Amended
IN
Assembly
June 08, 2022 |
Amended
IN
Senate
May 09, 2022 |
Amended
IN
Senate
April 18, 2022 |
Amended
IN
Senate
March 24, 2022 |
Introduced by Senator Wieckowski (Coauthors: Senators Hertzberg and Skinner) |
February 18, 2022 |
(2)Existing law permits a judgment creditor to apply to the court for an order requiring the judgment debtor to appear before the court to provide information to aid in the enforcement of a money judgment. Existing law permits the court to issue an arrest warrant for a judgment debtor who fails to appear.
This bill would remove the court’s authorization to issue an arrest warrant for the above purpose.
(a)The judgment creditor may apply to the proper court for an order requiring the judgment debtor to appear before the court, or before a referee appointed by the court, at a time and place specified in the order, to furnish information to aid in enforcement of the money judgment.
(b)If the judgment creditor has not caused the judgment debtor to be examined under this section during the preceding 120 days, the court shall make the order upon ex parte application of the judgment creditor.
(c)If the judgment creditor has caused the judgment debtor to be examined under this section
during the preceding 120 days, the court shall make the order if the judgment creditor by affidavit or otherwise shows good cause for the order. The application shall be made on noticed motion if the court so directs or a court rule so requires. Otherwise, it may be made ex parte.
(d)The judgment creditor shall personally serve a copy of the order on the judgment debtor not less than 10 days before the date set for the examination. Service shall be made in the manner specified in Section 415.10. Service of the order creates a lien on the personal property of the judgment debtor for a period of one year from the date of the order unless extended or sooner terminated by the court.
(e)The order shall contain the following statement in 14-point boldface type if printed or in
capital letters if typed: “NOTICE TO JUDGMENT DEBTOR. If you fail to appear at the time and place specified in this order, the court may make an order requiring you to pay the reasonable attorney’s fees incurred by the judgment creditor in this proceeding.”
(a)Upon ex parte application by a judgment creditor who has a money judgment and proof by the judgment creditor by affidavit or otherwise to the satisfaction of the proper court that a third person has possession or control of property in which the judgment debtor has an interest or is indebted to the judgment debtor in an amount exceeding two hundred fifty dollars ($250), the court shall make an order directing the third person to appear before the court, or before a referee appointed by the court, at a time and place specified in the order, to answer concerning such property or debt. The affidavit in support of the judgment creditor’s application may be based on the affiant’s information and belief.
(b)Not less than 10 days prior to the date set for the examination, a copy of the order shall be:
(1)Served personally on the third person.
(2)Served personally or by mail on the judgment debtor.
(c)If the property in the third person’s possession or control in which the judgment debtor has an interest or the debt owed by the third person to the judgment debtor is described in the affidavit or application for an order under subdivision (a) in a manner reasonably adequate to permit it to be identified, service of the order on the third person creates a lien on the judgment debtor’s interest in the property or on the debt for a period of one year from the
date of the order unless extended or sooner terminated by the court.
(d)The judgment debtor may claim that all or any portion of the property or debt is exempt from enforcement of a money judgment by application to the court on noticed motion, filed with the court and personally served on the judgment creditor not less than three days before the date set for the examination. The judgment debtor shall execute an affidavit in support of the application that includes all of the matters set forth in subdivision (b) of Section 703.520. If a claim of exemption is made pursuant to this section, a notice of opposition to the claim of exemption is not required. The court shall determine any claim of exemption made pursuant to this section. Failure of the judgment debtor to make a claim of exemption does not preclude the judgment debtor from later
claiming the exemption unless the property or debt is described in the order in a manner reasonably adequate to permit it to be identified and the judgment debtor receives notice of the examination proceeding at least 10 days before the date set for the examination.
(e)An order made pursuant to subdivision (a) shall contain the following statements in 14-point boldface type if printed or in capital letters if typed:
(1)“NOTICE TO PERSON SERVED. If you fail to appear at the time and place specified in this order, the court may make an order requiring you to pay the reasonable attorney’s fees incurred by the judgment creditor in this proceeding.”
(2)“NOTICE TO JUDGMENT DEBTOR. The person in whose favor the
judgment was entered in this action claims that the person to be examined pursuant to this order has possession or control of property which is yours or owes you a debt. This property or debt is as follows: (Description of property or debt).
If you claim that all or any portion of this property or debt is exempt from enforcement of the money judgment, you must file your exemption claim in writing with the court and personally serve a copy on the judgment creditor not less than three days before the date set for the examination. You must appear at the time and place set for this examination to establish your claim of exemption or your exemption may be waived.”
(f)An order made pursuant to subdivision (a) is not effective unless, at the time it is served on the third person, the person
serving the order tenders to the third person fees for the mileage necessary to be traveled from the third person’s residence to the place of examination. The mileage fees shall be in the same amount generally provided for witnesses when legally required to attend civil proceedings in the court where the examination proceeding is to be conducted.
(a)The examination proceedings authorized by this article may be conducted by a referee appointed by the court. The referee may issue, modify, or vacate an order authorized by Section 708.205 and may make a protective order authorized by Section 708.200, and has the same power as the court to grant adjournments, to preserve order, and to subpoena witnesses to attend the examination, but only the court that ordered the reference has power to do the following:
(1)Punish for contempt for disobeying an order of the referee.
(2)Make an award of attorney’s fees pursuant to Section 708.170.
(3)Determine a contested claim of exemption or determine a third-party claim under Section 708.180.
(b)Only a member of the State Bar of California is eligible for appointment as a referee pursuant to this article. A person who was duly appointed as a referee prior to July 1, 1983, pursuant to the law in operation at the time of appointment, and who is available to perform the duties of a referee on July 1, 1983, shall be exempt from the requirements of this subdivision.
(c)Nothing in subdivision (a) limits the power of a court to appoint a temporary judge pursuant to Section 21 of Article VI of the California Constitution.
(a)If an order requiring a person to appear for an examination was served by a sheriff, marshal, a person specially appointed by the court in the order, or a registered process server, and the person fails to appear:
(1)The court may, pursuant to a warrant, have the person brought before the court to answer for the failure to appear and may punish the person for contempt.
(2)If the person’s failure to appear is without good cause, the judgment creditor shall be awarded reasonable attorney’s fees incurred in the examination proceeding. Attorney’s fees awarded against the judgment
debtor shall be added to and become part of the principal amount of the judgment.
(b)The court is not authorized to issue an arrest warrant pursuant to Section 1993 for the purposes set forth in this section.