Protections for State Militia

Chapter 7.5 of Part 1 of Division 2 of the California Military and Veterans Code provides specified protections to the state militia. Section 400 defines the following terms: “armed forces,” “military orders,” “military service,” and “service member.”

Section 401 provides that 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 does not itself provide the basis for 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, or other credit transactions between a creditor and the service member in three specified situations.

A person is prohibited from falsely claiming to be a member or civilian employee of the Armed Forces, or 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. A person cannot condition the receipt of a military or veteran discount, in any form, on the waiver by a recipient of the discount of any right the person has under state or federal law. Any such waiver is void.

Any person violating any provision of this section is liable for actual damages, reasonable attorney’s fees, and costs incurred by the injured party. Any person violating any provision of this section is guilty of a misdemeanor, and is punishable by imprisonment not to exceed one year or by a fine not to exceed $1,000, or both.

Section 402 provides that, in any action or proceeding commenced in any court, if there is a default of any appearance by the defendant, the plaintiff, before entering judgment must file in the court a declaration under penalty of perjury setting forth facts showing that the defendant is not in the military service.

If an attorney appointed under this section to represent a service member cannot locate the service member, actions by the attorney in the case cannot waive any defense of the service member or otherwise bind the service member. 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 they may suffer by reason of any judgment should the judgment be thereafter set aside in whole or in part. The court may make other orders or enter that judgment as in its opinion is necessary to protect the rights of the defendant under this section.

In an action covered by this section in which the defendant is in military service, the court is required to grant a stay of proceedings for a minimum period of 90 days under this subdivision 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, after due diligence, counsel has been unable to contact the defendant or otherwise determine if a meritorious defense exists.

If judgment is 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 their military service in making their defense thereto, the judgment may, upon application made by the service member or their 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 their legal representative let in to defend; provided the application states a meritorious or legal defense to the action or some part thereof. 

A defendant is deemed “in the military service” if they are currently in the military service or were in the military service within the preceding 120 days.

Section 403 provides that, at any stage in any action or proceeding in which a service member is involved, either as plaintiff or defendant, during a period of military service or within 120 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 their 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 their defense is not materially affected by reason of their military service.

Any stay of any action, proceeding, attachment, or execution ordered by any court under this section may 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.

Section 404 prohibits the period of military service from being included in computing any period 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 their 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.

Section 405 provides that no obligation or liability bearing interest at a rate in excess of 6% per year incurred by a service member before that person’s current period of military service must bear interest at a rate in excess of 6% per year as specified. The term “interest” is defined.

Section 406 prohibits any eviction or distress from being made during the period of military service until 120 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. Any person violating this section is liable for actual damages, reasonable attorney’s fees, and costs incurred by the injured party.

Section 407 specifies that 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 into a period of military service, must 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, or for 120 days thereafter, except by action in a court of competent jurisdiction.

Section 408 states that this section only applies 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. In any proceeding commenced in any court during, or within one year after, the period of military service to enforce that obligation, the court may, after hearing and in its discretion on its own motion, 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, either stay the proceedings or make any other disposition of the case.

Section 408.1 defines the term “covered member.” A security interest in personal property other than a motor vehicle, off-highway vehicle, trailer, vessel, or aircraft is void, and cannot be perfected, if it would cause a loan procured by a covered member in the course of purchasing the personal property to be exempt from the requirements of federal law.

Section 409 allows the lessee on a lease, at the lessee’s option, to terminate the lease at any time after the lessee’s entry into military service, or the date of the lessee’s military orders. A lessee’s termination of a lease pursuant to this subdivision terminates any obligation a dependent of the lessee has under the lease. This section applies to specified types of leases.

Termination of a lease is 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 409.1 specifies that, when a 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, an assignee of the policy, except the insurer in connection with a policy loan, is prohibited from, 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.

A person is prohibited from exercising any right to foreclose or enforce any lien on the property or personal effects of a service member, including liens for storage, repair, or cleaning, during that person’s period of military service and for 120 days thereafter, except upon an order previously granted by a court upon application therefor and a return thereto made and approved by the court. In a proceeding to foreclose or enforce a lien subject to this section, the court may on its own motion, or if requested by a service member whose ability to comply with the obligation resulting in the proceeding is materially affected by military service, stay the proceeding for a period of time as justice and equity require, or adjust the obligation to preserve the interests of all parties.

Section 409.2 applies this section when any taxes or assessments, whether general or special, other than taxes on income, whether falling due prior to or during their most current 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 their dependents at the commencement of the service member’s most current period of military service and still so occupied by the service member’s dependents or employees are not paid.

Section 409.3 allows a service member, at any time during their most current period of military service or within six months thereafter, to petition a court for relief in respect of any obligation or liability incurred by the service member before the effective date of the orders for their most current period of military service or in respect of any tax or assessment whether falling due before or during their most current period of military service.

Section 409.4 provides that a person who by reason of military service is entitled to the rights and benefits of this chapter is also entitled upon release from that current period of military service to reinstatement of any health insurance that was in effect on the day before the current period of service commenced, and was terminated effective on a date during the period of the service.

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, 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 specified conditions apply.

Section 409.5 provides that dependents of a service member are entitled to the benefits accorded to service members upon application to a court, 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.

Section 409.6 states that the collection from any service member of any tax on the income of the person, whether falling due prior to or during their period of military service, must be deferred for a period extending not more than six months after the termination of their period of military service if the person’s ability to pay the tax is materially impaired by reason of the service.

Section 409.7 provides that, 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 is required to enter judgment or make an order as might lawfully be entered or made, notwithstanding any contrary provision of this chapter.

Section 409.8 states that, 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 is prima facie evidence as to any of the six specified facts stated in that certificate. It is the duty of the authorized officer to furnish that certificate on application, and any certificate is prima facie evidence of its contents and of the authority of the signer to issue the certificate.

Section 409.9 states that 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.

Section 409.10 contains a severability clause. Section 409.11 contains a statement of legislative intent that qualification for the benefits and protections conferred upon service members apply retroactively to September 11, 2001.

Section 409.13 provides that any principal and interest on any financial obligation or liability bearing interest and incurred by a member of the California National Guard or their surviving spouse, or surviving domestic partner, 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, must be deferred for a period of six months after the death of the member without penalty or accrual of any additional interest. This section defines the terms “interest” and “beneficiary.” This section only applies to three specified individuals.

Section 409.14 prohibits a service member or other person seeking to enforce rights pursuant to this chapter from being required to pay a filing fee or court costs.

Section 409.15 provides that any person who receives a good faith request from a service member for relief and who believes the request is incomplete or otherwise not legally sufficient, or that the service member is not entitled to the relief requested, is required to provide, within 30 days of the request, the service member with a written response acknowledging the request, setting forth the person’s basis for believing or asserting that the request is incomplete or not legally sufficient, or that the service member is not entitled to the relief requested.