicable levy, posting, and service
provisions of Article 2 (commencing with Section 488.300).

(2) Request any third person served to give a garnishee’s
memorandum to the levying officer in compliance with Section
488.610 on a form provided by the registered process server.

(d) Within five court days after levy under this section, all of
the following shall be filed with the levying officer:

(1) The writ of attachment.

(2) A proof of service by the registered process server stating
the manner of levy performed.

(3) Proof of service of the copy of the writ and notice of
attachment on other persons, as required by Article 2 (commencing
with Section 488.300).

(4) Instructions in writing, as required by the provisions of
Section 488.030.

(e) If the fee provided by Section 26721 of the Government
Code has been paid, the levying officer shall perform all other
duties under the writ as if the levying officer had levied under the
writ and shall return the writ to the court. If the registered process
server does not comply with subdivisions (b) and (d), the levy is
ineffective and the levying officer begin delete is end delete begin insert shall end insert not begin insert be end insert required to
perform any duties under the writ begin insert , end insert and may issue a release for any
property sought to be attached. The levying officer is not liable
for actions taken in conformance with the provisions of this title
in reliance on information provided to the levying officer under
subdivision (d), except to the extent that the levying officer has
actual knowledge that the information is incorrect. Nothing in this
subdivision limits any liability the plaintiff or registered process
server may have if the levying officer acts on the basis of incorrect
information provided under subdivision (d).

(f) The fee for services of a registered process server under this
section begin delete shall be allowed as end delete begin insert is end insert a recoverable cost pursuant to Section
1033.5.

SEC. 2.  

Section 699.080 of the Code of Civil Procedure is
amended to read:

699.080.  

(a) A registered process server may levy under a writ
of execution on the following types of property:

(1) Real property, pursuant to Section 700.015.

(2) Growing crops, timber to be cut, or minerals or the begin delete like
(including end delete begin insert like including end insert oil and begin delete gas) end delete begin insert gas, end insert to be extracted or
accounts receivable resulting from the sale thereof at the wellhead
or minehead, pursuant to Section 700.020.

(3) Personal property in the custody of a levying officer,
pursuant to Section 700.050.

(4) Personal property used as a dwelling, pursuant to subdivision
(a) of Section 700.080.

(5) Deposit accounts, pursuant to Section 700.140.

(6) Property in a safe-deposit box, pursuant to Section 700.150.

(7) Accounts receivable or general intangibles, pursuant to
Section 700.170.

(8) Final money judgments, pursuant to Section 700.190.

(9) Interest of a judgment debtor in personal property in the
estate of a decedent, pursuant to Section 700.200.

(b) Before levying under the writ of execution, the registered
process server shall begin delete deposit end delete begin insert cause to be deposited with the levying
officer end insert a copy of the writ begin delete with the levying officer end delete and begin delete pay end delete the fee begin insert ,
as end insert provided by Section 26721 of the Government Code.

(c) If a registered process server levies on property pursuant to
subdivision (a), the registered process server shall do both of the
following:

(1) Comply with the applicable levy, posting, and service
provisions of Article 4 (commencing with Section 700.010).

(2) Request any third person served to give a garnishee’s
memorandum to the levying officer in compliance with Section
701.030 on a form provided by the registered process server.

(d) Within five court days after levy under this section, all of
the following shall be filed with the levying officer:

(1) The writ of execution.

(2) A proof of service by the registered process server stating
the manner of levy performed.

(3) Proof of service of the copy of the writ and notice of levy
on other persons, as required by Article 4 (commencing with
Section 700.010).

(4) Instructions in writing, as required by the provisions of
Section 687.010.

(e) If the fee provided by Section 26721 of the Government
Code has been paid, the levying officer shall perform all other
duties under the writ as if the levying officer had levied under the
writ and shall return the writ to the court. If the registered process
server does not comply with subdivisions (b) and (d), the levy is
ineffective and the levying officer begin delete is end delete begin insert shall end insert not begin insert be end insert required to
perform any duties under the writ begin insert , end insert and may issue a release for any
property sought to be levied upon.

(f) The fee for services of a registered process server under this
section begin delete shall be allowed as end delete begin insert is end insert a recoverable cost pursuant to Section
1033.5.

(g) A registered process server may levy more than once under
the same writ of execution, provided that the writ is still valid.

SEC. 3.  

Section 706.108 of the Code of Civil Procedure is
amended to read:

706.108.  

(a) If a writ of execution has been issued to the county
where the judgment debtor’s employer is to be served and the time
specified in subdivision (b) of Section 699.530 for levy on property
under the writ has not expired, a judgment creditor may deliver
an application for issuance of an earnings withholding order to a
registered process server who may then issue an earnings
withholding order.

(b) If the registered process server has issued the earnings
withholding order, the registered process server, before serving
the earnings withholding order, shall begin delete deposit with the levying
officer end delete begin insert cause to be deposited with the levying officer end insert a copy of the
writ of execution, the application for issuance of an earnings
withholding order, begin delete and end delete a copy of the earnings withholding order,
and begin delete shall pay end delete the fee begin insert , as end insert provided by Section 26750 of the
Government Code.

(c) A registered process server may serve an earnings
withholding order on an employer whether the earnings
withholding order was issued by a levying officer or by a registered
process server, but no earnings withholding order may be served
after the time specified in subdivision (b) of Section 699.530. In
performing this function, the registered process server shall serve
upon the designated employer all of the following:

(1) The original and one copy of the earnings withholding order.

(2) The form for the employer’s return.

(3) The notice to the employee of the earnings withholding
order.

(4) A copy of the form that the judgment debtor may use to
make a claim of exemption.

(5) A copy of the form the judgment debtor may use to provide
a financial statement.

(6) A copy of the employer’s instructions referred to in Section
706.127, except as otherwise prescribed in rules adopted by the
Judicial Council.

(d) Within five court days after service under this section, all
of the following shall be filed with the levying officer:

(1) The writ of execution, if it is not already in the hands of the
levying officer.

(2) Proof of service on the employer of the papers listed in
subdivision (c).

(3) Instructions in writing, as required by the provisions of
Section 687.010.

(e) If the fee provided by Section 26750 of the Government
Code has been paid, the levying officer shall perform all other
duties required by this chapter as if the levying officer had served
the earnings withholding order. If the registered process server
does not comply with subdivisions (b), where applicable, and (d),
the service of the earnings withholding order is ineffective and the
levying officer begin delete is end delete begin insert shall end insert not begin insert be end insert required to perform any duties under
the order begin insert , end insert and may terminate the order and begin delete may end delete release any
withheld earnings to the judgment debtor.

(f) The fee for services of a registered process server under this
section begin delete shall be allowed as end delete begin insert is end insert a recoverable cost pursuant to Section
1033.5.