BILL ANALYSIS Ó
AB 2211
Page 1
Date of Hearing: March 29, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB 2211
(Linder) - As Introduced February 18, 2016
PROPOSED CONSENT
SUBJECT: REGISTERED PROCESS SERVERS
KEY ISSUE: should EXISTING LAW BE CLARIFIED TO AUTHORIZE A
REGISTERED PROCESS SERVER TO HAVE CERTAIN WRITS AND OTHER
DOCUMENTS DELIVERED TO THE LEVYING OFFICER BY SOMEONE OTHER THAN
THE PROCESS SERVER HIMSELF OR HERSELF?
SYNOPSIS
Existing law establishes rules for service of process for the
enforcement of money judgments, and specifically provides that
"before levying under a writ of attachment, the registered
process server shall deposit a copy of the writ with the levying
officer and pay the (applicable) fee." The same requirement
applies to service of process for writs of execution and
earnings withholding orders. According to the author, a strict
reading of this language requires that the registered process
server himself or herself "shall deposit a copy of the writ with
the levying officer," and does not seem to allow for a fellow
employee or someone other than the individual process server
from carrying out this otherwise menial preliminary task. The
California Association of Legal Support Professionals, the
sponsor of the bill, contends that strictly observing these
AB 2211
Page 2
statutes can be very cumbersome and time consuming, especially
for process servers who do business in multiple counties and
can't be everywhere at once.
To address this issue, this non-controversial bill seeks to
clarify applicable sections of the Code of Civil Procedure to
authorize a person other than the registered process server
himself or herself to deliver the writ and fee payment to the
levying officer (usually the County Sheriff) before service of
process may be made. Instead, the bill provides that the
registered process server may simply "cause the writ to be
deposited with the levying officer," achieving the same ends but
not requiring the process server to complete that task
personally. Importantly, the bill does not change existing law
to permit anyone else other than the registered process server
to actually serve the writ itself and obtain proof of service.
For these reasons, the bill appears to be narrowly tailored and
has received no opposition in this Committee.
SUMMARY: Clarifies provisions related to service of process of
writs of attachment, writs of execution, and earnings
withholding orders. Specifically, this bill clarifies that a
registered process server need not be the same individual who
first deposits a writ file with the levying officer prior to
serving the writ, or who returns the writ to the levying officer
after obtaining proof of service. As long as the registered
process server is the person who actually serves the writ and
signs the proof of service, he or she may simply cause the writ
to be deposited and returned to the levying officer.
EXISTING LAW:
1)Authorizes a registered process server to levy under a writ of
attachment on specified types of property. (Code of Civil
Procedure Section 488.080 (a). All further references are to
this code unless otherwise stated.)
AB 2211
Page 3
2)Provides that, before levying under the writ of attachment,
the registered process server shall deposit a copy of the writ
with the levying officer and a $40 fee. (Section 488.080
(b).)
3)Authorizes a registered process server to levy under a writ of
execution on specified types of property. (Section
699.080(a).)
4)Provides that, before levying under the writ of execution, the
registered process server shall deposit a copy of the writ
with the levying officer and a $40 fee. (Section 699.080
(b).)
5)Provides that 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 for levy on property under the writ has
not expired, a judgment creditor may deliver an application
for issuance of an earnings withholding order (EWO) to a
registered process server who may then issue an EWO. (Section
706.108 (a).)
6)Requires the registered process server, before serving the
EWO, to deposit with the levying officer a copy of the writ of
execution, a copy of the EWO, and the application for issuance
of an EWO, accompanied by payment of a $35 fee. (Section
706.108 (b).)
7)Authorizes a registered process server to serve an EWO on an
employer whether the order was issued by a levying officer or
by a registered process server, except that no EWO may be
served after 180 days from the date the EWO was issued.
(Section 706.108 (c).)
AB 2211
Page 4
8)Specifies the particular documents that the registered process
server must serve upon the designated employer, and specifies
the particular documents that must be filed with the levying
officer within five court days after service of the EWO on the
employer. (Section 706.108, subd. (c) and (d).)
FISCAL EFFECT: As currently in print this bill is keyed
non-fiscal.
COMMENTS: This non-controversial bill addresses a matter of
statutory interpretation that may, when the law is read quite
literally, impose an unnecessarily cumbersome and inflexible
requirement upon registered process servers attempting to follow
statutes that authorize them to serve writs of attachment, writs
of execution, and earnings withholding orders.
The California Association of Legal Support Professionals
(CALSPro), the sponsor of this legislation, explains:
(Current law) appears to require the same registered
process server to first deposit the writ with the sheriff
for issuance, serve the writ on the financial institution,
employer or other party, and redeposit the writ and proof
of service back with the sheriff. While current language
could be read to require this, it is unnecessarily limiting
in actual practice. It is important that the registered
process server actually serve the writ and sign the proof
of service, but who first deposits the writ file with the
sheriff and who returns the write with the proof of service
is immaterial. . . The ambiguity in the law was brought to
AB 2211
Page 5
our attention by an individual sheriff's office. While the
problem is not widespread at this point, the language
should be cleaned up and clarified.
Before a registered process server may serve a writ of
attachment, writ of execution, or an earnings withholding order,
existing law requires a copy of the writ and a specified fee to
be delivered to the levying officer - a term referring to the
Sheriff in each county. This task is sometimes referred to as
"opening a file" with the county sheriff. For example, Code of
Civil Procedure Section 488.080 provides specifically that
"before levying under a writ of attachment, the registered
process server shall deposit a copy of the writ with the levying
officer and pay the (applicable) fee." This language is
mirrored in Sections 699.080 and 706.108, which contain the same
requirement for service of writs of execution and earnings
withholding orders, respectively. According to proponents, a
strict reading of this language requires that the registered
process server himself or herself "shall deposit a copy of the
writ with the levying officer," and does not seem to allow for a
fellow employee or someone other than the individual process
server from carrying out this otherwise menial preliminary task.
This requirement, the author contends, can be very cumbersome
and time consuming, especially for process servers who do
business in multiple counties.
While proponents concede that the problem is not widespread at
this point because only a small number of counties have
interpreted the statute so literally, they contend that the
problem could easily be solved by clarifying the applicable
statutes to authorize a person other than the registered process
server himself or herself to deliver the writ and fee payment to
the levying officer. To accomplish this, the bill instead
provides that the registered process server may simply "cause
the writ to be deposited with the levying officer," achieving
the same ends but not requiring the process server to have to
complete that task personally.
AB 2211
Page 6
Importantly, the bill does not change existing law to permit
anyone else other than the registered process server to actually
serve the writ itself and obtain proof of service. It only
authorizes someone other than the registered process server to
deposit a copy of the writ and the applicable fee with the
levying officer before service of process may be made. For
these reasons, the bill appears to be narrowly tailored and has
received no opposition in this Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
California Association of Legal Support Professionals (sponsor)
Opposition
None on file
Analysis Prepared by:Anthony Lew / JUD. / (916) 319-2334
AB 2211
Page 7