BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 2211 (Linder)
Version: February 18, 2016
Hearing Date: June 14, 2016
Fiscal: No
Urgency: No
RD
SUBJECT
Registered process servers
DESCRIPTION
This bill would make various clarifying changes to statutes
governing the service of writs of attachment and execution, and
would make other technical and non-substantive changes.
BACKGROUND
In California, courts may order assets or property seized in
order to satisfy judgments and secure claims of creditors by
issuing writs of attachment and execution.
Under existing law, the most common procedure for collection of
a money judgment is execution. A writ of execution from the
court requires a levying officer (i.e., sheriff) to enforce the
judgment, and the officer enforces the judgment by levying
(i.e., seizing) on the property under the writ, either
constructively or actually. (8 Witkin Cal. Proc. Enf. Judg.
Sec. 99.) Generally, the process begins after entry of a money
judgment and on the application of the judgment creditor,
whereby the clerk of the court must issue a writ of execution,
directed to the levying officer in the county where the levy is
to be made and to any registered process server. (See Code Civ.
Proc. Sec. 699.510(a).)
Under this process, before levying under the writ of execution,
the registered process server must deposit a copy of the writ
with the levying officer and pay a specified fee for serving or
executing process or notice. Within five court days after the
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levy, the following must 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 on third persons as required by specified law; and
(4) written instructions as required under specified law. (Code
Civ. Proc. Sec. 699.080(b), (d).) If the fee has been paid, the
levying officer must return the writ to the court and "perform
all other duties under the writ as if the levying officer had
levied under the writ." If, however, the registered process
server does not comply with the aforementioned provisions
regarding the payment of fees and the information that must be
filed with the levying officer, "the levy is ineffective and the
levying officer is not required to perform any duties under the
writ and may issue a release for any property sought to be
levied upon." (Code Civ. Proc. Sec. 699.080(e); Code Civ. Proc.
Sec. 706.108 provides similar rules for a writ of execution of
an earnings withholding order.)
As noted above, assets and property can also be seized to secure
claims of creditors by way of writ of attachment. The section
governing the process for writs of attachment was drawn from the
process above for writs of execution, and thus is largely the
same. Before levying under a writ of attachment, a registered
process server must deposit a copy of the writ with the levying
officer and pay a specified fee for serving or executing process
or notice. (Code Civ. Proc. Sec. 488.080(b).) Within five court
days after the levy, the following must 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; (3) proof of service on third persons as required by
specified law; and (4) written instructions as required
specified law. (Code Civ. Proc. Sec. 488.080(d).) If the fee
has been paid, the levying officer must return the writ to the
court and "perform all other duties under the writ as if the
levying officer had levied under the writ." But, if the
registered process server does not comply with the provisions
above regarding fees and information that must be filed with the
levying officer, "the levy is ineffective and the levying
officer is not required to perform any duties under the writ and
may issue a release for any property sought to be attached."
(Code Civ. Proc. Sec. 488.080(e).)
This bill seeks to clarify that the same registered process
server who serves a writ does not have to be the same person who
deposits a writ file with the levying officer prior to serving
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the writ or who returns the writ to the levying officer after
obtaining proof of service. To do so, this bill would clarify
that the registered process server who serves the writ and signs
the proof of service may cause the writ to be deposited (as
opposed to "deposit") and returned to the levying officer.
CHANGES TO EXISTING LAW
Existing law defines "levying officer" to mean the sheriff or
marshal who is directed to execute a writ or order issued under
specified law. (Code Civ. Proc. Sec. 481.140.)
Existing law authorizes a registered process server to levy
under a writ of attachment on specified types of property.
(Code Civ. Proc. Sec. 488.080 (a).) Before levying under the
writ of attachment, the registered process server shall deposit
a copy of the writ with the levying officer and pay a specified
fee. (Code Civ. Proc. Sec. 488.080(b).)
Existing law authorizes a registered process server to levy
under a writ of execution on specified types of property. (Code
Civ. Proc. Sec. 699.080(a).) Before levying under the writ of
execution, the registered process server must deposit a copy of
the writ with the levying officer and pay a specified fee.
(Code Civ. Proc. Sec. 699.080(b).)
Existing law further requires that the registered process server
file specified information with the levying officer within five
court days after levy. (Code Civ. Proc. Secs. 488.080(d);
699.080(d).)
Existing law 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 to a
registered process server who may then issue an earnings
withholding order. (Code Civ. Proc. Sec. 706.108(a).)
Existing law provides that if the registered process server has
issued the earnings withholding order, the registered process
server, before serving the earnings withholder order, must
deposit with the levying officer a copy of the writ of
execution, the application for issuance of an earnings
withholding order, a copy of the order, and pay a specified fee.
(Code Civ. Proc. Sec. 706.108(b).)
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Existing law specifies the particular documents that the
registered process server must serve upon the designated
employer, and the particular documents that must be filed with
the levying officer within five court days after service of the
order. (Code Civ. Proc. Sec. 706.108(c)-(d).)
This bill would, with respect to both writs of attachment and
execution, instead, provide that before levying under the writ
of attachment, or the writ of execution, the registered process
server shall "cause to be deposited" (as opposed to "deposit"
under existing law) with the levying officer a copy of the writ
and the specified fee.
This bill would, with respect to earnings withholding orders,
provide, instead, that if the registered process server has
issued the hearings withholding order, the registered process
server, before serving the earnings withholding order, shall
"cause to be deposited" (as opposed to "deposit" under existing
law) with the levying officer a copy of the writ of execution,
the application for issuance of an earnings withholding order, a
copy of the order, and the specified fee.
This bill would make other technical, non-substantive changes.
COMMENT
1. Stated need for the bill
According to the author:
Current provisions of Code of Civil Procedure [S]ections
488.080 (writs of attachment), 699.080 (writs of execution)[,
and] 706.180 (earnings withholding orders) permit registered
process servers to serve writs on holders of property and
employers. The law indicates that "the registered process
server shall deposit with the levying officer" a copy of the
writ and the fee required by the Government Code to commence
the levy. The levying officer is the sheriff of the
applicable county. A small number of counties have
interpreted the language very literally to require that it be
the same registered process server who opens the file with the
sheriff to thereafter serve the writ. There is no reason for
this requirement, which can be very cumbersome in the case of
process serving companies which are retained to serve writs in
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many different counties. To resolve this narrow problem, AB
2211 simply modifies the language to require the registered
process server to cause the copy to be deposited with the
levying officer before moving forward with serving the writ to
accomplish the levy.
2. Bill seeks to clarify that the registered process server
who serves a writ of execution or attachment on the sheriff
must not necessarily be the same person who must also serve
the writ and deposit the writ with the sheriff upon completion
of levy
Under existing law, any registered process server who serves a
writ of attachment, writ of execution, or earnings withholding
order by writ of execution, must "deposit with the levying
officer" (i.e. the sheriff) a copy of the writ as well as the
fee that is required under existing law for serving or executing
process or notice. Existing law further requires that specified
documents be filed with the sheriff within five court days after
levy under the writ of attachment or execution, and within five
court days after service of the earnings withholding order. This
bill would now clarify within each of those sections relating to
writ of attachment, execution, or earnings withholding orders,
that the registered process server shall, instead, "cause to be
deposited with the levying officer" a copy of the writ and the
required fee-in other words, he or she does not have to
personally deposit the copy and the fee with the sheriff.
The sponsor of this bill, the California Association of Legal
Support Professionals, writes:
The bill refines language in the code which 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 writ with the proof of service
is immaterial. To remedy the problem, AB 2211 instead requires
the registered process server to cause the writ to be
deposited.
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The ambiguity in the law was brought to 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.
Support : None Known
Opposition : None Known
HISTORY
Source : California Association of Legal Support Professionals
Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote :
Assembly Floor (Ayes 78, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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