BILL ANALYSIS
AB 680
Page 1
Date of Hearing: May 12, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 680 (Hall) - As Introduced: February 26, 2009
As Proposed to be Amended
SUBJECT : LOCAL GOVERNMENT: SHERIFF'S FEES
KEY ISSUE : TO ACCOUNT FOR INCREASING COSTS OF DOING BUSINESS,
SHOULD CIVIL FEES FOR VARIOUS SERVICES PROVIDED BY COUNTY
SHERIFFS AND MARSHALS BE RAISED BY SPECIFIED AMOUNTS?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This bill is sponsored by the Los Angeles County Sheriff's
Department to increase various court-related fees for services
provided by county sheriffs and marshals by amounts ranging from
five to twenty dollars. The increases proposed by this bill
generally apply to fees that a county sheriff's office is
authorized to collect for serving, executing, and processing
required court notices, writs, orders, and other process. Many
of these fees have not been increased since 2000. As proposed
to be amended, most of the fee increases would be delayed one
year, going into effect in 2011. The bill is supported by
several county sheriff's departments and associations, all of
whom argue that a modest increase in these fees is needed to
offset the increased costs sheriff's departments are
experiencing in providing services to the community. As
proposed to be amended, the bill has no opposition.
SUMMARY : Increases, by amounts ranging from five to twenty
dollars, various fees for serving, executing, and processing
required court notices, writs, orders, and other services
provided by county sheriffs and marshals, generally effective
2011. Specifically, this bill :
1)Increases to $35 the current amount of $30 for the following
fees:
a) The fee for serving or executing any process or notice
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required by law or the litigants to be served. (Gov. Code
Section 26721.)
b) The fee for service of a summons, complaint, and
prejudgment claim of right to possession, in an action for
unlawful detainer. (Gov. Code Section 26721.1.)
c) The fee for serving, executing, or processing a writ of
attachment, writ of execution, writ of sale, or order on
real estate, as to the initial service or posting of a
continuous unbroken parcel or tract, and the fee for
serving a record owner other than the defendant. (Gov.
Code Section 26725.)
d) The fee for preparing and posting the initial notice of
personal property sale under a writ of attachment,
execution, or sale or order of court. (Gov. Code Section
26728.)
e) The fee for making a levy on personal property already
in possession of the officer who is holding it under
attachment in the same action. (Gov. Code Section 26734.)
f) The fee for executing and delivering any other
instrument (other than a certificate or deed of sale; deed
or certificate of redemption). (Gov. Code Section 26742.)
g) The fee for subpoenaing a witness. (Gov. Code Section
26743.)
h) The fee for maintaining custody of property under levy
by the use of a keeper, for each day custody is maintained
after the first day. (Gov. Code Section 26726(b).)
i) The fee for making a not found return on specified
documents required to be served, certifying that the person
or property cannot be found at the given address. (Gov.
Code Section 26738.)
2)Increases to $140 the current $120 fee for keeping and caring
for property under a writ of attachment, execution,
possession, or sale when the sheriff is necessarily employed
for any eight-hour period or any part thereof. Further
provides that the same fee may be collected for any additional
sheriff who performs keeping services that are required, but
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prohibits any individual sheriff from receiving more than $280
(double the fee amount) during any 24-hour period when so
employed as a keeper. (Gov. Code Section 26726(a).)
3)Provides that the sheriff keeping or caring for property under
a writ of attachment, execution, possession, or sale shall
receive $50 when, pursuant to Gov. Code Section 26738, a
levying officer prepares a not-found return on specified
process or notice required to be served. (Gov. Code Section
26726(c).)
4)Increases to $15, from a current amount of $10, the amount of
any fee collected by the sheriff's civil division or marshal
for performing specified services that must be deposited in a
special fund in the county treasury. (Gov. Code Section
26731.)
5)Increases to $35 the current $28 fee for cancellation of
service or execution of any process or notice prior to its
completion. (Gov. Code Section 26736.)
6)Increases the fees paid by the moving party for processing a
warrant for the arrest of a witness who fails to appear
pursuant to a subpoena or a court order, as provided:
a) An increase to $35, from the current $30 fee, to receive
and process the warrant;
b) An increase to $35, from the current $28 fee, to cancel
the service of the warrant;
c) An increase to $75, from the current $60 fee, if the
sheriff, using due diligence, is unable to find the person
at the address specified on the document to be served;
d) An increase to $85, from the current $75 fee, to arrest
the person. (Gov. Code Section 26744.5.)
7)Repeals the existing $50 fee for serving or executing a bench
warrant arising from an order of appearance, as specified.
(Gov. Code Section 26744.)
8)Increases to $12 the current processing fee of $10 that is
assessed for each disbursement of money collected under a writ
of attachment, execution, possession, or sale, subject to
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existing guidelines for collection and handling. (Gov. Code
Section 26746.)
9)Increases to $17 the current $15 fee that is assessed by the
sheriff or marshal for certification of correctable violations
of the Vehicle Code on each citation that requires inspection
for proof of correction. (Gov. Code Section 26746.1.)
EXISTING LAW :
1)Prescribes the amounts of fees that may be charged for various
services performed by county sheriffs and marshals pursuant to
Article 7 of Chapter 2 of Part 3 of Division 2 of Title 3 of
the Government Code (commencing with Section 26720).
2)Provides that $10 of any fee collected by the sheriff's civil
division or marshal for performing specified services shall be
deposited in a special fund in the county treasury. Further
provides that these funds shall be for the exclusive use of
the sheriff's civil division or marshal, with the following
requirements:
a) Ninety-five percent (95%) of these special funds shall
be expended to supplement the costs of the depositor for
the implementation, maintenance, and purchase of certain
equipment and furnishings, as provided.
b) Five percent (5%) of the special funds shall be used to
supplement the expenses of the sheriff's civil division or
marshal in administering the funds. (Gov. Code Section
26731.)
3)Provides that a $10 processing fee shall be assessed by the
sheriff for each disbursement of money collected under a writ
of attachment, execution, possession, or sale, but excluding
any action by the local child support agency for the
establishment or enforcement of a child support obligation.
Further provides that these funds shall be deposited in a
special fund in the county treasury, and that all funds
deposited shall be expended to supplement the county's cost
for vehicle fleet replacement and equipment, maintenance, and
civil process operations. (Gov. Code Section 26746.)
4)Provides that a $15 fee shall be assessed by the sheriff or
marshal for certification of correction on each citation that
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requires inspection for proof of correction of certain
violations of the Vehicle Code, and that all proceeds of the
fee shall be deposited in a special fund in the county
treasury for the exclusive use of the sheriff's civil division
or marshal, with the following requirements:
a) Ninety-five percent (95%) of these special funds shall
be expended to supplement the costs of the depositor for
the implementation, maintenance, and purchase of certain
equipment and furnishings, as provided.
b) Five percent (5%) of the special funds shall be used to
supplement the expenses of the sheriff's civil division or
marshal in administering the funds. (Gov. Code Section
26746.1.)
COMMENTS : This bill seeks to increase, by amounts ranging from
five to twenty dollars, various fees for services provided by
county sheriffs and marshals. The increases proposed by this
bill apply to fees that a county sheriff's office is authorized
to collect for serving, executing, and processing required court
notices, writs, orders, and other process, among other things.
The bill's sponsor, the Los Angeles County Sheriff's Department,
contends that this bill is needed to address rising costs of
business, stating:
Since 2000, the cost of doing business for the
Sheriff's Department has increased dramatically.
Gas prices alone have skyrocketed and many of our
personnel working in our civil section are using
vehicles in the field serving process, notices, and
conducting evictions. Additionally personnel costs,
such as pay and benefits and other administrative
costs, have also increased significantly.
Based on the increased costs to conduct business, a
moderate increase to some of the fees would greatly
enhance [Sheriff Departments'] ability to continue
to provide the same high level of service to the
community. . . Most of these fees have not been
increased since 2000.
A review of the different fees that this bill proposes to
increase shows that many of the fees have not been increased
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since passage of AB 1768 (Steinberg) of 2000. According to the
Consumer Price Index (CPI), a $30.00 fee in 2000 would equal
$37.06 at present, adjusting for inflation. In that light, the
set of fee increases proposed here appear to be reasonably in
line with inflation as measured by the CPI. Nevertheless, this
bill must be viewed in context with other fee increases for
court users - most notably those sought by the courts for
first-paper civil filings, both by the Uniform Civil Fees
measure in 2005 (AB 145) which increased these fees
significantly in some instances, and then again most recently
last year by SB 1407 (Perata) which further increased these fees
by $25 to $30, along with increases in the fees for appeals,
applications to appear pro hac vice (for out-of-state lawyers),
as well as much larger increases for probate filings. SB 1407
also imposed an assessment of $30 on every felony or misdemeanor
criminal conviction and $35 for every criminal infraction,
including traffic offenses, but not including parking offenses,
and increased the fee applied to corrections of violations of
license, registration or mechanical requirements of the Vehicle
Code and raised the amount when a parking penalty, fine, or
forfeiture is imposed, as well as the fee for a person ordered
to traffic violator school for a moving violation. In light of
the fee increase for these other worthy purposes, and to provide
for an orderly schedule for the future, the author proposes to
delay the effective date of most of the increases proposed in
this bill for one year, until 2011.
Many of the fees that would be increased by this bill are for
services that others, in addition to county sheriffs, are
authorized to perform. For example, serving or executing any
process or notice required to be served can, and often is,
accomplished by hiring private companies or individuals,
presumably at the market rate for such services. In that
respect, individuals who need that type of service to be
performed can decide whether to hire the sheriff's department or
pursue other means. Some of the fees, however, are not as
avoidable. For example, under existing law a processing fee of
$10 is assessed for each disbursement of money collected under a
writ of attachment, execution, possession, or sale, subject to
existing guidelines for collection and handling. A party who
has collected a judgment and wishes to have the money disbursed
has no option other than to pay the processing fee. Under this
bill, the amount of the processing fee rises to $12.
Existing Law and Court Rules Provide for Mandatory Waiver of
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Sheriff's Fees for Poor Litigants : Under Gov. Code Section
26720.5, in any case in which the litigant is permitted by the
court to proceed in forma pauperis under rules adopted by the
Judicial Council pursuant to Gov. Code Section 68631, the fees
identified by this bill shall be waived. In other words, under
California Rules of Court 3.52 and 3.61, payment of the
sheriff's and marshal's fees in question must be waived for a
litigant who can demonstrate, under existing standards of
eligibility in the Government Code, that he or she cannot afford
to pay such fees.
This bill does not affect the right of a person to petition the
court for a fee waiver to be exempt from paying the fees,
although any broad set of fee increases may lead to a
corresponding increase in the number of people petitioning the
court for a fee waiver because they cannot afford the increased
fee amounts.
Author's Amendments. To provide for a more orderly schedule of
fee increases, the author judiciously proposes to delay the
operative date of the proposed increases until 2011, except for
the small fee increase proposed in section 8 of the bill. In
addition, to address opposition concerns by the California
Association of Collectors, the author has agreed to clarify
certain procedures when sheriffs collect funds from judgment
debtors, as follows:
Code of Civil Procedure 685.050 is amended to read:
(a) If a writ is issued pursuant to this title to enforce a
judgment, the costs and interest to be satisfied in a levy under
the writ are the following:
(1) The statutory fee for issuance of the writ.
(2) The amount of interest that has accrued from the date of
entry or renewal of the judgment to the date of issuance of the
writ, as adjusted for partial satisfactions, if the judgment
creditor has filed an affidavit with the court clerk stating
such amount.
(3) The amount of interest that accrues on the principal amount
of the judgment remaining unsatisfied from the date of issuance
of the writ until the date interest ceases to accrue.
(4) The levying officer's statutory costs for performing the
duties under the writ.
(b) In a levy under the writ, the levying officer shall do all
of the following:
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(1) Collect the amount of costs and interest entered on the writ
pursuant to paragraphs (1) and (2) of subdivision (a).
(2) Compute and collect the amount of additional interest
required to be collected by paragraph (3) of subdivision (a) by
reference to the daily interest entered on the writ. If amounts
collected periodically do not fully satisfy the money judgment,
the levying officer may, pursuant to a policy adopted by the
office of the levying officer , shall adjust the amount of daily
interest to reflect the partial satisfactions, and make later
collections by reference to the adjusted amount of daily
interest.
(3) Determine and collect the amount of additional costs
pursuant to paragraph (4) of subdivision(a).
Code of Civil Procedure 701.810 is amended to read:
Except as otherwise provided by statute, the levying officer
shall distribute the proceeds of sale or collection in the
following order:
(a) To persons having preferred labor claims that are required
by Section 1206 to be satisfied from the proceeds, in the
amounts required by Section 1206 to be satisfied.
(b) To the state department or agency having a state tax lien
(as defined in Section 7162 of the Government Code) that is
superior to the judgment creditor's lien, in the amount of the
lien.
(c) If a deposit has been made pursuant to Section 720.260 and
the purchaser at the sale is not the judgment creditor, to the
judgment creditor in the amount required to repay the deposit
with interest thereon at the rate on money judgments from the
date of the deposit.
(d) To the judgment debtor in the amount of any applicable
exemption of proceeds pursuant to Section 704.010 (motor
vehicle), 704.020 (household furnishings and other personal
effects), or 704.060 (tools of trade), except that such proceeds
shall be used to satisfy all of the following in the order of
their respective priorities:
(1) Any consensual liens and encumbrances, and any liens for
labor or materials, that are
subordinate to the judgment creditor's lien.
(2) Subject to Section 688.030, any state tax lien (as defined
in Section 7162 of the Government Code) on the property sold if
the notice of state tax lien on the property has been recorded
or filed pursuant to Section 7171 of the Government Code prior
to the time the levying officer received the proceeds of the
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sale or collection.
(e) To the levying officer for the reimbursement of the levying
officer's costs for which an advance has not been made.
(f) To the judgment creditor to satisfy in the following order :
(1) First, any costs and interest accruing on the judgment after
issuance of the writ pursuant to which the sale or collection is
conducted.
(2) Second, the principal amount due on the judgment with costs
and interest, as entered on the writ.
(g) To any other judgment creditors who have delivered writs to
the levying officer,
accompanied by instructions to levy upon the judgment debtor's
property or the proceeds of its sale or collection, or any other
persons actually known by the levying officer to have a claim,
lien, or other interest subordinate to the judgment creditor's
lien that is extinguished by the sale and that is not otherwise
satisfied pursuant to this section, in the amounts to which they
are entitled in order of their respective priorities.
(h) To the judgment debtor in the amount remaining.
Code of Civil Procedure 701.820 is amended to read:
(a) Promptly after a sale or collection under this title, the
levying officer shall distribute the proceeds to the persons
entitled thereto or, in cases covered by Section 701.830,
deposit the proceeds with the court.
(b) Except as otherwise provided by statute, the proceeds shall
be promptly paid to the persons entitled thereto not later than
30 days after they are received by the levying officer.
(c) If the proceeds are not to be received by the levying
officer in one payment, the levying officer may accumulate
proceeds received during a 30-day period and the accumulated
proceeds shall be paid to the persons entitled thereto not later
than 20 10 days after the expiration of the 30-day period.
(d) When proceeds are received by the levying officer in the
form of a check or other form of noncash payment that is to be
honored upon presentation by the levying officer for payment,
the proceeds are not received for the purposes of this section
until the check or other form of noncash payment has actually
been honored upon presentation for payment.
(e) The provisions of Section 26680 of the Government Code apply
to the levying officer only if all of the following conditions
are satisfied:
(1) The levying officer has failed to pay the proceeds or
deposit them with the court as provided in this article within
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the time provided in this section.
(2) Upon such failure, a person entitled to any of the proceeds
has filed in person or by certified mail with the levying
officer a written demand for the payment of the proceeds to the
persons entitled thereto.
(3) The levying officer has failed within 10 days after the
demand is filed to pay to the person filing the demand the
proceeds to which that person is entitled.
(f) If all proceeds have not been received within 10 days after
the filing of the demand specified in subdivision (e)(3), a
judgment creditor may file an ex-parte application for an order
directing the levying officer to show cause why relief should
not be granted as provided in Government Code Section 26680. The
order shall name a date and time for the levying officer to
appear not less than 20 and not more than 30 days after filing
of the application. If the levying officer pays all proceeds as
provided in subdivision (e) of Section 701.810 to the judgment
creditor no later than 10 days prior to the hearing, the
judgment creditor shall notify the court of full payment no
later than three days prior to the hearing and the court shall
withdraw the order and vacate the hearing.
(g) The application specified in subdivision (f) shall state the
date and manner of
(1) delivery of the writ of execution to the levying officer,
(2) remittance of the proceeds to the levying officer, and
(3) filing of the 10-day demand specified in subdivision (e).
(h) If the court finds that the facts alleged in the application
specified in subdivision (f) to be knowingly false or made in
bad faith, the court may award costs and reasonable attorney
fees to the levying officer.
Government Code 905 is amended to read:
There shall be presented in accordance with Chapter 1
(commencing with Section 900) and Chapter 2 (commencing with
Section 910) all claims for money or damages against local
public entities except:
(a) Claims under the Revenue and Taxation Code or other statute
prescribing procedures for the refund, rebate, exemption,
cancellation, amendment, modification, or adjustment of any tax,
assessment, fee, or charge or any portion thereof, or of any
penalties, costs, or charges related thereto.
(b) Claims in connection with which the filing of a notice of
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lien, statement of claim, or stop notice is required under any
law relating to liens of mechanics, laborers, or materialmen.
(c) Claims by public employees for fees, salaries, wages,
mileage, or other expenses and
allowances.
(d) Claims for which the workers' compensation authorized by
Division 4 (commencing with Section 3200) of the Labor Code is
the exclusive remedy.
(e) Applications or claims for any form of public assistance
under the Welfare and Institutions Code or other provisions of
law relating to public assistance programs, and claims for
goods, services, provisions, or other assistance rendered for or
on behalf of any recipient of any form of public assistance.
(f) Applications or claims for money or benefits under any
public retirement or pension system.
(g) Claims for principal or interest upon any bonds, notes,
warrants, or other evidences of
indebtedness.
(h) Claims that relate to a special assessment constituting a
specific lien against the property assessed and that are payable
from the proceeds of the assessment, by offset of a claim for
damages against it or by delivery of any warrant or bonds
representing it.
(i) Claims by the state or by a state department or agency or by
another local public entity or by a judicial branch entity.
(j) Claims arising under any provision of the Unemployment
Insurance Code, including, but not limited to, claims for money
or benefits, or for refunds or credits of employer or worker
contributions, penalties, or interest, or for refunds to workers
of deductions from wages in excess of the amount prescribed.
(k) Claims for the recovery of penalties or forfeitures made
pursuant to Article 1 (commencing with Section 1720) of Chapter
1 of Part 7 of Division 2 of the Labor Code.
(l) Claims governed by the Pedestrian Mall Law of 1960 (Part 1
(commencing with Section 11000) of Division 13 of the Streets
and Highways Code).
(m) Claims made pursuant to Section 340.1 of the Code of Civil
Procedure for the recovery of damages suffered as a result of
childhood sexual abuse. This subdivision shall apply only to
claims arising out of conduct occurring on or after January 1,
2009.
(n) Claims made pursuant to Section 701.820 of the Code of Civil
Procedure for the recovery of money pursuant to Government Code
Section 26880.
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Government Code 26880 is amended to read:
If on demand the sheriff neglects or refuses to pay over to the
person entitled any money which comes into his hands by virtue
of his office, after deducting all legal fees, the person may
recover the amount thereof, and 25 per cent damages , and
interest at the rate of 10 per cent a month from the time of
demand, and costs, including reasonable attorney fees.
REGISTERED SUPPORT / OPPOSITION :
Support
Los Angeles County Sheriff's Department (sponsor)
Association for Los Angeles Deputy Sheriffs
Alameda County Sheriff's Office
Butte County Sheriff's Office
California Association of Legal Support Professionals (CALSPro)
California Correctional Supervisors Organization
California State Association of Counties
California State Sheriffs' Association
Contra Costa County, Office of the Sheriff
El Dorado County Sheriff's Department
Mariposa County, Office of the Sheriff
Nevada County Sheriff's Office
Peace Officers Research Association of California
Regional Council of Rural Counties
Riverside Sheriff's Association
Sacramento County Sheriff's Department
Santa Clara County Board of Supervisors
Shasta County, Office of the Sheriff
Opposition (As proposed to be amended)
None on file
Analysis Prepared by : Kevin Baker and Anthony Lew / JUD. /
(916) 319-2334