California Modifies Provisions Regarding Service Member Protections
The State of California modified its provisions relating to service member protections under its Military and Veterans Code. These provisions are effective on January 1, 2019.
Section 3 of the amendment provides that an application or receipt by a service member of a stay, postponement, or suspension in the payment of any tax, fine, penalty, insurance premium, or other civil obligation or liability of that person does not itself, without regard to other considerations, provide a basis for an annotation in a service member’s record by a creditor or a person engaged in the practice of assembling or evaluating consumer credit information identifying the service member as a member of the active militia, or an active or reserve component of the Armed Forces.
The amendment prohibits a person, in connection with the collection of any obligation, including any debt or payment, from falsely claiming to be a member or civilian employee of the Armed Forces, a component of the active militia, the Department of Defense, the Department of Homeland Security, or identifying himself or herself through the use of any military rank, rating, or title.
The amendment further prohibits a person, in connection with the collection of any obligation from a member of the active militia or a member of the active or reserve components of the Armed Forces, from contacting the member’s military unit or chain of command without the written consent of the member given after the obligation becomes due and payable.
Under existing law, if the defendant is in the military service, a court may not make an order until after the court appoints an attorney to represent the defendant to protect his or her interests. Section 4 of the amendment prohibits any action by the attorney in the case from waiving any defense of the service member or otherwise binding the service member if the attorney appointed to represent a service member cannot locate the service member.
Additionally, in an action where the defendant is in military service, the court shall grant a stay of proceedings for a minimum period of 90 days upon application of counsel, or on the court’s own motion, if the court determines that there may be a defense to the action and a defense cannot be presented without the presence of the defendant, or, where after due diligence, counsel is unable to contact the defendant or otherwise determine if a meritorious defense exists.
Under current law, the court may at any stage in any action or proceeding in which a service member is involved, during the period of military service or 60 days thereafter, stay an action or proceeding unless, in the opinion of the court, the ability of the plaintiff to prosecute the action or the defendant to conduct his defense is not materially affected by reason of his or her military service.
Section 5 extends these protections to 120 days after the period of military service. Furthermore, the amendment authorizes a service member who is granted a stay of a civil action or proceeding to apply for an additional stay based on continuing material effect of military duty on the service member’s ability to appear. If the court refuses to grant an additional stay of proceedings, it shall appoint counsel to represent the service member in the action or proceeding.
Section 7 prohibits an obligation or liability incurred by a service member before that person’s current period of military service from bearing interest at a rate in excess of 6% per year. The amendment extends the prohibition, for an obligation or liability consisting of a student loan, to one year after the period of military service. The amendment also extends the prohibition, for an obligation that does not consist of a student loan, mortgage, trust deed, or other security in the nature of a mortgage, to 120 days after the period of military service.
Section 12 authorizes a person to terminate a lease covering premises occupied for dwelling, professional, business, agricultural, or similar purposes in any case in which the lease was executed by or on the behalf of the person who, after the execution of that lease, entered military service, as specified. The amendment also authorizes a person to terminate a lease of a motor vehicle, as specified.
Termination of a lease shall be made by delivery by the lessee of written notice of that termination, and a copy of the service member’s military orders, to the lessor or the lessor’s grantee, or to the lessor’s agent or the agent’s grantee, and in the case of a lease of a motor vehicle, by return of the motor vehicle by the lessee to the lessor or the lessor’s grantee, or to the lessor’s agent or the agent’s grantee, not later than 15 days after the date of the delivery of written notice.
Section 17 requires any person who receives a good faith request from a service member for relief pursuant to any of the provisions described above and who believes the request is incomplete or otherwise not legally sufficient or that the service member is not entitled to the relief requested, to, within 30 days of the request, provide the service member with a written response acknowledging the request, as specified. If the person fails to make such a response in the timeframe set above, the person waives any objection to the request, and the service member shall be entitled to the relief requested.
Section 29 incorporates amendments to Section 800 of the Military and Veterans Code proposed by Assembly Bill 2521 to be operative only if this bill and Assembly Bill 2521 are enacted and this bill is enacted last.
Section 6 of Article XIII B of the California Constitution requires the State to reimburse local agencies and school districts for certain costs mandated by the State. Statutory provisions establish procedures for making that reimbursement. Section 30 provides that no reimbursement is required by this act for a specified reason.
Rhona Kyeyune, LLM, is a regulatory compliance consultant with CLA. She is a graduate of Makerere University and earned her master of laws at Boston University School of Law.
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