BILL ANALYSIS Ó ----------------------------------------------------------------- |SENATE RULES COMMITTEE | AB 2211| |Office of Senate Floor Analyses | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ----------------------------------------------------------------- CONSENT Bill No: AB 2211 Author: Linder (R) Introduced:2/18/16 Vote: 21 SENATE JUDICIARY COMMITTEE: 7-0, 6/14/16 AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning, Wieckowski ASSEMBLY FLOOR: 78-0, 4/4/16 (Consent) - See last page for vote SUBJECT: Registered process servers SOURCE: California Association of Legal Support Professionals DIGEST: This bill makes various clarifying changes to statutes governing the service of writs of attachment and execution, and makes other technical and non-substantive changes. ANALYSIS: Existing law: 1)Defines "levying officer" to mean the sheriff or marshal who is directed to execute a writ or order issued under specified law. AB 2211 Page 2 2)Authorizes a registered process server to levy under a writ of attachment on specified types of property. 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. 3)Authorizes a registered process server to levy under a writ of execution on specified types of property. 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. 4)Requires, further, under the above provisions, that the registered process server file specified information with the levying officer within five court days after levy. 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 to a registered process server who may then issue an earnings withholding order. 6)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. 7)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. AB 2211 Page 3 This bill: 1)Provides, with respect to both writs of attachment and execution, instead, 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. 2)Provides, with respect to earnings withholding orders, 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. 3)Makes other technical, 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 AB 2211 Page 4 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 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 AB 2211 Page 5 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 the writ or who returns the writ to the levying officer after obtaining proof of service. To do so, this bill clarifies 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. Comment As stated by 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 many different counties. To resolve this narrow problem, AB 2211 simply modifies the language to require the registered AB 2211 Page 6 process server to cause the copy to be deposited with the levying officer before moving forward with serving the writ to accomplish the levy. FISCAL EFFECT: Appropriation: No Fiscal Com.:NoLocal: No SUPPORT: (Verified6/17/16) California Association of Legal Support Professionals (source) OPPOSITION: (Verified6/17/16) None received ARGUMENTS IN SUPPORT: 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. AB 2211 Page 7 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. ASSEMBLY FLOOR: 78-0, 4/4/16 AYES: Achadjian, Alejo, Travis Allen, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Quirk, Ridley-Thomas, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Rendon NO VOTE RECORDED: Rodriguez Prepared by:Ronak Daylami / JUD. / (916) 651-4113 6/17/16 15:03:43 **** END ****