400-409.14
MILITARY AND VETERANS CODE
SECTION 400-409.14
400. For purposes of this chapter, the following definitions apply: (a) "Service member" means both of the following: (1) Officers and enlisted members of the National Guard called or ordered into active state service by the Governor pursuant to the provisions of Section 143 or 146 or into active federal service by the President of the United States pursuant to Title 10 or 32 of the United States Code. (2) Reservists of the United States Military Reserve who have been called to full-time active duty. (b) "Military service" means full-time active state service or full-time active federal service, as defined in paragraph (1) of subdivision (a), or full-time active duty of a reservist, as defined in paragraph (2) of subdivision (a), for a period in excess of seven days in any 14-day period. For any service member who has been called to active service or duty since September 11, 2001, to engage in homeland defense against terrorism, his or her days of service prior to the effective date of this section shall be credited toward this seven-day period. 401. (a) Application by a service member for, or receipt by a service member of, a stay, postponement, or suspension pursuant to this chapter in the payment of any tax, fine, penalty, insurance premium, or other civil obligation or liability of that person shall not itself, without regard to other considerations, provide the basis for any of the following: (1) A determination by any lender or other person that the service member is unable to pay any civil obligation or liability in accordance with its terms. (2) With respect to a credit transaction between a creditor and the service member, any of the following: (A) A denial or revocation of credit by the creditor. (B) A change by the creditor in the terms of an existing credit arrangement. (C) A refusal by the creditor to grant credit to the service member in substantially the amount or on substantially the terms requested. (3) An adverse report relating to the creditworthiness of the service member by or to any person or entity engaged in the practice of assembling or evaluating consumer credit information. (4) A refusal by an insurer to insure the service member. (b) Any person violating any provision of this section is liable for actual damages, reasonable attorney's fees, and costs incurred by the injured party. (c) Any person violating any provision of this section is guilty of a misdemeanor, and shall be punishable by imprisonment not to exceed one year or by a fine not to exceed one thousand dollars ($1,000), or both. 402. (a) In any action or proceeding commenced in any court, if there shall be a default of any appearance by the defendant, the plaintiff, before entering judgment shall file in the court a declaration under penalty of perjury setting forth facts showing that the defendant is not in the military service. If unable to file that declaration, the plaintiff shall, in lieu thereof, file a declaration setting forth either that the defendant is in the service or that the plaintiff is not able to determine whether or not the defendant is in the service. If a declaration is not filed showing that the defendant is not in the military service, no judgment shall be entered without first securing an order of court directing that entry, and no order shall be made if the defendant is in the military service until after the court appoints an attorney to represent the defendant and protect his or her interest, and the court shall, on application, make that appointment. Unless it appears that the defendant is not in the military service the court may require, as a condition before judgment is entered, that the plaintiff file a bond approved by the court conditioned to indemnify the defendant, if in the military service, against any loss or damage that he or she may suffer by reason of any judgment should the judgment be thereafter set aside in whole or in part. The court may make such other and further order or enter that judgment as in its opinion may be necessary to protect the rights of the defendant under this section. (b) Any person who shall, for purposes of this section, make or use a declaration declared to be true under penalty of perjury, knowing it to be false, is guilty of a misdemeanor and shall be punishable by imprisonment not to exceed one year or by a fine not to exceed one thousand dollars ($1,000), or both. That person also is liable for actual damages, reasonable attorney's fees, and costs incurred by the injured party. (c) In any action or proceeding in which a service member is a party, if the service member does not personally appear therein or is not represented by an authorized attorney, the court may appoint an attorney to represent him or her. In that case a bond may be required and an order made to protect the rights of the service member. However, no attorney appointed under this chapter to protect a service member shall have the power to waive any right of the person for whom he or she is appointed or bind him or her by his or her acts. (d) If any judgment shall be rendered in any action or proceeding governed by this chapter against any service member during the period of that service or within 30 days thereafter, and it appears that the service member was prejudiced by reason of his or her military service in making his or her defense thereto, the judgment may, upon application made by the service member or his or her legal representative not later than 90 days after the termination of the service, be opened by the court rendering the same and the defendant or his or her legal representative let in to defend; provided the application states a meritorious or legal defense to the action or some part thereof. Vacating, setting aside, or reversing any judgment by reason of this chapter shall not impair any right or title acquired by any bona fide purchaser for value under that judgment. 403. (a) At any stage in any action or proceeding in which a service member is involved, either as plaintiff or defendant, during the period of military service or within 60 days thereafter, the court may, in its discretion on its own motion, and shall, on application to it by the service member or some person on his or her behalf, stay the 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 or her defense is not materially affected by reason of his or her military service. (b) When an action for compliance with the terms of any contract is stayed pursuant to this section, no fine or penalty shall accrue by reason of failure to comply with the terms of the contract during the period of the stay, and in any case where a person fails to perform any obligation and if a fine or penalty for the nonperformance is incurred a court may, on those terms as may be just, provide relief against the enforcement of that fine or penalty if it appears that the person who would suffer by that fine or penalty was in the military service when the penalty was incurred and that by reason of military service the ability of the person to pay or perform was thereby materially impaired. (c) In any action or proceeding against a service member, before or during the period of the service, or within 60 days thereafter, the court may, in its discretion on its own motion, or shall, upon application to it by the service member or some person on his or her behalf, unless in the opinion of the court the ability of the defendant to comply with the judgment or order entered or sought is not materially affected by reason of his or her military service, do either of the following: (1) Stay the execution of any judgment or order entered against a service member. (2) Vacate or stay any attachment or garnishment of property, money, or debts in the hands of another, whether before or after judgment. (d) Any stay of any action, proceeding, attachment, or execution ordered by any court under this section may, except as otherwise provided, be ordered for the period of military service and three months thereafter or any part of that period, and subject to those terms as may be just, including terms with respect to payment in installments of those amounts at those times as the court may fix. If the service member is a codefendant with others the plaintiff may nevertheless, by leave of court, proceed against the others. 404. (a) The period of military service shall not be included in computing any period now or hereafter to be limited by any law, regulation, or order for the bringing of any action or proceeding in any court, board, bureau, commission, department, or other agency of government by or against any service member or by or against his or her heirs, executors, administrators, or assigns, whether the cause of action or the right or privilege to institute the action or proceeding accrued prior to or during the period of service, nor shall any part of the period be included in computing any period now or hereafter provided by any law for the redemption of real property sold or forfeited to enforce any obligation, tax, or assessment. (b) This section shall not apply with respect to any period of limitation prescribed by or under the federal Internal Revenue Code. (c) Any person violating this section shall be liable for actual damages, reasonable attorney's fees, and costs incurred by the injured party. (d) Any person violating any provision of this section is guilty of a misdemeanor, and shall be punishable by imprisonment not to exceed one year or by a fine not to exceed one thousand dollars ($1,000), or both. 405. (a) No obligation or liability bearing interest at a rate in excess of 6 percent per year incurred by a service member before that person's entry into service shall, during any part of the period of military service, bear interest at a rate in excess of 6 percent per year unless, in the opinion of the court, upon application thereto by the obligee, the ability of the service member to pay interest upon that obligation or liability at a rate in excess of 6 percent per year is not materially affected by reason of that service, in which case the court may make that order as in its opinion may be just. As used in this section, "interest" includes service charges, renewal charges, fees, or any other charges, except bona fide insurance, in respect of any obligation or liability. (b) Any person violating this section shall be liable for actual damages, reasonable attorney's fees, and costs incurred by the injured party. 406. (a) No eviction or distress shall be made during the period of military service specified in Section 400, during which a service member is called to active state service pursuant to Section 143 or 146 or active federal service pursuant to Title 10 or 32 of the United States Code or active duty, until 30 days after the service member is released from active service or duty if the premises are occupied primarily for dwelling purposes by the spouse, children, or other dependents of a service member, except upon leave of court granted upon application therefor or granted in an action or proceeding affecting the right of possession. (b) On any application or in any action under this section, the court may on its own motion, and shall, on application, stay the proceedings for the period specified in subdivision (a) or rather than granting a complete stay, the court may require the tenant to make regular partial payments during the service member's period of military service, or the court may make any other order that it finds to be just, unless the court finds that the ability of the tenant to pay the agreed rent is not materially affected by that military service. Where that stay is made by the court, the owner of the premises shall be entitled, upon application therefor, to relief in respect of those premises similar to that granted persons in military service in Sections 407, 408, and 409.1 to that extent and for that period as may appear to the court to be just. (c) Any person violating this section shall be liable for actual damages, reasonable attorney's fees, and costs incurred by the injured party. (d) Any person who knowingly takes part in any eviction or distress as provided in this section or who attempts to do so, is guilty of a misdemeanor, and shall be punishable by imprisonment not to exceed one year or by a fine not to exceed one thousand dollars ($1,000), or both. 407. (a) No person who has received, or whose assignor has received, under a contract for the purchase of real or personal property, a deposit or installment of the purchase price, or a deposit or installment under the contract, from a person or from the assigner of a person who, after the date of payment of the deposit or installment, has entered military service, shall exercise any right or option under that contract to rescind or terminate the contract or resume possession of the property for nonpayment of any installment due or for any other breach of its terms occurring prior to or during the period of that military service, except by action in a court of competent jurisdiction. (b) Upon the hearing of that action as provided in subdivision (a), the court may order the repayment of prior installments or deposits or any part, as a condition of terminating the contract and resuming possession of the property, or may, in its discretion, on its own motion, and shall, on application to it by the service member or some person on the service member's behalf, order a stay of proceedings as the court deems just, unless in the opinion of the court, the ability of the defendant to comply with the terms of the contract is not materially affected by reason of the service; or it may make any other disposition of the case as may be equitable to conserve the interests of all parties. (c) Any person violating this section shall be liable for actual damages, reasonable attorney's fees, and costs incurred by the injured party. (d) Any person who shall knowingly resume possession of property that is the subject of this section in a manner other than as provided in subdivision (a), or attempts to do so, is guilty of a misdemeanor, and shall be punishable by imprisonment not to exceed one year or by a fine not to exceed one thousand dollars ($1,000), or both. 408. (a) This section shall apply only to obligations secured by mortgage, trust deed, or other security in the nature of a mortgage upon real or personal property owned by a service member at the commencement of the period of the military service and still so owned by the service member whose obligations originated prior to the person's period of military service. (b) In any proceeding commenced in any court during the period of military service to enforce that obligation as provided in subdivision (a) arising out of nonpayment of any sum due or out of any other breach of the terms of the mortgage, trust deed, or other security occurring prior to or during the period of the service the court may, after hearing and in its discretion on its own motion, and shall, on application to it by the service member or some person on the defendant's behalf, unless in the opinion of the court the ability of the defendant to comply with the terms of the obligation is not materially affected by reason of the defendant's military service, do either of the following: (1) Stay the proceedings for any period as the court deems just. (2) Make any other disposition of the case as may be equitable to conserve the interests of all parties. (c) No sale, foreclosure, or seizure of property for nonpayment of any sum due under any obligation as provided in subdivision (a), or for any other breach of the terms thereof, whether under a power of sale, under a judgment entered upon warrant of attorney to confess judgment contained therein, or otherwise, shall be valid if made during the period of military service or within three months thereafter, except pursuant to an agreement between the parties, unless upon an order previously granted by the court and a return thereto made and approved by the court. (d) Any person violating this section shall be liable for actual damages, reasonable attorney's fees, and costs incurred by the injured party. (e) Any person who shall knowingly make or cause to be made any sale, foreclosure, or seizure of property, defined as invalid by subdivision (c), or attempts to do so, is guilty of a misdemeanor, and shall be punishable by imprisonment not to exceed one year or by a fine not to exceed one thousand dollars ($1,000), or both. 409. (a) This section shall apply to any 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 a person who, after the execution of such lease, entered military service, as defined by Section 400. (b) Any lease, as provided in subdivision (a), may be terminated by notice in writing delivered to the lessor or to the lessor's agent by the lessee at any time following the date of the beginning of the period of military service. Delivery of this notice may be accomplished by placing it in an envelope properly stamped and duly addressed to the lessor or to the lessor's agent and depositing the notice in the United States mail. Termination of any lease providing for monthly payment of rent shall be effective on the last day of the month following notice and in any case, no more than 45 days after notice is provided to the lessor and payable subsequent to the date when the notice is delivered or mailed. In the case of all other leases, termination shall be effected on the last day of the month following the month in which the notice is delivered or mailed and, in that case, any unpaid rent for a period preceding termination shall be prorated and any rent paid in advance for a period succeeding termination shall be refunded by the lessor. Upon application by the lessor to the appropriate court prior to the termination period provided for in the notice, any relief granted in this paragraph shall be subject to any modification or restriction as in the opinion of the court justice and equity may, in the circumstances, require. (c) Any person who shall knowingly seize, hold, or detain the personal effects, clothing, furniture, or other property of any person who has lawfully terminated a lease covered by this section, or in any manner interfered with the removal of that property from the premises covered by that lease, for the purpose of subjecting or attempting to subject any of the property to a claim for rent accruing subsequent to the date of termination of the lease, or attempts to do so, is guilty of a misdemeanor, and shall be punishable by imprisonment not to exceed one year or by a fine not to exceed one thousand dollars ($1,000), or both. 409.1. (a) Where any life insurance policy on the life of a service member in military service has been assigned prior to that person's period of military service to secure the payment of any obligation of the person, no assignee of the policy, except the insurer in connection with a policy loan, shall, during the period of military service of the insured or within one year thereafter, except upon the consent in writing of the insured made during that period or when the premiums thereon are due and unpaid or upon the death of the insured, exercise any right or option by virtue of that assignment unless upon leave of court granted upon an application made therefor by the assignee. The court may thereupon refuse to grant that leave unless in the opinion of the court the ability of the obligor to comply with the terms of the obligation is not materially affected by reason of his or her military service. (b) No person shall exercise any right to foreclose or enforce any lien for storage of household goods, furniture, or personal effects of a service member during that person's period of military service and for three months thereafter, except upon an order previously granted by a court upon application therefor and a return thereto made and approved by the court. In that proceeding the court may, after hearing, in its discretion on its own motion, and shall, on petition to it by a service member or some person on his or her behalf, unless in the opinion of the court the ability of the defendant to pay the storage charges due is not materially affected by reason of his or her military service, do either of the following: (1) Stay the proceedings as provided in this chapter. (2) Make that other disposition of the case as may be equitable to conserve the interest of all parties. This section shall not be construed in any way as affecting or as limiting the scope of Section 408. (c) Any person violating this section shall be liable for actual damages, reasonable attorney's fees, and costs incurred by the injured party. (d) A person violating any provision of this section is guilty of a misdemeanor, and shall be punishable by imprisonment not to exceed one year or by a fine not to exceed one thousand dollars ($1,000), or both. 409.2. (a) This section shall apply when any taxes or assessments, whether general or special, other than taxes on income, whether falling due prior to or during the period of military service, in respect of personal property, money, or credits, or real property owned and occupied for dwelling, professional, business, or agricultural purposes by a service member or his or her dependents at the commencement of the service member's period of military service and still so occupied by the service member's dependents or employees are not paid. (b) No sale of this property shall be made to enforce the collection of any tax or assessment, or any proceeding or action commenced for that purpose, except upon leave of court granted upon application made therefor by the collector of taxes or other officer whose duty it is to enforce the collection of taxes or assessments. The court thereupon, unless in its opinion the ability of the service member to pay the taxes or assessments is not materially affected by reason of that service, may stay the proceedings or sale, as provided in this section, for a period extending not more than six months after the termination of the period of military service. (c) When by law this property may be sold or forfeited to enforce the collection of any tax or assessment, the service member shall have the right to redeem or commence an action to redeem that property, at any time not later than six months after the termination of the period of military service. (d) Whenever any tax or assessment shall not be paid when due, the tax or assessment due and unpaid shall bear interest until paid at the rate of 6 percent per year, and no other penalty or interest shall be incurred by reason of that nonpayment. Any lien for any unpaid taxes or assessment shall also include that interest thereon. 409.3. (a) A service member may, at any time during his or her period of military service or within six months thereafter, petition a court for relief in respect of any obligation or liability incurred by the service member prior to his or her period of military service or in respect of any tax or assessment whether falling due prior to or during his or her period of military service. (b) The court shall set a hearing on the petition within 25 days from the date the petition is filed, unless the court shows good cause for extending the date of the hearing. The petition shall be served at least 10 days before the hearing. The respondent shall file and serve a response to the petition at least five days before the hearing. (c) The court shall not charge a filing fee or court costs for a petition filed pursuant to this section. (d) The court, after notice and hearing, unless in its opinion the ability of the petitioner to comply with the terms of the obligation or liability or to pay the tax or assessment has not been materially affected by reason of his or her military service, may grant the following relief: (1) In the case of an obligation payable under its terms in installments under a contract for the purchase of real estate, or secured by a mortgage or other instrument in the nature of a mortgage upon real estate, a stay of the enforcement of the obligation during the applicant's period of military service and, from the date of termination of the period of military service or from the date of application if made after the service, for a period equal to the period of the remaining life of the installment contract or other instrument plus a period of time equal to the period of military service of the applicant or any part of the combined period, subject to payment of the balance of principal and accumulated interest due and unpaid at the date of termination of the period of military service or from the date of application, as the case may be, in equal installments during the combined period at the rate of interest on the unpaid balance as is prescribed in the contract, or other instrument evidencing the obligation, for installments paid when due, and subject to any other terms as may be just. (2) In the case of any other obligation, liability, tax, or assessment, a stay of the enforcement thereof during the applicant's period of military service and, from the date of termination of the period of military service or from the date of application if made after the service, for a period of time equal to the period of military service of the applicant or any part of that period, subject to payment of the balance of principal and accumulated interest due and unpaid at the date of termination of the period of military service or the date of application, as the case may be, in equal periodic installments during the extended period at the rate of interest as may be prescribed for the obligation, liability, tax, or assessment, if paid when due, and subject to any other terms as may be just. (e) (1) When any court has granted a stay as provided in this section, no fine or penalty shall accrue during the period the terms and conditions of the stay are complied with by reason of failure to comply with the terms or conditions of the obligation, liability, tax, or assessment in respect of which the stay was granted. (2) If a person has charged or accrued a fine or penalty in violation of paragraph (1), that person shall be liable for actual damages, reasonable attorney's fees, and costs incurred by the injured party as a result of the violation. (f) Nothing in this section shall permit a service member ordered to military service to obtain a delay, deferment, or stay on an obligation to pay child support. Nothing in this section shall preclude a service member ordered to military service from seeking a modification of an order to pay child support due to a reduction in income resulting from the order to service, or from seeking the imposition of the maximum interest rate provided by this chapter on arrearages in child support payments existing prior to the order to service. 409.4. (a) A person who by reason of military service is entitled to the rights and benefits of this chapter shall also be entitled upon release from that military service to reinstatement of any health insurance that was in effect on the day before the service commenced, and was terminated effective on a date during the period of the service. (b) An exclusion or a waiting period may not be imposed in connection with reinstatement of health insurance coverage of a health or physical condition of a person under subdivision (a), or a health or physical condition of any other person who is covered by the insurance by reason of the coverage of that person, if any of the following apply: (1) The condition arose before or during that person's period of service. (2) An exclusion or waiting period would not have been imposed for the condition during a period of coverage resulting from participation by that person in the insurance. (3) The condition of the person has not been determined by the Secretary of Veterans Affairs to be a disability incurred or aggravated in the line of duty within the meaning of Section 105 of Title 38 of the United States Code. (c) Any person violating this section shall be liable for actual damages, reasonable attorney's fees, and costs incurred by the service member or other person entitled to the benefits and protections of this chapter. 409.5. Dependents of a service member shall be entitled to the benefits accorded to service members under Sections 406 to 409.4, inclusive, upon application to a court therefor, unless in the opinion of the court the ability of the dependents to comply with the terms of the obligation, contract, lease, or bailment has not been materially impaired by reason of the military service of the person upon whom the applicants are dependent. 409.6. The collection from any service member of any tax on the income of the person, whether falling due prior to or during his or her period of military service, shall be deferred for a period extending not more than six months after the termination of his or her period of military service if the person's ability to pay the tax is materially impaired by reason of the service. No interest on any amount of tax, collection of which is deferred for any period under this chapter, and no penalty for nonpayment of the amount during that period, shall accrue for any period of deferment by reason of that nonpayment. The running of any statute of limitations against the collection of any tax by distraint or otherwise shall be suspended for the period of military service of any individual the collection of whose tax is deferred under this section, and for an additional period of nine months beginning with the day following the period of military service. 409.7. Where in any proceeding to enforce a civil right in any court, it is made to appear to the satisfaction of the court that any interest, property, or contract has been transferred or acquired since the effective date of this chapter with the intent to delay the just enforcement of that right by taking advantage of the benefits provided under this chapter, the court shall enter judgment or make an order as might lawfully be entered or made, notwithstanding any contrary provision of this chapter. 409.8. (a) In any proceeding under this chapter, a certificate signed by an appropriately authorized officer of the military department, branch, or unit in which a service member is serving shall be prima facie evidence as to any of the following facts stated in that certificate: (1) That a person named has not been, or is, or has been in the military service. (2) The time when and the place where the person entered military service. (3) The person's residence at that time, and the rank, branch, and unit of the service that the person entered. (4) The dates within which the person was in the military service. (5) The monthly pay received by the person at the date of issuing the certificate. (6) The time when and the place where the person died in or was discharged from the service. (b) It shall be the duty of the authorized officer to furnish that certificate on application, and any certificate, when purporting to be signed by an officer purporting on the face of the certificate to have been so authorized, shall be prima facie evidence of its contents and of the authority of the signer to issue the certificate. (c) Where a person in military service has been reported missing, he or she shall be presumed to continue in the service until accounted for, and no period herein limited which begins or ends with the death of the person shall begin or end until the death of the person is in fact reported to or found by the United States Department of Defense or any court or board thereof, or the Military Department or any court or board thereof, or until the person's death is found by a court of competent jurisdiction. 409.9. Any interlocutory order made by any court under the provisions of this chapter may, upon the court's own motion or otherwise, be revoked, modified, or extended by it upon notice to the parties affected as it may require. 409.10. The provisions of this chapter are severable. If any provision of this chapter or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application. 409.11. It is the intent of the Legislature that qualification for the benefits and protections conferred upon service members, as defined by Section 400, by this chapter apply retroactively to September 11, 2001. However, it is also the intent of the Legislature that the benefits and protections that attach to qualified service members under this chapter apply only on a prospective basis. 409.13. (a) To the extent permitted by federal law and the California Constitution, any principal and interest on any financial obligation or liability bearing interest and incurred by a member of the California National Guard or his or her surviving spouse, or any principal and interest on any financial obligation or liability bearing interest incurred by a member of the California National Guard for which the beneficiary of that member is liable, shall be deferred for a period of six months after the death of the member without penalty or accrual of any additional interest. (b) For purposes of this section, the following terms have the following meanings: (1) "Interest" includes service charges, renewal charges, fees, or any other charges with respect to any obligation or liability. (2) "Beneficiary" means a beneficiary of the deceased member of the California National Guard who is or has become, after the member' s death, liable for any of the member's financial obligations or liabilities bearing interest. (c) This section shall only apply: (1) To a member of the California National Guard that is killed in the line of duty in the service of the state or federal government. (2) When a member's surviving spouse or other beneficiary provides written notice of the death of the member to the financial institution to which he or she is liable and from which he or she is requesting deferral of interest and payments as set forth in this section. (3) To a financial obligation or liability bearing interest that was created between a private entity and a member of the California National Guard or his or her surviving spouse, or to a financial obligation or liability bearing interest that was created between a private entity and a member of the National Guard for which the beneficiary of that member is liable, before that member's entry into service. 409.14. A service member or other person seeking to enforce rights pursuant to this chapter shall not be required to pay a filing fee or court costs.