BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 2394 (Brownley)
As Amended June 14, 2010
Hearing Date: June 22, 2010
Fiscal: Yes
Urgency: No
TW:jd
SUBJECT
Civil Process and Notices: Ministerial Officers
DESCRIPTION
This bill would establish the Levying Officer Electronic
Transactions Act, whereby a levying officer could use electronic
methods to create, generate, send, receive, store, display,
retrieve, or process information, electronic records, and
documents, as specified. This bill would authorize an earnings
withholding order to be served by first class mail rather than
certified mail on an employer. This provision would require the
employer to execute the "employer's return" form within 15 days
of receipt of the first class mail service.
This bill also makes clarifying amendments to various provisions
of the Code of Civil Procedure as it pertains to levying
officers and execution of writs for the enforcement of money
judgments. This bill also makes technical revisions regarding
the provision for the issuance of a warrant for failure to
appear pursuant to a subpoena.
BACKGROUND
Levying officers are required to serve writs and levies on
personal and real property and wage garnishments. Paper copies
of these documents and all communications sent or received are
maintained by the levying officers within voluminous files.
Levying officers are required under current law to return the
original writ documents to the court.
California has a well-founded interest in utilizing more
(more)
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electronic resources for the administration of state and local
agencies. In 1999, the Legislature enacted the Uniform
Electronic Transactions Act (UETA). (SB 820 (Sher, Ch. 428,
Stats. 1999).) This Act regulated the electronic transmission
of documents and signatures. In 2004, the Legislature,
recognizing a need for an efficient, cost-effective means of
maintaining and transmitting records by public agencies, enacted
the Electronic Recording Delivery Act of 2004. (AB 578 (Leno,
Ch. 621, Stats. 2004); Gov. Code Sec. 27390.) This Act
regulates the electronic delivery, recording, and return of
instruments affecting right, title, or interest in real
property.
This bill, sponsored by the Los Angeles County Sheriff's
Department, seeks to establish the Levying Officer Electronic
Transactions Act, a comprehensive scheme through which a levying
officer and court can electronically administer levies, writs of
execution, and wage garnishments. This bill would authorize the
sheriff's department to serve an earnings withholding order by
first-class mail.
CHANGES TO EXISTING LAW
1. Existing law , the California Uniform Electronic
Transactions Act (UETA), provides rules and procedures for the
sending and receiving of electronic records and signatures,
the formation of contracts using electronic records, and
procedures governing changes and errors in electronically
transmitted records. The UETA applies to all transactions in
which records or signatures are electronically transmitted by
parties who have agreed to conduct the transaction
electronically. (Civ. Code Sec. 1633.1, et seq.)
This bill would establish the Levying Officer Electronic
Transactions Act (LOETA) and provide rules and procedures, as
specified, for levying officers in the utilization of an
information processing system to create, generate, send,
receive, store, display, retrieve, or process information,
electronic records, and documents to the extent the levying
officer has the resources and technological capacity to do so.
This bill provides an "opt-in" provision requiring both the
court and the levying officer to have the technological
resources with which to administer the information processing
system and mutually agree to electronically process the
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documents specified in this Act.
This bill would require levying officers to exclude or redact,
as specified, from any record or document made available to
the public all social security and financial account numbers.
2. Existing law , the Electronic Recording Delivery Act of
2004 (ERDA), provides rules and regulations of electronic
recording of documents pertaining to reconveyance,
substitution of trustee, or an assignment of deed of trust.
(Gov. Code Sec. 27390, et seq.)
This bill would authorize levying officers, pursuant to an
execution order pertaining to the sale of real property, to
electronically record the deeds and conveyances.
3. Existing law provides for requirements for the direction or
instructions by the levying party for the execution of process
by the levying officer. (Code Civ. Proc. Secs. 262, 687.010,
699.060.)
This bill would make technical revisions to these provisions
and authorize the levying party to electronically transmit to
the levying officer the written instructions for the execution
of process.
4. Existing law provides a list of information that must be
included on a writ of execution or writ of possession or sale.
(Code Civ. Proc. Secs. 699.510, 699.520, 712.020.)
This bill would add to this list: 1) if the judgment debtor is
not a natural person, the type of legal entity must be stated
on the writ of execution; and 2) a statement indicating
whether the case from which the writ of execution stems is
limited or unlimited.
5. Existing law requires the levying officer to return the
original writ of execution to the court along with a report
detailing the actions taken by the levying officer, the
amounts collected pursuant to the writ, and the costs
incurred.
This bill provides that the levying officer can either return
the original writ to the court or store the writ as specified
under the LOETA and file the report separately with the court.
6. Existing law requires the levying officer to attach the
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original garnishee's memorandum to the original writ of
execution for return to the court and deliver a copy to the
judgment creditor, unless no memorandum was received which
information shall be conveyed to the court. (Code Civ. Proc.
Sec. 701.030(c).)
This bill would remove the requirements to attach the original
garnishee's memorandum to the original writ for return to the
court or advise the court of the absence of the garnishee's
memorandum.
This bill would authorize the employer to electronically
transmit the garnishee's memorandum to the levying officer.
7. Existing law requires the levying officer, upon sale of real
property, to execute and deliver a deed of sale to the
purchaser and record a duplicate deed of sale with the county
recorder. (Code Civ. Proc. Sec. 701.660.)
This bill would add the requirement that the levying officer
collect the documentary transfer tax with the purchase amount
from the purchaser and transmit the documentary transfer tax
to the county or city and county.
8. Existing law requires a levying officer at least once every
two years to account to the court all amounts collected under
an earnings withholding order. (Code Civ. Proc. Sec.
706.026.)
This bill would authorize the levying officer to
electronically file the accounting with the court, as
specified.
9. Existing law requires the service of an earnings withholding
order on an employer to be delivered by personal delivery, as
specified, or by registered or certified mail with return
receipt requested. Service would be deemed completed at the
time the return receipt is executed by or on behalf of the
recipient. (Code Civ. Proc. Sec. 706.101(b).)
Existing law requires an employer receiving an earnings
withholding order to complete under oath and return within 15
days a Judicial Council form indicating information about the
garnishee/employee, as specified. This form is referred to as
the "employer's return." (Code Civ. Proc. Secs. 706.125,
706.126.)
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This bill would authorize the levying officer to serve the
earnings withholding order on an employer by first class mail.
Service would be complete at the time of the receipt of the
withholding order as indicated by the employer on the
employer's return. If the employer's return is not returned
by the employer within 15 days, the levying officer must
personally serve the earnings withholding order on the
employer.
COMMENT
1. Stated need for the bill
The author writes:
[Existing law] [g]enerally requires that certain documents and
records relating to service of process and notices be in
writing, and, when required to be served on a party, must be
served by personal delivery or by certified mail in some
cases.
This bill seeks to make more efficient Sheriff's Departments
in regards to their Civil Law Enforcement operations. This
bill seeks to allow the Sheriff and Courts to work together to
streamline civil process operations and bring [these
operations] more into line with technology available. [T]his
bill would provide a cost saving by allowing the sheriff to
serve Earnings Withholdings Orders (EWO) by first class mail
rather than by certified mail. It typically costs $5.88 to
serve [an] EWO by certified mail, of which $2.20 is charged by
the post office for a return receipt. By contrast [it] costs
just $0.73 to send the same EWO by first class mail. This
alone would save an estimated $500,000 to the LA County
Sheriff alone.
2. First class mail service of earnings withholding orders
This bill seeks to change the method of service of earnings
withholding orders upon employers by levying officers by first
authorizing the levying officer to mail the earnings withholding
order by first class mail. This is a change from existing law
which requires the levying officer to attempt service on the
employer by personal service or by registered or certified mail
with return receipt requested. Existing law requires that if
service is first attempted by registered or certified mail and
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no return receipt is received by the levying officer within 15
days of mailing, the levying officer must personally serve on
the employer the earnings withholding order.
This bill essentially would work in the same way. The levying
officer first could attempt first class mail service. If the
employer fails to return the required employer's return form
within 15 days of mailing the service of the earnings
withholding order, then the levying officer must personally
serve on the employer the earnings withholding order. The
difference between first class mail service and
registered/certified/return receipt mail service is the cost;
otherwise, both methods require a return signature by the
recipient verifying receipt of the wage withholding order. If
no such signature is received, personal service is required.
The reasoning behind personal service of documents is to make
sure the individual or entity actually receives the document
that may be affecting their personal and financial rights and to
render personal jurisdiction over the person or entity. Since
an earnings withholding order, served upon the employer, comes
after the court has asserted personal jurisdiction over the
employee and after final judgment, the importance of the method
of service decreases to a level of making sure the employer
actually received the document. Proof of receipt of the
document is important to allow the judgment creditor asserting
their rights under the court's judgment to obtain the monies
owed under the judgment. For this reason, the court currently
allows levying officers to serve the earnings withholding order
by registered or certified mail with return receipt requested.
This return receipt is the proof that the employer actually
received the document. This bill substitutes the return receipt
signed by the employer with the employer's return, a document
that must be executed and returned by the employer in any event.
Under the bill, in the event the employer's return is not
received by the levying officer, the levying officer would be
required to personally serve the earnings withholding order on
the employer. This change in method of service of an earnings
withholding order proposed by the bill does not diminish the
service and acknowledgment of receipt requirement under the law.
As the sponsor notes, the benefit to the levying officer is a
significant decrease in cost for first class mail service while
still ensuring a return signature by the recipient as proof of
receipt of service.
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3. Electronic maintenance and service of writs and levies
This bill proposes to establish regulations and procedures for
an electronic technology system to create, generate, send,
receive, store, display, retrieve, or process information,
electronic records, and documents to be used by levying officers
and courts regarding writs, levies, and wage garnishments. The
author argues that levying officers should have the option of
utilizing electronic technology systems for the administration
of writ, levy, and wage garnishment documents in order to reduce
operating costs and streamline communication and documentation
between levying officers and courts.
The Judicial Council raised concerns with the bill as introduced
because it allowed for a situation in which a levying officer
may have the capability to electronically transmit the required
writs and levies to the court, but the court may not have the
electronic resources to receive and maintain this information.
The Judicial Council worked with the author, sponsor, and other
stakeholders, and the bill was amended to provide for an opt-in
provision which would require both the court and levying officer
to determine the resources and technological capacity to
maintain an electronic technology system for writs, levies, and
wage garnishments, and also agree to process these documents, as
specified. If either party did not have the resources or
technological capacity to maintain the electronic system, then
the levying officer must continue to utilize the current paper
method of administering the writ, levy, and earnings
withholdings orders with the issuing court.
4. Privacy concerns over electronic transmission of documents
containing confidential information
This bill would authorize a levying officer to send and receive
information by electronic transfer by and between banks,
employers, and other entities holding a judgment debtor's
property. In order to protect confidential information such as
Social Security numbers and financial account information from
being released to the public, the sponsor drafted the bill to
comply with the standards required by the California Public
Records Act. (See Gov. Code Sec. 6250 et seq.) The bill
requires the levying officer to exclude or redact Social
Security and financial account numbers from documents provided
to the court or to the public.
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Support : California Law Enforcement Association of Records
Supervisors; California State Sheriffs' Association
Opposition : None Known
HISTORY
Source : Los Angeles County Sheriff's Department
Related Pending Legislation : None Known
Prior Legislation : See Background.
Prior Vote :
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Appropriations Committee (Ayes 16, Noes 0)
Assembly Floor (Ayes 72, Noes 0)
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