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The "Enforcement
Of Judgments Law" (EJL)
The Enforcement of Judgments Law ("EJL") was adopted
in 1982, and took effect July 1, 1983 (see Ca Civ Pro §
694.010) The EJL is codified at Ca Civ Pro § 680.010 through
§ 724.260. It is a comprehensive statutory scheme governing
the enforcement of virtually all civil judgments in California.
Virtually all civil judgments are enforceable in California
under the EJL including:
- Ordinary money judgments
- A judgment of liability on a bond is enforceable under the
EJL in the same manner and to the same extent as any other
money judgment. [Ca Civ Pro § 996.495]
- A judgment entered on a claim for taxes by a public entity
is enforceable under the EJL in the same manner as any money
judgment. [Ca Civ Pro § 688.110]
- An order imposing a fine upon a convicted corporation, a
judgment for a fine and an order to pay a fine as a condition
of probation generally are enforceable under the EJL. [See
Ca Penal §§ 1214, 1214.2 & 1397]
- Restitution orders may be enforced as if they were civil
judgments. [See Ca Penal §§ 1202.4(a),(f), (h),(i),
1203(j), 1203.1(a) & 1214(c)]
- Orders to pay costs associated with probation reports and
supervision are also enforceable under the EJL. [Ca Penal
§ 1203.1(b)]
- Orders imposing monetary sanctions have the force and effect
of money judgments and may be enforced under the EJL. [See
Newland v. Super.Ct. (Sugasawara) (1995) 40 Cal.App.4th 608,
615, 47 Cal.Rptr.2d 24, 28; Jones v. Otero (1984) 156 Cal.App.3d
754, 759, 203 Cal.Rptr. 90, 93]
- Local child support agencies enforcing support orders and
judgments under circumstances where a Ca Fam § 17522
warrant for collection may properly be issued generally may
use any of the remedies available to a judgment creditor,
including those permitted under the EJL. [See Ca Civ Pro §
689.020(a)]
- A sister state or foreign money judgment entered pursuant
to Ca Civ Pro § 1710.10 et seq. may be enforced under
the EJL. [Ca Civ Pro § 1710.35]
- An employer may use EJL procedures to enforce payment of
its lien on an employee's recovery against a third party tortfeasor
(workers' compensation cases). [Ca Labor § 3862]
- An order directing a defendant to reimburse the county for
all or part of the costs incurred in providing him or her
legal services by the public defender or an appointed counsel
is enforceable under the EJL. [Ca Penal § 987.8(e),(f);
see also Ca Penal § 987.8(a)]
- An unpaid judgment on a bail bond may be enforced under
the EJL. [Ca Penal § 1306(e)(2)]
- A judgment to collect an administrative penalty assessed
under the hazardous waste control and hazardous substance
laws apparently is enforceable under the EJL. [See Ca Hlth
& S § 25184.1]
- A judgment for costs entered against a complainant in a
criminal case may be enforced under the EJL. [See Ca Penal
§§ 1447 & 1448]
- A judgment confirming an arbitration award is enforceable
under the EJL. [Ca Civ Pro § 1287.4]
The EJL does not provide the exclusive means for enforcing
California judgments - the court may use any suitable method
to enforce valid judgment provided it has personal jurisdiction
over parties . [See Ca Civ Pro § 681.010] For example,
a child, family or spousal support order that is made, entered
or enforceable in California is enforceable under the Family
Code whether or not the order was entered pursuant to the Family
Code. [See Ca Fam § 4500 et seq.] A money judgment against
the state, a state agency or a local public entity (except the
Regents of the University of California) is enforceable under
the Government Code. [Ca Civ Pro § 695.050; Ca Govt §§
965.5(b), 965.9, 970, 970.1(b)]
What Is A Judgment?
A "judgment" under the EJL is any "judgment,
order or decree" entered by a California court. [Ca Civ
Pro § 680.230; see also Ca Civ Pro § 680.110] Judgments
are final determinations of the parties' rights in actions or
proceedings (Ca Civ Pro §§ 577, 1064). In addition,
written orders of dismissal signed by courts constitute judgments
and are effective for all purposes. [Ca Civ Pro § 581d]
Every other court direction made or entered in writing that
is not part of a judgment constitutes an order. [Ca Civ Pro
§ 1003]
Judgments are enforceable under the EJL generally upon "entry."
[Ca Civ Pro § 683.010; see also Ca Civ Pro § 664]
In counties that maintain judgment books (few still do), judgments
are entered when noted in the judgment book. In counties that
do not maintain judgment books, judgments are deemed entered
when filed with the clerk; no subsequent action is required.
[See Ca Civ Pro §§ 668, 668.5]
Amount Recoverable Under
A Judgment
The amount required to satisfy a money judgment is the total
amount of the judgment as entered or renewed, plus costs added
after judgment and accrued interest on the judgment, minus any
payments or partial satisfactions or amounts no longer enforceable.
[Ca Civ Pro § 695.210] The principal amount of the judgment
is the amount of the judgment as entered or as last renewed,
together with any costs added to the judgment, reduced by any
payments or partial satisfactions or amount no longer enforceable.
[Ca Civ Pro § 680.300]
The judgment creditor is entitled to recover interest on the
principal amount of the judgment that remains unsatisfied. [Ca
Civ Pro § 685.010(a)]
Effective January 1, 1983, the rate of interest on a money
judgment is 10% per annum. [Ca Civ Pro § 685.010(a)] Interest
accrues from the day the judgment is entered. [Ca Civ Pro §
685.020(a)] Where the judgment is payable in installments (e.g.,
support judgments), interest accrues from the date each installment
becomes due unless the judgment provides otherwise. [Ca Civ
Pro § 685.020(b)]
Postjudgment interest is not compounded (i.e., interest is
not paid on the accrued interest) unless the judgment is renewed.
When a judgment is renewed, whatever interest has accrued on
the original judgment is added to and becomes part of the principal
amount of the judgment. [See Comment to Ca Civ Pro § 683.110]
Thereafter, interest accrues on the total amount of the renewed
judgment (i.e., including the amount added as interest). In
effect, the judgment creditor recovers "interest on interest".
With regard to support orders, interest accrues only on overdue
installments under the initial support order, whether it is
a temporary or final order and whether or not it is contained
in a judgment. An order fixing arrearages under the initial
support order or establishing a periodic payment plan to liquidate
arrearages under the initial order is not a new installment
judgment for support that itself accrues interest. [Ca Fam §
155]
The date interest ceases to accrue on a money judgment satisfied
by levying writ of execution depends upon the manner in which
the proceeds are collected:
- If the full amount due under the judgment is collected in
a lump sum, interest ceases on the date of levy. [Ca Civ Pro
§ 685.030(a)(1)]
- If the judgment is satisfied pursuant to an earnings withholding
order, interest ceases (i) on the date the full amount required
to satisfy the order is withheld from the judgment debtor's
earnings; or (ii) on the date a Ca Civ Pro § 706.028
final order for costs and interest is issued. [Ca Civ Pro
§ 685.030(a)(2)]
- In all other cases, interest ceases on the date the proceeds
of sale or collection are actually received by the levying
officer. [Ca Civ Pro § 685.030(a)(3)]
- Even though a minimal amount of interest--i.e., no more
than $10 --remains uncollected (due to automation of the continual
daily interest accrual calculation), a money judgment is deemed
wholly satisfied when the judgment amount specified in the
writ is fully collected. [Ca Civ Pro § 685.030(e)--in
such event, court may enter writ in Register of Actions as
"returned wholly satisfied"]
If a judgment is partially satisfied by levying a writ or otherwise,
interest ceases to accrue as to the part satisfied on the date
the part is satisfied. Tender of partial payment to the judgment
creditor, or deposit in court, has the same effect as actual
payment. [Ca Civ Pro § 685.030(c),(d)]
Partial payments must be applied first to the accrued interest
on the judgment. Partial payments reduce the principal judgment
only after all accrued interest is paid.
In levying a writ of execution, the levying officer must add
interest at the daily interest rate shown on the writ from the
date it was issued until interest ceases to accrue (above).
In cases of partial satisfaction, the levying officer may, in
conformity with his or her office policy, recompute the amount
of daily interest accruing on the money judgment. [See Ca Civ
Pro § 685.050(b)(2)]
The 10% annual interest rate applies to sister-state judgments
from and after the date they are entered as California judgments
(Ca Civ Pro § 1710.25(b)). Interest accrued thereon prior
to the date of such entry is computed at whatever interest rate
is provided under the law of the state where the judgment was
rendered. [Ca Civ Pro §§ 1710.15, 1710.25]
Enforcement Period - Renewel
Of Judgments
Superior court judgments are generally enforceable immediately
upon entry. [See Ca Civ Pro §§ 683.010] However, if
the debtor files a timely appeal from the judgment, enforcement
may be stayed pending appeal under the provisions of Ca Civ
Pro § 916 et seq. Notably, money judgments are stayed on
appeal only by posting a bond. [Ca Civ Pro § 917.1]
Enforcement of a small claims judgment (including issuance
or recording of any abstract of judgment) is automatically suspended
without defendant's filing a bond pending expiration of the
time for appeal, and if a timely appeal is taken, until the
appeal is dismissed or the superior court determines the small
claims court properly denied defendant's Ca Civ Pro § 116.730
or § 116.740 motion to vacate. [Ca Civ Pro § 116.810]
Unless the judgment is timely renewed as provided below or
an independent action on the judgment is timely filed, a money
judgment or judgment for possession or sale may not be enforced
after 10 years from the date of its entry (or 10 years from
the date each installment comes due on an installment judgment).
Upon expiration of the 10-year period, all enforcement procedures
must cease; any liens based upon the judgment are automatically
extinguished. [Ca Civ Pro §§ 683.020 (and Comment
thereto), 683.030]
An enforceable judgment may be renewed. Compliance with renewal
statutes automatically renews the judgment for a period of 10
years from the date the application to renew is filed. [Ca Civ
Pro §§ 683.120(b), 683.150(a); see also Ca Fam §
291--Family Code judgments for possession or sale of property
subject to EJL rules for renewal of judgments]
A judgment may be renewed simply by filing an application for
renewal with the court in which the judgment was entered (and
paying the appropriate filing fee). [See Ca Civ Pro § 683.120(a)]
For judgments not previously renewed, application to renew may
be filed any time prior to expiration of the 10-year enforcement
period. [Ca Civ Pro § 683.130(a)] However, as to judgments
previously renewed, no new application for renewal can be filed
for five years. (This is to prevent judgment creditors from
frequently renewing judgments merely to compound interest, below.)
[Ca Civ Pro § 683.110(b); Ca Fam § 4502(b)(2)] Filing
the renewal application (and paying the appropriate filing fee)
results in automatic renewal of the judgment. No court order
or new judgment is required. The court clerk simply enters the
renewal of judgment in the court records. [See Ca Civ Pro §
683.150]
When installment judgments are renewed, the renewed amount
of the judgment is treated as a lump-sum money judgment entered
on the date the renewal application was filed, and is enforceable
for 10 years from that date. [Ca Civ Pro § 683.120 (c)]
Judgment Liens On Real
Property
A judgment lien on real property establishes and preserves
the judgment creditor's priority over later claimants. It has
several distinct advantages over other enforcement procedures:
- First, it is a general lien, attaching to practically all
of the judgment debtor's real property interests in the county
where an abstract or certified copy of the judgment, or a
42 USCA § 652(a)(11) interstate lien form, is recorded.
- Second, the lien reaches both real property interests presently
held by the judgment debtor and those acquired in the future,
thus assuring the judgment creditor priority as to after-acquired
interests. [See Ca Civ Pro § 697.340(b)]
- A judgment lien on real property is one of the quickest,
simplest and least expensive enforcement procedures available.
The lien is created simply by recording an abstract of the
judgment (or, in appropriate cases, a certified copy of the
judgment or a 42 USCA § 652(a)(11) interstate lien form.
- Recordation involves only a minimal expenditure of time
and money. And, the creditor incurs no additional enforcement
expenses because the judgment debtor generally has to pay
off the lien in order to sell or refinance the property!
The following interests in real property are not subject to
a judgment lien:
- Rental payments being made to the debtor;
- A leasehold interest with an unexpired term of less than
two years;
- A beneficiary's interest under a trust
- Real property subject to the creditor's attachment lien
that is transferred before judgment is entered; and
- The amount of the dwelling exemption for a declared homestead
(Ca Civ Pro § 704.950(a);[Ca Civ Pro § 697.340]
f the judgment debtor has, or is believed to have, real property
interests in more than one county, the judgment creditor must
record an abstract of the judgment interstate lien form, in
each of those counties; otherwise, the lien attaches only to
the interests in the county where recorded.
A judgment lien generally requires the recording of an abstract
of the money judgment. [See Ca Civ Pro § 697.310(a)] Instead
of an abstract, a certified copy of the judgment, a notice of
support judgment or a 42 USCA § 652(a)(11) interstate lien
form may be recorded to create a judgment lien on installment
orders for child, spousal or family support. [Ca Civ Pro §
697.320(a)]
The clerk's fee for issuing an abstract of judgment is $15
per abstract. [Ca Govt § 70626(a)(2)] The fee for recording
the abstract (or certified copy of judgment) varies from county
to county.
A judgment lien on real property is not a "secret"
lien. The judgment debtor must be given notice of the lien either
by the county recorder or the judgment creditor. Unless the
judgment creditor files proof of service of notice of the lien
(below), the county recorder is required to notify the judgment
debtor (or his or her attorney of record) of the creation of
a judgment lien within 10 days after the recordation of an abstract
(or certified copy) of judgment. [Ca Govt § 27297.5(a)]
As an alternative to service by the recorder, the judgment
creditor may notify the debtor of the lien by serving on him
or her a copy of the abstract (or certified copy) of judgment.
Service may be made by personal delivery, registered or certified
mail, or by "substitute" service. Proof of service
must be filed with the county recorder. [Ca Govt § 27297.5(b)]
Basically, a "first in time" rule applies: Priority
goes to the first-recorded abstract of judgment. [Ca Civ Pro
§ 697.380(c),(d)]
A judgment lien on real property is enforced by levy and sale
of the real property interest under writ of execution. As long
as the writ of execution is levied while the judgment lien is
in effect, priority under the execution lien "relates back"
to creation of the judgment lien. [Ca Civ Pro § 697.020(b)
A judgment creditor may release all or part of any real property
that is subject to a judgment lien; or may subordinate the judgment
lien to another lien or encumbrance. [Ca Civ Pro § 697.370(a)]
A real property judgment lien is also extinguished upon recordation
of either an acknowledgment of satisfaction (Ca Civ Pro §
724.060) or a clerk's certificate of satisfaction (Ca Civ Pro
§ 724.100).
Judgment Liens On Personal
Property
The EJL provides for a lien on certain types of business personal
property by filing a prescribed notice with the Secretary of
State. The procedure is similar to that required to perfect
a security interest in such property under the Commercial Code.
The filing constitutes constructive notice to potential transferees
and lenders and gives the judgment creditor priority over later
liens. However, the EJL does not provide any means of foreclosing
on the lien; other enforcement procedures must be used to forcibly
apply the judgment debtor's money or property to reduce a money
judgment.
A judgment lien on personal property ("JLPP") has
several distinct advantages over other enforcement procedures:
- Unlike a real property judgment lien or writ of execution
which must be issued by the court clerk, a JLPP is prepared
by the creditor's attorney and then filed with the Secretary
of State.
- The JLPP also gives the judgment creditor priority over
unsecured creditors without the necessity of levying execution.
This is a clear advantage where there are outstanding security
interests in the property, because the judgment creditor may
not want to execute in such cases (the secured creditors would
have priority and could file third party claims which might
defeat the execution levy).
- Other procedures available for liening business personal
property (e.g., through an examination proceeding or creditors'
suit) do not protect against transfers to certain types of
persons (see Ca Civ Pro §§ 697.740, 697.910, 697.920).
The JLPP lien continues after the property is transferred,
unless inventory is transferred in the ordinary course of
business (Ca Coml § 9320) or the transfer is to a person
under Ca Civ Pro § 697.610.
- As with a judgment lien on real property, a JLPP is not
disruptive to the debtor's possession or use of the property,
whereas a levy and sale under execution normally requires
that the property be seized or garnished. Therefore, a JLPP
is less likely to motivate the debtor to file bankruptcy before
expiration of the 90-day voidable preference period.
- A JLPP is also one of the least expensive enforcement methods:
As stated, it can be prepared by the judgment creditor's attorney
and filed with the Secretary of State; the filing fee is $20.
A JLPP reaches only the following types of personal property
in which a security interest could be perfected by filing a
financing statement with the Secretary of State under the Commercial
Code:
- Accounts receivable;
- Chattel paper;
- Equipment;
- Farm products;
- Inventory (not including retail inventory items with a unit
retail value of less than $500); and
- Negotiable documents of title. [Ca Civ Pro § 697.530(a)]
Personal property in which a security interest cannot be perfected
by filing a financing statement with the Secretary of State
is not subject to a JLPP--for instance, a deposit account or
money (other than identifiable cash proceeds, above), letter-of-credit
rights, or a policy of insurance (Ca Coml §§ 9310(a)
& (b), 9311(a), 9312(b)). [Cf. Ca Civ Pro § 697.530(a)]
- The EJL expressly provides that a JLPP does not attach to
a vehicle or vessel required to be registered with the Department
of Motor Vehicles, or a mobilehome or commercial coach required
to be registered under the Health & Safety Code. [Ca Civ
Pro § 697.530(d)(1)]
- Nor does a JLPP attach to inventory of a retail merchant
with a unit retail value of less than $500. [Ca Civ Pro §
697.530(d)(2)]
- If property subject to a JLPP (e.g., equipment) is affixed
to real property in such a manner that it becomes a "fixture"
(see Ca Coml §§ 9102(a)(41), 9334), the judgment
lien thereon is automatically extinguished. [Ca Civ Pro §
697.530(e)]
A JLPP is created by filing a Notice of Judgment Lien in the
office of the Secretary of State. [Ca Civ Pro § 697.510(a)]
The Secretary of State has prescribed official Notice of Judgment
Lien and Judgment Lien Addendum forms for this purpose. Use
of the official forms satisfies the statutory notice requirements.
[Ca Civ Pro § 697.670(b)]
A JLPP is a lien for the amount required to satisfy the judgment.
[Ca Civ Pro § 697.540(a)] A JLPP cannot be created for
most installment judgments, including spousal support judgments.
No lien attaches unless all installments have become due and
payable before the Notice of Judgment Lien is filed. [Ca Civ
Pro § 697.510] An exception is made for limited civil case
(Ca Civ Pro §§ 85, 86) and small claims court installment
judgments and for installment judgments against uninsured motorists
under Ca Vehicle § 16380. A JLPP may be created for the
full amount required to satisfy such judgments; but the JLPP
cannot be enforced for installments not yet due unless the court
so orders. [Ca Civ Pro § 697.540(b)] When the local child
support agency is enforcing a child support delinquency (one
month's past-due support), a lien for child support arises against
the obligor's personal property (i) by operation of law for
all overdue amounts (whether or not adjudicated) or (ii) when
a specific amount of arrearages has been determined by a court
or the agency. [Ca Fam § 17523(a)]
Unless the judgment is satisfied or the judgment lien is terminated
or released, a JLPP continues for five years from the date of
filing (the same effective period as for a financing statement
under the Commercial Code). [Ca Civ Pro § 697.510(b)] The
five-year period is deemed sufficient to permit the judgment
creditor to enforce its lien on any property subject to the
JLPP. Therefore, the lien priority is not extended by filing
a later Notice of Judgment Lien; and the later notice does not
"relate back" to the date any earlier notice was filed
for priority purposes. [Ca Civ Pro § 697.510(c)] Since
the lien period cannot be extended, the only way to preserve
the priority established by the JLPP is to enforce the judgment.
E.g., a writ of execution may be levied upon the property within
the five-year JLPP period, and will "relate back"
to the date the JLPP was filed (Ca Civ Pro § 697.020).
A "first in time" rule ordinarily applies: The lien
of the JLPP generally has priority over subsequently filed JLPPs
or other security interests. [See Ca Civ Pro § 697.590]
Exceptions:
- A JLPP (including a Ca Fam § 17523 child support lien)
is subordinate to security interests in the property that
were filed (perfected) before the JLPP attached (i.e., where
a UCC financing statement was filed or interest perfected
before the Notice of Judgment Lien is filed). The priority
of a subsequently filed or perfected security interest "relates
back" to first filing or perfection so long as there
is no gap in the filing or perfection. [See Ca Civ Pro §
697.590(b); Ca Fam § 17523(d)(2)]
- A purchase money security interest (see Ca Coml § 9103)
has priority over a previously filed JLPP if the security
interest is perfected when the debtor receives possession
of the personal property, or within 20 days thereafter. [See
Ca Civ Pro § 697.590(d)]
- A prior filed or perfected security interest has priority
over a JLPP as to optional future advances of additional funds
only if the advances are made before or within 45 days after
the JLPP attached; or without "knowledge" of the
judgment lien; or pursuant to a "commitment" entered
into without knowledge of the JLPP. [Ca Civ Pro § 697.590(f)]
A JLPP has priority over and defeats unperfected security interests
in the same property. [Ca Civ Pro § 697.590(b)] The first
JLPP to attach to the property prevails over all later JLPPs
attaching thereto. [Ca Civ Pro § 697.600(a)]
A state tax lien is invalid against a JLPP perfected prior
to the time notice of the state tax lien is filed with the Secretary
of State. [See Ca Rev & Tax § 18881; Ca Govt §
7170(c) (2)] However, the same is not true for state tax withholding
orders: The Franchise Tax Board need only serve those persons
or entities having possession or control of the taxpayer's personal
property with a withholding order before perfection of JLPP
to obtain priority over the judgment lien. [See Ca Rev &
Tax § 18817]
a JLPP continues notwithstanding the sale, exchange or other
disposition of property subject to the lien. [Ca Civ Pro §
697.610] Exceptions:
- A JLPP is cut off if property subject to the lien is transferred
to a buyer or lessee "in ordinary course of business"
(Ca Coml §§ 1201, 10103(a)(1),(15)). Such a buyer
or lessee takes free of any security interest in the goods
(Ca Coml §§ 9320, 10307(c)) and also of any JLPP.
[Ca Civ Pro § 697.610(a) & (b)]
- Similar rules apply where a negotiable document of title
subject to a JLPP has been negotiated (within the meaning
of Ca Coml § 7501); or chattel paper subject to a JLPP
has been transferred to a purchaser who gives "new value"
and takes possession of the chattel paper in the ordinary
course of business. [See Ca Civ Pro § 697.610(c),(d)]
Filing with the Secretary of State either an acknowledgment
of satisfaction of judgment executed by the judgment creditor
(Ca Civ Pro § 724.060) or a clerk's certificate of satisfaction
(Ca Civ Pro § 724.100) generally extinguishes the judgment
lien "as a matter of record." [Ca Civ Pro § 697.640(a)]
Enforcement By Writ Of
Execution
The most common method of enforcing a money judgment is to
levy on the judgment debtor's property under a writ of execution.
With a few exceptions (see below) xecution may be used to reach
virtually all of a judgment debtor's property interest. This
includes a judgment debtor's interest in real property and in
most tangible and intangible personal property. An execution
levy may also reach a debtor's property interests in the possession
or control of a third person, or a debt owed the judgment debtor
by a third person.
The levying officer executes the writ by taking the property
into custody (actually or constructively). The execution levy
creates a lien on the real or personal property levied upon.
And, for priority purposes, the lien "relates back"
to the date a prior effective judgment or attachment lien was
created. Thereafter, the debtor's interest in the property may
be sold at an execution sale and the proceeds applied to satisfy
the judgment. Other property (e.g., checks, accounts receivable,
notes and other instruments) may be collected by the levying
officer, rather than sold.
But there are some disadvantages to consider:
- The EJL and other state and federal laws provide generous
exemptions protecting the property of individual judgment
debtors from execution. For example, a judgment debtor's dwelling
may be exempt for up to $125,000.
- Also, an execution levy can be very expensive. If tangible
personal property is seized, it must be moved to storage and
held for sale. Levying officers may require substantial deposits
to cover these costs. (Although enforcement costs can be added
to the judgment, they may be difficult to collect)
- Although execution sales are advertised, they rarely result
in market value realizations. A creditor who bids the amount
of the judgment may easily end up owning the debtor's interest
in the asset. This may or may not be desirable.
- Perhaps the most serious drawback to execution is that it
is a highly intrusive procedure that may prompt the debtor
to file for bankruptcy--e.g., where the inventory of a going
business is seized or a debtor's dwelling levied upon.
Only a "money judgment" entered or registered in
California is enforceable by writ of execution. [Ca Civ Pro
§§ 680.230, 699.010, 699.510(a)] Although not a money
judgment, a state tax lien may be enforced by writ of execution.
[See Ca Rev & Tax § 2191.4]
Judgments for possession or sale of real or personal property
are enforced by writs of possession or sale, rather than by
writs of execution. But the procedural requirements for issuance
of such writs are substantially the same as for writs of execution.
[Ca Civ Pro §§ 712.010, 712.020]
A money judgment cannot be enforced against the following types
of property by writ of execution:
- An alcoholic beverage license transferable under Ca Bus
& Prof § 24070 et seq.;
- A partnership interest held by the judgment debtor (where
the partnership itself is not a judgment debtor) . . . except
that partnership assets may be subject to execution if transferred
in fraud of creditors, or if the action is not subject to
the Revised Uniform Partnership Act, and the creditor has
been unable to collect under a previous charging order (see
Ca Corp §§ 16504, 16111, 16112);
- The judgment debtor's interest as a member of a limited
liability company (where the limited liability company is
not a judgment debtor);
- The judgment debtor's interest in a deposit in lieu of bond,
to the extent the deposit continues to be required for the
judgment debtor to engage in business (Ca Bus & Prof §
22443.1(j));
- A cause of action that is the subject of a pending lawsuit;
- A judgment in favor of the judgment debtor that is not yet
final (i.e., before expiration of time for appeal or, if an
appeal has been filed, before determination of the appeal);
- A debt, other than earnings, owing to the judgment debtor
by a public entity;
- The loan value of an unmatured life insurance, endowment
or annuity policy;
- A franchise (license) granted by a public entity and all
the rights and privileges thereof;
- The interest of a trust beneficiary;
- Any nonvested interest in property (including contingent
remainders, executory interests, etc.);
- Property in a guardianship or conservatorship estate. [Ca
Civ Pro § 699.720(a)]
The California Judicial Council has approved for optional use
an official form Writ of Execution (EJ-130).
The clerk of the court where the judgment was entered issues
a writ of execution upon the judgment creditor's request and
payment of the appropriate fee. [Ca Civ Pro § 699.510(a);
Ca Govt § 70626(a)(1)] Generally, no prior court order
is required for issuance of a writ of execution (except as to
certain Family Code judgments. But if the writ includes additional
names by which the judgment debtor is known (other than the
name listed on the judgment), it cannot issue unless and until
the court approves the accompanying "affidavit of identity."
[Ca Civ Pro § 699.510(c)(1)] The clerk "issues"
the writ by signing and dating the completed writ form (above)
and affixing the court's seal thereto. [Ca Civ Pro § 153]
A separate writ of execution must be issued for each county
in which a levy is to be made, because writs of execution are
directed to the levying officer of a particular county. [Ca
Civ Pro § 699.510(a)] But note: since each writ issued
is for the full amount necessary to satisfy the judgment, there
is a risk of excessive levies where writs are issued for several
counties. Excessive levies could expose the judgment creditor
to liability for abuse of process.
A successive writ cannot be issued for levies in the same county
unless the original writ has been returned or at least 180 days
have expired since its issuance. [Ca Civ Pro § 699.510(a)]
The code contains some special requirements for issuance of
some writs:
- Nonsupport judgments: A court order is required to
obtain a writ of execution to enforce a Family Code judgment
that is not for child, spousal or family support. (The court
has discretion to determine whether execution is an appropriate
remedy; see Ca Fam § 290.)
- Support judgments: Prior court approval is not a
prerequisite to enforcement of a child, spousal or family
support order or judgment (by writ of execution or otherwise).
Support orders and judgments (including support orders for
public assistance reimbursement and arrearages), as well as
interest and penalties computed thereon, are enforceable by
writ of execution (or otherwise) until paid in full. [Ca Fam
§§ 4502(a), 5100]
- Judgments Over 10 Years Old: If the judgment creditor
applies for a writ of execution more than 10 years after the
money judgment (other than for support) was entered or renewed,
the application must be accompanied by a declaration showing
why the writ should issue. [Ca Civ Pro § 683.040]
In certain cases, court orders in aid of execution may be sought--e.g.,
to facilitate a levy which the levying officer might otherwise
be unable to make.
- "Turnover" orders: Once a writ issues,
the judgment creditor may apply to the court for a "turnover"
order directing the judgment debtor to transfer to the levying
officer the property sought to be levied upon. Turnover orders
are enforceable by contempt, and may be used to obtain possession
of either tangible personal property that is sought to be
levied upon by taking it into custody; or documentary evidence
of title to property sought to be levied upon (e.g., certificate
of ownership of automobile) or of a debt sought to be levied
upon (e.g., a promissory note). [Ca Civ Pro § 699.040]
- Seizure orders: The levying officer cannot seize
property kept in the judgment debtor's home or other "private
place" without a court order authorizing such seizure.
Such an order may be granted even before the writ has issued,
but there must be "probable cause" to believe that
property sought to be levied upon will be found at the place
described. [Ca Civ Pro § 699.030]
- Orders to preserve value of assets levied upon: The
court may appoint a receiver or order the levying officer
to take any action necessary to preserve the value of property
levied upon. For example, if the court determines that the
property is perishable or will greatly deteriorate or depreciate
in value, it may order the property sold by the levying officer
without complying with the statutory provisions otherwise
applicable to execution sales. [Ca Civ Pro § 699.070]
Levy On The Writ Of Execution
After a writ of execution is issued, it must be delivered to
the levying officer with instructions and the required fee.
The levying officer then "levies" upon specified property
of the judgment debtor by taking it into custody or otherwise
subjecting it to a lien in favor of the judgment creditor in
the manner described below. The property levied upon may thereafter
be sold at an execution sale to satisfy the judgment (or, in
some cases, collected)
The "levying officer" is the sheriff or marshal of
the county to which the writ is directed (Ca Civ Pro §
680.260). Exactly who performs this function differs from county
to county.
The judgment creditor must deposit with the levying officer
amounts sufficient to cover the costs of carrying out the instructions.
Otherwise, the levying officer has no liability to take or hold
property. [Ca Civ Pro § 685.100(a)(1)] The basic fee for
levying a writ is $30 (Ca Govt §§ 26720.9, 26721).
However, some levies cost a great deal more (e.g., some levying
officers may require a deposit of $700 or more to levy upon
an automobile, and $500 to levy upon and sell real property).
The levying officer's authority commences upon receipt of the
writ and continues for 180 days after the date of its issuance.
Thereafter, no further levies may be made thereunder (although
a successive writ may issue. Any number of levies may be made
during the 180-day period. [Ca Civ Pro § 699.530(b)]
There are four basic methods by which a writ of execution can
be levied on property so as to create an execution lien thereon:
- Physical seizure of the property;
- Garnishment;
- Recording a copy of the writ and notice of levy; or
- Delivery of a copy of the writ to the levying officer.
Physical Seizure: Unless another method of levy is provided,
the levying officer must seize (take custody) of tangible personal
property that is in the judgment debtor's possession
Garnishment: However, if tangible personal property
is in the possession or control of a third person (i.e., someone
other than the judgment debtor), the levying officer may not
seize it. Rather, the third person must be served with a copy
of the writ and notice of levy.
Recordation: A copy of the writ and notice of levy is
recorded to levy upon real property interests and growing crops,
timber and minerals.
Delivery To Levying Officer: Property that is already
in the custody of the levying officer (e.g., under attachment)
is levied upon by delivering a copy of the writ to the levying
officer--a so-called "book levy".
Some of the above methods of levy (e.g., garnishment) require
service of a Notice of Levy. In addition, a Notice of Levy is
one of the documents that must be served on the judgment debtor
when (or promptly after) the levy is made (Ca Civ Pro §
700.010).
The lien begins on the date of levy and continues until either:
- Two years after the date of issuance of the writ, unless
the judgment is sooner satisfied (Ca Civ Pro § 697.710);
- The 10-year period for enforcement of the judgment elapses
(Ca Civ Pro §§ 683.020 & 699.030);
- The lien is renewed or continued (Ca Civ Pro §§
697.020 (b), 688.200, 697.030 & Comment to § 683.190;
or
- Enforcement of the judgment is stayed and bond is filed,
when required
The levying officer will release property from levy upon written
instructions from the judgment creditor's attorney of record
(or the judgment creditor in pro per), or upon receipt of a
certified copy of a court order for release. [Ca Civ Pro §
699.060(a)] A release may also occur by operation of law, as
where the judgment creditor fails to oppose a claim of exemption
or third party claim. Likewise, when the levying officer has
collected the full amount necessary to satisfy the writ, all
other property under the levy must be released.
There are several methods by which a judgment debtor may attempt
to prevent property levied upon from being sold (or collected)
by the levying officer. These include filing a motion to recall
and quash the writ of execution, seeking a stay of execution,
filing a timely exemption claim or encouraging a third person
to file a third party claim.
Recalling and quashing writ: The court's inherent equitable
power over its process gives it authority, on motion, to recall
and/or quash a writ of execution improperly or inadvertently
issued; or to vacate an execution levy. A motion to recall and
quash a writ of execution and release any liens lies where:
- The writ was improperly or inadvertently issued (e.g., where
judgment fully paid).
- After issuance of the writ, the judgment was vacated.
- The writ failed to account for legitimate offset against
payment due.
- The judgment was not enforceable by execution.
- The property levied upon was not subject to execution.
- The lien is extinguished in connection with a stay of enforcement.
- The judgment was satisfied by agreement or "substituted"
performance--e.g., agreement that lump-sum payment would discharge
installment judgment.
Stay Of Enforcement: Generally, a trial court may stay
enforcement of a money judgment for up to 10 days beyond the
last date on which a notice of appeal could be filed (e.g.,
to allow time to perfect an appeal or for the judgment debtor
to arrange to pay the judgment). The stay may be granted regardless
of whether an appeal is actually filed or is expected to be
filed. [See Ca Civ Pro § 918] A trial court may also order
enforcement stayed where the judgment debtor has a counter-action
pending against the judgment creditor on a disputed claim. If
enforcement of the judgment is not stayed, the judgment debtor
may be deprived of the right of offset and, with a judgment-proof
creditor, of the right to recover anything at all. [See 16 Cal.L.Rev.Comm'n
Reports 1165 (1982)]
The perfecting of an appeal and the posting of a sufficient
undertaking are ordinarily required to stay enforcement of:
- A superior court money judgment (Ca Civ Pro § 917.1
(a)(1));
- Ca Civ Pro § 998 settlement offer cost awards (unless
such costs constitute Ca Civ Pro § 1033.5 "routine
costs,") (Ca Civ Pro § 917.1(a)(2));
- Ca Civ Pro § 1141.21 judicial arbitration cost awards
(unless such costs constitute Ca Civ Pro § 1033.5 "routine
costs,") (Ca Civ Pro § 917.1(a)(3));
- A judgment directing the assignment or delivery of personal
property or the sale of personal property upon foreclosure
of a mortgage or other lien (Ca Civ Pro § 917.2);
- A judgment directing the sale, conveyance or delivery of
possession of real property in possession or control of the
appellant or the party ordered to sell, convey or deliver
possession of the property (Ca Civ Pro § 917.4); and
- A judgment appointing a receiver (Ca Civ Pro § 917.5).
Claim Of Exemption: An individual judgment debtor may
still be able to prevent the levied property from being sold
by filing a timely claim of exemption. (See below)
Property Exempt From Enforcement
The California Constitution mandates that the Legislature protect
"a certain portion" of debtors' property from forced
sale (Ca Const. Art. XX, § 1.5). The broad purpose is to
protect enough property from enforcement to enable judgment
debtors to support themselves and their families, and to help
shift the cost of social welfare for debtors from the community
to judgment creditors (see 16 Cal. L.Rev. Comm'n Rep. 1079 (1982)).
Exemption laws are liberally construed in the debtor's favor.
The EJL exemptions may be claimed only by natural person judgment
debtors--i.e., not by partnerships, corporations or other entities.
[Ca Civ Pro § 703.020(a)]
Generally, an exemption must be claimed by the judgment debtor
within the time and in the manner prescribed by the EJL. If
not timely claimed, the exemption is waived, and all of the
property is subject to enforcement of a money judgment. [Ca
Civ Pro § 703.030(a)] Exception: Property that is described
by an exemption statute as "exempt without making a claim"
cannot be reached by any procedure for enforcement of a money
judgment. [Ca Civ Pro § 703.030(b)]
Unless otherwise required by law, to oppose a claim of exemption,
within 10 days after service of the notice of claim of exemption
(or, ordinarily within 15 days if the levying officer served
the notice by mail, see Ca Civ Pro § 684.120), the judgment
creditor must:
- File with the court a Notice of Opposition to the Claim
of Exemption (Judicial Council Form EJ-170), Notice of Motion
for an Order Determining the Claim of Exemption, and Notice
of Hearing on Claim of Exemption (Judicial Council Form EJ-175);
and
- File with the levying officer (preferably by personal delivery
or certified mail, return receipt requested) copies of each
of these documents. (The levying officer will file the judgment
debtor's claim of exemption and any attached financial statement
with the court.) [See Ca Civ Pro § 703.550]
The EJL exemptions may be claimed by the judgment debtor or
person acting on the debtor's behalf--e.g., a garnishee, the
judgment debtor's agent or a public or private retirement plan.
[Ca Civ Pro § 703.020(b)(1)] An exemption for community
property may be claimed by either the judgment debtor or his
or her spouse . . . whether or not the spouse is also a debtor
under the judgment. [Ca Civ Pro § 703.020(b)(2)]
To claim an exemption, the judgment debtor (or spouse or other
person, where applicable) must file an original and one copy
of a Claim of Exemption with the levying officer. [Ca Civ Pro
§ 703.520(a)] The claim is deemed filed when actually received
by the levying officer. [Ca Civ Pro § 681.040]
After being served with the claim of exemption and notice (above),
the judgment creditor must decide whether to oppose the claim.
If the creditor files an opposition, a court hearing must be
held to determine whether the exemption should be allowed. If
opposition is not timely filed, the property will be released
whether or not the exemption claim is valid. [Ca Civ Pro §
703.550] The hearing on the exemption claim must be held no
later than 20 days from the date the notice of motion (above)
is filed with the court, unless the court continues the hearing
for good cause. [Ca Civ Pro § 703.570(a)]
Below are the EJL exemptions and the most commonly claimed
federal law exemptions. For a complete list of all the state
and federal exemptions, see the Judicial Council list of exemptions
(EJ-155) The Judicial Council publishes a list of the current
Ca Civ Pro § 704.010 et seq. exemption dollar amounts (as
well as the § 703.140(b) exemption dollar amounts, along
with the effective date. [Ca Civ Pro § 703.150(d)]
The following property is exempt only if a timely exemption
claim is filed:
Motor vehicles: Any combination of the following is
exempt in the amount of $2,300:
- The aggregate equity in motor vehicles;
- The proceeds of an execution sale of a motor vehicle;
and
- The proceeds of insurance or other indemnification for
the loss, damage or destruction of a motor vehicle. [Ca
Civ Pro § 704.010(a)]
Household furnishings and personal effects: There
is no specific dollar exemption for household furnishings,
appliances, provisions, wearing apparel and other personal
effects. Furnishings and personal effects located at the judgment
debtor's residence are exempt if they are a) "Ordinarily
and reasonably necessary to" the judgment debtor and
members of the judgment debtor's family at the judgment debtor's
principal place of residence; and, b) Personally used, or
procured for use, by the judgment debtor and family at the
debtor's principal residence. [Ca Civ Pro § 704.020(a)(1)]
Jewelry, heirlooms and works of art: Jewelry, heirlooms
and works of art are exempt to the extent their aggregate
equity does not exceed $6,075. [Ca Civ Pro § 704.040]
"Tools of trade": "Tools of trade"
are personal property items reasonably necessary to and actually
used by the judgment debtor (or spouse) in exercising the
trade, business or profession by which he or she earns a living.
These items include but are not limited to:
- Materials;
- Uniforms;
- Furnishings;
- Books;
- One commercial motor vehicle; and
- One vessel. [Ca Civ Pro § 704.060(a)]
Traceable paid earnings: Earnings paid to the judgment
debtor within 30 days before a writ of execution is levied
or other enforcement method is employed, and that can be traced
to deposit accounts or are in the form of cash or its equivalent,
are wholly or partly exempt. [See Ca Civ Pro § 704.070]
f the judgment debtor's earnings are not subject to an earnings
withholding order or earnings assignment order for child,
spousal or family support, 75% of any paid earnings levied
upon (or otherwise sought to be subjected to enforcement of
a money judgment) are exempt. [Ca Civ Pro § 704.070(b)(2)]
Excess social security/supplemental security income benefits
and public benefits: Payments authorized by the Social
Security Administration (e.g., social security and supplemental
security income benefits) directly deposited by the government
(or its agent) into deposit accounts are exempt in the amount
of $2,425 or $3,650 without filing a claim. Any amounts in
these accounts in excess of $2,425 or $3,650 (whichever is
applicable) are exempt if they consist of authorized payments
by the Social Security Administration. However, the creditor
may assert that excess amounts are not exempt under California
law. [See Ca Civ Pro § 704.080(c)]
Property of debtor in military service: Although not
technically an exemption from enforcement, federal law effectively
stays certain enforcement activities against a debtor in military
service. E.g., a person holding a lien on a debtor's property
or effects ordinarily may not, during the debtor's military
service and for 90 days thereafter, enforce the lien without
a prior court order. In proceedings to enforce a lien, the
court may on its own motion, or must if requested by a debtor
whose ability to comply with the obligation is materially
affected by military service, (a) stay the proceedings "for
a period of time as justice and equity require" or (b)
"adjust the obligation to preserve the interests of all
parties." [50 USCA App. § 537(a),(b)]
Life insurance policies (including endowments and annuities):
The extent of exemptions for life insurance policies depends
on whether the policy has matured. (Policies mature when the
beneficiary has an enforceable right to receive payments and
there are no conditions to the issuer's obligation to make
payments.) The cash surrender value of an unmatured life insurance
policy is exempt without making a claim. However, the exemption
for the aggregate loan value of unmatured life insurance policies
(including endowment and annuity policies) is more limited.
Benefits from matured life insurance policies are exempt to
the extent "reasonably necessary" for the support
of the debtor and his or her spouse and dependents. [See Ca
Civ Pro § 704.100(c)]
Private retirement plans, Keoghs, IRAs: Private retirement
plans; profit-sharing plans: Benefits derived from "private
retirement plans" and profit-sharing plans designed and
used for retirement purposes are exempt whether payable or
already paid. [Ca Civ Pro § 704.115(a),(b),(d)]
Health aids: Health aids (including prosthetic and
orthopedic appliances) that are reasonably necessary to enable
the judgment debtor (or the debtor's spouse or dependent)
to work or sustain health are exempt regardless of value.
[Ca Civ Pro § 704.050]
Personal injury damages or settlement: A damages award
or settlement arising out of a personal injury generally is
exempt to the extent necessary for the support of the judgment
debtor and his or her spouse and dependents. [Ca Civ Pro §
704.140(b)] However, if the award or settlement is payable
periodically, the creditor may reach the same amount as could
be withheld from a like amount of earnings under the Wage
Garnishment Law. [Ca Civ Pro § 704.140(d)]
Wrongful death damages or settlement: An award of
damages or a settlement arising out of the wrongful death
of the judgment debtor's spouse, or a person upon whom the
judgment debtor or his or her spouse was dependent (e.g.,
a judgment debtor who was dependent upon a parent for support
before the parent was wrongfully killed), is exempt to the
extent reasonably necessary for the support of the judgment
debtor and his or her spouse and dependents. [Ca Civ Pro §
704.150(b)]
The following property is exempt without making a claim
and is not subject to enforcement of a money judgment. [Ca Civ
Pro § 703.030(b)]:
Proceeds from sale of sole motor vehicle: If the judgment
debtor has only one motor vehicle and it is sold at execution
sale, as of 2007 $2,300 of the proceeds are exempt without
making a claim (Ca Civ Pro § 704.010(d)). However, preferred
labor claims and state tax liens, if any, must generally be
paid from this $2,300.
Deposit account containing social security benefits:
A deposit account into which social security benefits are
directly deposited by the government or its agent is exempt
without making a claim in the following amount as of 2007:
- $2,425 if the benefits are payable to only one depositor;
or
- $3,650 if payable to two or more depositors who are the
designated payees, unless the payments represent a benefit
to only one of the depositors, in which case $2,425 is exempt.
[Ca Civ Pro § 704.080(b)(2),(4)]
Deposit account containing public benefits: A deposit
account into which public benefits (e.g., Ca Wel & Inst
§ 11450(a) aid payments) are directly deposited by the
government or its agent is exempt without making a claim in
the following amount as of 2007:
- $1,225 if the benefits are payable to only one depositor;
or
- $1,825 if payable to two or more depositors who are the
designated payees, unless the payments represent a benefit
to only one of the depositors, in which case $1,225 is exempt.
[Ca Civ Pro § 704.080(b)(1),(3)]
Ownership interest (including cash surrender value) in
unmatured life insurance, endowment and annuity policies:
The debtor's ownership interest (including cash surrender
value) in unmatured life insurance, endowment and annuity
policies is exempt without making a claim. [See Ca Civ Pro
§ 704.100(a)] But note: judgment debtors may claim only
a limited exemption for the loan value of such policies.
Payable public retirement benefits: Pensions or annuities,
or retirement, disability, death or other benefits payable
to any person by a public retirement system are exempt without
making a claim. [Ca Civ Pro § 704.110(b)] However, payable
public retirement benefits may be applied to satisfy a judgment
for child, family or spousal support to the extent the court,
upon motion, determines them nonexempt under Ca Civ Pro §
703.070(c)). [Ca Civ Pro § 704.110(c)(1); see also Ca
Fam § 17528. In addition, a public retirement benefit
payable periodically may be reached by an earnings assignment
order for support , or any other applicable enforcement procedure,
subject to the limitations of the Wage Garnishment Law. [Ca
Civ Pro §§ 704.110(c)(2) & (3), 706.052; see
also Ca Fam § 17528 (same re local child support agency
intercept of PERS benefits payable periodically)] Also, except
as to exempt amounts, Public Employee Retirement System ("PERS")
benefits and refunds payable periodically or by lump-sum distribution
to a member or beneficiary who is at least 60 days overdue
in payments under a child support judgment or order being
enforced by a local child support agency (or who is in arrears
by an amount equal to 60 days' support) may be intercepted
to satisfy the delinquent obligation. [See Ca Fam § 17528]
Contributions to unemployment funds: Contributions
by workers to the Unemployment Compensation Disability Fund
and by employers to the Unemployment Fund are exempt without
making a claim. [Ca Civ Pro § 704.120(a)] Payable unemployment
benefits are also exempt without making a claim. [Ca Civ Pro
§ 704.120(b)] However, payable unemployment benefits
may be reached to satisfy support judgments.
Payable private disability and health insurance payments:
Disability or health insurance payments are exempt before
payment without making a claim. After payment, they are exempt
(but only if a timely exemption claim is filed and the payments
are traceable as proceeds). [Ca Civ Pro § 704.130(a)]
Personal injury and wrongful death causes of action:
A personal injury or wrongful death cause of action is exempt
without making a claim. [Ca Civ Pro §§ 704.140(a),
704.150(a)]
Other payable benefits: The following benefits are
also exempt without making a claim if they are payable but
have not yet been received by the judgment debtor. After payment,
they are exempt only if a timely claim is filed and they are
traceable as exempt proceeds.
- Payable workers' compensation benefits, as limited by
the Workers' Compensation Law (see Ca Labor § 4900
et seq.), are exempt . . . except that temporary disability
payments are not exempt from enforcement of a support judgment.
- Payable public aid benefits (pursuant to Ca Wel &
Inst § 10000 et seq.) or similar aid payable by a charitable
organization or fraternal benefit society is exempt. [Ca
Civ Pro § 704.170; see also Ca Wel & Inst §
11002--"all aid given under a public assistance program
shall be absolutely inalienable . . ."]
- Likewise, relocation benefits for displacement from a
dwelling payable under federal or state law are exempt.
[Ca Civ Pro § 704.180; Ca Wel & Inst § 17409(h)]
- And payable student financial aid given by an "institution
of higher education" (see 20 USCA § 1414(a)) for
expenses while attending school is exempt. [Ca Civ Pro §
704.190]
Prisoner's funds: When the state, county, city or
an agency thereof holds funds in trust in an inmate's trust
account (or similar account) for or to the credit of the debtor-inmate,
the funds are exempt in the amount of $1,225 as of 1997 without
making a claim. If the debtor-inmate is married, his or her
spouse is entitled to a separate $1,225 exemption; or the
exemptions may be combined. [Ca Civ Pro § 704.090]
Family plot: A "family plot" (see Ca Hlth
& S § 8650) is exempt without making a claim. [Ca
Civ Pro § 704.200]
"Homestead" Exemption: The EJL provides
an automatic "dwelling exemption" against the forced
judicial sale of the dwelling occupied by the judgment debtor
or the debtor's spouse. The "declared homestead"
exemption provided under former law is also continued in a
highly modified form. The judgment debtor or other exemption
claimant need not file a claim of exemption after a real property
dwelling is levied upon. Rather, the judgment creditor is
required to obtain a court order for sale of the real property
homestead. The court must determine at a hearing the amount
of the "dwelling exemption" and the fair market
value of the property. On the other hand, if the homestead
is personal property (e.g., a boat or mobilehome not affixed
to land) or a real property leasehold with an unexpired term
of less than two years at the time of levy, the judgment debtor
must file a claim of exemption within 10 days after the notice
of levy is served (at least 15 days if the notice was served
by mail). [Ca Civ Pro §§ 703.520, 704.740(b)]
Wage Garnishment
By using the procedures of the Wage Garnishment Law (hereafter
"WGL"), a judgment creditor may compel an individual
judgment debtor's employer to withhold the nonexempt portion
of the debtor's disposable earnings for payment directly to
the levying officer, to be applied to satisfy the judgment.
Wage garnishment may be the only means available to enforce
a judgment where other property of the debtor is exempt. So
long as the judgment creditor knows the name and address of
the judgment debtor's employer, it is relatively easy and inexpensive
to garnish a debtor's wages. (However, a court order is required
to garnish the wages of a nondebtor spouse.)
Service of an effective earnings withholding order creates
a lien on the employee's earnings and generally on all property
of the employer. However, this lien is limited to the amount
required to be withheld.
Thoug the garnishment process is relatively simple, the downside
for the creditor is that, at least 75% of a debtor's earnings
are automatically exempt from garnishment, except as to judgments
for support. Thus, unless the debtor earns a large salary, the
creditor will receive relatively little from a wage garnishment.
It could take years to satisfy a judgment by garnishing the
debtor's wages and if the debtor quits or is fired, there will
be no wages to garnish. Furthermore, a wage garnishment might
prompt the debtor to file a bankruptcy petition. If the debtor
receives a discharge in bankruptcy, the wage garnishment will
not attach to the debtor's postpetition wages.
General Concepts: The Wage Garnishment Law
is the exclusive judicial method of compelling an employer to
withhold an employee's earnings to satisfy a nonsupport judgment.
[Ca Civ Pro § 706.020] Federal law permits the garnishment
of federal employees' salaries for any purpose (see also Comment
to Ca Civ Pro § 706.020--"The Wage Garnishment Law
has no effect on matters that are preempted by federal law").)
But Note: A judgment debtor's earnings may be withheld to
satisfy a support judgment pursuant to an earnings assignment
order for support (Ca Fam § 5200 et seq.). Earnings assignment
orders have priority over any type of earnings withholding
order (Ca Civ Pro § 706.031), are a remedy exclusive
to court-ordered support obligations, and are not governed
by the WGL. [See Ca Civ Pro §§ 706.020, 706.031;
and Ca Fam § 5200 et seq. (governing earnings assignment
orders for support)]
For purposes of the WGL, an "employee" is any individual
who performs services subject to the right of the employer (the
person for whom the services are performed) to control both
what is done and how it is done. [Ca Civ Pro § 706.011(b),(c)]
It follows that the WGL does not apply to self-employed debtors.
Incorporated Professionals: However, persons who form
professional corporations (e.g., doctors, dentists, lawyers)
are not self-employed--i.e., they are employed by their corporations.
Thus, an incorporated professional's wages may be garnished.
Other sums due the debtor from his or her corporation may
be reached by a garnishment levy (writ of execution). Future
payments (e.g., corporate dividends) may also be reached by
an assignment order.
State Employees: The earnings of a state or local
employee or public officer may be withheld under the WGL.
[See Comment to Ca Civ Pro § 706.020; Ca Civ Pro §
708.720(b)]
Federal Employees: Federal law permits the salaries
of federal employees to be garnished for any purpose through
legal process issued by a competent authority within the United
States. [5 USCA § 5520a]
The Office of Personnel Management has issued final regulations
to implement the above law. These regulations apply to all
executive branch agencies of the federal government, except
the U.S. Postal Service, Postal Rate Commission and General
Accounting Office. Separate regulations govern the latter
agencies, any agency of the judicial or legislative branch
and Congress. Likewise, separate regulations apply to military
personnel. [See 5 CFR §§ 582.101 & 582.102,
appearing at 60 Fed.Reg. 13027, 13030]
Types Of Witholding Orders: To effect a wage
garnishment, the creditor must serve the judgment debtor's employer
with a proper earnings withholding order. There are three types
of earnings withholding orders.
- "Withholding order for support": A "withholding
order for support" is an earnings withholding order issued
to collect delinquent amounts under a child or spousal support
judgment. The order must indicate "on its face"
that it is a "withholding order for support." [Ca
Civ Pro § 706.030(a)]
- "Withholding order for taxes": A "withholding
order for taxes" is an earnings withholding order issued
to collect a state tax liability. [Ca Civ Pro § 706.072(b)]
- All other withholding orders: Withholding orders
that are neither for support nor taxes are simply called "earnings
withholding orders."
Obligations Of The Employer After Service Of Witholding
Order: When an effective earnings withholding order
is served on an employer by the levying officer or registered
process server, the employer must:
- Withhold the nonexempt portion of the employee's disposable
earnings for all pay periods ending during the "withholding
period" (below); and
- Pay to the levying officer, by the 15th of each month (or
sooner) all funds withheld during the preceding month. [Ca
Civ Pro §§ 706.022(b), 706.025(a)]
An earnings withholding order is effective 10 calendar days
after service and remains in effect until the earliest of the
following dates:
The lien ordinarily continues for one year from the date the
judgment debtor's earnings became payable, unless the amount
required to be withheld is paid earlier in the manner required
by law. [See Ca Civ Pro §§ 697.030, 697.040, 706.029]
Issuance And Service Of The Withholding Order:
The official Judicial Council forms generally must be used for
all WGL procedures. [Ca Civ Pro §§ 706.120, 706.081]
However, federal law preempts the form of income withholding
for child support (42 USCA § 666). All income withholding
orders for child support must be on the standardized federal
form Order/Notice to Withhold Income for Child Support.
An earnings withholding order may not issue against earnings
of the judgment debtor's spouse unless a court order is obtained
upon noticed motion. Reason: Despite the general rule that community
property is liable for the debts of a spouse, community property
earnings are unique and may not be liable in some situations.
[See Ca Civ Pro § 706.109 and Comment thereto]
An earnings withholding order may be obtained by filing an
application (below), the original writ of execution and the
required fee with the levying officer (not the court) in the
county where the order is to be served. The creditor need not
provide the levying officer with separate written instructions.
[Ca Civ Pro § 706.102(a)]
The earnings withholding order must promptly be issued by the
levying officer following the judgment creditor's ex parte application
(but a court order is required if the withholding order is against
earnings of the debtor's spouse. The levying officer has no
discretion to refuse issuance of the order upon filing of a
proper application. The fact that the debtor may claim an exemption
(and even recover amounts withheld) does not affect initial
issuance of the order. [Ca Civ Pro § 706.102(a), and Comment
thereto]
The earnings withholding order must be served on the employer
within 180 days following issuance of the writ of execution.
Otherwise, the order is invalid. [Ca Civ Pro §§ 699.530(b),
706.103(c), 706.108(c)] Service may be made by the levying officer
or by a registered process server (whether or not the process
server issued the earnings withholding order, above). [Ca Civ
Pro §§ 706.101(a), 706.108(c)]
The employer must be served with:
- The original and one copy of the Earnings Withholding Order
(the employer's instructions are printed on the reverse of
the order form and on a supplement thereto);
- The Employer's Return; and
- The official Employee Instructions (see Form 6:PP). [Ca
Civ Pro §§ 706.103(a), 706.108(c)]
When the local child support agency issues a withholding order
for support on a notice of levy pursuant to Ca Fam § 17522,
the employer must be served with:
- The earnings withholding order for support and one copy;
- A notice informing the employee of the order's effect and
the employee's right to a hearing and certain remedies;
- Forms necessary to obtain an administrative review or judicial
hearing with instructions on how to file the forms. [Ca Civ
Pro § 706.030(b)(3)]
Service on any of the following persons is effective service
on the employer:
- The managing agent or person in charge of the employee's
workplace or the place the employee is paid from; or
- Any person to whom a copy of a summons and complaint may
be delivered to effect service on the employer (see Ca Civ
Pro § 416.10 et seq.). [Ca Civ Pro §§ 706.101(a),
706.030(b)(2) (local child support agency serving withholding
order for support issued on notice of levy pursuant to Ca
Fam § 17522)]
Service may be made by personal delivery upon the employer
(see Ca Civ Pro §§ 415.10, 415.20). [Ca Civ Pro §§
706.101(b), 706.030(b)(2) (local child support agency serving
withholding order for support issued on notice of levy pursuant
to Ca Fam § 17522)] The judgment creditor may specifically
request that the levying officer make service by personal delivery.
[Ca Civ Pro § 706.101(e)]
Service can also be made by registered or certified mail, postage
prepaid, with return receipt requested. [Ca Civ Pro § 706.101(b),(c)
(state serving withholding order to collect overpayment of unemployment
compensation or disability benefits), 706.030 (b)(2) (local
child support agency serving withholding order for support issued
on notice of levy pursuant to Ca Fam § 17522)] Service
by mail is deemed complete at the time the return receipt is
executed. [Ca Civ Pro § 706.101(b),(c)] However, if the
return receipt is not received within 15 days from the date
of mailing, service must be made by personal delivery. Where
the state is collecting overpayment of unemployment compensation
or disability benefits, the state must refer the withholding
order to a levying officer for personal service. [Ca Civ Pro
§ 706.101(b),(c)]
Earnings Exampt From Garnishment: Federal
restrictions on the maximum amount that may be withheld from
an employee's earnings are directly incorporated into the WGL.
Under these restrictions, the maximum part of the debtor employee's
aggregate "disposable earnings" (below) that may be
withheld for any work week may not exceed the lesser of:
- 25% of the employee's disposable earnings for that week;
or
- The amount by which the disposable earnings for the week
exceeds 30 times the federal minimum hourly wage.
This means that at least 75% of an employee's disposable earnings
are effectively exempt from all nonsupport earnings withholding
orders. Moreover, this exemption is automatic--i.e., no claim
of exemption need be made. [Ca Civ Pro § 706.050; 15 USCA
§ 1673(a); 29 CFR § 870.1 et seq.] An even lesser
amount may be withheld if an earnings assignment order for support
is in effect against the same earnings.
"Disposable earnings" are those earnings remaining
after deduction of any amounts required by law to be withheld.
[15 USCA § 1672(b)] These include deductions for social
security, federal and state income taxes, state disability insurance
and payments to public employee retirement systems.
The automatic exemption does not apply to:
- Earnings withholding orders for support (below);
- Any court order involving a Chapter 13 bankruptcy proceeding;
or
- Any debt for federal tax. [15 USCA § 1673(b); Ca Civ
Pro § 706.074(b)]
Earnings Withholding For Support: Only one half of a
judgment debtor's disposable earnings (above) are exempt from
garnishment under an earnings withholding order for support
(as opposed to 75% for nonsupport withholding orders, above).
[Ca Civ Pro § 706.052(a)]
But Note: upon motion of any interested party, the court
may make an "equitable division" of the judgment
debtor's earnings. In doing so, the court must take into account
the needs of all persons whom the judgment debtor is required
to support (e.g., both the debtor's former spouse and present
family). [Ca Civ Pro § 706.052(b)] The court may order
more or less than 50% of the judgment debtor's earnings to
be withheld, so long as the maximum amount withheld does not
exceed the maximum permitted under federal law (below). [Ca
Civ Pro § 706.052(c)]
In addition to the automatic exemption for nonsupport withholding
orders, that portion of an employee's earnings necessary for
the support of the judgment debtor or his or her family (including
a spouse or former spouse) is exempt from nonsupport earnings
withholding orders (Ca Civ Pro § 706.051(a),(b)). Thus,
under appropriate circumstances, an employee may be able to
exempt all of his or her earnings from a nonsupport withholding
order.
To obtain this exemption, the judgment debtor must file a timely
claim of exemption with the levying officer. If the judgment
creditor fails to oppose the clai, the exemption is automatically
granted and the earnings must be released. A claim of exemption
can be made by the judgment debtor any time during the withholding
period. [Ca Civ Pro § 706.105(a)] An earnings withholding
order is effective 10 calendar days after service.
An exemption is claimed by filing with the levying officer
(not the court) an original and one copy of the official Claim
of Exemption form; and a Financial Statement. [Ca Civ Pro §
706.105(b)] After the exemption claim is filed, the levying
officer must promptly send to the judgment creditor (by first-class
mail, postage prepaid, to the address stated in the withholding
order application) a copy of the Claim of Exemption, a copy
of the Financial Statement; and a Notice of Filing Claim of
Exemption (below). [Ca Civ Pro § 706.105(c)]
A judgment creditor wishing to oppose the claim of exemption
must file a Notice of Opposition with the levying officer within
10 days after the date the Notice of Claim of Exemption was
mailed. [Ca Civ Pro § 706.105(d)] (This 10-day period is
not extended where the claim of exemption was served by mail;
see Ca Civ Pro § 684.310 and Comment to Ca Civ Pro §
706.105.) In addition to timely filing the Notice of Opposition,
the judgment creditor must file with the court within 10 days
after the levying officer mailed the Notice of Claim of Exemption,
a Notice of Motion for an Order Determining the Claim of Exemption.
[Ca Civ Pro § 706.105(e)] The judgment creditor must also
complete and file with the court the official form Notice of
Hearing on Claim of Exemption. [Ca Civ Pro § 706.105(e)]
The judgment creditor must give written notice of the hearing
to the levying officer at least 16 court days before the hearing.
[Ca Civ Pro §§ 706.105(e), 1005(b)] At least 16 court
days before the hearing, the judgment creditor must also serve
a copy of both the notice of opposition and the notice of hearing
on the judgment debtor (and his or her attorney if requested
in the claim of exemption) at the address set forth in the claim
of exemption. Proof of service must be filed with the court.
[Ca Civ Pro §§ 706.105(e), 1005(b)]
If the notice of opposition and notice of motion are timely
filed, the court hearing on the claim of exemption must be held
no more than 30 days after the notice of motion is filed (unless
continued by the court for good cause). The levying officer
must file the originals of the claim of exemption and notice
of opposition with the court. [Ca Civ Pro § 706.105(e)]
If the court grants the exemption claim, it may direct that
the earnings withholding order be modified or terminated. The
effective date of termination can precede the date of the hearing.
The court may also order that any exempt earnings previously
withheld be repaid to the judgment debtor. [Ca Civ Pro §
706.105(g),(i)] The court need not make any findings. [Ca Civ
Pro § 706.106] The court clerk must transmit a certified
copy of the order modifying or terminating the earnings withholding
order to the levying officer. The levying officer must then
promptly serve on the judgment debtor's employer either a copy
of the modified earnings withholding order or a notice that
the withholding order has been terminated. [Ca Civ Pro §
706.105(g)]
Priority Between Withholding Orders: Generally, if an
earnings withholding order is served while a prior withholding
order is still in effect for the same employee, the subsequent
order is ineffective. The employer may not withhold earnings
pursuant to the subsequent order. [Ca Civ Pro § 706.023(c)]
If two or more earnings withholding orders are served for the
same employee on the same day, the employer must comply with
the order issued for the judgment that was first entered (the
date of entry is indicated on the order). If the judgments were
entered on the same day (a rare event), the employer has complete
discretion to choose which order to comply with; but must comply
with one of the orders. [Ca Civ Pro § 706.023(b)]
Special Procedures In
Aid Of Enforcement Of Judgments
Examination of Judgment Debtor and Third Parties:
An examination of a judgment debtor or third party is the postjudgment
equivalent of a deposition. An examination can be used to identify
property in the possession or control of the judgment debtor
or a third person (e.g., a nondebtor spouse), to learn about
property the debtor may obtain in the future, and to require
the debtor or third person to turn over property to the levying
officer. Upon service of an examination order (below), the judgment
debtor must appear in court (or before a referee) "to furnish
information to aid in enforcement of the money judgment."
[Ca Civ Pro § 708.110(a)] A third person (e.g., a nondebtor
spouse) may be ordered to appear for examination upon the judgment
creditor's application showing to the court's satisfaction that
the third person is in possession or control of property in
which the judgment debtor has an interest or is indebted to
the debtor for more than $250. [Ca Civ Pro § 708.120] In
addition, any person with knowledge leading to enforcement of
the judgment (e.g., debtor's bookkeeper, accountant or nondebtor
spouse) can be subpoenaed to testify before the court or a referee
in an examination proceeding in the same manner as a trial witness.
[See Ca Civ Pro §§ 708.130, 708.140]
If an order to appear for an examination is properly served
(i.e., personally served by a sheriff, marshal, person appointed
by the court or a registered process server) and the examinee
fails to appear, the court may issue an arrest warrant requiring
the examinee to appear in court and explain the nonappearance.
[Ca Civ Pro § 708.170(a)(1)] Upon a finding that the examinee
did not have good cause for failing to appear, the court must
award the judgment creditor reasonable attorney fees incurred
for the examination proceeding. (Attorney fees awarded against
the judgment debtor are added to the principal amount of the
judgment.) [Ca Civ Pro § 708.170(a)(2)]
At the conclusion of the examination, the court may order that
a judgment debtor's interest in nonexempt property be applied
to satisfy the judgment. Such a "turnover order" is
authorized both where the debtor is examined and where an examination
of a third person reveals that the person possesses or controls
property in which the debtor has an interest or owes over $250
to the debtor. [Ca Civ Pro § 708.205(a)] The court may
order the examinee to deliver the property or funds to the levying
officer. Turnover orders are enforceable by contempt (Ca Civ
Pro §§ 1209-1222). [See Comment to Ca Civ Pro §
708.205]
Written Interrogatories to Judgment Debtor:
A judgment creditor is entitled to serve written interrogatories
on a judgment debtor to obtain information to aid in enforcement
of a money judgment. [Ca Civ Pro §§ 708.010(a), 708.020(a)]
Inspection Demand to Judgment Debtor: A judgment
creditor may serve an inspection demand on a judgment debtor
to obtain information to aid in enforcement of a money judgment.
[Ca Civ Pro § 708.030(a)]
Creditor's Suit Against 3rd Party: If a third
person possesses or controls property in which the judgment
debtor has an interest (or is indebted to the judgment debtor),
the judgment creditor may bring suit against the person to apply
the property or debt to the money judgment. [Ca Civ Pro §
708.210]
Assignment Order: If a judgment debtor has
a right to any future payment, a court may order an assignment
of all or part of such right to a judgment creditor.
Receiver to Enforce Judgment: The court may
appoint a receiver to enforce a judgment upon a showing by the
judgment creditor that the appointment is a "reasonable
method to obtain the fair and orderly satisfaction of the judgment."
[Ca Civ Pro § 708.620]
Charging Orders Against Debtor Partnership/LLC Interests:
Assets in a partnership (general or limited) or limited liability
company are not liable upon a money judgment rendered against
a partner or member personally. I.e., partnership or LLC assets
are no |
