BILL ANALYSIS                                                                                                                                                                                                    Ó




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          |SENATE RULES COMMITTEE            |                       AB 2211|
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                                      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.  










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           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.  










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          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  








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          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  








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          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  








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            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. 








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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.




          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


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