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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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.
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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
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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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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
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