BILL ANALYSIS �
AB 2256
Page 1
Date of Hearing: March 25, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 2256 (Garcia) - As Amended: March 18, 2014
As Proposed to be Amended
SUBJECT : CIVIL PROCEDURE: SERVICE AND FEES: SHERIFFS
KEY ISSUE : SHOULD STATUTORY FEES FOR SERVICE OF CIVIL PROCESS
AND MANY OTHER SERVICES PROVIDED BY SHERIFFS BE MODESTLY
INCREASED, AND SHOULD VARIOUS OTHER CHANGES RELATED TO SERVICE
OF PROCESS BE MADE TO INCREASE OPERATIONAL EFFICIENCIES FOR
SHERIFFS?
SYNOPSIS
This bill, sponsored by the California State Sheriff's
Association and the Los Angeles County Sheriff, primarily seeks
to increase fees for service of civil process and other types of
services provided by sheriffs. In most cases, the fee increases
sought by this bill are modest and in the range of $5 to $10 per
service provided. Sheriff associations supporting the bill
contend that these fee increases are needed to address
significant budget shortfalls that have impaired the sheriffs'
civil process operations, and will help the sheriffs rely less
on taxpayer money to conduct civil services and more upon fees
paid by users of the services. In addition, the bill contains a
number of otherwise unrelated provisions that seek to increase
operational efficiencies for sheriffs in carrying out their
day-to-day duties related to service of civil process, and
conserve scarce resources. Among these are proposals to ease
sheriffs' access to gated communities for the purpose of serving
legal process, and to clarify that certain warrants for failure
to appear at an assert examination may appropriately be issued
to any peace officer, not just the sheriff. Proposed amendments
to the bill remove additional policy proposals that the author
has decided not to pursue at this time in this particular bill.
There is no known opposition to the bill.
SUMMARY : Revises and increases statutorily prescribed fees for
serving, executing, and processing required court notices,
writs, orders, and other services provided by sheriffs, and
makes various other changes relating to service of civil
AB 2256
Page 2
process. Specifically, this bill :
1)Increases the fees for many services provided by sheriff's
departments, such as serving, executing and processing court
notices, writs and orders. Among these increases are the
following:
a) The fee for service of a summons and complaint is
increased from $35 to $40.
b) The fee for serving or executing any process or notice
required by law is increased from $35 to $40.
c) The fee for serving, executing, or processing any writ
or order where the levying officer is required to take
immediate possession of the property levied upon is
increased from $85 to $100.
d) The fee for serving a writ of possession of real
property on an occupant or the occupants or for posting and
serving a copy on the judgment debtor is increased from $75
to $85.
e) The additional fee for removing an occupant or occupants
from the premises and putting a person in possession of the
premises is increased from $50 to $60.
f) The fee for serving an earnings withholding order under
the Wage Garnishment Law, including, but not limited to,
the costs of postage or traveling, and for performing all
other duties of the levying officer under that law with
respect to the levy is increased from $30 to $35.
2)Increases, from $15 to $18, the set-aside amount of any fee
collected by the sheriff's civil division or marshal under
Sections 26721, 26722, 26725, 26726, 26728, 26730, 26733.5,
26734, 26736, 26738, 26742, 26743, 26744, and 26750 of the
Government Code that is required to be deposited in a special
fund in the county treasury.
3)Repeals the U.S. citizenship requirement that applies to any
person who seeks to service legal process in an action against
a sheriff.
4)Requires access to a gated community by a sheriff, registered
AB 2256
Page 3
process server, or licensed private investigator, whether or
not a guard is present, for the purpose of performing lawful
service of process or service of a subpoena, and repeals the
requirement for disclosure of the identity of the person to be
served to a guard at the gated community.
5)Provides that a sheriff or marshal may not serve a summons and
complaint upon a business organization whose legal business
form is unknown.
6)Clarifies that, even if service of garnishment on a bank is
ineffective under CCP Section 684.115, the bank is
nevertheless required to respond to the legal process by
mailing or delivery of the garnishee's memorandum to the
levying officer within the time otherwise provided, with a
statement on the memorandum stating that the legal process was
not properly served at the bank's designated location for
receiving legal process, and providing the address at which
the bank is to receive legal process.
7)Repeals the sheriff's fee to serve a contempt warrant upon a
person who fails to appear for an asset examination, and makes
a technical correction that incorrectly requires the court to
set bail in the amount of the warrant when a warrant for
contempt is issued pursuant to Civil Code Section 1993(b).
8)Clarifies that a warrant issued by the court to compel a
person to appear for an asset examination shall be directed to
any peace officer, not only a sheriff.
9)Allows the sheriff to publish notice of service of a
protective order on the sheriff's public website, in lieu of
or in addition to providing such notice by email or telephone
to the person protected by the order.
EXISTING LAW:
1)Prescribes fees for serving, executing, and processing
required court notices, writs, orders, and other services
provided by sheriffs. (Government Code Sections 26720 through
26751.)
2)Requires a person executing service of process in an action
against a sheriff to be a citizen of the United States over
AB 2256
Page 4
the age of 18 years. (Code of Civil Procedure 262.7.)
3)Requires that a person shall be granted access to a gated
community for a reasonable period of time for the purpose of
performing lawful service of process or service of a subpoena,
upon identifying to the guard the person to be served and upon
displaying a current driver's license or other specified form
of identification. (Code of Civil Procedure Section 415.21.)
4)Permits service of a summons and complaint upon a business
organization whose legal business form is unknown. (Code of
Civil Procedure Section 415.95.)
5)Requires a writ of execution directed to the levying officer
to include the name of the judgment debtor, and to state the
type of legal entity of the judgment debtor if the debtor is
not a natural person. (Code of Civil Procedure Section
687.010(a)(4).)
6)Permits, but does not require a bank to remit the garnishee's
memorandum to the levying officer, as specified, in certain
cases where service of process is deemed ineffective under
existing law establishing procedures for service of process
and execution of levies at a central location designated by a
bank and its other branches. (Code of Civil Procedure Section
684.115(f).)
7)Provides that the failure to appear for an asset examination
is deemed contempt for which a warrant may be issued. (Code
of Civil Procedure 491.160(a) and 708.170(a).)
8)Authorizes the court to issue a warrant for the arrest of a
witness who fails to appear pursuant to a subpoena or court
order, and that such warrant is directed to the sheriff of the
county in which the witness may be located. (Code of Civil
Procedure Section 1993(a).)
9)Permits the sheriff to notify the party protected by a
protective order by telephone or email when service of the
protective order is made. (Government Code Section 6103.3.)
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
COMMENTS : This bill, sponsored by the California State
AB 2256
Page 5
Sheriff's Association and the Los Angeles County Sheriff,
primarily seeks to increase fees for service of legal process
and other types of services provided by sheriffs. In most
cases, the fee increases sought by this bill are modest and in
the range of $5 to $10 per service provided. In addition, the
bill contains a number of otherwise unrelated provisions that
seek to increase operational efficiencies for sheriffs in
carrying out their day-to-day duties related to service of civil
process, and conserve scarce resources.
Fee increases. According to the author, the primary purpose of
the bill is to make modest increases to the fees charged by
sheriffs' departments to address significant budget shortfalls
that have impaired the sheriffs' civil process operations. The
author states:
Civil fees are designed to cover the cost of Sheriff
Civil process operations and enforcement to serve
process and to serve other court orders such as Writs
of Execution and Writs of Possession. However, the
fees are not covering the costs of doing business. In
Los Angeles County, the fees pay for only
approximately 50% of the actual costs, the rest of the
costs are made up by the County and its general fund.
This was never designed to be funded by county money
and was supposed to be funded by user fees. This bill
seeks small increases to these user fees to partially
recover costs incurred with the service of process. .
. Unlike the sheriff's jail and patrol operations
which are funded solely by taxpayer dollars, civil
process operations' are supplemented by fees paid by
litigants.
Proponents generally contend that the fees currently assessed
cover only a portion of the costs sheriffs incur in performing
service of process, and often force sheriffs' budgets to bear
the majority of the burden. They contend that these proposed
fee increases are needed to increase revenue, help offset
increasing costs, and make service of process functions more
self-supporting to protect local governments from having to
cover budgetary shortfalls.
This bill seeks increases to most types of civil process-related
service offered by sheriffs under the relevant Article
(commencing with Section 26720) of the Government Code
AB 2256
Page 6
specifying fees to be charged by sheriffs. As recently amended,
the increases currently sought are smaller in amount than those
sought in the introduced version of the bill-ranging from $5 to
$10 above existing fee amounts. The author has circulated the
proposed increases among various stakeholders, including the
private process servers, debt collectors, and trial attorneys,
and there remains no known opposition to this bill.
In addition, this bill seeks to increase, from $15 to $18, the
amount of any applicable fee collected by the sheriff's civil
division that is required to be deposited in a special fund in
the county treasury. The proposed new $18 set-aside amount
applies to fourteen types of common fees specified in the
Government Code. According to the author, this is not a fee
increase, but rather a subsidy provision that allows the sheriff
to retain a greater share of fee revenue for its civil
operations and minimize the amount that taxpayers might have to
ultimately subsidize when the sheriff's costs exceed its
revenue.
This bill revises requirements for sheriffs to gain access to
gated communities to perform service of process. An increasing
number of Californians now live in gated communities that
frequently are staffed by a guard at the main entrance.
Existing law requires a sheriff or other person seeking to
perform service of process upon a resident of a gated community
staffed by a guard to display his or her identification to the
guard and disclose the identity of the person to be served.
According to the author, conditional access to a gated community
conflicts with the authority of the sheriff to access such areas
to perform his or her legal duties, including lawful service of
process. Moreover, the author contends that this requirement
serves little useful purpose other than to alert a resident of a
gated community that a sheriff is present at the guard's station
to serve legal process and allow the resident an opportunity to
avoid being served. Accordingly, this bill would guarantee the
sheriff (or other qualified person) access to a gated community
whether or not a guard is present, for the purpose of performing
lawful service of process or service of a subpoena, and the bill
would repeal the requirement that the identity of the person to
be served be disclosed to the guard at the gated community, if
there is one. Residence in a gated community with an entrance
guard should not entitle a person to avoid being served,
particularly when doing so will increase the number of return
visits a sheriff may have to make to successfully serve the
AB 2256
Page 7
papers, at additional cost.
This bill codifies the sheriff's practice of serving a summons
on a business organization only after determining its business
form. CCP Section 415.95 permits service of a summons and
complaint upon a business organization whose legal business form
is unknown, but according to the author, does not provide clear
direction to sheriffs who have to serve summons and complaints
on such businesses. The sheriffs contend that it is essential
for them to know the legal business form of the debtor when
attempting to enforce a writ because businesses may change their
legal form and complicate matters for the creditor. This bill
would clarify that sheriffs cannot be compelled to serve process
on a business organization whose form is unknown, and would
essentially codify the sheriffs' current practice to instead
observe the rule of CCP Section 687.010(a)(4), which requires
the writ of execution to state the type of legal entity of the
judgment debtor when the debtor is not a natural person.
This bill authorizes sheriffs to provide website notification
that a protective order has been served to the person protected
by the order. Existing law permits but does not require the
sheriff to notify a person protected by a protective order that
the order was served by contacting the protected person by phone
or email. This bill would revise these provisions to allow the
sheriff to post this information to the sheriff's website in
lieu of, or in addition to, email or telephone notification.
Importantly, existing law already requires notification to the
protected person by U.S. mail to confirm the order was served,
and this bill does not disturb that requirement. Instead, it
merely revises the additional options for confirmation of
service to allow the information to be posted to a website,
rather than an email message or phone call. According to the
author, this will help conserve sheriffs' resources because
website posting is more efficient than telephone calling,
particularly for large batches of protective orders.
This bill makes a number of other largely technical and
clarifying changes. Among other things, this bill clarifies
that, even if service of garnishment on a bank is ineffective
under CCP Section 684.115, the bank is nevertheless required to
respond to the legal process by mailing or delivery of the
garnishee's memorandum to the levying officer, as prescribed.
By making such response mandatory rather than permissive, this
provision eliminates an ambiguity that, according to sheriffs,
AB 2256
Page 8
was creating unintended negative consequences for sheriffs, and
moreover put Section 684.115 in conflict with general civil law
requirements that, with only one exception, do not allow a
person to be served to refuse service at his or her discretion.
In addition, this bill makes technical changes to clarify that a
warrant issued by the court to compel a person to appear for an
asset examination shall be directed to any peace officer, not
only a sheriff. Finally, this bill repeals an outdated and
peculiar provision of law, dating to 1951, that requires any
person serving process in an action against a sheriff to be an
American citizen. The Committee's research on this matter
indicates that this is perhaps the only provision in state law
requiring a person serving legal process to be a U.S. citizen,
and that there is no sound public policy reason justifying such
a citizenship requirement, if ever one existed.
REGISTERED SUPPORT / OPPOSITION :
Support
Los Angeles County Sheriff's Office (co-sponsor)
California State Sheriff's Association (co-sponsor)
Opposition
None on file
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334