AB 2211: Registered process servers.
- Session Year: 2015-2016
- House: Assembly
- Latest Version Date: 2016-07-25
Existing law establishes a process for the enforcement of money judgments, and authorizes a registered process server to levy under a writ of attachment or writ of execution on specified types of property. Existing law requires the registered process server, before levying under the writ, to deposit a copy of the writ with the levying officer and pay a specified fee. Existing law also permits a registered process server to serve an earnings withholding order on an employer and requires that the process server deposit specified documents with the levying officer and pay a specified fee.
This bill would provide that the registered process server is authorized to have the required documents and fee delivered to the levying officer by someone other than the process server himself or herself.
Existing law establishes a process for the enforcement of money judgments, and authorizes a registered process server to levy under a writ of attachment or writ of execution on specified types of property. Existing law requires the registered process server, before levying under the writ, to deposit a copy of the writ with the levying officer and pay a specified fee. Existing law also permits a registered process server to serve an earnings withholding order on an employer and requires that the process server deposit specified documents with the levying officer and pay a specified fee.
This bill would provide that the registered process server is authorized to have the required documents and fee delivered to the levying officer by someone other than the process server himself or herself.
Existing law establishes a process for the enforcement of money judgments, and authorizes a registered process server to levy under a writ of attachment or writ of execution on specified types of property. Existing law requires the registered process server, before levying under the writ, to deposit a copy of the writ with the levying officer and pay a specified fee. Existing law also permits a registered process server to serve an earnings withholding order on an employer and requires that the process server deposit specified documents with the levying officer and pay a specified fee.
This bill would provide that the registered process server is authorized to have the required documents and fee delivered to the levying officer by someone other than the process server himself or herself.
(a)A registered process server may levy under a writ of attachment on the following types of property:
(1)Real property, pursuant to Section 488.315.
(2)Growing crops, timber to be cut, or minerals or the like, including oil and gas, to be extracted or accounts receivable resulting from the sale thereof at the wellhead or minehead, pursuant to Section 488.325.
(3)Personal property in the custody of a levying officer, pursuant to Section 488.355.
(4)Equipment of a going business, pursuant to Section 488.375.
(5)Motor vehicles, vessels, mobilehomes, or commercial coaches used as equipment of a going business, pursuant to Section 488.385.
(6)Farm products or inventory of a going business, pursuant to Section 488.405.
(7)Personal property used as a dwelling, pursuant to subdivision (a) of Section 700.080.
(8)Deposit accounts, pursuant to Section 488.455.
(9)Property in a safe-deposit box, pursuant to Section 488.460.
(10)Accounts receivable or general intangibles, pursuant to Section 488.470.
(11)Final money judgments, pursuant to Section 488.480.
(12)Interest of a defendant in personal property in the estate of a decedent, pursuant to Section 488.485.
(b)Before levying under the writ of attachment, the registered process server shall cause to be deposited with the levying officer a copy of the writ and the fee, as provided by Section 26721 of the Government Code.
(c)If a registered process server levies on property pursuant to subdivision (a), the registered process server shall do both of the following:
(1)Comply with the applicable levy, posting, and service provisions of Article 2 (commencing with Section 488.300).
(2)Request any third person served to give a garnishees memorandum to the levying officer in compliance with Section 488.610 on a form provided by the registered process server.
(d)Within five court days after levy under this section, all of the following shall be filed with the levying officer:
(1)The writ of attachment.
(2)A proof of service by the registered process server stating the manner of levy performed.
(3)Proof of service of the copy of the writ and notice of attachment on other persons, as required by Article 2 (commencing with Section 488.300).
(4)Instructions in writing, as required by the provisions of Section 488.030.
(e)If the fee provided by Section 26721 of the Government Code has been paid, the levying officer shall perform all other duties under the writ as if the levying officer had levied under the writ and shall return the writ to the court. If the registered process server does not comply with subdivisions (b) and (d), the levy is ineffective and the levying officer shall not be required to perform any duties under the writ, and may issue a release for any property sought to be attached. The levying officer is not liable for actions taken in conformance with the provisions of this title in reliance on information provided to the levying officer under subdivision (d), except to the extent that the levying officer has actual knowledge that the information is incorrect. Nothing in this subdivision limits any liability the plaintiff or registered process server may have if the levying officer acts on the basis of incorrect information provided under subdivision (d).
(f)The fee for services of a registered process server under this section is a recoverable cost pursuant to Section 1033.5.
SEC. 2.Section 699.080 of the Code of Civil Procedure is amended to read:699.080.(a)A registered process server may levy under a writ of execution on the following types of property:
(1)Real property, pursuant to Section 700.015.
(2)Growing crops, timber to be cut, or minerals or the like including oil and gas, to be extracted or accounts receivable resulting from the sale thereof at the wellhead or minehead, pursuant to Section 700.020.
(3)Personal property in the custody of a levying officer, pursuant to Section 700.050.
(4)Personal property used as a dwelling, pursuant to subdivision (a) of Section 700.080.
(5)Deposit accounts, pursuant to Section 700.140.
(6)Property in a safe-deposit box, pursuant to Section 700.150.
(7)Accounts receivable or general intangibles, pursuant to Section 700.170.
(8)Final money judgments, pursuant to Section 700.190.
(9)Interest of a judgment debtor in personal property in the estate of a decedent, pursuant to Section 700.200.
(b)Before levying under the writ of execution, the registered process server shall cause to be deposited with the levying officer a copy of the writ and the fee, as provided by Section 26721 of the Government Code.
(c)If a registered process server levies on property pursuant to subdivision (a), the registered process server shall do both of the following:
(1)Comply with the applicable levy, posting, and service provisions of Article 4 (commencing with Section 700.010).
(2)Request any third person served to give a garnishees memorandum to the levying officer in compliance with Section 701.030 on a form provided by the registered process server.
(d)Within five court days after levy under this section, all of the following shall be filed with the levying officer:
(1)The writ of execution.
(2)A proof of service by the registered process server stating the manner of levy performed.
(3)Proof of service of the copy of the writ and notice of levy on other persons, as required by Article 4 (commencing with Section 700.010).
(4)Instructions in writing, as required by the provisions of Section 687.010.
(e)If the fee provided by Section 26721 of the Government Code has been paid, the levying officer shall perform all other duties under the writ as if the levying officer had levied under the writ and shall return the writ to the court. If the registered process server does not comply with subdivisions (b) and (d), the levy is ineffective and the levying officer shall not be required to perform any duties under the writ, and may issue a release for any property sought to be levied upon.
(f)The fee for services of a registered process server under this section is a recoverable cost pursuant to Section 1033.5.
(g)A registered process server may levy more than once under the same writ of execution, provided that the writ is still valid.
SEC. 3.Section 706.108 of the Code of Civil Procedure is amended to read:706.108.(a)If a writ of execution has been issued to the county where the judgment debtors employer is to be served and the time specified in subdivision (b) of Section 699.530 for levy on property under the writ has not expired, a judgment creditor may deliver an application for issuance of an earnings withholding order to a registered process server who may then issue an earnings withholding order.
(b)If the registered process server has issued the earnings withholding order, the registered process server, before serving the earnings withholding order, shall cause to be deposited with the levying officer a copy of the writ of execution, the application for issuance of an earnings withholding order, a copy of the earnings withholding order, and the fee, as provided by Section 26750 of the Government Code.
(c)A registered process server may serve an earnings withholding order on an employer whether the earnings withholding order was issued by a levying officer or by a registered process server, but no earnings withholding order may be served after the time specified in subdivision (b) of Section 699.530. In performing this function, the registered process server shall serve upon the designated employer all of the following:
(1)The original and one copy of the earnings withholding order.
(2)The form for the employers return.
(3)The notice to the employee of the earnings withholding order.
(4)A copy of the form that the judgment debtor may use to make a claim of exemption.
(5)A copy of the form the judgment debtor may use to provide a financial statement.
(6)A copy of the employers instructions referred to in Section 706.127, except as otherwise prescribed in rules adopted by the Judicial Council.
(d)Within five court days after service under this section, all of the following shall be filed with the levying officer:
(1)The writ of execution, if it is not already in the hands of the levying officer.
(2)Proof of service on the employer of the papers listed in subdivision (c).
(3)Instructions in writing, as required by the provisions of Section 687.010.
(e)If the fee provided by Section 26750 of the Government Code has been paid, the levying officer shall perform all other duties required by this chapter as if the levying officer had served the earnings withholding order. If the registered process server does not comply with subdivisions (b), where applicable, and (d), the service of the earnings withholding order is ineffective and the levying officer shall not be required to perform any duties under the order, and may terminate the order and release any withheld earnings to the judgment debtor.
(f)The fee for services of a registered process server under this section is a recoverable cost pursuant to Section 1033.5.
(a)A registered process server may levy under a writ of attachment on the following types of property:
(1)Real property, pursuant to Section 488.315.
(2)Growing crops, timber to be cut, or minerals or the like, including oil and gas, to be extracted or accounts receivable resulting from the sale thereof at the wellhead or minehead, pursuant to Section 488.325.
(3)Personal property in the custody of a levying officer, pursuant to Section 488.355.
(4)Equipment of a going business, pursuant to Section 488.375.
(5)Motor vehicles, vessels, mobilehomes, or commercial coaches used as equipment of a going business, pursuant to Section 488.385.
(6)Farm products or inventory of a going business, pursuant to Section 488.405.
(7)Personal property used as a dwelling, pursuant to subdivision (a) of Section 700.080.
(8)Deposit accounts, pursuant to Section 488.455.
(9)Property in a safe-deposit box, pursuant to Section 488.460.
(10)Accounts receivable or general intangibles, pursuant to Section 488.470.
(11)Final money judgments, pursuant to Section 488.480.
(12)Interest of a defendant in personal property in the estate of a decedent, pursuant to Section 488.485.
(b)Before levying under the writ of attachment, the registered process server shall cause to be deposited with the levying officer a copy of the writ and the fee, as provided by Section 26721 of the Government Code.
(c)If a registered process server levies on property pursuant to subdivision (a), the registered process server shall do both of the following:
(1)Comply with the applicable levy, posting, and service provisions of Article 2 (commencing with Section 488.300).
(2)Request any third person served to give a garnishees memorandum to the levying officer in compliance with Section 488.610 on a form provided by the registered process server.
(d)Within five court days after levy under this section, all of the following shall be filed with the levying officer:
(1)The writ of attachment.
(2)A proof of service by the registered process server stating the manner of levy performed.
(3)Proof of service of the copy of the writ and notice of attachment on other persons, as required by Article 2 (commencing with Section 488.300).
(4)Instructions in writing, as required by the provisions of Section 488.030.
(e)If the fee provided by Section 26721 of the Government Code has been paid, the levying officer shall perform all other duties under the writ as if the levying officer had levied under the writ and shall return the writ to the court. If the registered process server does not comply with subdivisions (b) and (d), the levy is ineffective and the levying officer shall not be required to perform any duties under the writ, and may issue a release for any property sought to be attached. The levying officer is not liable for actions taken in conformance with the provisions of this title in reliance on information provided to the levying officer under subdivision (d), except to the extent that the levying officer has actual knowledge that the information is incorrect. Nothing in this subdivision limits any liability the plaintiff or registered process server may have if the levying officer acts on the basis of incorrect information provided under subdivision (d).
(f)The fee for services of a registered process server under this section is a recoverable cost pursuant to Section 1033.5.
SEC. 2.Section 699.080 of the Code of Civil Procedure is amended to read:699.080.(a)A registered process server may levy under a writ of execution on the following types of property:
(1)Real property, pursuant to Section 700.015.
(2)Growing crops, timber to be cut, or minerals or the like including oil and gas, to be extracted or accounts receivable resulting from the sale thereof at the wellhead or minehead, pursuant to Section 700.020.
(3)Personal property in the custody of a levying officer, pursuant to Section 700.050.
(4)Personal property used as a dwelling, pursuant to subdivision (a) of Section 700.080.
(5)Deposit accounts, pursuant to Section 700.140.
(6)Property in a safe-deposit box, pursuant to Section 700.150.
(7)Accounts receivable or general intangibles, pursuant to Section 700.170.
(8)Final money judgments, pursuant to Section 700.190.
(9)Interest of a judgment debtor in personal property in the estate of a decedent, pursuant to Section 700.200.
(b)Before levying under the writ of execution, the registered process server shall cause to be deposited with the levying officer a copy of the writ and the fee, as provided by Section 26721 of the Government Code.
(c)If a registered process server levies on property pursuant to subdivision (a), the registered process server shall do both of the following:
(1)Comply with the applicable levy, posting, and service provisions of Article 4 (commencing with Section 700.010).
(2)Request any third person served to give a garnishees memorandum to the levying officer in compliance with Section 701.030 on a form provided by the registered process server.
(d)Within five court days after levy under this section, all of the following shall be filed with the levying officer:
(1)The writ of execution.
(2)A proof of service by the registered process server stating the manner of levy performed.
(3)Proof of service of the copy of the writ and notice of levy on other persons, as required by Article 4 (commencing with Section 700.010).
(4)Instructions in writing, as required by the provisions of Section 687.010.
(e)If the fee provided by Section 26721 of the Government Code has been paid, the levying officer shall perform all other duties under the writ as if the levying officer had levied under the writ and shall return the writ to the court. If the registered process server does not comply with subdivisions (b) and (d), the levy is ineffective and the levying officer shall not be required to perform any duties under the writ, and may issue a release for any property sought to be levied upon.
(f)The fee for services of a registered process server under this section is a recoverable cost pursuant to Section 1033.5.
(g)A registered process server may levy more than once under the same writ of execution, provided that the writ is still valid.
SEC. 3.Section 706.108 of the Code of Civil Procedure is amended to read:706.108.(a)If a writ of execution has been issued to the county where the judgment debtors employer is to be served and the time specified in subdivision (b) of Section 699.530 for levy on property under the writ has not expired, a judgment creditor may deliver an application for issuance of an earnings withholding order to a registered process server who may then issue an earnings withholding order.
(b)If the registered process server has issued the earnings withholding order, the registered process server, before serving the earnings withholding order, shall cause to be deposited with the levying officer a copy of the writ of execution, the application for issuance of an earnings withholding order, a copy of the earnings withholding order, and the fee, as provided by Section 26750 of the Government Code.
(c)A registered process server may serve an earnings withholding order on an employer whether the earnings withholding order was issued by a levying officer or by a registered process server, but no earnings withholding order may be served after the time specified in subdivision (b) of Section 699.530. In performing this function, the registered process server shall serve upon the designated employer all of the following:
(1)The original and one copy of the earnings withholding order.
(2)The form for the employers return.
(3)The notice to the employee of the earnings withholding order.
(4)A copy of the form that the judgment debtor may use to make a claim of exemption.
(5)A copy of the form the judgment debtor may use to provide a financial statement.
(6)A copy of the employers instructions referred to in Section 706.127, except as otherwise prescribed in rules adopted by the Judicial Council.
(d)Within five court days after service under this section, all of the following shall be filed with the levying officer:
(1)The writ of execution, if it is not already in the hands of the levying officer.
(2)Proof of service on the employer of the papers listed in subdivision (c).
(3)Instructions in writing, as required by the provisions of Section 687.010.
(e)If the fee provided by Section 26750 of the Government Code has been paid, the levying officer shall perform all other duties required by this chapter as if the levying officer had served the earnings withholding order. If the registered process server does not comply with subdivisions (b), where applicable, and (d), the service of the earnings withholding order is ineffective and the levying officer shall not be required to perform any duties under the order, and may terminate the order and release any withheld earnings to the judgment debtor.
(f)The fee for services of a registered process server under this section is a recoverable cost pursuant to Section 1033.5.
(a)A registered process server may levy under a writ of attachment on the following types of property:
(1)Real property, pursuant to Section 488.315.
(2)Growing crops, timber to be cut, or minerals or the like (including like, including oil and gas) gas, to be extracted or accounts receivable resulting from the sale thereof at the wellhead or minehead, pursuant to Section 488.325.
(3)Personal property in the custody of a levying officer, pursuant to Section 488.355.
(4)Equipment of a going business, pursuant to Section 488.375.
(5)Motor vehicles, vessels, mobilehomes, or commercial coaches used as equipment of a going business, pursuant to Section 488.385.
(6)Farm products or inventory of a going business, pursuant to Section 488.405.
(7)Personal property used as a dwelling, pursuant to subdivision (a) of Section 700.080.
(8)Deposit accounts, pursuant to Section 488.455.
(9)Property in a safe-deposit box, pursuant to Section 488.460.
(10)Accounts receivable or general intangibles, pursuant to Section 488.470.
(11)Final money judgments, pursuant to Section 488.480.
(12)Interest of a defendant in personal property in the estate of a decedent, pursuant to Section 488.485.
(b)Before levying under the writ of attachment, the registered process server shall deposit cause to be deposited with the levying officer a copy of the writ with the levying officer and pay the fee, as provided by Section 26721 of the Government Code.
(c)If a registered process server levies on property pursuant to subdivision (a), the registered process server shall do both of the following:
(1)Comply with the applicable levy, posting, and service provisions of Article 2 (commencing with Section 488.300).
(2)Request any third person served to give a garnishees memorandum to the levying officer in compliance with Section 488.610 on a form provided by the registered process server.
(d)Within five court days after levy under this section, all of the following shall be filed with the levying officer:
(1)The writ of attachment.
(2)A proof of service by the registered process server stating the manner of levy performed.
(3)Proof of service of the copy of the writ and notice of attachment on other persons, as required by Article 2 (commencing with Section 488.300).
(4)Instructions in writing, as required by the provisions of Section 488.030.
(e)If the fee provided by Section 26721 of the Government Code has been paid, the levying officer shall perform all other duties under the writ as if the levying officer had levied under the writ and shall return the writ to the court. If the registered process server does not comply with subdivisions (b) and (d), the levy is ineffective and the levying officer is shall not be required to perform any duties under the writ, and may issue a release for any property sought to be attached. The levying officer is not liable for actions taken in conformance with the provisions of this title in reliance on information provided to the levying officer under subdivision (d), except to the extent that the levying officer has actual knowledge that the information is incorrect. Nothing in this subdivision limits any liability the plaintiff or registered process server may have if the levying officer acts on the basis of incorrect information provided under subdivision (d).
(f)The fee for services of a registered process server under this section shall be allowed as is a recoverable cost pursuant to Section 1033.5.
SEC. 2.Section 699.080 of the Code of Civil Procedure is amended to read:699.080.(a)A registered process server may levy under a writ of execution on the following types of property:
(1)Real property, pursuant to Section 700.015.
(2)Growing crops, timber to be cut, or minerals or the like (including like including oil and gas) gas, to be extracted or accounts receivable resulting from the sale thereof at the wellhead or minehead, pursuant to Section 700.020.
(3)Personal property in the custody of a levying officer, pursuant to Section 700.050.
(4)Personal property used as a dwelling, pursuant to subdivision (a) of Section 700.080.
(5)Deposit accounts, pursuant to Section 700.140.
(6)Property in a safe-deposit box, pursuant to Section 700.150.
(7)Accounts receivable or general intangibles, pursuant to Section 700.170.
(8)Final money judgments, pursuant to Section 700.190.
(9)Interest of a judgment debtor in personal property in the estate of a decedent, pursuant to Section 700.200.
(b)Before levying under the writ of execution, the registered process server shall deposit cause to be deposited with the levying officer a copy of the writ with the levying officer and pay the fee, as provided by Section 26721 of the Government Code.
(c)If a registered process server levies on property pursuant to subdivision (a), the registered process server shall do both of the following:
(1)Comply with the applicable levy, posting, and service provisions of Article 4 (commencing with Section 700.010).
(2)Request any third person served to give a garnishees memorandum to the levying officer in compliance with Section 701.030 on a form provided by the registered process server.
(d)Within five court days after levy under this section, all of the following shall be filed with the levying officer:
(1)The writ of execution.
(2)A proof of service by the registered process server stating the manner of levy performed.
(3)Proof of service of the copy of the writ and notice of levy on other persons, as required by Article 4 (commencing with Section 700.010).
(4)Instructions in writing, as required by the provisions of Section 687.010.
(e)If the fee provided by Section 26721 of the Government Code has been paid, the levying officer shall perform all other duties under the writ as if the levying officer had levied under the writ and shall return the writ to the court. If the registered process server does not comply with subdivisions (b) and (d), the levy is ineffective and the levying officer is shall not be required to perform any duties under the writ, and may issue a release for any property sought to be levied upon.
(f)The fee for services of a registered process server under this section shall be allowed as is a recoverable cost pursuant to Section 1033.5.
(g)A registered process server may levy more than once under the same writ of execution, provided that the writ is still valid.
SEC. 3.Section 706.108 of the Code of Civil Procedure is amended to read:706.108.(a)If a writ of execution has been issued to the county where the judgment debtors employer is to be served and the time specified in subdivision (b) of Section 699.530 for levy on property under the writ has not expired, a judgment creditor may deliver an application for issuance of an earnings withholding order to a registered process server who may then issue an earnings withholding order.
(b)If the registered process server has issued the earnings withholding order, the registered process server, before serving the earnings withholding order, shall deposit with the levying officer cause to be deposited with the levying officer a copy of the writ of execution, the application for issuance of an earnings withholding order, and a copy of the earnings withholding order, and shall pay the fee, as provided by Section 26750 of the Government Code.
(c)A registered process server may serve an earnings withholding order on an employer whether the earnings withholding order was issued by a levying officer or by a registered process server, but no earnings withholding order may be served after the time specified in subdivision (b) of Section 699.530. In performing this function, the registered process server shall serve upon the designated employer all of the following:
(1)The original and one copy of the earnings withholding order.
(2)The form for the employers return.
(3)The notice to the employee of the earnings withholding order.
(4)A copy of the form that the judgment debtor may use to make a claim of exemption.
(5)A copy of the form the judgment debtor may use to provide a financial statement.
(6)A copy of the employers instructions referred to in Section 706.127, except as otherwise prescribed in rules adopted by the Judicial Council.
(d)Within five court days after service under this section, all of the following shall be filed with the levying officer:
(1)The writ of execution, if it is not already in the hands of the levying officer.
(2)Proof of service on the employer of the papers listed in subdivision (c).
(3)Instructions in writing, as required by the provisions of Section 687.010.
(e)If the fee provided by Section 26750 of the Government Code has been paid, the levying officer shall perform all other duties required by this chapter as if the levying officer had served the earnings withholding order. If the registered process server does not comply with subdivisions (b), where applicable, and (d), the service of the earnings withholding order is ineffective and the levying officer is shall not be required to perform any duties under the order, and may terminate the order and may release any withheld earnings to the judgment debtor.
(f)The fee for services of a registered process server under this section shall be allowed as is a recoverable cost pursuant to Section 1033.5.
|
Date
|
Status
|
|---|---|
| Apr 28, 2016 | Referred to Com. on JUD. |
| Jul 25, 2016 | Chaptered by Secretary of State - Chapter 102, Statutes of 2016. |
| Jul 25, 2016 | Approved by the Governor. |
| Jul 11, 2016 | Enrolled and presented to the Governor at 4:30 p.m. |
| Jun 30, 2016 | Read third time. Passed. Ordered to the Assembly. (Ayes 37. Noes 0. Page 4646.). |
| Jun 30, 2016 | Read third time. Passed. Ordered to the Assembly. |
| Jun 30, 2016 | In Assembly. Ordered to Engrossing and Enrolling. |
| Jun 16, 2016 | Read second time. Ordered to Consent Calendar. |
| Jun 15, 2016 | From committee: Do pass. To Consent Calendar. (Ayes 7. Noes 0.) (June 14). |
| Feb 18, 2016 | Read first time. To print. |
| Apr 4, 2016 | Read third time. Passed. Ordered to the Senate. (Ayes 78. Noes 0.) |
| Apr 4, 2016 | Read third time. Passed. Ordered to the Senate. (Ayes 78. Noes 0. Page 4148.) |
| Apr 4, 2016 | In Senate. Read first time. To Com. on RLS. for assignment. |
| Mar 30, 2016 | Read second time. Ordered to Consent Calendar. |
| Mar 29, 2016 | From committee: Do pass. To Consent Calendar. (Ayes 10. Noes 0.) (March 29). |
| Mar 3, 2016 | Referred to Com. on JUD. |
| Feb 19, 2016 | From printer. May be heard in committee March 20. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Jun 30, 2016 | Consent Calendar 2nd AB2211 Linder | Senate Floor |
Passed |
|
| Jun 14, 2016 | Do pass and be ordered to the Consent Calendar | Senate Standing Committee on Judiciary |
Passed |
|
| Apr 4, 2016 | AB 2211 LINDER Consent Calendar Second Day | Assembly Floor |
Passed |
|
| Mar 29, 2016 | Do pass. To Consent Calendar. | Assembly Standing Committee on Judiciary |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | AB |
CONSENT
Bill No: AB 2211
:
SENATE JUDICIARY COMMITTEE: 7-0, 6/14/16
AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning, Wieckowski
ASSEMBLY FLOOR: 78-0, 4/4/16 (Consent) - See last page for vote
SOURCE: California Association of Legal Support Professionals
DIGEST: This bill makes various clarifying changes to statutes governing the service of writs of attachment and execution, and makes other technical and non-substantive changes.
Existing law:
- Defines “levying officer” to mean the sheriff or marshal who is directed to execute a writ or order issued under specified law.
- Authorizes a registered process server to levy under a writ of attachment on specified types of property. Before levying under the writ of attachment, the registered process server shall deposit a copy of the writ with the levying officer and pay a specified fee.
- Authorizes a registered process server to levy under a writ of execution on specified types of property. Before levying under the writ of execution, the registered process server must deposit a copy of the writ with the levying officer and pay a specified fee.
- Requires, further, under the above provisions, that the registered process server file specified information with the levying officer within five court days after levy.
- Provides that if a writ of execution has been issued to the county where the judgment debtor’s employer is to be served and the time specified for levy on property under the writ has not expired, a judgment creditor may deliver an application for issuance of an earnings withholding order to a registered process server who may then issue an earnings withholding order.
- Provides that if the registered process server has issued the earnings withholding order, the registered process server, before serving the earnings withholder order, must deposit with the levying officer a copy of the writ of execution, the application for issuance of an earnings withholding order, a copy of the order, and pay a specified fee.
- Specifies the particular documents that the registered process server must serve upon the designated employer, and the particular documents that must be filed with the levying officer within five court days after service of the order.
This bill:
- Provides, with respect to both writs of attachment and execution, instead, that before levying under the writ of attachment, or the writ of execution, the registered process server shall “cause to be deposited” (as opposed to “deposit” under existing law) with the levying officer a copy of the writ and the specified fee.
- Provides, with respect to earnings withholding orders, instead, that if the registered process server has issued the hearings withholding order, the registered process server, before serving the earnings withholding order, shall “cause to be deposited” (as opposed to “deposit” under existing law) with the levying officer a copy of the writ of execution, the application for issuance of an earnings withholding order, a copy of the order, and the specified fee.
- Makes other technical, non-substantive changes.
Background
In California, courts may order assets or property seized in order to satisfy judgments and secure claims of creditors by issuing writs of attachment and execution.
Under existing law, the most common procedure for collection of a money judgment is execution. A writ of execution from the court requires a levying officer (i.e., sheriff) to enforce the judgment, and the officer enforces the judgment by levying (i.e., seizing) on the property under the writ, either constructively or actually. (8 Witkin Cal. Proc. Enf. Judg. Sec. 99.) Generally, the process begins after entry of a money judgment and on the application of the judgment creditor, whereby the clerk of the court must issue a writ of execution, directed to the levying officer in the county where the levy is to be made and to any registered process server. (See Code Civ. Proc. Sec. 699.510(a).)
Under this process, before levying under the writ of execution, the registered process server must deposit a copy of the writ with the levying officer and pay a specified fee for serving or executing process or notice. Within five court days after the levy, the following must be filed with the levying officer: (1) the writ of execution; (2) a proof of service by the registered process server stating the manner of levy performed; (3) proof of service on third persons as required by specified law; and (4) written instructions as required under specified law. (Code Civ. Proc. Sec. 699.080(b), (d).) If the fee has been paid, the levying officer must return the writ to the court and “perform all other duties under the writ as if the levying officer had levied under the writ.” If, however, the registered process server does not comply with the aforementioned provisions regarding the payment of fees and the information that must be filed with the levying officer, “the levy is ineffective and the levying officer is not required to perform any duties under the writ and may issue a release for any property sought to be levied upon.” (Code Civ. Proc. Sec. 699.080(e); Code Civ. Proc. Sec. 706.108 provides similar rules for a writ of execution of an earnings withholding order.)
As noted above, assets and property can also be seized to secure claims of creditors by way of writ of attachment. The section governing the process for writs of attachment was drawn from the process above for writs of execution, and thus is largely the same. Before levying under a writ of attachment, a registered process server must deposit a copy of the writ with the levying officer and pay a specified fee for serving or executing process or notice. (Code Civ. Proc. Sec. 488.080(b).) Within five court days after the levy, the following must be filed with the levying officer: (1) the writ of attachment; (2) a proof of service by the registered process server stating the manner of levy; (3) proof of service on third persons as required by specified law; and (4) written instructions as required specified law. (Code Civ. Proc. Sec. 488.080(d).) If the fee has been paid, the levying officer must return the writ to the court and “perform all other duties under the writ as if the levying officer had levied under the writ.” But, if the registered process server does not comply with the provisions above regarding fees and information that must be filed with the levying officer, “the levy is ineffective and the levying officer is not required to perform any duties under the writ and may issue a release for any property sought to be attached.” (Code Civ. Proc. Sec. 488.080(e).)
This bill seeks to clarify that the same registered process server who serves a writ does not have to be the same person who deposits a writ file with the levying officer prior to serving the writ or who returns the writ to the levying officer after obtaining proof of service. To do so, this bill clarifies that the registered process server who serves the writ and signs the proof of service may cause the writ to be deposited (as opposed to “deposit”) and returned to the levying officer.
Comment
As stated by the author:
Current provisions of Code of Civil Procedure [S]ections 488.080 (writs of attachment), 699.080 (writs of execution)[, and] 706.180 (earnings withholding orders) permit registered process servers to serve writs on holders of property and employers. The law indicates that “the registered process server shall deposit with the levying officer” a copy of the writ and the fee required by the Government Code to commence the levy. The levying officer is the sheriff of the applicable county. A small number of counties have interpreted the language very literally to require that it be the same registered process server who opens the file with the sheriff to thereafter serve the writ. There is no reason for this requirement, which can be very cumbersome in the case of process serving companies which are retained to serve writs in many different counties. To resolve this narrow problem, AB 2211 simply modifies the language to require the registered process server to cause the copy to be deposited with the levying officer before moving forward with serving the writ to accomplish the levy.
FISCAL EFFECT: Appropriation: No Fiscal Com.: No Local: No
California Association of Legal Support Professionals (source)
OPPOSITION: (Verified 6/17/16)
None received
ARGUMENTS IN SUPPORT: The sponsor of this bill, the California Association of Legal Support Professionals, writes:
The bill refines language in the code which appears to require the same registered process server to first deposit the writ with the sheriff for issuance, serve the writ on the financial institution, employer or other party, and redeposit the writ and proof of service back with the sheriff. While current language could be read to require this, it is unnecessarily limiting in actual practice. It is important that the registered process server actually serve the writ and sign the proof of service, but who first deposits the writ file with the sheriff and who returns the writ with the proof of service is immaterial. To remedy the problem, AB 2211 instead requires the registered process server to cause the writ to be deposited.
The ambiguity in the law was brought to our attention by an individual sheriff’s office. While the problem is not widespread at this point, the language should be cleaned up and clarified.
ASSEMBLY FLOOR: 78-0, 4/4/16
AYES: Achadjian, Alejo, Travis Allen, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Quirk, Ridley-Thomas, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Rendon
NO VOTE RECORDED: Rodriguez
6/17/16 15:03:43
**** END ****
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
Bill No: AB 2211 (Author:Linder)
Version: February 18, 2016
Hearing Date: June 14, 2016
Fiscal: No
Urgency: No
Consultant: RD
SUBJECT
Registered process servers
DESCRIPTION
This bill would make various clarifying changes to statutes governing the service of writs of attachment and execution, and would make other technical and non-substantive changes.
BACKGROUND
In California, courts may order assets or property seized in order to satisfy judgments and secure claims of creditors by issuing writs of attachment and execution.
Under existing law, the most common procedure for collection of a money judgment is execution. A writ of execution from the court requires a levying officer (i.e., sheriff) to enforce the judgment, and the officer enforces the judgment by levying (i.e., seizing) on the property under the writ, either constructively or actually. (8 Witkin Cal. Proc. Enf. Judg. Sec. 99.) Generally, the process begins after entry of a money judgment and on the application of the judgment creditor, whereby the clerk of the court must issue a writ of execution, directed to the levying officer in the county where the levy is to be made and to any registered process server. (See Code Civ. Proc. Sec. 699.510(a).)
Under this process, before levying under the writ of execution, the registered process server must deposit a copy of the writ with the levying officer and pay a specified fee for serving or executing process or notice. Within five court days after the levy, the following must be filed with the levying officer: (1) the writ of execution; (2) a proof of service by the registered process server stating the manner of levy performed; (3) proof of service on third persons as required by specified law; and (4) written instructions as required under specified law. (Code Civ. Proc. Sec. 699.080(b), (d).) If the fee has been paid, the levying officer must return the writ to the court and “perform all other duties under the writ as if the levying officer had levied under the writ.” If, however, the registered process server does not comply with the aforementioned provisions regarding the payment of fees and the information that must be filed with the levying officer, “the levy is ineffective and the levying officer is not required to perform any duties under the writ and may issue a release for any property sought to be levied upon.” (Code Civ. Proc. Sec. 699.080(e); Code Civ. Proc. Sec. 706.108 provides similar rules for a writ of execution of an earnings withholding order.)
As noted above, assets and property can also be seized to secure claims of creditors by way of writ of attachment. The section governing the process for writs of attachment was drawn from the process above for writs of execution, and thus is largely the same. Before levying under a writ of attachment, a registered process server must deposit a copy of the writ with the levying officer and pay a specified fee for serving or executing process or notice. (Code Civ. Proc. Sec. 488.080(b).) Within five court days after the levy, the following must be filed with the levying officer: (1) the writ of attachment; (2) a proof of service by the registered process server stating the manner of levy; (3) proof of service on third persons as required by specified law; and (4) written instructions as required specified law. (Code Civ. Proc. Sec. 488.080(d).) If the fee has been paid, the levying officer must return the writ to the court and “perform all other duties under the writ as if the levying officer had levied under the writ.” But, if the registered process server does not comply with the provisions above regarding fees and information that must be filed with the levying officer, “the levy is ineffective and the levying officer is not required to perform any duties under the writ and may issue a release for any property sought to be attached.” (Code Civ. Proc. Sec. 488.080(e).)
This bill seeks to clarify that the same registered process server who serves a writ does not have to be the same person who deposits a writ file with the levying officer prior to serving the writ or who returns the writ to the levying officer after obtaining proof of service. To do so, this bill would clarify that the registered process server who serves the writ and signs the proof of service may cause the writ to be deposited (as opposed to “deposit”) and returned to the levying officer.
CHANGES TO EXISTING LAW
Existing law defines “levying officer” to mean the sheriff or marshal who is directed to execute a writ or order issued under specified law. (Code Civ. Proc. Sec. 481.140.)
Existing law authorizes a registered process server to levy under a writ of attachment on specified types of property. (Code Civ. Proc. Sec. 488.080 (a).) Before levying under the writ of attachment, the registered process server shall deposit a copy of the writ with the levying officer and pay a specified fee. (Code Civ. Proc. Sec. 488.080(b).)
Existing law authorizes a registered process server to levy under a writ of execution on specified types of property. (Code Civ. Proc. Sec. 699.080(a).) Before levying under the writ of execution, the registered process server must deposit a copy of the writ with the levying officer and pay a specified fee. (Code Civ. Proc. Sec. 699.080(b).)
Existing law further requires that the registered process server file specified information with the levying officer within five court days after levy. (Code Civ. Proc. Secs. 488.080(d); 699.080(d).)
Existing law provides that if a writ of execution has been issued to the county where the judgment debtor’s employer is to be served and the time specified for levy on property under the writ has not expired, a judgment creditor may deliver an application for issuance of an earnings withholding order to a registered process server who may then issue an earnings withholding order. (Code Civ. Proc. Sec. 706.108(a).)
Existing law provides that if the registered process server has issued the earnings withholding order, the registered process server, before serving the earnings withholder order, must deposit with the levying officer a copy of the writ of execution, the application for issuance of an earnings withholding order, a copy of the order, and pay a specified fee. (Code Civ. Proc. Sec. 706.108(b).)
Existing law specifies the particular documents that the registered process server must serve upon the designated employer, and the particular documents that must be filed with the levying officer within five court days after service of the order. (Code Civ. Proc. Sec. 706.108(c)-(d).)
This bill would, with respect to both writs of attachment and execution, instead, provide that before levying under the writ of attachment, or the writ of execution, the registered process server shall “cause to be deposited” (as opposed to “deposit” under existing law) with the levying officer a copy of the writ and the specified fee.
This bill would, with respect to earnings withholding orders, provide, instead, that if the registered process server has issued the hearings withholding order, the registered process server, before serving the earnings withholding order, shall “cause to be deposited” (as opposed to “deposit” under existing law) with the levying officer a copy of the writ of execution, the application for issuance of an earnings withholding order, a copy of the order, and the specified fee.
This bill would make other technical, non-substantive changes.
COMMENT
1. Stated need for the bill
According to the author:
Current provisions of Code of Civil Procedure [S]ections 488.080 (writs of attachment), 699.080 (writs of execution)[, and] 706.180 (earnings withholding orders) permit registered process servers to serve writs on holders of property and employers. The law indicates that “the registered process server shall deposit with the levying officer” a copy of the writ and the fee required by the Government Code to commence the levy. The levying officer is the sheriff of the applicable county. A small number of counties have interpreted the language very literally to require that it be the same registered process server who opens the file with the sheriff to thereafter serve the writ. There is no reason for this requirement, which can be very cumbersome in the case of process serving companies which are retained to serve writs in many different counties. To resolve this narrow problem, AB 2211 simply modifies the language to require the registered process server to cause the copy to be deposited with the levying officer before moving forward with serving the writ to accomplish the levy.
2. Bill seeks to clarify that the registered process server who serves a writ of execution or attachment on the sheriff must not necessarily be the same person who must also serve the writ and deposit the writ with the sheriff upon completion of levy
Under existing law, any registered process server who serves a writ of attachment, writ of execution, or earnings withholding order by writ of execution, must “deposit with the levying officer” (i.e. the sheriff) a copy of the writ as well as the fee that is required under existing law for serving or executing process or notice. Existing law further requires that specified documents be filed with the sheriff within five court days after levy under the writ of attachment or execution, and within five court days after service of the earnings withholding order. This bill would now clarify within each of those sections relating to writ of attachment, execution, or earnings withholding orders, that the registered process server shall, instead, “cause to be deposited with the levying officer” a copy of the writ and the required fee—in other words, he or she does not have to personally deposit the copy and the fee with the sheriff.
The sponsor of this bill, the California Association of Legal Support Professionals, writes:
The bill refines language in the code which appears to require the same registered process server to first deposit the writ with the sheriff for issuance, serve the writ on the financial institution, employer or other party, and redeposit the writ and proof of service back with the sheriff. While current language could be read to require this, it is unnecessarily limiting in actual practice. It is important that the registered process server actually serve the writ and sign the proof of service, but who first deposits the writ file with the sheriff and who returns the writ with the proof of service is immaterial. To remedy the problem, AB 2211 instead requires the registered process server to cause the writ to be deposited.
The ambiguity in the law was brought to our attention by an individual sheriff’s office. While the problem is not widespread at this point, the language should be cleaned up and clarified.
Support: None Known
Opposition: None Known
HISTORY
Source: California Association of Legal Support Professionals
Related Pending Legislation: None Known
Prior Legislation: None Known
Prior Vote:
Assembly Floor (Ayes 78, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
**************
Date of Hearing: March 29, 2016
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
ABPCA Bill Id:AB 2211
Author:(Linder) – As Introduced Ver:February 18, 2016
PROPOSED CONSENT
SUBJECT: REGISTERED PROCESS SERVERS
KEY ISSUE: should EXISTING LAW BE CLARIFIED TO AUTHORIZE A REGISTERED PROCESS SERVER TO HAVE CERTAIN WRITS AND OTHER DOCUMENTS DELIVERED TO THE LEVYING OFFICER BY SOMEONE OTHER THAN THE PROCESS SERVER HIMSELF OR HERSELF?
SYNOPSIS
Existing law establishes rules for service of process for the enforcement of money judgments, and specifically provides that "before levying under a writ of attachment, the registered process server shall deposit a copy of the writ with the levying officer and pay the (applicable) fee." The same requirement applies to service of process for writs of execution and earnings withholding orders. According to the author, a strict reading of this language requires that the registered process server himself or herself "shall deposit a copy of the writ with the levying officer," and does not seem to allow for a fellow employee or someone other than the individual process server from carrying out this otherwise menial preliminary task. The California Association of Legal Support Professionals, the sponsor of the bill, contends that strictly observing these statutes can be very cumbersome and time consuming, especially for process servers who do business in multiple counties and can't be everywhere at once.
To address this issue, this non-controversial bill seeks to clarify applicable sections of the Code of Civil Procedure to authorize a person other than the registered process server himself or herself to deliver the writ and fee payment to the levying officer (usually the County Sheriff) before service of process may be made. Instead, the bill provides that the registered process server may simply "cause the writ to be deposited with the levying officer," achieving the same ends but not requiring the process server to complete that task personally. Importantly, the bill does not change existing law to permit anyone else other than the registered process server to actually serve the writ itself and obtain proof of service. For these reasons, the bill appears to be narrowly tailored and has received no opposition in this Committee.
SUMMARY: Clarifies provisions related to service of process of writs of attachment, writs of execution, and earnings withholding orders. Specifically, this bill clarifies that a registered process server need not be the same individual who first deposits a writ file with the levying officer prior to serving the writ, or who returns the writ to the levying officer after obtaining proof of service. As long as the registered process server is the person who actually serves the writ and signs the proof of service, he or she may simply cause the writ to be deposited and returned to the levying officer.
EXISTING LAW:
- Authorizes a registered process server to levy under a writ of attachment on specified types of property. (Code of Civil Procedure Section 488.080 (a). All further references are to this code unless otherwise stated.)
- Provides that, before levying under the writ of attachment, the registered process server shall deposit a copy of the writ with the levying officer and a $40 fee. (Section 488.080 (b).)
- Authorizes a registered process server to levy under a writ of execution on specified types of property. (Section 699.080(a).)
- Provides that, before levying under the writ of execution, the registered process server shall deposit a copy of the writ with the levying officer and a $40 fee. (Section 699.080 (b).)
- Provides that if a writ of execution has been issued to the county where the judgment debtor’s employer is to be served and the time specified for levy on property under the writ has not expired, a judgment creditor may deliver an application for issuance of an earnings withholding order (EWO) to a registered process server who may then issue an EWO. (Section 706.108 (a).)
- Requires the registered process server, before serving the EWO, to deposit with the levying officer a copy of the writ of execution, a copy of the EWO, and the application for issuance of an EWO, accompanied by payment of a $35 fee. (Section 706.108 (b).)
- Authorizes a registered process server to serve an EWO on an employer whether the order was issued by a levying officer or by a registered process server, except that no EWO may be served after 180 days from the date the EWO was issued. (Section 706.108 (c).)
- Specifies the particular documents that the registered process server must serve upon the designated employer, and specifies the particular documents that must be filed with the levying officer within five court days after service of the EWO on the employer. (Section 706.108, subd. (c) and (d).)
FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.
COMMENTS: This non-controversial bill addresses a matter of statutory interpretation that may, when the law is read quite literally, impose an unnecessarily cumbersome and inflexible requirement upon registered process servers attempting to follow statutes that authorize them to serve writs of attachment, writs of execution, and earnings withholding orders.
The California Association of Legal Support Professionals (CALSPro), the sponsor of this legislation, explains:
(Current law) appears to require the same registered process server to first deposit the writ with the sheriff for issuance, serve the writ on the financial institution, employer or other party, and redeposit the writ and proof of service back with the sheriff. While current language could be read to require this, it is unnecessarily limiting in actual practice. It is important that the registered process server actually serve the writ and sign the proof of service, but who first deposits the writ file with the sheriff and who returns the write with the proof of service is immaterial. . . The ambiguity in the law was brought to our attention by an individual sheriff's office. While the problem is not widespread at this point, the language should be cleaned up and clarified.
Before a registered process server may serve a writ of attachment, writ of execution, or an earnings withholding order, existing law requires a copy of the writ and a specified fee to be delivered to the levying officer - a term referring to the Sheriff in each county. This task is sometimes referred to as "opening a file" with the county sheriff. For example, Code of Civil Procedure Section 488.080 provides specifically that "before levying under a writ of attachment, the registered process server shall deposit a copy of the writ with the levying officer and pay the (applicable) fee." This language is mirrored in Sections 699.080 and 706.108, which contain the same requirement for service of writs of execution and earnings withholding orders, respectively. According to proponents, a strict reading of this language requires that the registered process server himself or herself "shall deposit a copy of the writ with the levying officer," and does not seem to allow for a fellow employee or someone other than the individual process server from carrying out this otherwise menial preliminary task. This requirement, the author contends, can be very cumbersome and time consuming, especially for process servers who do business in multiple counties.
While proponents concede that the problem is not widespread at this point because only a small number of counties have interpreted the statute so literally, they contend that the problem could easily be solved by clarifying the applicable statutes to authorize a person other than the registered process server himself or herself to deliver the writ and fee payment to the levying officer. To accomplish this, the bill instead provides that the registered process server may simply "cause the writ to be deposited with the levying officer," achieving the same ends but not requiring the process server to have to complete that task personally.
Importantly, the bill does not change existing law to permit anyone else other than the registered process server to actually serve the writ itself and obtain proof of service. It only authorizes someone other than the registered process server to deposit a copy of the writ and the applicable fee with the levying officer before service of process may be made. For these reasons, the bill appears to be narrowly tailored and has received no opposition in this Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
California Association of Legal Support Professionals (sponsor)
Opposition
None on file
Analysis Prepared by: Anthony Lew / JUD. / (916) 319-2334
Bill Author
Bill Co-Author(s):