BILL ANALYSIS                                                                                                                                                                                                    Ó






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          |SENATE RULES COMMITTEE            |                       AB 1267|
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                                   THIRD READING 


          Bill No:  AB 1267
          Author:   Bloom (D)
          Amended:  4/27/15 in Assembly
          Vote:     21  

           SENATE JUDICIARY COMMITTEE:  7-0, 6/16/15
           AYES:  Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning,  
            Wieckowski

           ASSEMBLY FLOOR:  76-0, 5/7/15 - See last page for vote

           SUBJECT:   Lawsuits, liens, and other encumbrances


          SOURCE:    Anti-Defamation League


          DIGEST:  This bill prohibits a person from filing or recording a  
          lawsuit, lien, or other encumbrance against any person or  
          entity, knowing that it is false, with the intent to harass the  
          person or entity or, in the case of a public officer or  
          employee, to influence or hinder the person in discharging his  
          or her official duties.  This bill authorizes a court to issue a  
          civil penalty not to exceed $5,000 for violating the  
          prohibition, and allows any person or entity subject to a lien  
          or other encumbrance filed or recorded in violation of the  
          prohibition to petition the superior court for an order  
          directing the claimant to show cause why the lien or other  
          encumbrance should not be stricken and other relief should not  
          be granted.


          ANALYSIS:   Existing federal law provides that whoever files,  








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          attempts to file, or conspires to file, in any public record or  
          in any private record which is generally available to the  
          public, any false lien or encumbrance against the real or  
          personal property of an officer or employee of the United States  
          or of any agency in any branch of the United States Government,  
          as specified, on account of the performance of official duties  
          by that individual, knowing or having reason to know that such  
          lien or encumbrance is false or contains any materially false,  
          fictitious, or fraudulent statement or representation, shall be  
          fined or imprisoned for not more than 10 years, or both.  (18  
          U.S.C. Sec. 1521.)

          Existing state law:

          1)Provides that every person who knowingly procures or offers  
            any false or forged instrument to be filed, registered, or  
            recorded in any public office within this state, which  
            instrument, if genuine, might be filed, registered, or  
            recorded under any law of this state or of the United States,  
            is guilty of a felony.  (Pen. Code. Sec. 115(a).)

          2)Authorizes the awarding of sanctions against a party who, when  
            filing a pleading, petition, written notice of motion, or  
            other similar paper with a court, falsely certifies that,  
            among other things, the filing is not being presented  
            primarily for an improper purpose, such as to harass or to  
            cause unnecessary delay or needless increase in the cost of  
            litigation.  (Code Civ. Proc. Sec. 128.7.)

          3)Provides that a county recorder shall not refuse to record any  
            instrument, paper, or notice that is authorized or required by  
            statute, court order, or local ordinance that relates to the  
            recordation of any instrument, paper, or notice that relates  
            to real property to be recorded on the basis of its lack of  
            legal sufficiency.  (Gov. Code Sec. 27201(a).)

          4)States that no person shall file or record a lawsuit, lien, or  
            other encumbrance, including, but not limited to, a notice of  
            lis pendens, against a public officer or employee, knowing it  
            is false, with the intent to harass the officer or employee or  
            to influence or hinder the public officer or employee in  
            discharging his or her official duties.  Existing law  
            specifies that this prohibition applies only to lawsuits,  
            liens, or other encumbrances pertaining to actions that arise  







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            in the course and scope of the public officer's or employee's  
            duties, and that a person who knowingly records or files, or  
            directs another to record or file, a lawsuit, lien, or  
            encumbrance in violation of this prohibition shall be liable  
            for a civil penalty not to exceed $5,000.  (Gov. Code Sec.  
            6223.)

          5)Provides that a public officer or employee whose property is  
            subject to a lien or other encumbrance in violation of the  
            above provision may petition the superior court of the county  
            in which the person resides or in which the property is  
            located for an order, which may be granted ex parte, directing  
            the lien or other encumbrance claimant to appear at a hearing  
            before the court and show cause why the lien or other  
            encumbrance should not be stricken and other relief should not  
            be granted, as specified.  Existing law states that the court  
            shall schedule the hearing no earlier than 14 days after the  
            date of the order.  (Code Civ. Proc. Sec. 765.010.)

          6)Provides that if the court determines that the lien or other  
            encumbrance is in violation of the above prohibition, the  
            court shall issue an order striking and releasing the lien or  
            other encumbrance and may award costs and reasonable attorney  
            fees to the petitioner to be paid by the lien or other  
            encumbrance claimant.  Existing law states that if the court  
            determines that the lien or other encumbrance is valid, the  
            court shall issue an order so stating and may award costs and  
            reasonable attorney fees to the encumbrance claimant to be  
            paid by the petitioner.  (Code Civ. Proc. Sec. 765.030.)

          7)Provides that any lien or encumbrance claimant who records or  
            files, or directs another to record or file, a lien or other  
            encumbrance in violation of the above prohibition shall be  
            liable to the owner of the property bound by the lien or other  
            encumbrance for a civil penalty of up to $5,000.  (Code Civ.  
            Proc. Sec. 765.040.)

          8)States that if a lien or other encumbrance is recorded or  
            filed in violation of the above prohibition, the state or  
            local agency that employs the public officer or employee may  
            provide counsel for the public officer or employee in an  
            action brought under these procedures.  (Code Civ. Proc. Sec.  
            765.060.)








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          This bill:

          1)Recasts and expands the above provisions to state that a  
            person shall not file or record, or direct another to file or  
            record, a lawsuit, lien, or other encumbrance, including a  
            notice of lis pendens, against another person or entity  
            knowing it is false, with the intent to harass the person or  
            entity or to influence or hinder the person in discharging his  
            or her official duties if the person is a public officer or  
            employee.

          2)Provides that a person or entity whose property is subject to  
            a lien or encumbrance in violation of the above provision may  
            petition the superior court of the county in which the person  
            or entity resides or in which the property is located for an  
            order, which may be granted ex parte, directing the lien or  
            other encumbrance claimant to appear at a hearing before the  
            court and show cause why the lien or other encumbrance should  
            not be stricken and other specified relief should not be  
            granted.

          3)Specifies that the court shall schedule the hearing no earlier  
            than 14 days after the date of the order, and that the  
            scheduled date of the hearing shall allow adequate time for  
            notice of the hearing.

          4)Defines "harass" to mean engaging in knowing and willful  
            conduct that serves no legitimate purpose, and "entity" to  
            mean both government and private entities.

          5)Makes other technical and conforming changes.

          Background


          According to a report by the Senate Office of Research from  
          September of 1997, anti-government extremists are engaging in  
          "paper terrorism" by filing false liens and other encumbrances  
          on the property of government agencies, public officers, and  
          public employees.  One anti-government ideology in particular -  
          known as the "sovereign citizen" movement - employs this tactic  
          frequently as a way to retaliate against perceived injustices.   
          A recent New York Times article states:








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            Sovereign citizens believe that in the 1800s, the federal  
            government was gradually subverted and replaced by an  
            illegitimate government.  They create their own driver's  
            licenses and include their thumbprints on documents to  
            distinguish their flesh and blood person from a "straw man"  
            persona that they say has been created by the false  
            government.  When writing their names, they often add  
            punctuation marks like colons or hyphens.  Adherents to the  
            movement have been involved in a host of debt evasion schemes  
            and mortgage and tax frauds.  (Erica Goode, In Paper War,  
            Flood of Liens Is the Weapon, New York Times (Aug. 23, 2013)  
             [as of  
            June 10, 2015].)

          In 1998, the Legislature passed SB 1759 (Ayala, Chapter 779,  
          Statutes of 1998) and SB 2154 (Schiff, Chapter 211, Statutes of  
          1998), which specifically prohibited the filing of false liens,  
          encumbrances, or lawsuits against public officials with the  
          intent to harass them or hinder the discharge of their duties.   
          These bills also enacted a fast-track process by which public  
          officials could petition the superior court for an order  
          directing the claimant to show cause why their lien or other  
          encumbrance should not be stricken, and to receive a hearing on  
          the court's show cause order no earlier than 14 days.

          This bill expands and recasts the prohibition on filing false  
          liens, encumbrances, or lawsuits to include all persons or  
          entities, and expands the fast-track process to allow any  
          aggrieved party against whom these false lawsuits, liens, or  
          other encumbrances have been filed to receive a hearing before a  
          court no earlier than 14 days of the court issuing a show cause  
          order.

          Comments
          
          The author writes:
          
            The sovereign citizen movement is an extreme anti-government  
            movement whose members believe our government has no authority  
            or jurisdiction over them and that they do not need to obey  
            its laws and regulations.  The movement dates back to 1970 but  
            has had a surge of popularity since 2009, accompanied by a  
            wide range of criminal activity that includes violence, scams  







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            and frauds. 

            One of the most popular sovereign citizen tactics is known as  
            paper terrorism, which refers to the use of bogus legal  
            documents and filings, or the misuse of legitimate ones, in  
            order to intimidate, harass, threaten, or retaliate against  
            public officials, law enforcement officers, or private  
            individuals.  Acts of paper terrorism can range from simple  
            and straightforward filings, such as frivolous lawsuits, to  
            more complex strategies, such as filing IRS forms that  
            fraudulently allege victims have been paid large sums of money  
            on which they declared no taxes.  The most popular paper  
            terrorism tactic is the use of bogus liens or other documents  
            to cloud title to property owned by victims.  Whatever the  
            ploy, the result creates serious legal and financial problems  
            for those targeted.

            The goal of AB 1267 is to further protect Californians from  
            paper terrorism by strengthening already existing laws.   
            California law already protects public officers and employees  
            who are targeted by these false encumbrances by allowing them  
            to utilize a fast track removal process.  AB 1267 extends such  
            protection to individuals and businesses so they may all use  
            this expedient process.  When public officers and employees  
            are targeted by a false encumbrance, they are entitled to seek  
            civil remedies (up to $5000).  AB 1267 permits individuals and  
            businesses to also pursue these remedies.

          The sponsor, Anti-Defamation League (ADL), states:

            Although the ADL is encouraged by the positive steps the State  
            of California has already taken to fortify existing paper  
            terrorism protections, there is more to do.  For instance,  
            California currently provides a fast track removal process and  
            civil remedies for false filings.  These code sections,  
            however, only apply to public officers and employees, while  
            sovereign citizens also target others.  AB 1267 expands these  
            protections to individuals - including the spouses and  
            relatives of public officers, as well as private citizens and  
            businesses.  This bill will bring California in line with the  
            ten states that currently provide a fast track removal process  
            to individuals and businesses, and the twenty-five states that  
            provide civil remedies for false filings.








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          Related/Prior Legislation
          
          SB 346 (Dutton, 2007) would have prohibited a person from filing  
          a lien or other encumbrance without providing evidence to a  
          recording clerk of the pendency of an action or the issuance of  
          a judgment upon which the lien is based, and would have required  
          the Secretary of State to revise the Uniform Commercial Code  
          Financing Statement (UCC-1) to require a lien claimant to attach  
          documentation sufficient to provide evidence of the pendency of  
          an action or the issuance of a judgment upon which the lien is  
          based, as specified.  The bill died in the Senate Judiciary  
          Committee.

          SB 1759 (Ayala, Chapter 779, Statutes of 1998) modified the  
          prohibitions enacted in SB 2154 (Schiff, Chapter 211, Statutes  
          of 1998) to specify that an encumbrance includes, but is not  
          limited to, a notice of lis pendens, and created an expedited  
          action, filed pursuant to a complaint form established by the  
          Judicial Council, requesting the striking or release of a lien  
          or other encumbrance recorded in violation of those  
          prohibitions.  The bill also prohibited consumer credit  
          reporting agencies from reporting a document which acts as a  
          lien or other encumbrance but which has together with it a court  
          order striking or releasing the lien or other encumbrance, as  
          specified.

          SB 2154 (Schiff, Chapter 211, Statutes of 1998) prohibited a  
          person from filing a lawsuit or recording or filing a lien or  
          other encumbrance, against a public officer or employee, knowing  
          it is false, with the intent to harass the officer or employee  
          or influence or hinder the public officer or employee in  
          discharging his or her official duties.  The bill specified that  
          the above provision would apply only to lawsuits, liens, or  
          other encumbrances pertaining to actions that arise in the  
          course and scope of the public officer's or employee's duties,  
          and provided that a person who violates these provisions would  
          be liable for a civil penalty not to exceed $5,000.

          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:NoLocal:    No


          SUPPORT:   (Verified6/16/15)








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          Anti-Defamation League (source)
          California District Attorneys Association
          California Police Chiefs Association
          California State Association of Counties Excess Insurance  
          Authority 


          OPPOSITION:   (Verified6/16/15)


          None received


          ASSEMBLY FLOOR:  76-0, 5/7/15
          AYES:  Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,  
            Bonilla, Bonta, Brough, Brown, Burke, Calderon, Chang, Chau,  
            Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly,  
            Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia,  
            Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray,  
            Grove, Hadley, Harper, Holden, Irwin, Jones, Jones-Sawyer,  
            Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis,  
            Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte,  
            O'Donnell, Olsen, Patterson, Perea, Quirk, Rendon,  
            Ridley-Thomas, Rodriguez, Salas, Santiago, Mark Stone,  
            Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood,  
            Atkins
          NO VOTE RECORDED:  Campos, Dodd, Roger Hernández, Steinorth

          Prepared by:Tobias Halvarson / JUD. / (916) 651-4113
          6/19/15 14:48:04


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