BILL ANALYSIS
AB 2394
Page 1
CONCURRENCE IN SENATE AMENDMENTS
AB 2394 (Brownley)
As Amended June 14, 2010
Majority vote
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|ASSEMBLY: |72-0 |(May 20, 2010) |SENATE: |34-0 |(August 18, |
| | | | | |2010) |
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Original Committee Reference: JUD.
SUMMARY : Establishes procedures for sheriffs and marshals to
transmit, receive, and maintain certain electronic records and
documents related to civil law enforcement, in order to reduce
operating costs and promote systemic migration away from a
paper-based model of doing business. Specifically, this bill,
the Levying Officer Electronic Transaction Act (Act):
1)States legislative findings that modern technologies offer
alternatives to paper-based systems and provide the means to
create, store, retrieve, and transmit records and documents in
electronic form, resulting in increased efficiency, taxpayer
savings, and improved public access to levying officers.
Further states legislative intent to accommodate current and
future technologies based on industry standards.
2)Provides that nothing in this Act shall be construed to
require a court or levying officer to comply with any of its
provisions unless the court and the levying officer have: a)
jointly determined that both the court and the sheriff's
department have the resources and the technological capacity
to do so; and, b) have mutually agreed to electronically act
upon documents as provided in the Act.
3)Authorizes sheriffs and marshals (also referred to as "levying
officers") to utilize an information processing system to
create, generate, send, receive, store, display, retrieve, or
process information, electronic records, and documents when
based on industry standards and only to the extent that the
levying officer has the resources and technological capacity
to do so.
4)Provides that if a technical problem with the levying
officer's system prevents receipt of an electronic
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transmission, and the sender demonstrates an attempt to
electronically transmit the document on that day, then the
levying officer must deem the document as received on that
day.
5)Permits a levying officer to create, store, print or process
transmit an electronic record, including an electronic mail
message (email) in the place of, and in the same manner as,
the paper record or document upon which the electronic record
is based.
6)Provides that whenever fax transmission of a document or
record to a levying officer is authorized by this act, the
levying officer may act upon an electronic record transmitted
by a fax machine in the same manner as the paper record or
document upon which the electronic version is based.
7)Requires a person transmitting an electronic record to the
levying officer by fax or email pursuant to this Act to:
a) Include with the record certain information, as
specified (in either a cover sheet or within the record
itself), that identifies the name and fax or email contact
information of the sender; and,
b) Retain the paper version of the record or document and
deliver the paper version of the record or document to the
levying officer within five days after a request to do so
has been mailed to the sender by the levying officer.
8)Provides that, with respect to deeds and conveyances that the
sheriff must execute and deliver to the purchaser of real
estate sold by the sheriff under authority of law, the deeds
and conveyances may be recorded electronically pursuant to
this Act if they comply with the Electronic Recording Delivery
Act of 2004.
9)Requires the levying officer to exclude or redact identifying
information, including SSN and financial account numbers, from
any electronic record or document made available to the
public, as well as any writ return filed with the court.
10)Provides that in lieu of returning the paper version of an
original writ of execution to a court, the levying officer may
retain the original writ, or an electronic copy of the
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original writ, and electronically file with the court only a
return reporting the levying officer's actions, amounts
collected, and costs incurred, by a specified deadline.
11)Requires a levying officer, at least once every two years, to
file an accounting with the court for all amounts collected
under an earnings withholding order (EWO), including costs and
interest, and authorizes the levying officer to file the
accounting with the court by electronic means.
12)Repeals the requirement that a levying officer make a
supplemental return on the writ of execution upon termination
of an EWO when the writ is returned to the court before such
time that the EWO terminates.
13)Permits a judgment creditor or his or her attorney to
electronically transmit to the levying officer the following
documents:
a) Written levying officer instructions (generally,
providing information necessary to enforce a judgment,
e.g., an adequate description of property to be levied on);
and,
b) Written directions to release property (the release).
14)Permits a garnishee to electronically transmit the
garnishee's memorandum to the levying officer.
15)Authorizes the sheriff to serve an EWO, if not by personal
delivery, then by first class mail, postage prepaid (instead
of via registered or certified mail). Further provides that
when service is made by mail, service is complete at the time
of receipt of the EWO as indicated in the employer's return,
or the date of mailing if the date of receipt is not indicated
on the employer's return.
16)Provides that if the levying officer attempts service by mail
and does not receive the employer's return within 15 days from
the date of mailing, then the levying officer shall make
personal delivery of service.
17)Requires a writ of execution and a writ of possession or sale
of property to state: (1) the type of legal entity of the
judgment debtor, if the judgment debtor is other than a
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natural person; and (2) whether the case is limited or
unlimited.
18)Provides that any amount of money required to be paid by the
purchaser of real property to the levying officer as a
documentary transfer tax must then be forwarded to the county
and is not considered to be added to the judgment.
19)Allows the name of the judicial officer, as an alternative to
his or her signature, to appear on the specified notice
informing a person subject to subpoena that failure to appear
may result in issuance of a warrant.
The Senate amendments clarify that the authority of the levying
officer to electronically file with the court the return and
accounting of amounts collected under an EWO is subject to
certain statutory limitations, as specified (i.e., summary 2)
above).
AS PASSED BY THE ASSEMBLY , this bill was substantially similar
to the version approved by the Senate.
FISCAL EFFECT : According to the Senate Appropriations analysis,
in the provisions of this bill that authorize electronic
transmittal of documents, superior courts "will likely achieve
savings related to reduced paper-base transactions and records
storage, to the extent that those courts enter into agreements
with levying officers." In addition, any provisions under this
bill that can be considered to be state mandates on local
ministerial officers "are unlikely to constitute reimbursable
mandates," while there may be potential net local and general
savings from increased efficiency for levying officers or other
county staff. Finally, the Senate Appropriations analysis notes
that the provision of the bill that modifies service of an EWO
upon an employer bill is "likely to result in substantial local
savings."
COMMENTS : This bill, the Levying Officer Electronic Transaction
Act, represents one of the first, but certainly not one of the
last, comprehensive efforts to adapt the Code of Civil Procedure
to modern information technology and promote systemic migration
away from a paper-based model of civil law enforcement. The
author and the Los Angeles County Sheriff's Department, the
sponsor of this bill, believe that there are significant
potential time and cost savings associated with increased use of
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electronic records and documents, and that this bill will
increase the efficiency of the Sheriff's Office by saving
countless number of trips to the courthouse or the county
recorder's office to transport original paper versions of
documents that may otherwise be transmitted by fax or email.
This lengthy bill would update numerous sections of the Code of
Civil Procedure to establish new procedures for sheriffs and
marshals to send, receive, and maintain certain electronic
records and documents relating to their duties in enforcing
civil judgments. In support, the author writes: "This bill
provides a means for the Sheriff and Marshal to reduce civil law
enforcement operating costs by migrating from a paper based
business model to a modern system that makes extensive use of
electronic records, e.g., digitized writs, and communication,
e.g., websites and email. Today's information technologies
increase productivity and minimize errors by avoiding data entry
redundancies. The reduced processing time for electronic
documents and data exchanged between courts, sheriffs and
marshals, and litigants presents an opportunity for staff to do
more with fewer people."
Under current law, a separate writ of execution must be issued
for each county where a levy is to be made. Furthermore, while
writs may be issued successively until the money judgment is
satisfied, a new writ may not be issued for a county until the
expiration of 180 days after the issuance of a prior writ for
that county unless the prior writ is first returned. In
practice, the writ is "returned" to the court only when the
sheriff physically brings the original paper version of the
writ, along with the accounting document (the "return"), to the
court and files the documents. The main purpose of the return
is to provide updated accounting information to the court clerk
so that any subsequently issued writ will accurately reflect the
balance of the judgment to be collected. Courts commonly treat
the sheriff's return of the original paper writ as the necessary
triggering event that permits the court to issue another
subsequent writ. This practice, although inefficient from the
sheriff's perspective, is intended to alleviate the court's
constant concern that two writs of execution with different
terms may be issued in the same county in the same case.
Significantly, this bill would instead permit the levying
officer to: a) retain the original writ of execution, or an
electronic copy of the original writ, in lieu of returning the
original paper version to the court; and, b) file with the court
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only the return reporting the levying officer's actions, amounts
collected, and costs incurred, by a specified deadline. If the
court has "opted-in" to this Act, then the sheriff may file the
return electronically with the court pursuant to the mutually
agreed-upon rules for sending and receiving electronic records
at that time.
The blanket opt-in provision for courts was especially important
here in addressing concerns expressed by Judicial Council and
court personnel that removing the requirement for the return of
the original paper writ poses a workability problem for many
courts whose workflow is often premised on receipt of both the
original writ and writ return in paper form.
Under current law, an EWO must be made either by personal
delivery or by registered or certified mail, postage prepaid.
When service is made by registered of certified mail, service is
deemed complete at the time the "return receipt is executed by
or on behalf of the recipient." The return receipt refers to
the "green card" that the U.S. Post Office returns by mail to
customers who purchase registered or certified mail service,
after someone at the recipient's address has signed the card to
acknowledge receipt of the registered or certified letter. If
service by mail has been made but the return receipt has not
been received back by the levying officer after 15 days from the
date of mailing, then the levying officer must serve the EWO by
personal delivery.
This bill would allow the sheriff to serve EWOs by first class
mail rather than by certified mail. According to the sponsor,
it typically costs $5.88 to serve an EWO by certified mail, of
which $2.20 is charged by the Post Office for return receipt
service. By contrast, it typically costs just $0.73 to send the
same EWO materials by first class mail-a significant cost
savings.
However, because first class mail, by definition, does not
involve any "green card" return receipt, the bill now
substitutes, in place of the return receipt, the "employer's
return" included in the papers accompanying every EWO. The
employer is instructed on the employer's return form to provide
specified information about the employee on the form and deliver
or mail the form back to the levying officer within 15 days.
The bill specifies that: 1) an employer's return is the
Judicial Council-issued form (WG-005) specified by Code of Civil
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Procedure Section 706.126; (2) service is deemed complete based
on information indicated by the employer in the employer's
return; and, (3) the levying officer must serve the EWO by
personal delivery if the employer's return is not received
within 15 days of the initial mailing.
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334
FN: 0005388