Bill Text: CA AB1119 | 2023-2024 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Enforcement of judgments.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2023-10-08 - Chaptered by Secretary of State - Chapter 562, Statutes of 2023. [AB1119 Detail]
Download: California-2023-AB1119-Amended.html
Bill Title: Enforcement of judgments.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Passed) 2023-10-08 - Chaptered by Secretary of State - Chapter 562, Statutes of 2023. [AB1119 Detail]
Download: California-2023-AB1119-Amended.html
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Amended
IN
Assembly
May 30, 2023 |
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Amended
IN
Assembly
March 29, 2023 |
CALIFORNIA LEGISLATURE—
2023–2024 REGULAR SESSION
Assembly Bill
No. 1119
| Introduced by Assembly Member Wicks |
February 15, 2023 |
An act to amend Sections 708.110 and 708.170 of the Code of Civil Procedure, relating to civil actions.
LEGISLATIVE COUNSEL'S DIGEST
AB 1119, as amended, Wicks.
Enforcement of judgments.
Existing law permits a judgment creditor to apply to the court for an order requiring the judgment debtor, or another person who is in possession and control of property of the judgment debtor, to appear before the court to provide information to aid in the enforcement of a money judgment, as specified. Existing law requires the judgment creditor to personally serve a copy of that order on the judgment debtor not less than 10 days before the date set for the examination. Existing law permits the court to issue a warrant for the arrest of, a warrant to compel the attendance of, and may hold in contempt, a judgment debtor who fails to appear in response to such an order.
This bill would extend the notice of the examination required to be given to the judgment debtor to not less than 30 days before the examination. The bill would authorize a
judgment debtor in a case involving consumer debt, as defined, to file and serve a judgment debtor’s financial statement affidavit under penalty of perjury perjury, as specified, in lieu of appearing for the examination. The bill would specify the information to be included in the judgment debtor’s financial statement and the financial statement of the debtor’s spouse, as applicable. The bill would require the financial statement to be filed under seal. If the judgment debtor files a judgment debtor’s financial statement,
the affidavit, the bill would require the court to cancel the financial examination unless the judgment creditor presents evidence to the contrary and the court determines that there are nonexempt assets warranting the examination. files, under oath, a notice of opposition and a notice of motion for an order determining the need for the debtor to appear for a debtor’s examination. If the judgment creditor files such pleadings in a timely manner, the bill would require the court to hold a hearing to determine whether the judgment debtor must appear for a debtor’s examination, as provided. By expanding the scope of the crime of perjury, the bill would impose a state-mandated local program.
This bill would also prohibit a court from issuing a warrant
for the arrest of a judgment debtor in a case concerning consumer debt based on the judgment debtor’s failure to appear or failure to file a judgment debtor’s financial statement. affidavit. In these circumstances, the bill would authorize the court to issue an order to show cause to determine whether a warrant to compel the judgment debtor’s attendance should be issued, which the judgment debtor could satisfy by filing a judgment debtor’s financial statement
affidavit described above. The bill would require a court to update language included in its orders to reflect these changes.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YESBill Text
The people of the State of California do enact as follows:
SECTION 1.
Section 708.110 of the Code of Civil Procedure is amended to read:708.110.
(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 30 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) If the order is for a judgment debtor to appear in a case concerning consumer debt, 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. Instead of appearing at the examination, you may file a judgment debtor’s financial statement affidavit in a form prescribed by the court and signed under penalty of perjury and serve copies of all filed documents on the judgment creditor no later than 10 days prior to the date set for the examination.”
(f) If the order is for a judgment debtor to appear in a case other than a case concerning consumer debt, 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, you may be subject to arrest and punishment for contempt of court and the court may make an order requiring you to pay the reasonable attorney’s fees incurred by the judgment creditor in this proceeding.”
(g) If the judgment debtor files a judgment debtor’s financial statement, states in a financial affidavit signed under penalty of perjury, pursuant to subdivision (e), perjury and served on the judgment creditor and filed with the court at least 15 days prior to the examination, that all their income and assets are exempt, the court shall
acknowledge receipt of the judgment debtor’s financial statement and cancel the examination. No further examinations of the judgment debtor may be scheduled unless the judgment creditor presents evidence of the judgment debtor’s non-exempt income or assets and the court determines that there is a reasonable basis to believe that there are non-exempt assets or income warranting the scheduling of an examination of the debtor.
affidavit and cancel the examination, unless the judgment creditor opposes the judgment debtor’s financial affidavit. If copies of the financial affidavit are not timely served and filed, the court shall disregard the affidavit and shall not cancel the examination.
(1) Within 15 days after service of the financial affidavit, a judgment creditor who opposes the affidavit shall file with the court a notice of opposition and a notice of motion for an order determining the need for the debtor to appear for a debtor’s examination. If copies of the notice of opposition and notice of motion are not filed timely with the court, the court shall immediately cancel the debtor’s examination.
(2) The notice of opposition to the financial affidavit shall be executed under oath and include a statement of facts showing good cause why a debtor’s examination is necessary, notwithstanding the debtor’s financial affidavit.
(3) The hearing on the motion shall be held not later than 30 days from the date the notice of motion was filed with the court, unless continued by the court for good cause. Not less than 15 days prior to the hearing, the judgment creditor shall serve, personally or by mail, a notice of the hearing and a copy of the notice of opposition on the judgment debtor.
(4) The financial affidavit
and notice of opposition to the financial affidavit shall constitute the pleadings, subject to the power of the court to permit amendments in the interest of justice.
(5) If no other evidence is offered, the court, if satisfied that sufficient facts are shown by the financial affidavit and the notice of opposition, may make its determination thereon. If not satisfied, the court shall order the hearing continued for the production of other evidence, oral or documentary.
(6) At the conclusion of the hearing, the court shall determine by order whether or not the judgment debtor must appear for a debtor‘s examination, and shall specify the day, time and place for such
examination.
(h) A judgment debtor’s financial statement
affidavit shall be submitted under penalty of perjury and shall include the following information. A spouse of a judgment debtor shall also submit the following information under penalty of perjury at the time that the judgment debtor submits the judgment debtor’s financial statement, affidavit, unless the judgment debtor and spouse are living separate and apart.
(1) Person and relation of any dependent.
(2) Gross monthly income, including withholdings and take-home pay.
(3) Total monthly income.
(4) Money received from other
sources.
(5) Property owned, including cash, bank accounts, real estate equity and other personal property.
(6) Itemized monthly expenses.
(7) Any outstanding debts, including balance owed and to whom.
(8) Any other facts which support the claim of exemption.
(i) A judgment debtor in a case concerning consumer debt who elects to file a financial statement affidavit
in lieu of appearing before the court for an examination shall serve a copy of all filed documents on the judgment creditor no later than 10 days prior to the date set for the examination.
(j) All documents filed by the judgment debtor pursuant to subdivision (g) shall be filed under seal.
(k) “Consumer debt” means any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes. Consumer debt does not include debts incurred due to, or obtained by tortious or fraudulent conduct or judgments for unpaid wages, damages, or penalties owed to an employee.
(l) For purposes of this section, consumer debt does not include
rental debt.
(m) For purposes of this section, “rental debt” means unpaid rent or other unpaid financial obligation of a tenant under the tenancy that has come due.
SEC. 2.
Section 708.170 of the Code of Civil Procedure is amended to read:708.170.
(a) If an order requiring a person to appear for an examination under subdivision (f) of Section 708.110 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 do either of the following:
(A) 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.
(B) Issue a warrant for the arrest of the person who failed to appear as required by the court order, pursuant to Section 1993.
(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) Notwithstanding paragraph (1) of subdivision (a), Section 1209 or 1993, or any other applicable law or court rule, for a case involving consumer debt:
(1) No warrant for arrest or to appear shall be issued for a judgment debtor who fails to appear for an examination under Section 708.110 or file and serve the judgment debtor’s financial statement.
affidavit. In such cases, the court shall issue an order to show cause to determine whether to issue a warrant to compel the attendance of the judgment debtor.
(2) The court shall provide a judgment debtor who is ordered to appear pursuant to an order to show cause described in paragraph (1) with a reasonable opportunity to complete and file a judgment debtor’s financial statement affidavit described in subdivision (g) of Section 708.110. The warrant to compel the attendance of the judgment debtor shall be satisfied by the judgment debtor’s appearance or the filing of a signed judgment debtor’s financial statement.
affidavit.
(c) A person who willfully makes an improper service of an order for an examination which subsequently results in the arrest pursuant to subdivision (a) of the person who fails to appear is guilty of a misdemeanor.
