BILL NUMBER: SB 1759 CHAPTERED
BILL TEXT
CHAPTER 779
FILED WITH SECRETARY OF STATE SEPTEMBER 23, 1998
APPROVED BY GOVERNOR SEPTEMBER 22, 1998
PASSED THE SENATE AUGUST 26, 1998
PASSED THE ASSEMBLY AUGUST 21, 1998
AMENDED IN ASSEMBLY AUGUST 17, 1998
AMENDED IN ASSEMBLY JUNE 24, 1998
AMENDED IN SENATE APRIL 13, 1998
INTRODUCED BY Senator Ayala
FEBRUARY 18, 1998
An act to add Section 1785.135 to the Civil Code, to add Article 6
(commencing with Section 765.010) to Chapter 4 of Title 10 of Part 2
of the Code of Civil Procedure, and to amend Sections 6223 and 27201
of the Government Code, relating to liens and encumbrances.
LEGISLATIVE COUNSEL'S DIGEST
SB 1759, Ayala. Liens and encumbrances.
(1) Existing law sets forth the procedures applicable to an action
to quiet title to real or personal property, as specified.
SB 2154 of the 1997-98 Regular Session, enacted as Chapter 211 of
the Statutes of 1998, prohibits a person from filing a lawsuit or
recording or filing a lien or other encumbrance, against a public
officer or employee, knowing it is false, with the intent to harass
the officer or employee or influence or hinder the public officer or
employee in discharging his or her official duties.
This bill would make a clarifying change in the latter provision
to specify that an encumbrance includes, but is not limited to, a
notice of lis pendens.
The bill also would prohibit a consumer credit reporting agency
from reporting a document which acts as a lien or other encumbrance
but which has together with it a court order striking or releasing
the lien or other encumbrance on the basis that it is an
above-described lien or encumbrance. The bill would also specify
that it does not apply to a lien or other encumbrance filed by a
financial institution or a public entity, as defined. The bill would
also create an expedited action, filed pursuant to a complaint form
established by the Judicial Council, requesting the striking or
release of such a lien or other encumbrance, and provide for a civil
penalty of $5,000 for knowingly filing or directing another to file
such a lien or other encumbrance.
(2) Existing law requires the county recorder to accept a document
for recordation as authorized or required by law to be recorded.
This bill would specify that the document be authorized or
required to be recorded by statute or court order rather than
authorized or required by law.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1785.135 is added to the Civil Code, to read:
1785.135. No consumer credit reporting agency shall make any
consumer credit report with respect to a document which acts as a
lien or other encumbrance, including, but not limited to, a notice of
lis pendens, but which has together with it a court order striking
or releasing the lien or other encumbrance pursuant to Section
765.030 of the Code of Civil Procedure.
SEC. 2. Article 6 (commencing with Section 765.010) is added to
Chapter 4 of Title 10 of Part 2 of the Code of Civil Procedure, to
read:
Article 6. Liens and Encumbrances
765.010. A public officer or employee whose property is subject
to a lien or other encumbrance in violation of Section 6223 of the
Government Code may petition the superior court of the county in
which the person resides or in which the property is located for an
order, which may be granted ex parte, directing the lien or other
encumbrance claimant to appear at a hearing before the court and show
cause why the lien or other encumbrance should not be stricken and
other relief provided by this article should not be granted. The
court shall schedule the hearing no earlier than 14 days after the
date of the order. The scheduled date of the hearing shall allow
adequate time for notice of the hearing.
765.020. A petition under this article shall state the grounds
upon which relief is requested, and shall be supported by the
affidavit of the petitioner or the petitioner's attorney setting
forth a concise statement of the facts upon which the motion is
based.
The petition and affidavit shall be in substantially the form
prescribed by the Judicial Council.
765.030. If the court determines that the lien or other
encumbrance is in violation of Section 6223 of the Government Code,
the court shall issue an order striking and releasing the lien or
other encumbrance and may award costs and reasonable attorney fees to
the petitioner to be paid by the lien or other encumbrance claimant.
If the court determines that the lien or other encumbrance is
valid, the court shall issue an order so stating and may award costs
and reasonable attorney fees to the encumbrance claimant to be paid
by the petitioner. The court may direct that such an order shall be
recorded.
765.040. Any lien or encumbrance claimant who records or files,
or directs another to record or file, a lien or other encumbrance in
violation of Section 6223 of the Government Code shall be liable to
the owner of the property bound by the lien or other encumbrance for
a civil penalty of up to five thousand dollars ($5,000).
765.050. This article does not apply to a document which acts as
a claim of encumbrance by a financial institution, as defined in
subdivision (a) of Section 14161 of the Penal Code or Section 481.113
of this code, or a public entity, as defined in Section 481.200 of
this code.
765.060. If a lien or other encumbrance is recorded or filed in
violation of Section 6223 of the Government Code, the state or local
agency that employs the public officer or employee may provide
counsel for the public officer or employee in an action brought
pursuant to Section 765.010.
SEC. 3. Section 6223 of the Government Code, as added by Chapter
211 of the Statutes of 1998, is amended to read:
6223. (a) No person shall file or record a lawsuit, lien, or
other encumbrance, including, but not limited to, a notice of lis
pendens, against a public officer or employee, knowing it is false,
with the intent to harass the officer or employee or to influence or
hinder the public officer or employee in discharging his or her
official duties.
(b) This section shall apply only to lawsuits, liens, or other
encumbrances pertaining to actions that arise in the course and scope
of the public officer's or employee's duties.
(c) Any person who knowingly records or files, or directs another
to record or file, a lawsuit, lien, or encumbrance in violation of
subdivision (a) shall be liable to the person subject to the lawsuit,
or the owner of the property bound by the lien or other encumbrance
for a civil penalty not to exceed five thousand dollars ($5,000).
SEC. 4. Section 27201 of the Government Code is amended to read:
27201. (a) The recorder shall, upon payment of proper fees and
taxes, accept for recordation any instrument, paper, or notice which
is authorized or required by statute or court order to be recorded,
if the instrument, paper, or notice contains sufficient information
to be indexed as provided by statute, meets recording requirements of
state statutes and local ordinances, and is photographically
reproducible. The county recorder shall not refuse to record any
instrument, paper, or notice which is authorized or required by
statute or court order to be recorded on the basis of its lack of
legal sufficiency.
"Photographically reproducible," for purposes of this division,
means all instruments, papers, or notices which comply with standards
as recommended by the American National Standards Institute or the
Association for Information and Image Management for recording of
records.
(b) Each instrument, paper, or notice shall contain an original
signature or signatures, except as otherwise provided by law, or be a
certified copy of the original.