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2370-2376 Delinquent Payment Enforcement: Writ of Execution

2370. GENERAL INFORMATION
Use Judicial Council of California form EJ-130 to apply to the clerk of the court for the writ. Be sure to apply to the court where the judgment was obtained: superior court for summary judgments or small claims court for small claims judgments.

A copy of the writ of execution must be mailed by the levying officer to each judgment debtor on each levy as well as to each garnishee. Prepare sufficient copies of form EJ-130 to permit one for each judgment debtor, garnishee, levying officer, and tax collector. The original form is retained by the clerk of the court.

NOTE: The court may require a fee for issuance of the writ. Contact the clerk of the superior court to determine if a fee is required.

Generally, all property not tax-exempt is subject to enforcement of a money judgment (Code Civ. Proc. §695.010). Community property and certain real property leases are subject to execution (Code Civ. Proc. §§695.020, 695.035).

EXCEPTION: A money judgment against a public entity is not subject to execution (Code Civ. Proc. §695.030).

NOTE: It is recommended that each county issuing a writ of execution contact the sheriff's civil division or marshal's office for the procedure to be used within that county. Each county requires instructions for levy that must be completed and furnished with the necessary copies of the writ. Review of the Marshal's Manual of Procedure or the California State Sheriff's Civil Procedure Manual is also helpful. County law libraries usually have the CEB (Continuing Education of the Bar) California Debt Collection Manual available for review.

2371. FEES NECESSARY FOR EXECUTION OF WRIT
A fee for execution of the writ is required by the levying officer. Fees can vary from county to county, and some counties require the fees to be paid before the writ is executed. The county levying officer within the county where the execution of the writ will take place should be contacted prior to issuance of the writ for information on the fee requirements. This fee is to be added to the amount owed by the assessee.

2372. SUGGESTED PROPERTY FOR LEVY OF A MONEY JUDGMENT
Typical properties that creditors obtain money judgments against:

1) A "till tap" of a business concern;

2) Automobiles, boats or aircraft. Make a prior determination of any lienholders before requesting a levy on these properties. This can be verified through the Secretary of the State and UCC. For automobiles, see EXEMPTIONS M-2374 and M-2375;

3) Bank accounts;

4) Safety deposit boxes; and, 

5) Monies held in escrow by a title company

NOTE: Refer to Code of Civil Procedure section 700.030 et seq. or CEB (Continuing Education of the Bar) California Debt Collection Manual for other possible property or choices of action for levies.

2373. WRIT OF POSSESSION
This is used to obtain actual possession of personal or real property and is generally not used by tax collectors. See the county legal officer if possession of specific property is desired.

2374. SALE OF LEVIED PROPERTIES

The county enforcement officer, under local procedures, can provide for a sale of levied properties (Code Civ. Proc. §§701.520, 701.630 et seq.).

2375. EXEMPTIONS
Earnings and many items of property are subject to exemptions under a writ of execution or other enforcement of judgment, including:

1) Motor vehicles – up to $2,300 (Code Civ. Proc. §704.010);

2) Household furnishings and personal effects (Code Civ. Proc. §704.020);

3) Materials that are to be applied to the repair or improvement of a residence – up to $2,425 (Code Civ. Proc. §704.030);

4) Jewelry, heirlooms, and works of art – the aggregate, up to $6,075 (Code Civ. Proc. §704.040);

5) Health aids (Code Civ. Proc. §704.050);

6) Tools of a trade – up to $6,075 ($12,150 if the judgment debtor and the spouse exercise the same trade) (Code Civ. Proc. §704.060);

7) Deposit account for Social Security – There are several exemption amounts, depending on the circumstances; see Code Civ. Proc. §704.080 to determine the amount of the exemption;

8) Life insurance policies – A loan value of up to $9,700 is also exempt (Code Civ. Proc. §704.100);

9) Public retirement benefits (Code Civ. Proc. §704.110);

10) Homestead or primary residence – from $75,000 to $175,000 (Code Civ. Proc. §704.730);

11) Paid earnings, subject to withholding for child support (Code Civ. Proc. §704.070);

12) Funds held in trust for an inmate of a correctional facility – up to $1,225 (Code Civ. Proc. §704.090);

13) Vacation credits accumulated by a state employee (Code Civ. Proc. §704.113);

14) Private pension plan (Code Civ. Proc. §704.115);

15) Unemployment compensation (Code Civ. Proc. §704.120);

16) Disability or health insurance benefits (Code Civ. Proc. §704.130); and,

17) Workers’ compensation awards (Code Civ. Proc. §704.160).

NOTE: These exemptions do not apply to seizures under Revenue and Taxation Code section 2951, except that seizure of real property (other than possessory interests or improvements) is not authorized (Code Civ. Proc. §703.010).

2376. RECOVERY OF ADDITIONAL COST 
Government Code section 6103.5 requires the clerk of the court to include in the judgment the amount of the filing fee. No interest (M-2332) is charged on this fee (M-2327).

Revenue and Taxation Code section 3005 requires that costs to which a sheriff, marshal, or constable is entitled must be made part of the judgment. Upon payment, such costs are deposited in the county general fund. The court clerk's attention should be directed to these provisions to assure that costs are included in any judgment rendered (Rev. & Tax. Code §3005).

The prevailing party in any action in a small claims court is entitled to costs of the action and costs of executing the judgment. Costs include service of the order for the defendant’s appearance (Code Civ. Proc. §116.610(g)).