BILL NUMBER: AB 223 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 30, 2001
AMENDED IN SENATE AUGUST 22, 2001
AMENDED IN SENATE AUGUST 20, 2001
AMENDED IN SENATE JULY 12, 2001
AMENDED IN SENATE JUNE 20, 2001
AMENDED IN SENATE MAY 31, 2001
AMENDED IN ASSEMBLY APRIL 16, 2001
AMENDED IN ASSEMBLY MARCH 27, 2001
INTRODUCED BY Assembly Member Frommer
FEBRUARY 13, 2001
An act to amend Sections 425.10, 425.11, 489.220, 685.030,
720.160, 720.260, 877.6, 1013, 1134, 2017, 2025, 2026, 2033.5, and
2093 of the Code of Civil Procedure, to amend Section 915 of the
Evidence Code, to amend Sections 68502.5, 68511.3, 71629, 72055,
77001, 77003, 77009, 77202, 77206, and 77212, and to repeal Section
68113 of, the Government Code, and to amend Sections 1463.1,
4750, 4751, and 4753 Section 1463.1 of the
Penal Code, relating to courts.
LEGISLATIVE COUNSEL'S DIGEST
AB 223, as amended, Frommer. Evidence: depositions: forms:
discovery.
Existing law sets forth the required contents of a civil complaint
or cross-complaint, the right of a defendant to request a statement
of the nature and amount of damages sought, and the required amount
of an undertaking to obtain a release of an attachment or a
protective order, or to protect the rights of a 3rd-party creditor,
with regard to a writ of execution on a debtor's property.
This bill would make technical changes in these provisions and
increase the required amount of those undertakings, as specified.
Existing law authorizes the clerk of a court to enter in the
Register of Actions a writ of execution on a money judgment as wholly
satisfied when no more than $10 interest deficit exists in a limited
civil case, as specified.
This bill would extend that authorization to all civil cases
involving money judgments.
Existing law provides that a party may obtain discovery by taking
an oral deposition in another state of the United States, or in a
territory or an insular possession subject to its jurisdiction. The
deposition must be conducted under the supervision of a person
authorized to administer oaths by the laws of the United States or
before a person appointed by the court.
This bill would authorize the clerk of the court to issue a
commission authorizing the deposition in another state or place. The
commission would be issued to any party in any action pending in its
venue without a noticed motion or court order. The commission would
contain such terms as are required by the foreign jurisdiction to
initiate the process. If a court order is required by the foreign
jurisdiction, an order for a commission would be authorized to be
obtained by an ex parte application. The bill would also permit a
person to take, or attend, a deposition by telephone or other
electronic means, would permit a nonparty deponent to appear at his
or her deposition by telephone, as specified, and would authorize the
use of electronic technology in conducting discovery, as specified.
Existing law provides that certified shorthand reporters have the
power to administer oaths or affirmations to those being deposed.
This bill would make that power applicable when the deposition is
taken by telephone or other remote electronic means, as specified.
Existing law requires the Judicial Council to develop and approve
official form interrogatories and requests for admission of the
genuineness of any relevant documents or of the truth of any relevant
matters of fact in any civil action in a state court based on
personal injury, property damage, wrongful death, unlawful detainer,
breach of contract, family law, or fraud.
This bill would further require the Judicial Council to develop
and approve official form interrogatories and requests for admission
for use in any other civil action in a state court as the Judicial
Council deems appropriate.
Existing law generally provides that attorney work product is not
discoverable unless the court determines the denial of discovery will
unfairly prejudice the party seeking discovery, as specified.
However, existing law also provides that any writing reflecting an
attorney's impressions, conclusions, opinions, or legal research or
theories is not discoverable under any circumstances. Existing law
relating to the assertion of privilege provides that the presiding
officer may not require disclosure of information claimed to be
privileged in order to rule on the claim. However, if a court is
unable to rule on the validity of the assertion of certain specified
privileges without requiring disclosure, the court may require the
disclosure of the information in chambers out of the presence and
hearing of all persons except the person authorized to claim the
protection and such other persons as the person authorized to claim
the protection is willing to have present.
This bill would specify that a presiding officer may not require
disclosure of attorney work product coming within the absolute
prohibition in order to rule on a claim of privilege and would
provide that other attorney work product may be disclosed pursuant to
the above procedure in order to rule on such a claim.
Existing law requires each trial court to report to the Judicial
Council on progress towards achieving specified cost reduction goals.
This bill would repeal that requirement.
Existing law specifies the total fee for filing a first paper in a
limited civil case. Existing law authorizes the board of
supervisors of each county to exclude a specified portion of the
total fee relating to dispute resolution.
This bill would revise the total fee for filing a first paper in a
limited civil case, as specified. The bill would delete the
authority of a board of supervisors to exclude a portion of the total
fee and instead permit the Judicial Council to authorize any trial
court to exclude that portion of the fee.
Existing law provides that the Judicial Council shall establish by
rule the Trial Court Budget Commission and may delegate certain
budgetary activities and recommending authority to the Trial Court
Budget Commission. Existing law also provides specific standards for
the allocation of moneys to individual courts proposed by the
commission for approval by the Judicial Council. Existing law
requires that each trial court send a copy of its budget request to
the board of supervisors, and provides that the board of supervisors
may comment on the budget to the Trial Court Budget Commission.
This bill would remove the statutory authorization for the Trial
Court Budget Commission, make corresponding changes, and delete the
provision requiring the sending of a copy of a trial court budget
request to the board of supervisors. This bill would also provide
that the Judicial Council may seek input regarding budgetary
activities as it deems appropriate, and expressly permit the
consideration of other issues when making allocation determinations.
This bill would repeal the statute requiring that each trial court
send a copy of its budget request to the board of supervisors, and
authorizing the board of supervisors to comment on the budget to the
Trial Court Budget Commission.
Existing law provides generally for the state funding of trial
courts. These provisions require the establishment of a decentralized
system of trial court management, define court operations for
funding purposes, require the board of supervisors in each county to
establish a Trial Court Operations Fund in the county treasury,
provide for an annual appropriation to the Judicial Council for
general operations of trial courts, require the Judicial Council to
adopt appropriate rules for budget submission and management and the
reporting of revenues and expenditures by each trial court, and
require the continuation by counties of certain services to the
courts.
This bill would revise the requirements for decentralized trial
court management systems, revise the procedures for the audit and
review of a Trial Court Operations Fund, revise the budget request
procedures for the annual appropriation for trial court funding, and
make corresponding changes in the definition of trial court
operations.
Existing law provides for the payment to the counties by the state
for the costs, including court costs, for trials involving inmates
in state penal institutions.
This bill would amend the provisions involving inmate offenses by
providing that the superior courts may be compensated directly by the
state for court-related costs.
Existing law provides that, with the prior approval of the county
auditor, a municipal court may deposit into a bank account moneys
that are deposited with the court as bail.
This bill would extend this provision to all trial courts, require
prior approval of the administrative director of the courts rather
than the county auditor, and provide for regulation of these accounts
by the Judicial Council, as specified.
This bill would authorize the Judicial Council to restrict or
prohibit a trial court from transferring money from one program to
another, to audit the trial courts, to establish and control separate
funds, and to regulate, control, and manage all moneys collected by
the trial courts.
Existing law governs trial court employee benefits.
This bill would provide that, if a county administers benefits to
trial court employees, the employee is eligible for benefits as
regulations specify and the employee has the right to receive, and is
similarly subject to the modifications of, the same level of
benefits as county employees in similar classifications.
Existing law requires the Judicial Council to prepare a form,
containing specific required information disclosures, by which
litigants to an action may claim financial hardship and be excused
from paying certain fees.
This bill would remove from the form the disclosure of the
litigant's date of birth.
This bill would also require that any specified costs, charged to
the courts by the counties, be expressly stated and contain only
items of court operations.
This bill would require courts and counties to establish
procedures to share budgetary information, as specified.
This bill would also require the Judicial Council to provide to
the Legislature, on December 1, 2001, and yearly thereafter, court
budget expenditure data, as specified.
Existing law provides for a confession of judgment without an
action, upon the payment of a specified fee and the filing of
specified documents, that becomes the judgment roll.
This bill would increase the filing fee for a confession of
judgment in limited civil cases, and revise the list of required
documents that become the judgment roll.
Existing law provides that a settling party in certain actions may
give notice of settlement to all parties and the court and that,
within 25 days of the mailing of that notice, a nonsettling party may
file a notice of motion to contest the good faith of the settlement.
This bill would shorten the time limitation for the nonsettling
party to file a motion contesting the good faith of the settlement to
20 days, if the original notice of settlement was personally served.
Existing law provides that service by mail is completed at the
time of deposit and that the period of notice and any required
response to the service, or any right or duty based thereon, is
extended 5 days if mailed to a destination within California, 10 days
if the destination is within the United States but outside
California, and 20 days if the destination is outside the United
States.
This bill would specify that the applicable days for this period
of notice are calendar days, and that these time extensions shall be
determined based upon either the destination or the place of mailing,
or both, as specified.
This bill would incorporate additional changes in Section 2025 of
the Code of Civil Procedure, proposed by SB 805, to be operative only
if SB 805 and this bill are both chaptered and become effective on
or before January 1, 2002, and this bill is chaptered last.
This bill would incorporate additional changes in Section 77003 of
the Government Code, proposed by AB 1700, to be operative only if AB
1700 and this bill are both chaptered and become effective on or
before January 1, 2002, and this bill is chaptered last.
This bill would incorporate additional changes in Section 77009 of
the Government Code, proposed by SB 1191, to be operative only if SB
1191 and this bill are both chaptered and become effective on or
before January 1, 2002, and this bill is chaptered last.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 425.10 of the Code of Civil Procedure is
amended to read:
425.10. (a) A complaint or cross-complaint shall contain both of
the following:
(1) A statement of the facts constituting the cause of action, in
ordinary and concise language.
(2) A demand for judgment for the relief to which the pleader
claims to be entitled. If the recovery of money or damages is
demanded, the amount demanded shall be stated.
(b) Notwithstanding subdivision (a), where an action is brought to
recover actual or punitive damages for personal injury or wrongful
death, the amount demanded shall not be stated, but the complaint
shall comply with Section 422.30 and, in a limited civil case, with
Section 72055 of the Government Code.
SEC. 2. Section 425.11 of the Code of Civil Procedure is amended
to read:
425.11. (a) As used in this section:
(1) "Complaint" includes a cross-complaint.
(2) "Plaintiff" includes a cross-complainant.
(3) "Defendant" includes a cross-defendant.
(b) When a complaint is filed in an action to recover damages for
personal injury or wrongful death, the defendant may at any time
request a statement setting forth the nature and amount of damages
being sought. The request shall be served upon the plaintiff, who
shall serve a responsive statement as to the damages within 15 days.
In the event that a response is not served, the defendant, on notice
to the plaintiff, may petition the court in which the action is
pending to order the plaintiff to serve a responsive statement.
(c) If no request is made for the statement referred to in
subdivision (a), the plaintiff shall serve the statement on the
defendant before a default may be taken.
(d) The statement referred to in subdivision (b) shall be served
in the following manner:
(1) If a party has not appeared in the action, the statement shall
be served in the same manner as a summons.
(2) If a party has appeared in the action, the statement shall be
served upon the party's attorney, or upon the party if the party has
appeared without an attorney, in the manner provided for service of
a summons or in the manner provided by Chapter 5 (commencing with
Section 1010) of Title 14 of Part 2.
(e) The statement referred to in subdivision (b) may be combined
with the statement described in Section 425.115.
SEC. 3. Section 489.220 of the Code of Civil Procedure is amended
to read:
489.220. (a) Except as provided in subdivision (b), the amount of
an undertaking filed pursuant to this article shall be ten thousand
dollars ($10,000).
(b) If, upon objection to the undertaking, the court determines
that the probable recovery for wrongful attachment exceeds the amount
of the undertaking, it shall order the amount of the undertaking
increased to the amount it determines to be the probable recovery for
wrongful attachment if it is ultimately determined that the
attachment was wrongful.
SEC. 4. Section 685.030 of the Code of Civil Procedure is amended
to read:
685.030. (a) If a money judgment is satisfied in full pursuant to
a writ under this title, interest ceases to accrue on the judgment:
(1) If the proceeds of collection are paid in a lump sum, on the
date of levy.
(2) If the money judgment is satisfied pursuant to an earnings
withholding order, on the date and in the manner provided in Section
706.024 or Section 706.028.
(3) In any other case, on the date the proceeds of sale or
collection are actually received by the levying officer.
(b) If a money judgment is satisfied in full other than pursuant
to a writ under this title, interest ceases to accrue on the date the
judgment is satisfied in full.
(c) If a money judgment is partially satisfied pursuant to a writ
under this title or is otherwise partially satisfied, interest ceases
to accrue as to the part satisfied on the date the part is
satisfied.
(d) For the purposes of subdivisions (b) and (c), the date a money
judgment is satisfied in full or in part is the earliest of the
following times:
(1) The date satisfaction is actually received by the judgment
creditor.
(2) The date satisfaction is tendered to the judgment creditor or
deposited in court for the judgment creditor.
(3) The date of any other performance that has the effect of
satisfaction.
(e) The clerk of a court may enter in the Register of Actions a
writ of execution on a money judgment as returned wholly satisfied
when the judgment amount, as specified on the writ, is fully
collected and only an interest deficit of no more than ten dollars
($10) exists, due to automation of the continual daily interest
accrual calculation.
SEC. 5. Section 720.160 of the Code of Civil Procedure is amended
to read:
720.160. (a) If the creditor files with the levying officer an
undertaking that satisfies the requirements of this section within
the time allowed under subdivision (b) of Section 720.140:
(1) The levying officer shall execute the writ in the manner
provided by law unless the third person files an undertaking to
release the property pursuant to Chapter 6 (commencing with Section
720.610).
(2) After sale, payment, or delivery of the property pursuant to
the writ, the property is free of all claims of the third person for
which the creditor has given the undertaking.
(b) Subject to Sections 720.770 and 996.010, unless the creditor
elects to file an undertaking in a larger amount, the amount of the
undertaking filed by the creditor under this section shall be in the
amount of ten thousand dollars ($10,000), or twice the amount of the
execution lien as of the date of levy or other enforcement lien as of
the date it was created, whichever is the lesser amount.
(c) An undertaking given by the creditor under this chapter shall:
(1) Be made in favor of the third person.
(2) Indemnify the third person against any loss, liability,
damages, costs, and attorney's fees, incurred by reason of the
enforcement proceedings.
(3) Be conditioned on a final judgment that the third person owns
or has the right of possession of the property.
(d) If the creditor is a public entity exempt from giving an
undertaking, the public entity shall, in lieu of filing the
undertaking, file with the levying officer a notice stating that the
public entity opposes the claim of the third person. When so filed,
the notice is deemed to satisfy the requirement of this section that
an undertaking be filed.
SEC. 6. Section 720.260 of the Code of Civil Procedure is amended
to read:
720.260. (a) If the creditor within the time allowed under
subdivision (b) of Section 720.240 either files with the levying
officer an undertaking that satisfies the requirements of this
section and a statement that satisfies the requirements of Section
720.280 or makes a deposit with the levying officer of the amount
claimed under Section 720.230:
(1) The levying officer shall execute the writ in the manner
provided by law unless, in a case where the creditor has filed an
undertaking, the secured party or lienholder files an undertaking to
release the property pursuant to Chapter 6 (commencing with Section
720.610).
(2) After sale, payment, or delivery of the property pursuant to
the writ, the property is free of all claims or liens of the secured
party or lienholder for which the creditor has given the undertaking
or made the deposit.
(b) Subject to Sections 720.770 and 996.010, unless the creditor
elects to file an undertaking in a larger amount, the amount of the
undertaking filed by the creditor under this section shall be in the
amount of ten thousand dollars ($10,000) or twice the amount of the
execution lien as of the date of levy or other enforcement lien as of
the date it was created, whichever is the lesser amount.
(c) An undertaking given by the creditor under this chapter shall:
(1) Be made in favor of the secured party or lienholder.
(2) Indemnify the secured party or lienholder against any loss,
liability, damages, costs, and attorney's fees, incurred by reason of
the enforcement proceedings.
(3) Be conditioned on a final judgment that the security interest
or lien of the third person is entitled to priority over the creditor'
s lien.
(d) If the creditor is a public entity exempt from giving an
undertaking, the public entity shall, in lieu of filing the
undertaking, file with the levying officer a notice stating that the
public entity opposes the claim of the third person. When so filed,
the notice is deemed to satisfy the requirement of this section that
an undertaking be filed.
SEC. 7. Section 877.6 of the Code of Civil Procedure is amended to
read:
877.6. (a) (1) Any party to an action in which it is alleged that
two or more parties are joint tortfeasors or co-obligors on a
contract debt shall be entitled to a hearing on the issue of the good
faith of a settlement entered into by the plaintiff or other
claimant and one or more alleged tortfeasors or co-obligors, upon
giving notice in the manner provided in subdivision (b) of Section
1005. Upon a showing of good cause, the court may shorten the time
for giving the required notice to permit the determination of the
issue to be made before the commencement of the trial of the action,
or before the verdict or judgment if settlement is made after the
trial has commenced.
(2) In the alternative, a settling party may give notice of
settlement to all parties and to the court, together with an
application for determination of good faith settlement and a proposed
order. The application shall indicate the settling parties, and the
basis, terms, and amount of the settlement. The notice,
application, and proposed order shall be given by certified mail,
return receipt requested. Proof of service shall be filed with the
court. Within 25 days of the mailing of the notice, application, and
proposed order, or within 20 days of personal service, a nonsettling
party may file a notice of motion to contest the good faith of the
settlement. If none of the nonsettling parties files a motion within
25 days of mailing of the notice, application, and proposed order,
or within 20 days of personal service, the court may approve the
settlement. The notice by a nonsettling party shall be given in the
manner provided in subdivision (b) of Section 1005. However, this
paragraph shall not apply to settlements in which a confidentiality
agreement has been entered into regarding the case or the terms of
the settlement.
(b) The issue of the good faith of a settlement may be determined
by the court on the basis of affidavits served with the notice of
hearing, and any counteraffidavits filed in response, or the court
may, in its discretion, receive other evidence at the hearing.
(c) A determination by the court that the settlement was made in
good faith shall bar any other joint tortfeasor or co-obligor from
any further claims against the settling tortfeasor or co-obligor for
equitable comparative contribution, or partial or comparative
indemnity, based on comparative negligence or comparative fault.
(d) The party asserting the lack of good faith shall have the
burden of proof on that issue.
(e) When a determination of the good faith or lack of good faith
of a settlement is made, any party aggrieved by the determination may
petition the proper court to review the determination by writ of
mandate. The petition for writ of mandate shall be filed within 20
days after service of written notice of the determination, or within
any additional time not exceeding 20 days as the trial court may
allow.
(1) The court shall, within 30 days of the receipt of all
materials to be filed by the parties, determine whether or not the
court will hear the writ and notify the parties of its determination.
(2) If the court grants a hearing on the writ, the hearing shall
be given special precedence over all other civil matters on the
calendar of the court except those matters to which equal or greater
precedence on the calendar is granted by law.
(3) The running of any period of time after which an action would
be subject to dismissal pursuant to the applicable provisions of
Chapter 1.5 (commencing with Section 583.110) of Title 8 of Part 2
shall be tolled during the period of review of a determination
pursuant to this subdivision.
SEC. 8. Section 1013 of the Code of Civil Procedure is amended to
read:
1013. (a) In case of service by mail, the notice or other paper
shall be deposited in a post office, mailbox, subpost office,
substation, or mail chute, or other like facility regularly
maintained by the United States Postal Service, in a sealed envelope,
with postage paid, addressed to the person on whom it is to be
served, at the office address as last given by that person on any
document filed in the cause and served on the party making service by
mail; otherwise at that party's place of residence. The service is
complete at the time of the deposit, but any period of notice and any
right or duty to do any act or make any response within any period
or on a date certain after the service of the document, which time
period or date is prescribed by statute or rule of court, shall be
extended five calendar days, upon service by mail, if the place of
address and the place of mailing is within the State of California,
10 calendar days if either the place of mailing or the place of
address is outside the State of California but within the United
States, and 20 calendar days if either the place of mailing or the
place of address is outside the United States, but the extension
shall not apply to extend the time for filing notice of intention to
move for new trial, notice of intention to move to vacate judgment
pursuant to Section 663a, or notice of appeal. This extension applies
in the absence of a specific exception provided for by this section
or other statute or rule of court.
(b) The copy of the notice or other paper served by mail pursuant
to this chapter shall bear a notation of the date and place of
mailing or be accompanied by an unsigned copy of the affidavit or
certificate of mailing.
(c) In case of service by Express Mail, the notice or other paper
must be deposited in a post office, mailbox, subpost office,
substation, or mail chute, or other like facility regularly
maintained by the United States Postal Service for receipt of Express
Mail, in a sealed envelope, with Express Mail postage paid,
addressed to the person on whom it is to be served, at the office
address as last given by that person on any document filed in the
cause and served on the party making service by Express Mail;
otherwise at that party's place of residence. In case of service by
another method of delivery providing for overnight delivery, the
notice or other paper must be deposited in a box or other facility
regularly maintained by the express service carrier, or delivered to
an authorized courier or driver authorized by the express service
carrier to receive documents, in an envelope or package designated by
the express service carrier with delivery fees paid or provided for,
addressed to the person on whom it is to be served, at the office
address as last given by that person on any document filed in the
cause and served on the party making service; otherwise at that party'
s place of residence. The service is complete at the time of the
deposit, but any period of notice and any right or duty to do any act
or make any response within any period or on a date certain after
the service of the document served by Express Mail or other method of
delivery providing for overnight delivery shall be extended by two
court days, but the extension shall not apply to extend the time for
filing notice of intention to move for new trial, notice of intention
to move to vacate judgment pursuant to Section 663a, or notice of
appeal. This extension applies in the absence of a specific
exception provided for by this section or other statute or rule of
court.
(d) The copy of the notice or other paper served by Express Mail
or another means of delivery providing for overnight delivery
pursuant to this chapter shall bear a notation of the date and place
of deposit or be accompanied by an unsigned copy of the affidavit or
certificate of deposit.
(e) Service by facsimile transmission shall be permitted only
where the parties agree and a written confirmation of that agreement
is made. The Judicial Council may adopt rules implementing the
service of documents by facsimile transmission and may provide a form
for the confirmation of the agreement required by this subdivision.
In case of service by facsimile transmission, the notice or other
paper must be transmitted to a facsimile machine maintained by the
person on whom it is served at the facsimile machine telephone number
as last given by that person on any document which he or she has
filed in the cause and served on the party making the service. The
service is complete at the time of transmission, but any period of
notice and any right or duty to do any act or make any response
within any period or on a date certain after the service of the
document, which time period or date is prescribed by statute or rule
of court, shall be extended, after service by facsimile transmission,
by two court days, but the extension shall not apply to extend the
time for filing notice of intention to move for new trial, notice of
intention to move to vacate judgment pursuant to Section 663a, or
notice of appeal. This extension applies in the absence of a
specific exception provided for by this section or other statute or
rule of court.
(f) The copy of the notice or other paper served by facsimile
transmission pursuant to this chapter shall bear a notation of the
date and place of transmission and the facsimile telephone number to
which transmitted or be accompanied by an unsigned copy of the
affidavit or certificate of transmission which shall contain the
facsimile telephone number to which the notice or other paper was
transmitted.
(g) Subdivisions (b), (d), and (f) are directory.
SEC. 9. Section 1134 of the Code of Civil Procedure is amended to
read:
1134. (a) The statement required by Section 1133 shall be filed
with the clerk of the court in which the judgment is to be entered,
who must endorse upon it, and enter a judgment of the court for the
amount confessed with the costs provided in subdivision (b).
(b) At the time of filing, the plaintiff shall pay as court costs
that shall become a part of the judgment a fee of fifteen dollars
($15). No fee shall be collected from the defendant. No fee shall
be paid by the clerk of the court in which a confession of judgment
is filed for the law library fund nor for services of any court
reporter.
(c) The statement and affidavit, with the judgment endorsed
thereon, together with the certificate filed pursuant to Section
1132, becomes the judgment roll.
SEC. 9.4. Section 2017 of the Code of Civil Procedure is amended
to read:
2017. (a) Unless otherwise limited by order of the court in
accordance with this article, any party may obtain discovery
regarding any matter, not privileged, that is relevant to the subject
matter involved in the pending action or to the determination of any
motion made in that action, if the matter either is itself
admissible in evidence or appears reasonably calculated to lead to
the discovery of admissible evidence. Discovery may relate to the
claim or defense of the party seeking discovery or of any other party
to the action. Discovery may be obtained of the identity and
location of persons having knowledge of any discoverable matter, as
well as of the existence, description, nature, custody, condition,
and location of any document, tangible thing, or land or other
property.
(b) A party may obtain discovery of the existence and contents of
any agreement under which any insurance carrier may be liable to
satisfy in whole or in part a judgment that may be entered in the
action or to indemnify or reimburse for payments made to satisfy the
judgment. This discovery may include the identity of the carrier and
the nature and limits of the coverage. A party may also obtain
discovery as to whether that insurance carrier is disputing the
agreement's coverage of the claim involved in the action, but not as
to the nature and substance of that dispute. Information concerning
the insurance agreement is not by reason of disclosure admissible in
evidence at trial.
(c) The court shall limit the scope of discovery if it determines
that the burden, expense, or intrusiveness of that discovery clearly
outweighs the likelihood that the information sought will lead to the
discovery of admissible evidence. The court may make this
determination pursuant to a motion for protective order by a party or
other affected person. This motion shall be accompanied by a
declaration stating facts showing a good faith attempt at an informal
resolution of each issue presented by the motion.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion for a protective order, unless it finds that the one
subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.
(d) In any civil action alleging conduct that constitutes sexual
harassment, sexual assault, or sexual battery, any party seeking
discovery concerning the plaintiff's sexual conduct with individuals
other than the alleged perpetrator is required to establish specific
facts showing good cause for that discovery, and that the matter
sought to be discovered is relevant to the subject matter of the
action and reasonably calculated to lead to the discovery of
admissible evidence. This showing shall be made by noticed motion
and shall not be made or considered by the court at an ex parte
hearing. This motion shall be accompanied by a declaration stating
facts showing a good faith attempt at an informal resolution of each
issue presented by the motion.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion for discovery, unless it finds that the one subject
to the sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.
(e) (1) Pursuant to noticed motion, a court may enter orders for
the use of technology in conducting discovery in cases designated as
complex pursuant to Section 19 of the Judicial Administration
Standards, cases ordered to be coordinated pursuant to Chapter 3
(commencing with Section 404) of Title 4 of Part 2, or exceptional
cases exempt from case disposition time goals pursuant to Article 5
(commencing with Section 68600) of Chapter 2 of Title 8 of the
Government Code, or cases assigned to Plan 3 pursuant to paragraph
(3) of subdivision (b) of Section 2105 of the California Rules of
Court. In other cases, the parties may stipulate to the entry of
orders for the use of technology in conducting discovery.
(2) An order authorizing that discovery may be made only upon the
express findings of the court or stipulation of the parties that the
procedures adopted in the order meet all of the following criteria:
(A) They promote cost-effective and efficient discovery or motions
relating thereto.
(B) They do not impose or require undue expenditures of time or
money.
(C) They do not create an undue economic burden or hardship on any
person.
(D) They promote open competition among vendors and providers of
services in order to facilitate the highest quality service at the
lowest reasonable cost to the litigants.
(E) They do not require parties or counsel to purchase exceptional
or unnecessary services, hardware, or software.
(3) Pursuant to these orders, discovery may be conducted and
maintained in electronic media and by electronic communication. The
court may enter orders prescribing procedures relating to the use of
electronic technology in conducting discovery, including orders for
the service of requests for discovery and responses, service and
presentation of motions, production, storage, and access to
information in electronic form, and the conduct of discovery in
electronic media. The Judicial Council may promulgate rules,
standards, and guidelines relating to electronic discovery and the
use of such discovery data and documents in court proceedings.
(4) Nothing in this subdivision shall diminish the rights and
duties of the parties regarding discovery, privileges, procedural
rights, or substantive law.
(5) If a service provider is to be used and compensated by the
parties, the court shall appoint the person or organization agreed
upon by the parties and approve the contract agreed upon by the
parties and the service provider. If the parties do not agree on the
selection, each party shall submit to the court up to three nominees
for appointment together with a contract acceptable to the nominee
and the court shall appoint a service provider from among the
nominees. The court may condition this appointment on the acceptance
of modifications in the terms of the contract. If no nominations
are received from any of the parties, the court shall appoint one or
more service providers. Pursuant to noticed motion at any time and
upon a showing of good cause, the court may order the removal of the
service provider or vacate any agreement between the parties and the
service provider, or both, effective as of the date of the order.
The continued service of the service provider shall be subject to
review periodically, as agreed by the parties and the service
provider, or annually if they do not agree. Any disputes involving
the contract or the duties, rights, and obligations of the parties or
service providers may be determined on noticed motion in the action.
(6) Subject to these findings and the purpose of permitting and
encouraging cost-effective and efficient discovery, "technology," as
used in this section, includes, but is not limited to, telephone,
e-mail, CD-ROM, Internet web sites, electronic documents, electronic
document depositories, Internet depositions and storage,
videoconferencing, and other electronic technology that may be used
to improve communication and the discovery process.
(7) Nothing in this subdivision shall be construed to modify the
requirement for use of a stenographic court reporter as provided in
paragraph (1) of subdivision (l) of Section 2025. The rules,
standards, and guidelines adopted pursuant to this subdivision shall
be consistent with the requirement of paragraph
(1) of subdivision (l) of Section 2025 that
deposition testimony be taken stenographically unless the parties
agree or the court orders otherwise.
(8) Nothing in this subdivision shall be construed to modify or
affect in any way the process used for the selection of a
stenographic court reporter.
SEC. 9.6. Section 2025 of the Code of Civil Procedure is amended
to read:
2025. (a) Any party may obtain discovery within the scope
delimited by Section 2017, and subject to the restrictions set forth
in Section 2019, by taking in California the oral deposition of any
person, including any party to the action. The person deposed may be
a natural person, an organization such as a public or private
corporation, a partnership, an association, or a governmental agency.
(b) Subject to subdivisions (f) and (t), an oral deposition may be
taken as follows:
(1) The defendant may serve a deposition notice without leave of
court at any time after that defendant has been served or has
appeared in the action, whichever occurs first.
(2) The plaintiff may serve a deposition notice without leave of
court on any date that is 20 days after the service of the summons
on, or appearance by, any defendant. However, on motion with or
without notice, the court, for good cause shown, may grant to a
plaintiff leave to serve a deposition notice on an earlier date.
(c) A party desiring to take the oral deposition of any person
shall give notice in writing in the manner set forth in subdivision
(d). However, where under subdivision (d) of Section 2020 only the
production by a nonparty of business records for copying is desired,
a copy of the deposition subpoena shall serve as the notice of
deposition. The notice of deposition shall be given to every other
party who has appeared in the action. The deposition notice, or the
accompanying proof of service, shall list all the parties or
attorneys for parties on whom it is served.
Where, as defined in subdivision (a) of Section 1985.3, the party
giving notice of the deposition is a subpoenaing party, and the
deponent is a witness commanded by a deposition subpoena to produce
personal records of a consumer, the subpoenaing party shall serve on
that consumer (1) a notice of the deposition, (2) the notice of
privacy rights specified in subdivision (e) of Section 1985.3 and in
Section 1985.6, and (3) a copy of the deposition subpoena.
(d) The deposition notice shall state all of the following:
(1) The address where the deposition will be taken.
(2) The date of the deposition, selected under subdivision (f),
and the time it will commence.
(3) The name of each deponent, and the address and telephone
number, if known, of any deponent who is not a party to the action.
If the name of the deponent is not known, the deposition notice shall
set forth instead a general description sufficient to identify the
person or particular class to which the person belongs.
(4) The specification with reasonable particularity of any
materials or category of materials to be produced by the deponent.
(5) Any intention to record the testimony by audiotape or
videotape, in addition to recording the testimony by the stenographic
method as required by paragraph (1) of subdivision (l) and any
intention to record the testimony by stenographic method, through the
instant visual display of the testimony. In the latter event, a
copy of the deposition notice shall also be given to the deposition
officer. Any offer to provide the instant visual display of the
testimony or to provide rough draft transcripts to any party which is
accepted prior to, or offered at, the deposition shall also be made
by the deposition officer at the deposition to all parties in
attendance.
(6) Any intention to reserve the right to use at trial a videotape
deposition of a treating or consulting physician or of any expert
witness under paragraph (4) of subdivision (u). In this event, the
operator of the videotape camera shall be a person who is authorized
to administer an oath, and shall not be financially interested in the
action or be a relative or employee of any attorney of any of the
parties.
If the deponent named is not a natural person, the deposition
notice shall describe with reasonable particularity the matters on
which examination is requested. In that event, the deponent shall
designate and produce at the deposition those of its officers,
directors, managing agents, employees, or agents who are most
qualified to testify on its behalf as to those matters to the extent
of any information known or reasonably available to the deponent. A
deposition subpoena shall advise a nonparty deponent of its duty to
make this designation, and shall describe with reasonable
particularity the matters on which examination is requested.
If the attendance of the deponent is to be compelled by service of
a deposition subpoena under Section 2020, an identical copy of that
subpoena shall be served with the deposition notice.
(e) (1) The deposition of a natural person, whether or not a party
to the action, shall be taken at a place that is, at the option of
the party giving notice of the deposition, either within 75 miles of
the deponent's residence, or within the county where the action is
pending and within 150 miles of the deponent's residence, unless the
court orders otherwise under paragraph (3).
(2) The deposition of an organization that is a party to the
action shall be taken at a place that is, at the option of the party
giving notice of the deposition, either within 75 miles of the
organization's principal executive or business office in California,
or within the county where the action is pending and within 150 miles
of that office. The deposition of any other organization shall be
taken within 75 miles of the organization's principal executive or
business office in California, unless the organization consents to a
more distant place. If the organization has not designated a
principal executive or business office in California, the deposition
shall be taken at a place that is, at the option of the party giving
notice of the deposition, either within the county where the action
is pending, or within 75 miles of any executive or business office in
California of the organization.
(3) A party desiring to take the deposition of a natural person
who is a party to the action or an officer, director, managing agent,
or employee of a party may make a motion for an order that the
deponent attend for deposition at a place that is more distant than
that permitted under paragraph (1). This motion shall be accompanied
by a declaration stating facts showing a reasonable and good faith
attempt at an informal resolution of any issue presented by the
motion.
In exercising its discretion to grant or deny this motion, the
court shall take into consideration any factor tending to show
whether the interests of justice will be served by requiring the
deponent's attendance at that more distant place, including, but not
limited to, the following:
(A) Whether the moving party selected the forum.
(B) Whether the deponent will be present to testify at the trial
of the action.
(C) The convenience of the deponent.
(D) The feasibility of conducting the deposition by written
questions under Section 2028, or of using a discovery method other
than a deposition.
(E) The number of depositions sought to be taken at a place more
distant than that permitted under paragraph (1).
(F) The expense to the parties of requiring the deposition to be
taken within the distance permitted under paragraph (1).
(G) The whereabouts of the deponent at the time for which the
deposition is scheduled.
The order may be conditioned on the advancement by the moving
party of the reasonable expenses and costs to the deponent for travel
to the place of deposition.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to increase travel limits for party deponent, unless
it finds that the one subject to the sanction acted with substantial
justification or that other circumstances make the imposition of the
sanction unjust.
(f) An oral deposition shall be scheduled for a date at least 10
days after service of the deposition notice. If, as defined in
subdivision (a) of Section 1985.3, the party giving notice of the
deposition is a subpoenaing party, and the deponent is a witness
commanded by a deposition subpoena to produce personal records of a
consumer, the deposition shall be scheduled for a date at least 20
days after issuance of that subpoena. However, in unlawful detainer
actions, an oral deposition shall be scheduled for a date at least
five days after service of the deposition notice, but not later than
five days before trial.
On motion or ex parte application of any party or deponent, for
good cause shown, the court may shorten or extend the time for
scheduling a deposition, or may stay its taking until the
determination of a motion for a protective order under subdivision
(i).
(g) Any party served with a deposition notice that does not comply
with subdivisions (b) to (f), inclusive, waives any error or
irregularity unless that party promptly serves a written objection
specifying that error or irregularity at least three calendar days
prior to the date for which the deposition is scheduled, on the party
seeking to take the deposition and any other attorney or party on
whom the deposition notice was served. If an objection is made three
calendar days before the deposition date, the objecting party shall
make personal service of that objection pursuant to Section 1011 on
the party who gave notice of the deposition. Any deposition taken
after the service of a written objection shall not be used against
the objecting party under subdivision (u) if the party did not attend
the deposition and if the court determines that the objection was a
valid one.
In addition to serving this written objection, a party may also
move for an order staying the taking of the deposition and quashing
the deposition notice. This motion shall be accompanied by a
declaration stating facts showing a reasonable and good faith attempt
at an informal resolution of any issue presented by the motion. The
taking of the deposition is stayed pending the determination of this
motion.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to quash a deposition notice, unless it finds that
the one subject to the sanction acted with substantial justification
or that other circumstances make the imposition of the sanction
unjust.
(h) (1) The service of a deposition notice under subdivision (c)
is effective to require any deponent who is a party to the action or
an officer, director, managing agent, or employee of a party to
attend and to testify, as well as to produce any document or tangible
thing for inspection and copying.
(2) The attendance and testimony of any other deponent, as well as
the production by the deponent of any document or tangible thing for
inspection and copying, requires the service on the deponent of a
deposition subpoena under Section 2020.
(3) A person may take, and any person other than the deponent may
attend, a deposition by telephone or other remote electronic means.
The court may expressly provide that a nonparty deponent may appear
at his or her deposition by telephone if it finds there is good cause
and no prejudice to any party. A party deponent must appear at his
or her deposition in person and be in the presence of the deposition
officer. The procedures to implement this section shall be
established by court order in the specific action proceeding or by
the California Rules of Court.
(i) Before, during, or after a deposition, any party, any
deponent, or any other affected natural person or organization may
promptly move for a protective order. The motion shall be
accompanied by a declaration stating facts showing a reasonable and
good faith attempt at an informal resolution of each issue presented
by the motion.
The court, for good cause shown, may make any order that justice
requires to protect any party, deponent, or other natural person or
organization from unwarranted annoyance, embarrassment, or
oppression, or undue burden and expense. This protective order may
include, but is not limited to, one or more of the following
directions:
(1) That the deposition not be taken at all.
(2) That the deposition be taken at a different time.
(3) That a videotape deposition of a treating or consulting
physician or of any expert witness, intended for possible use at
trial under paragraph (4) of subdivision (u), be postponed until the
moving party has had an adequate opportunity to prepare, by discovery
deposition of the deponent, or other means, for cross-examination.
(4) That the deposition be taken at a place other than that
specified in the deposition notice, if it is within a distance
permitted by subdivision (e).
(5) That the deposition be taken only on certain specified terms
and conditions.
(6) That the deponent's testimony be taken by written, instead of
oral, examination.
(7) That the method of discovery be interrogatories to a party
instead of an oral deposition.
(8) That the testimony be recorded in a manner different from that
specified in the deposition notice.
(9) That certain matters not be inquired into.
(10) That the scope of the examination be limited to certain
matters.
(11) That all or certain of the writings or tangible things
designated in the deposition notice not be produced, inspected, or
copied.
(12) That designated persons, other than the parties to the action
and their officers and counsel, be excluded from attending the
deposition.
(13) That a trade secret or other confidential research,
development, or commercial information not be disclosed or be
disclosed only to specified persons or only in a specified way.
(14) That the parties simultaneously file specified documents
enclosed in sealed envelopes to be opened as directed by the court.
(15) That the deposition be sealed and thereafter opened only on
order of the court.
If the motion for a protective order is denied in whole or in
part, the court may order that the deponent provide or permit the
discovery against which protection was sought on those terms and
conditions that are just.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion for a protective order, unless it finds that the one
subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.
(j) (1) If the party giving notice of a deposition fails to attend
or proceed with it, the court shall impose a monetary sanction under
Section 2023 against that party, or the attorney for that party, or
both, and in favor of any party attending in person or by attorney,
unless it finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the
imposition of the sanction unjust.
(2) If a deponent does not appear for a deposition because the
party giving notice of the deposition failed to serve a required
deposition subpoena, the court shall impose a monetary sanction under
Section 2023 against that party, or the attorney for that party, or
both, in favor of any other party who, in person or by attorney,
attended at the time and place specified in the deposition notice in
the expectation that the deponent's testimony would be taken, unless
the court finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the
imposition of the sanction unjust.
If a deponent on whom a deposition subpoena has been served fails
to attend a deposition or refuses to be sworn as a witness, the court
may impose on the deponent the sanctions described in subdivision
(h) of Section 2020.
(3) If, after service of a deposition notice, a party to the
action or an officer, director, managing agent, or employee of a
party, or a person designated by an organization that is a party
under subdivision (d), without having served a valid objection under
subdivision (g), fails to appear for examination, or to proceed with
it, or to produce for inspection any document or tangible thing
described in the deposition notice, the party giving the notice may
move for an order compelling the deponent's attendance and testimony,
and the production for inspection of any document or tangible thing
described in the deposition notice. This motion (A) shall set forth
specific facts showing good cause justifying the production for
inspection of any document or tangible thing described in the
deposition notice, and (B) shall be accompanied by a declaration
stating facts showing a reasonable and good faith attempt at an
informal resolution of each issue presented by it or, when the
deponent fails to attend the deposition and produce the documents or
things described in the deposition notice, by a declaration stating
that the petitioner has contacted the deponent to inquire about the
nonappearance. If this motion is granted, the court shall also
impose a monetary sanction under Section 2023 against the deponent or
the party with whom the deponent is affiliated, unless it finds that
the one subject to the sanction acted with substantial justification
or that other circumstances make the imposition of the sanction
unjust. On motion of any other party who, in person or by attorney,
attended at the time and place specified in the deposition notice in
the expectation that the deponent's testimony would be taken, the
court shall also impose a monetary sanction under Section 2023,
unless it finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the
imposition of the sanction unjust.
If that party or party-affiliated deponent then fails to obey an
order compelling attendance, testimony, and production, the court may
make those orders that are just, including the imposition of an
issue sanction, an evidence sanction, or a terminating sanction under
Section 2023 against that party deponent or against the party with
whom the deponent is affiliated. In lieu of, or in addition to, this
sanction, the court may impose a monetary sanction under Section
2023 against that deponent or against the party with whom that party
deponent is affiliated, and in favor of any party who, in person or
by attorney, attended in the expectation that the deponent's
testimony would be taken pursuant to that order.
(k) Except as provided in paragraph (3) of subdivision (d) of
Section 2020, the deposition shall be conducted under the supervision
of an officer who is authorized to administer an oath and is subject
to all of the following requirements:
(1) The officer shall not be financially interested in the action
and shall not be a relative or employee of any attorney of the
parties, or of any of the parties.
(2) Services and products offered or provided by the deposition
officer or the entity providing the services of the deposition
officer to any party or to any party's attorney or third party who is
financing all or part of the action shall be offered to all parties
or their attorneys attending the deposition. No service or product
may be offered or provided by the deposition officer or by the entity
providing the services of the deposition officer to any party or any
party's attorney or third party who is financing all or part of the
action unless the service or product is offered or provided to all
parties or their attorneys attending the deposition. All services
and products offered or provided shall be made available at the same
time to all parties or their attorneys.
(3) The deposition officer or the entity providing the services of
the deposition officer shall not provide to any party or any party's
attorney or third party who is financing all or part of the action
any service or product consisting of the deposition officer's
notations or comments regarding the demeanor of any witness,
attorney, or party present at the deposition. The deposition officer
or entity providing the services of the deposition officer shall not
collect any personal identifying information about the witness as a
service or product to be provided to any party or third party who is
financing all or part of the action.
(4) Upon the request of any party or any party's attorney
attending a deposition, any party or any party's attorney attending
the deposition shall enter in the record of the deposition all
services and products made available to that party or party's
attorney or third party who is financing all or part of the action by
the deposition officer or by the entity providing the services of
the deposition officer. A party in the action who is not represented
by an attorney shall be informed by the noticing party or the party'
s attorney that the unrepresented party may request this statement.
(5) Any objection to the qualifications of the deposition officer
shall be waived unless made before the deposition begins or as soon
thereafter as the ground for that objection becomes known or could be
discovered by reasonable diligence.
(l) (1) The deposition officer shall put the deponent under oath.
Unless the parties agree or the court orders otherwise, the
testimony, as well as any stated objections, shall be taken
stenographically. The party noticing the deposition may also record
the testimony by audiotape or videotape if the notice of deposition
stated an intention also to record the testimony by either of those
methods, or if all the parties agree that the testimony may also be
recorded by either of those methods. Any other party, at that party'
s expense, may make a simultaneous audiotape or videotape record of
the deposition, provided that other party promptly, and in no event
less than three calendar days before the date for which the
deposition is scheduled, serves a written notice of this intention to
audiotape or videotape the deposition testimony on the party or
attorney who noticed the deposition, on all other parties or
attorneys on whom the deposition notice was served under subdivision
(c), and on any deponent whose attendance is being compelled by a
deposition subpoena under Section 2020. If this notice is given
three calendar days before the deposition date, it shall be made by
personal service under Section 1011. Examination and
cross-examination of the deponent shall proceed as permitted at trial
under the provisions of the Evidence Code.
(2) If the deposition is being recorded by means of audiotape or
videotape, the following procedure shall be observed:
(A) The area used for recording the deponent's oral testimony
shall be suitably large, adequately lighted, and reasonably quiet.
(B) The operator of the recording equipment shall be competent to
set up, operate, and monitor the equipment in the manner prescribed
in this subdivision. The operator may be an employee of the attorney
taking the deposition unless the operator is also the deposition
officer. However, if a videotape of deposition testimony is to be
used under paragraph (4) of subdivision (u), the operator of the
recording equipment shall be a person who is authorized to administer
an oath, and shall not be financially interested in the action or be
a relative or employee of any attorney of any of the parties, unless
all parties attending the deposition agree on the record to waive
these qualifications and restrictions. Services and products offered
or provided by the deposition officer or the entity providing the
services of the deposition officer to any party or to any party's
attorney or third party who is financing all or part of the action
shall be offered or provided to all parties or their attorneys
attending the deposition. No service or product may be offered or
provided by the deposition officer or by the entity providing the
services of the deposition officer to any party or any party's
attorney or third party who is financing all or part of the action
unless the service or product is offered or provided to all parties
or their attorneys attending the deposition. All services and
products offered or provided shall be made available at the same time
to all parties or their attorneys. The deposition officer or the
entity providing the services of the deposition officer shall not
provide to any party or any other person or entity any service or
product consisting of the deposition officer's notations or comments
regarding the demeanor of any witness, attorney, or party present at
the deposition. The deposition officer or the entity providing the
services of the deposition officer shall not collect any personal
identifying information about the witness as a service or product to
be provided to any party or third party who is financing all or part
of the action. Upon the request of any party or any party's attorney
attending a deposition, any party or any party's attorney attending
the deposition shall enter in the record of the deposition all
services and products made available to that party or party's
attorney or third party who is financing all or part of the action by
the deposition officer or by the entity providing the services of
the deposition officer. A party in the action who is not represented
by an attorney shall be informed by the noticing party that the
unrepresented party may request this statement.
(C) The operator shall not distort the appearance or the demeanor
of participants in the deposition by the use of camera or sound
recording techniques.
(D) The deposition shall begin with an oral or written statement
on camera or on the audiotape that includes the operator's name and
business address, the name and business address of the operator's
employer, the date, time, and place of the deposition, the caption of
the case, the name of the deponent, a specification of the party on
whose behalf the deposition is being taken, and any stipulations by
the parties.
(E) Counsel for the parties shall identify themselves on camera or
on the audiotape.
(F) The oath shall be administered to the deponent on camera or on
the audiotape.
(G) If the length of a deposition requires the use of more than
one unit of tape, the end of each unit and the beginning of each
succeeding unit shall be announced on camera or on the audiotape.
(H) At the conclusion of a deposition, a statement shall be
made on camera or on the audiotape that the deposition is ended and
shall set forth any stipulations made by counsel concerning the
custody of the audiotape or videotape recording and the exhibits, or
concerning other pertinent matters.
(I) A party intending to offer an audiotaped or videotaped
recording of a deposition in evidence under subdivision (u) shall
notify the court and all parties in writing of that intent and of the
parts of the deposition to be offered within sufficient time for
objections to be made and ruled on by the judge to whom the case is
assigned for trial or hearing, and for any editing of the tape.
Objections to all or part of the deposition shall be made in writing.
The court may permit further designations of testimony and
objections as justice may require. With respect to those portions of
an audiotaped or videotaped deposition that are not designated by
any party or that are ruled to be objectionable, the court may order
that the party offering the recording of the deposition at the trial
or hearing suppress those portions, or that an edited version of the
deposition tape be prepared for use at the trial or hearing. The
original audiotape or videotape of the deposition shall be preserved
unaltered. If no stenographic record of the deposition testimony has
previously been made, the party offering a videotape or an audiotape
recording of that testimony under subdivision (u) shall accompany
that offer with a stenographic transcript prepared from that
recording.
(3) In lieu of participating in the oral examination, parties may
transmit written questions in a sealed envelope to the party taking
the deposition for delivery to the deposition officer, who shall
unseal the envelope and propound them to the deponent after the oral
examination has been completed.
(m) (1) The protection of information from discovery on the ground
that it is privileged or that it is a protected work product under
Section 2018 is waived unless a specific objection to its disclosure
is timely made during the deposition.
(2) Errors and irregularities of any kind occurring at the oral
examination that might be cured if promptly presented are waived
unless a specific objection to them is timely made during the
deposition. These errors and irregularities include, but are not
limited to, those relating to the manner of taking the deposition, to
the oath or affirmation administered, to the conduct of a party,
attorney, deponent, or deposition officer, or to the form of any
question or answer. Unless the objecting party demands that the
taking of the deposition be suspended to permit a motion for a
protective order under subdivision (n), the deposition shall proceed
subject to the objection.
(3) Objections to the competency of the deponent, or to the
relevancy, materiality, or admissibility at trial of the testimony or
of the materials produced are unnecessary and are not waived by
failure to make them before or during the deposition.
(4) If a deponent fails to answer any question or to produce any
document or tangible thing under the deponent's control that is
specified in the deposition notice or a deposition subpoena, the
party seeking that answer or production may adjourn the deposition or
complete the examination on other matters without waiving the right
at a later time to move for an order compelling that answer or
production under subdivision (o).
(n) The deposition officer shall not suspend the taking of
testimony without stipulation of the party conducting the deposition
and the deponent unless any party attending the deposition or the
deponent demands the taking of testimony be suspended to enable that
party or deponent to move for a protective order on the ground that
the examination is being conducted in bad faith or in a manner that
unreasonably annoys, embarrasses, or oppresses that deponent or
party. This motion shall be accompanied by a declaration stating
facts showing a reasonable and good faith attempt at an informal
resolution of each issue presented by the motion. The court, for
good cause shown, may terminate the examination or may limit the
scope and manner of taking the deposition as provided in subdivision
(i). If the order terminates the examination, the deposition shall
not thereafter be resumed, except on order of the court.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion for this protective order, unless it finds that the
one subject to the sanction acted with substantial justification or
that other circumstances make the imposition of the sanction unjust.
(o) If a deponent fails to answer any question or to produce any
document or tangible thing under the deponent's control that is
specified in the deposition notice or a deposition subpoena, the
party seeking discovery may move the court for an order compelling
that answer or production. This motion shall be made no later than
60 days after the completion of the record of the deposition, and
shall be accompanied by a declaration stating facts showing a
reasonable and good faith attempt at an informal resolution of each
issue presented by the motion. Notice of this motion shall be given
to all parties, and to the deponent either orally at the examination,
or by subsequent service in writing. If the notice of the motion is
given orally, the deposition officer shall direct the deponent to
attend a session of the court at the time specified in the notice.
Not less than five days prior to the hearing on this motion, the
moving party shall lodge with the court a certified copy of any parts
of the stenographic transcript of the deposition that are relevant
to the motion. If a deposition is recorded by audiotape or
videotape, the moving party is required to lodge a certified copy of
a transcript of any parts of the deposition that are relevant to the
motion. If the court determines that the answer or production sought
is subject to discovery, it shall order that the answer be given or
the production be made on the resumption of the deposition.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to compel answer or production, unless it finds that
the one subject to the sanction acted with substantial justification
or that other circumstances make the imposition of the sanction
unjust.
If a deponent fails to obey an order entered under this
subdivision, the failure may be considered a contempt of court. In
addition, if the disobedient deponent is a party to the action or an
officer, director, managing agent, or employee of a party, the court
may make those orders that are just against the disobedient party, or
against the party with whom the disobedient deponent is affiliated,
including the imposition of an issue sanction, an evidence sanction,
or a terminating sanction under Section 2023. In lieu of, or in
addition to, this sanction, the court may impose a monetary sanction
under Section 2023 against that party deponent or against any party
with whom the deponent is affiliated.
(p) Unless the parties agree otherwise, the testimony at any
deposition recorded by stenographic means shall be transcribed. The
party noticing the deposition shall bear the cost of that
transcription, unless the court, on motion and for good cause shown,
orders that the cost be borne or shared by another party.
Notwithstanding paragraph (2) of subdivision (k), any other party, at
that party's expense, may obtain a copy of the transcript. If the
deposition officer receives a request from a party for an original or
a copy of the deposition transcript, or any portion thereof, and the
document will be available to that party prior to the time the
original or copy would be available to any other party, the
deposition officer shall immediately notify all other parties
attending the deposition of the request, and shall, upon request by
any party other than the party making the original request, make that
copy of the full or partial deposition transcript available to all
parties at the same time. Stenographic notes of depositions shall be
retained by the reporter for a period of not less than eight years
from the date of the deposition, where no transcript is produced, and
not less than one year from the date on which the transcript is
produced. Those notes may be either on paper or electronic media, as
long as it allows for satisfactory production of a transcript at any
time during the periods specified. At the request of any other
party to the action, including a party who did not attend the taking
of the deposition testimony, any party who records or causes the
recording of that testimony by means of audiotape or videotape shall
promptly (1) permit that other party to hear the audiotape or to view
the videotape, and (2) furnish a copy of the audiotape or videotape
to that other party on receipt of payment of the reasonable cost of
making that copy of the tape.
If the testimony at the deposition is recorded both
stenographically, and by audiotape or videotape, the stenographic
transcript is the official record of that testimony for the purpose
of the trial and any subsequent hearing or appeal.
(q) (1) If the deposition testimony is stenographically recorded,
the deposition officer shall send written notice to the deponent and
to all parties attending the deposition when the original transcript
of the testimony for each session of the deposition is available for
reading, correcting, and signing, unless the deponent and the
attending parties agree on the record that the reading, correcting,
and signing of the transcript of the testimony will be waived or that
the reading, correcting, and signing of a transcript of the
testimony will take place after the entire deposition has been
concluded or at some other specific time. For 30 days following each
notice, unless the attending parties and the deponent agree on the
record or otherwise in writing to a longer or shorter time period,
the deponent may change the form or the substance of the answer to a
question, and may either approve the transcript of the deposition by
signing it, or refuse to approve the transcript by not signing it.
Alternatively, within this same period, the deponent may change
the form or the substance of the answer to any question and may
approve or refuse to approve the transcript by means of a letter to
the deposition officer signed by the deponent which is mailed by
certified or registered mail with return receipt requested. A copy
of that letter shall be sent by first-class mail to all parties
attending the deposition. For good cause shown, the court may
shorten the 30-day period for making changes, approving, or refusing
to approve the transcript.
The deposition officer shall indicate on the original of the
transcript, if the deponent has not already done so at the office of
the deposition officer, any action taken by the deponent and indicate
on the original of the transcript, the deponent's approval of, or
failure or refusal to approve, the transcript. The deposition
officer shall also notify in writing the parties attending the
deposition of any changes which the deponent timely made in person.
If the deponent fails or refuses to approve the transcript within the
allotted period, the deposition shall be given the same effect as
though it had been approved, subject to any changes timely made by
the deponent. However, on a seasonable motion to suppress the
deposition, accompanied by a declaration stating facts showing a
reasonable and good faith attempt at an informal resolution of each
issue presented by the motion, the court may determine that the
reasons given for the failure or refusal to approve the transcript
require rejection of the deposition in whole or in part.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to suppress a deposition, unless it finds that the
one subject to the sanction acted with substantial justification or
that other circumstances make the imposition of the sanction unjust.
(2) If there is no stenographic transcription of the deposition,
the deposition officer shall send written notice to the deponent and
to all parties attending the deposition that the recording is
available for review, unless the deponent and all these parties agree
on the record to waive the hearing or viewing of an audiotape or
videotape recording of the testimony. For 30 days following this
notice the deponent, either in person or by signed letter to the
deposition officer, may change the substance of the answer to any
question.
The deposition officer shall set forth in a writing to accompany
the recording any changes made by the deponent, as well as either the
deponent's signature identifying the deposition as his or her own,
or a statement of the deponent's failure to supply the signature, or
to contact the officer within the allotted period. When a deponent
fails to contact the officer within the allotted period, or expressly
refuses by a signature to identify the deposition as his or her own,
the deposition shall be given the same effect as though signed.
However, on a reasonable motion to suppress the deposition,
accompanied by a declaration stating facts showing a reasonable and
good faith attempt at an informal resolution of each issue presented
by the motion, the court may determine that the reasons given for the
refusal to sign require rejection of the deposition in whole or in
part.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to suppress a deposition, unless it finds that the
one subject to the sanction acted with substantial justification or
that other circumstances make the imposition of the sanction unjust.
(r) (1) The deposition officer shall certify on the transcript of
the deposition, or in a writing accompanying an audiotaped or
videotaped deposition as described in paragraph (2) of subdivision
(q), that the deponent was duly sworn and that the transcript or
recording is a true record of the testimony given.
(2) When prepared as a rough draft transcript, the transcript of
the deposition may not be certified and may not be used, cited, or
transcribed as the certified transcript of the deposition
proceedings. The rough draft transcript may not be cited or used in
any way or at any time to rebut or contradict the certified
transcript of deposition proceedings as provided by the deposition
officer.
(s) (1) The certified transcript of a deposition shall not be
filed with the court. Instead, the deposition officer shall securely
seal that transcript in an envelope or package endorsed with the
title of the action and marked: "Deposition of (here insert name of
deponent)," and shall promptly transmit it to the attorney for the
party who noticed the deposition. This attorney shall store it under
conditions that will protect it against loss, destruction, or
tampering.
The attorney to whom the transcript of a deposition is transmitted
shall retain custody of it until six months after final disposition
of the action. At that time, the transcript may be destroyed, unless
the court, on motion of any party and for good cause shown, orders
that the transcript be preserved for a longer period.
(2) An audiotape or videotape record of deposition testimony,
including a certified tape made by an operator qualified under
subparagraph (B) of paragraph (2) of subdivision (l), shall not be
filed with the court. Instead, the operator shall retain custody of
that record and shall store it under conditions that will protect it
against loss, destruction, or tampering, and preserve as far as
practicable the quality of the tape and the integrity of the
testimony and images it contains.
At the request of any party to the action, including a party who
did not attend the taking of the deposition testimony, or at the
request of the deponent, that operator shall promptly (A) permit the
one making the request to hear or to view the tape on receipt of
payment of a reasonable charge for providing the facilities for
hearing or viewing the tape, and (B) furnish a copy of the audiotape
or the videotape recording to the one making the request on receipt
of payment of the reasonable cost of making that copy of the tape.
The attorney or operator who has custody of an audiotape or
videotape record of deposition testimony shall retain custody of it
until six months after final disposition of the action. At that
time, the audiotape or videotape may be destroyed or erased, unless
the court, on motion of any party and for good cause shown, orders
that the tape be preserved for a longer period.
(t) Once any party has taken the deposition of any natural person,
including that of a party to the action, neither the party who gave,
nor any other party who has been served with a deposition notice
pursuant to subdivision (c) may take a subsequent deposition of that
deponent. However, for good cause shown, the court may grant leave
to take a subsequent deposition, and the parties, with the consent of
any deponent who is not a party, may stipulate that a subsequent
deposition be taken. This subdivision does not preclude taking one
subsequent deposition of a natural person who has previously been
examined (1) as a result of that person's designation to testify on
behalf of an organization under subdivision (d), or (2), pursuant to
a court order under Section 485.230, for the limited purpose of
discovering pursuant to Section 485.230 the identity, location, and
value of property in which the deponent has an interest. This
subdivision does not authorize the taking of more than one subsequent
deposition for the limited purpose of Section 485.230.
(u) At the trial or any other hearing in the action, any part or
all of a deposition may be used against any party who was present or
represented at the taking of the deposition, or who had due notice of
the deposition and did not serve a valid objection under subdivision
(g), so far as admissible under the rules of evidence applied as
though the deponent were then present and testifying as a witness, in
accordance with the following provisions:
(1) Any party may use a deposition for the purpose of
contradicting or impeaching the testimony of the deponent as a
witness, or for any other purpose permitted by the Evidence Code.
(2) An adverse party may use for any purpose, a deposition of a
party to the action, or of anyone who at the time of taking the
deposition was an officer, director, managing agent, employee, agent,
or designee under subdivision (d) of a party. It is not ground for
objection to the use of a deposition of a party under this paragraph
by an adverse party that the deponent is available to testify, has
testified, or will testify at the trial or other hearing.
(3) Any party may use for any purpose the deposition of any person
or organization, including that of any party to the action, if the
court finds any of the following:
(A) The deponent resides more than 150 miles from the place of the
trial or other hearing.
(B) The deponent, without the procurement or wrongdoing of the
proponent of the deposition for the purpose of preventing testimony
in open court, is (i) exempted or precluded on the ground of
privilege from testifying concerning the matter to which the deponent'
s testimony is relevant, (ii) disqualified from testifying, (iii)
dead or unable to attend or testify because of existing physical or
mental illness or infirmity, (iv) absent from the trial or other
hearing and the court is unable to compel the deponent's attendance
by its process, or (v) absent from the trial or other hearing and the
proponent of the deposition has exercised reasonable diligence but
has been unable to procure the deponent's attendance by the court's
process.
(C) Exceptional circumstances exist that make it desirable to
allow the use of any deposition in the interests of justice and with
due regard to the importance of presenting the testimony of witnesses
orally in open court.
(4) Any party may use a videotape deposition of a treating or
consulting physician or of any expert witness even though the
deponent is available to testify if the deposition notice under
subdivision (d) reserved the right to use the deposition at trial,
and if that party has complied with subparagraph (I) of paragraph (2)
of subdivision (l).
(5) Subject to the requirements of this section, a party may offer
in evidence all or any part of a deposition, and if the party
introduces only part of the deposition, any other party may introduce
any other parts that are relevant to the parts introduced.
(6) Substitution of parties does not affect the right to use
depositions previously taken.
(7) When an action has been brought in any court of the United
States or of any state, and another action involving the same subject
matter is subsequently brought between the same parties or their
representatives or successors in interest, all depositions lawfully
taken and duly filed in the initial action may be used in the
subsequent action as if originally taken in that subsequent action.
A deposition previously taken may also be used as permitted by the
Evidence Code.
(v) Violation of subdivision (k) by any person may result in a
civil penalty of up to five thousand dollars ($5,000) imposed by a
court of competent jurisdiction.
SEC. 9.7. Section 2025 of the Code of Civil Procedure is amended
to read:
2025. (a) Any party may obtain discovery within the scope
delimited by Section 2017, and subject to the restrictions set forth
in Section 2019, by taking in California the oral deposition of any
person, including any party to the action. The person deposed may be
a natural person, an organization such as a public or private
corporation, a partnership, an association, or a governmental agency.
(b) Subject to subdivisions (f) and (t), an oral deposition may be
taken as follows:
(1) The defendant may serve a deposition notice without leave of
court at any time after that defendant has been served or has
appeared in the action, whichever occurs first.
(2) The plaintiff may serve a deposition notice without leave of
court on any date that is 20 days after the service of the summons
on, or appearance by, any defendant. However, on motion with or
without notice, the court, for good cause shown, may grant to a
plaintiff leave to serve a deposition notice on an earlier date.
(c) A party desiring to take the oral deposition of any person
shall give notice in writing in the manner set forth in subdivision
(d). However, where under subdivision (d) of Section 2020 only the
production by a nonparty of business records for copying is desired,
a copy of the deposition subpoena shall serve as the notice of
deposition. The notice of deposition shall be given to every other
party who has appeared in the action. The deposition notice, or the
accompanying proof of service, shall list all the parties or
attorneys for parties on whom it is served.
Where, as defined in subdivision (a) of Section 1985.3, the party
giving notice of the deposition is a subpoenaing party, and the
deponent is a witness commanded by a deposition subpoena to produce
personal records of a consumer, the subpoenaing party shall serve on
that consumer (1) a notice of the deposition, (2) the notice of
privacy rights specified in subdivision (e) of Section 1985.3 and in
Section 1985.6, and (3) a copy of the deposition subpoena.
(d) The deposition notice shall state all of the following:
(1) The address where the deposition will be taken.
(2) The date of the deposition, selected under subdivision (f),
and the time it will commence.
(3) The name of each deponent, and the address and telephone
number, if known, of any deponent who is not a party to the action.
If the name of the deponent is not known, the deposition notice shall
set forth instead a general description sufficient to identify the
person or particular class to which the person belongs.
(4) The specification with reasonable particularity of any
materials or category of materials to be produced by the deponent.
(5) Any intention to record the testimony by audiotape or
videotape, in addition to recording the testimony by the stenographic
method as required by paragraph (1) of subdivision (l) and any
intention to record the testimony by stenographic method, through the
instant visual display of the testimony. In the latter event, a
copy of the deposition notice shall also be given to the deposition
officer. Any offer to provide the instant visual display of the
testimony or to provide rough draft transcripts to any party which is
accepted prior to, or offered at, the deposition shall also be made
by the deposition officer at the deposition to all parties in
attendance.
(6) Any intention to reserve the right to use at trial a videotape
deposition of a treating or consulting physician or of any expert
witness under paragraph (4) of subdivision (u). In this event, the
operator of the videotape camera shall be a person who is authorized
to administer an oath, and shall not be financially interested in the
action or be a relative or employee of any attorney of any of the
parties.
If the deponent named is not a natural person, the deposition
notice shall describe with reasonable particularity the matters on
which examination is requested. In that event, the deponent shall
designate and produce at the deposition those of its officers,
directors, managing agents, employees, or agents who are most
qualified to testify on its behalf as to those matters to the extent
of any information known or reasonably available to the deponent. A
deposition subpoena shall advise a nonparty deponent of its duty to
make this designation, and shall describe with reasonable
particularity the matters on which examination is requested.
If the attendance of the deponent is to be compelled by service of
a deposition subpoena under Section 2020, an identical copy of that
subpoena shall be served with the deposition notice.
(e) (1) The deposition of a natural person, whether or not a party
to the action, shall be taken at a place that is, at the option of
the party giving notice of the deposition, either within 75 miles of
the deponent's residence, or within the county where the action is
pending and within 150 miles of the deponent's residence, unless the
court orders otherwise
under paragraph (3).
(2) The deposition of an organization that is a party to the
action shall be taken at a place that is, at the option of the party
giving notice of the deposition, either within 75 miles of the
organization's principal executive or business office in California,
or within the county where the action is pending and within 150 miles
of that office. The deposition of any other organization shall be
taken within 75 miles of the organization's principal executive or
business office in California, unless the organization consents to a
more distant place. If the organization has not designated a
principal executive or business office in California, the deposition
shall be taken at a place that is, at the option of the party giving
notice of the deposition, either within the county where the action
is pending, or within 75 miles of any executive or business office in
California of the organization.
(3) A party desiring to take the deposition of a natural person
who is a party to the action or an officer, director, managing agent,
or employee of a party may make a motion for an order that the
deponent attend for deposition at a place that is more distant than
that permitted under paragraph (1). This motion shall be accompanied
by a declaration stating facts showing a reasonable and good faith
attempt at an informal resolution of any issue presented by the
motion.
In exercising its discretion to grant or deny this motion, the
court shall take into consideration any factor tending to show
whether the interests of justice will be served by requiring the
deponent's attendance at that more distant place, including, but not
limited to, the following:
(A) Whether the moving party selected the forum.
(B) Whether the deponent will be present to testify at the trial
of the action.
(C) The convenience of the deponent.
(D) The feasibility of conducting the deposition by written
questions under Section 2028, or of using a discovery method other
than a deposition.
(E) The number of depositions sought to be taken at a place more
distant than that permitted under paragraph (1).
(F) The expense to the parties of requiring the deposition to be
taken within the distance permitted under paragraph (1).
(G) The whereabouts of the deponent at the time for which the
deposition is scheduled.
The order may be conditioned on the advancement by the moving
party of the reasonable expenses and costs to the deponent for travel
to the place of deposition.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to increase travel limits for party deponent, unless
it finds that the one subject to the sanction acted with substantial
justification or that other circumstances make the imposition of the
sanction unjust.
(f) An oral deposition shall be scheduled for a date at least 10
days after service of the deposition notice. If, as defined in
subdivision (a) of Section 1985.3, the party giving notice of the
deposition is a subpoenaing party, and the deponent is a witness
commanded by a deposition subpoena to produce personal records of a
consumer, the deposition shall be scheduled for a date at least 20
days after issuance of that subpoena. However, in unlawful detainer
actions, an oral deposition shall be scheduled for a date at least
five days after service of the deposition notice, but not later than
five days before trial.
On motion or ex parte application of any party or deponent, for
good cause shown, the court may shorten or extend the time for
scheduling a deposition, or may stay its taking until the
determination of a motion for a protective order under subdivision
(i).
(g) Any party served with a deposition notice that does not comply
with subdivisions (b) to (f), inclusive, waives any error or
irregularity unless that party promptly serves a written objection
specifying that error or irregularity at least three calendar days
prior to the date for which the deposition is scheduled, on the party
seeking to take the deposition and any other attorney or party on
whom the deposition notice was served. If an objection is made three
calendar days before the deposition date, the objecting party shall
make personal service of that objection pursuant to Section 1011 on
the party who gave notice of the deposition. Any deposition taken
after the service of a written objection shall not be used against
the objecting party under subdivision (u) if the party did not attend
the deposition and if the court determines that the objection was a
valid one.
In addition to serving this written objection, a party may also
move for an order staying the taking of the deposition and quashing
the deposition notice. This motion shall be accompanied by a
declaration stating facts showing a reasonable and good faith attempt
at an informal resolution of any issue presented by the motion. The
taking of the deposition is stayed pending the determination of this
motion.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to quash a deposition notice, unless it finds that
the one subject to the sanction acted with substantial justification
or that other circumstances make the imposition of the sanction
unjust.
(h) (1) The service of a deposition notice under subdivision (c)
is effective to require any deponent who is a party to the action or
an officer, director, managing agent, or employee of a party to
attend and to testify, as well as to produce any document or tangible
thing for inspection and copying.
(2) The attendance and testimony of any other deponent, as well as
the production by the deponent of any document or tangible thing for
inspection and copying, requires the service on the deponent of a
deposition subpoena under Section 2020.
(3) A person may take, and any person other than the deponent may
attend, a deposition by telephone or other remote electronic means.
The court may expressly provide that a nonparty deponent may appear
at his or her deposition by telephone if it finds there is good cause
and no prejudice to any party. A party deponent must appear at his
or her deposition in person and be in the presence of the deposition
officer. The procedures to implement this section shall be
established by court order in the specific action proceeding or by
the California Rules of Court.
(i) Before, during, or after a deposition, any party, any
deponent, or any other affected natural person or organization may
promptly move for a protective order. The motion shall be
accompanied by a declaration stating facts showing a reasonable and
good faith attempt at an informal resolution of each issue presented
by the motion.
The court, for good cause shown, may make any order that justice
requires to protect any party, deponent, or other natural person or
organization from unwarranted annoyance, embarrassment, or
oppression, or undue burden and expense. This protective order may
include, but is not limited to, one or more of the following
directions:
(1) That the deposition not be taken at all.
(2) That the deposition be taken at a different time.
(3) That a videotape deposition of a treating or consulting
physician or of any expert witness, intended for possible use at
trial under paragraph (4) of subdivision (u), be postponed until the
moving party has had an adequate opportunity to prepare, by discovery
deposition of the deponent, or other means, for cross-examination.
(4) That the deposition be taken at a place other than that
specified in the deposition notice, if it is within a distance
permitted by subdivision (e).
(5) That the deposition be taken only on certain specified terms
and conditions.
(6) That the deponent's testimony be taken by written, instead of
oral, examination.
(7) That the method of discovery be interrogatories to a party
instead of an oral deposition.
(8) That the testimony be recorded in a manner different from that
specified in the deposition notice.
(9) That certain matters not be inquired into.
(10) That the scope of the examination be limited to certain
matters.
(11) That all or certain of the writings or tangible things
designated in the deposition notice not be produced, inspected, or
copied.
(12) That designated persons, other than the parties to the action
and their officers and counsel, be excluded from attending the
deposition.
(13) That a trade secret or other confidential research,
development, or commercial information not be disclosed or be
disclosed only to specified persons or only in a specified way.
(14) That the parties simultaneously file specified documents
enclosed in sealed envelopes to be opened as directed by the court.
(15) That the deposition be sealed and thereafter opened only on
order of the court.
If the motion for a protective order is denied in whole or in
part, the court may order that the deponent provide or permit the
discovery against which protection was sought on those terms and
conditions that are just.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion for a protective order, unless it finds that the one
subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.
(j) (1) If the party giving notice of a deposition fails to attend
or proceed with it, the court shall impose a monetary sanction under
Section 2023 against that party, or the attorney for that party, or
both, and in favor of any party attending in person or by attorney,
unless it finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the
imposition of the sanction unjust.
(2) If a deponent does not appear for a deposition because the
party giving notice of the deposition failed to serve a required
deposition subpoena, the court shall impose a monetary sanction under
Section 2023 against that party, or the attorney for that party, or
both, in favor of any other party who, in person or by attorney,
attended at the time and place specified in the deposition notice in
the expectation that the deponent's testimony would be taken, unless
the court finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the
imposition of the sanction unjust.
If a deponent on whom a deposition subpoena has been served fails
to attend a deposition or refuses to be sworn as a witness, the court
may impose on the deponent the sanctions described in subdivision
(h) of Section 2020.
(3) If, after service of a deposition notice, a party to the
action or an officer, director, managing agent, or employee of a
party, or a person designated by an organization that is a party
under subdivision (d), without having served a valid objection under
subdivision (g), fails to appear for examination, or to proceed with
it, or to produce for inspection any document or tangible thing
described in the deposition notice, the party giving the notice may
move for an order compelling the deponent's attendance and testimony,
and the production for inspection of any document or tangible thing
described in the deposition notice. This motion (A) shall set forth
specific facts showing good cause justifying the production for
inspection of any document or tangible thing described in the
deposition notice, and (B) shall be accompanied by a declaration
stating facts showing a reasonable and good faith attempt at an
informal resolution of each issue presented by it or, when the
deponent fails to attend the deposition and produce the documents or
things described in the deposition notice, by a declaration stating
that the petitioner has contacted the deponent to inquire about the
nonappearance. If this motion is granted, the court shall also
impose a monetary sanction under Section 2023 against the deponent or
the party with whom the deponent is affiliated, unless it finds that
the one subject to the sanction acted with substantial justification
or that other circumstances make the imposition of the sanction
unjust. On motion of any other party who, in person or by attorney,
attended at the time and place specified in the deposition notice in
the expectation that the deponent's testimony would be taken, the
court shall also impose a monetary sanction under Section 2023,
unless it finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the
imposition of the sanction unjust.
If that party or party-affiliated deponent then fails to obey an
order compelling attendance, testimony, and production, the court may
make those orders that are just, including the imposition of an
issue sanction, an evidence sanction, or a terminating sanction under
Section 2023 against that party deponent or against the party with
whom the deponent is affiliated. In lieu of, or in addition to, this
sanction, the court may impose a monetary sanction under Section
2023 against that deponent or against the party with whom that party
deponent is affiliated, and in favor of any party who, in person or
by attorney, attended in the expectation that the deponent's
testimony would be taken pursuant to that order.
(k) Except as provided in paragraph (3) of subdivision (d) of
Section 2020, the deposition shall be conducted under the supervision
of an officer who is authorized to administer an oath and is subject
to all of the following requirements:
(1) The officer shall not be financially interested in the action
and shall not be a relative or employee of any attorney of the
parties, or of any of the parties.
(2) Services and products offered or provided by the deposition
officer or the entity providing the services of the deposition
officer to any party or to any party's attorney or third party who is
financing all or part of the action shall be offered to all parties
or their attorneys attending the deposition. No service or product
may be offered or provided by the deposition officer or by the entity
providing the services of the deposition officer to any party or any
party's attorney or third party who is financing all or part of the
action unless the service or product is offered or provided to all
parties or their attorneys attending the deposition. All services
and products offered or provided shall be made available at the same
time to all parties or their attorneys.
(3) The deposition officer or the entity providing the services of
the deposition officer shall not provide to any party or any party's
attorney or third party who is financing all or part of the action
any service or product consisting of the deposition officer's
notations or comments regarding the demeanor of any witness,
attorney, or party present at the deposition. The deposition officer
or entity providing the services of the deposition officer shall not
collect any personal identifying information about the witness as a
service or product to be provided to any party or third party who is
financing all or part of the action.
(4) Upon the request of any party or any party's attorney
attending a deposition, any party or any party's attorney attending
the deposition shall enter in the record of the deposition all
services and products made available to that party or party's
attorney or third party who is financing all or part of the action by
the deposition officer or by the entity providing the services of
the deposition officer. A party in the action who is not represented
by an attorney shall be informed by the noticing party or the party'
s attorney that the unrepresented party may request this statement.
(5) Any objection to the qualifications of the deposition officer
shall be waived unless made before the deposition begins or as soon
thereafter as the ground for that objection becomes known or could be
discovered by reasonable diligence.
(l) (1) The deposition officer shall put the deponent under oath.
Unless the parties agree or the court orders otherwise, the
testimony, as well as any stated objections, shall be taken
stenographically. The party noticing the deposition may also record
the testimony by audiotape or videotape if the notice of deposition
stated an intention also to record the testimony by either of those
methods, or if all the parties agree that the testimony may also be
recorded by either of those methods. Any other party, at that party'
s expense, may make a simultaneous audiotape or videotape record of
the deposition, provided that other party promptly, and in no event
less than three calendar days before the date for which the
deposition is scheduled, serves a written notice of this intention to
audiotape or videotape the deposition testimony on the party or
attorney who noticed the deposition, on all other parties or
attorneys on whom the deposition notice was served under subdivision
(c), and on any deponent whose attendance is being compelled by a
deposition subpoena under Section 2020. If this notice is given
three calendar days before the deposition date, it shall be made by
personal service under Section 1011. Examination and
cross-examination of the deponent shall proceed as permitted at trial
under the provisions of the Evidence Code.
(2) If the deposition is being recorded by means of audiotape or
videotape, the following procedure shall be observed:
(A) The area used for recording the deponent's oral testimony
shall be suitably large, adequately lighted, and reasonably quiet.
(B) The operator of the recording equipment shall be competent to
set up, operate, and monitor the equipment in the manner prescribed
in this subdivision. The operator may be an employee of the attorney
taking the deposition unless the operator is also the deposition
officer. However, if a videotape of deposition testimony is to be
used under paragraph (4) of subdivision (u), the operator of the
recording equipment shall be a person who is authorized to administer
an oath, and shall not be financially interested in the action or be
a relative or employee of any attorney of any of the parties, unless
all parties attending the deposition agree on the record to waive
these qualifications and restrictions. Services and products offered
or provided by the deposition officer or the entity providing the
services of the deposition officer to any party or to any party's
attorney or third party who is financing all or part of the action
shall be offered or provided to all parties or their attorneys
attending the deposition. No service or product may be offered or
provided by the deposition officer or by the entity providing the
services of the deposition officer to any party or any party's
attorney or third party who is financing all or part of the action
unless the service or product is offered or provided to all parties
or their attorneys attending the deposition. All services and
products offered or provided shall be made available at the same time
to all parties or their attorneys. The deposition officer or the
entity providing the services of the deposition officer shall not
provide to any party or any other person or entity any service or
product consisting of the deposition officer's notations or comments
regarding the demeanor of any witness, attorney, or party present at
the deposition. The deposition officer or the entity providing the
services of the deposition officer shall not collect any personal
identifying information about the witness as a service or product to
be provided to any party or third party who is financing all or part
of the action. Upon the request of any party or any party's attorney
attending a deposition, any party or any party's attorney attending
the deposition shall enter in the record of the deposition all
services and products made available to that party or party's
attorney or third party who is financing all or part of the action by
the deposition officer or by the entity providing the services of
the deposition officer. A party in the action who is not represented
by an attorney shall be informed by the noticing party that the
unrepresented party may request this statement.
(C) The operator shall not distort the appearance or the demeanor
of participants in the deposition by the use of camera or sound
recording techniques.
(D) The deposition shall begin with an oral or written statement
on camera or on the audiotape that includes the operator's name and
business address, the name and business address of the operator's
employer, the date, time, and place of the deposition, the caption of
the case, the name of the deponent, a specification of the party on
whose behalf the deposition is being taken, and any stipulations by
the parties.
(E) Counsel for the parties shall identify themselves on camera or
on the audiotape.
(F) The oath shall be administered to the deponent on camera or on
the audiotape.
(G) If the length of a deposition requires the use of more than
one unit of tape, the end of each unit and the beginning of each
succeeding unit shall be announced on camera or on the audiotape.
(H) At the conclusion of a deposition, a statement shall be made
on camera or on the audiotape that the deposition is ended and shall
set forth any stipulations made by counsel concerning the custody of
the audiotape or videotape recording and the exhibits, or concerning
other pertinent matters.
(I) A party intending to offer an audiotaped or videotaped
recording of a deposition in evidence under subdivision (u) shall
notify the court and all parties in writing of that intent and of the
parts of the deposition to be offered within sufficient time for
objections to be made and ruled on by the judge to whom the case is
assigned for trial or hearing, and for any editing of the tape.
Objections to all or part of the deposition shall be made in writing.
The court may permit further designations of testimony and
objections as justice may require. With respect to those portions of
an audiotaped or videotaped deposition that are not designated by
any party or that are ruled to be objectionable, the court may order
that the party offering the recording of the deposition at the trial
or hearing suppress those portions, or that an edited version of the
deposition tape be prepared for use at the trial or hearing. The
original audiotape or videotape of the deposition shall be preserved
unaltered. If no stenographic record of the deposition testimony has
previously been made, the party offering a videotape or an audiotape
recording of that testimony under subdivision (u) shall accompany
that offer with a stenographic transcript prepared from that
recording.
(3) In lieu of participating in the oral examination, parties may
transmit written questions in a sealed envelope to the party taking
the deposition for delivery to the deposition officer, who shall
unseal the envelope and propound them to the deponent after the oral
examination has been completed.
(m) (1) The protection of information from discovery on the ground
that it is privileged or that it is a protected work product under
Section 2018 is waived unless a specific objection to its disclosure
is timely made during the deposition.
(2) Errors and irregularities of any kind occurring at the oral
examination that might be cured if promptly presented are waived
unless a specific objection to them is timely made during the
deposition. These errors and irregularities include, but are not
limited to, those relating to the manner of taking the deposition, to
the oath or affirmation administered, to the conduct of a party,
attorney, deponent, or deposition officer, or to the form of any
question or answer. Unless the objecting party demands that the
taking of the deposition be suspended to permit a motion for a
protective order under subdivision (n), the deposition shall proceed
subject to the objection.
(3) Objections to the competency of the deponent, or to the
relevancy, materiality, or admissibility at trial of the testimony or
of the materials produced are unnecessary and are not waived by
failure to make them before or during the deposition.
(4) If a deponent fails to answer any question or to produce any
document or tangible thing under the deponent's control that is
specified in the deposition notice or a deposition subpoena, the
party seeking that answer or production may adjourn the deposition or
complete the examination on other matters without waiving the right
at a later time to move for an order compelling that answer or
production under subdivision (o).
(n) The deposition officer shall not suspend the taking of
testimony without stipulation of the party conducting the deposition
and the deponent unless any party attending the deposition or the
deponent demands the taking of testimony be suspended to enable that
party or deponent to move for a protective order on the ground that
the examination is being conducted in bad faith or in a manner that
unreasonably annoys, embarrasses, or oppresses that deponent or
party. This motion shall be accompanied by a declaration stating
facts showing a reasonable and good faith attempt at an informal
resolution of each issue presented by the motion. The court, for
good cause shown, may terminate the examination or may limit the
scope and manner of taking the deposition as provided in subdivision
(i). If the order terminates the examination, the deposition shall
not thereafter be resumed, except on order of the court.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion for this protective order, unless it finds that the
one subject to the sanction acted with substantial justification or
that other circumstances make the imposition of the sanction unjust.
(o) If a deponent fails to answer any question or to produce any
document or tangible thing under the deponent's control that is
specified in the deposition notice or a deposition subpoena, the
party seeking discovery may move the court for an order compelling
that answer or production. This motion shall be made no later than
60 days after the completion of the record of the deposition, and
shall be accompanied by a declaration stating facts showing a
reasonable and good faith attempt at an informal resolution of each
issue presented by the motion. Notice
of this motion shall be given to all parties, and to the
deponent either orally at the examination, or by subsequent service
in writing. If the notice of the motion is given orally, the
deposition officer shall direct the deponent to attend a session of
the court at the time specified in the notice. Not less than five
days prior to the hearing on this motion, the moving party shall
lodge with the court a certified copy of any parts of the
stenographic transcript of the deposition that are relevant to the
motion. If a deposition is recorded by audiotape or videotape, the
moving party is required to lodge a certified copy of a transcript of
any parts of the deposition that are relevant to the motion. If the
court determines that the answer or production sought is subject to
discovery, it shall order that the answer be given or the production
be made on the resumption of the deposition.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to compel answer or production, unless it finds that
the one subject to the sanction acted with substantial justification
or that other circumstances make the imposition of the sanction
unjust.
If a deponent fails to obey an order entered under this
subdivision, the failure may be considered a contempt of court. In
addition, if the disobedient deponent is a party to the action or an
officer, director, managing agent, or employee of a party, the court
may make those orders that are just against the disobedient party, or
against the party with whom the disobedient deponent is affiliated,
including the imposition of an issue sanction, an evidence sanction,
or a terminating sanction under Section 2023. In lieu of, or in
addition to, this sanction, the court may impose a monetary sanction
under Section 2023 against that party deponent or against any party
with whom the deponent is affiliated.
(p) Unless the parties agree otherwise, the testimony at any
deposition recorded by stenographic means shall be transcribed. The
party noticing the deposition shall bear the cost of that
transcription, unless the court, on motion and for good cause shown,
orders that the cost be borne or shared by another party.
Notwithstanding paragraph (2) of subdivision (k), any other party, at
that party's expense, may obtain a copy of the transcript. If the
deposition officer receives a request from a party for an original or
a copy of the deposition transcript, or any portion thereof, and the
document will be available to that party prior to the time the
original or copy would be available to any other party, the
deposition officer shall immediately notify all other parties
attending the deposition of the request, and shall, upon request by
any party other than the party making the original request, make that
copy of the full or partial deposition transcript available to all
parties at the same time. Stenographic notes of depositions shall be
retained by the reporter for a period of not less than eight years
from the date of the deposition, where no transcript is produced, and
not less than one year from the date on which the transcript is
produced. Those notes may be either on paper or electronic media, as
long as it allows for satisfactory production of a transcript at any
time during the periods specified. At the request of any other
party to the action, including a party who did not attend the taking
of the deposition testimony, any party who records or causes the
recording of that testimony by means of audiotape or videotape shall
promptly (1) permit that other party to hear the audiotape or to view
the videotape, and (2) furnish a copy of the audiotape or videotape
to that other party on receipt of payment of the reasonable cost of
making that copy of the tape.
A deposition officer shall not be considered a party or a party to
an action for the purposes of this section. Any nonstenographic
technology, used during a deposition at the discretion of the
deposition officer for his or her convenience in creating a
deposition transcript, and all data recorded by means of this
technology, shall be the exclusive property of the deposition officer
and shall not be regarded as part of a deposition transcript. Any
video or audio recording of a deposition made by means of
nonstenographic technology at the discretion of, and for the
convenience of, a deposition officer shall not be considered an
audiotape or videotape required to be maintained by a deposition
officer, nor shall it be considered an audiotape or videotape made by
a party to the action.
If the testimony at the deposition is recorded both
stenographically , and by audiotape or videotape,
the stenographic transcript is the official record of that testimony
for the purpose of the trial and any subsequent hearing or appeal.
A videotape or audiotape recording, or any other recording made
using nonstenographic technology, made or used by a deposition
officer at his or her own discretion to assist in the creation of a
deposition transcript, may not be reproduced and may not be used for
any purpose other than to facilitate the deposition officer in
creating the deposition transcript. The nonstenographic recording
shall be destroyed or erased upon completion of the official
transcript unless otherwise required by law or court order. If a
nonstenographic recording is not destroyed or erased upon completion
of the official transcript, it shall be kept as provided in Section
69955 of the Government Code.
(q) (1) If the deposition testimony is stenographically recorded,
the deposition officer shall send written notice to the deponent and
to all parties attending the deposition when the original transcript
of the testimony for each session of the deposition is available for
reading, correcting, and signing, unless the deponent and the
attending parties agree on the record that the reading, correcting,
and signing of the transcript of the testimony will be waived or that
the reading, correcting, and signing of a transcript of the
testimony will take place after the entire deposition has been
concluded or at some other specific time. For 30 days following
each such receipt of the written
notice, unless the attending parties and the deponent agree on the
record or otherwise in writing to a longer or shorter time period,
the deponent may change the form or the substance of the answer to a
question, and may either approve the transcript of the deposition by
signing it, or refuse to approve the transcript by not signing it.
Alternatively, within this same period, the deponent may change
the form or the substance of the answer to any question and may
approve or refuse to approve the transcript by means of a letter to
the deposition officer signed by the deponent which is mailed by
certified or registered mail with return receipt requested. A copy
of that letter shall be sent by first-class mail to all parties
attending the deposition. For good cause shown, the court may
shorten the 30-day period for making changes, approving, or refusing
to approve the transcript.
The deposition officer shall indicate on the original of the
transcript, if the deponent has not already done so at the office of
the deposition officer, any action taken by the deponent and indicate
on the original of the transcript, the deponent's approval of, or
failure or refusal to approve, the transcript. The deposition
officer shall also notify in writing the parties attending the
deposition of any changes which the deponent timely made in person.
If the deponent fails or refuses to approve the transcript within the
allotted period, the deposition shall be given the same effect as
though it had been approved, subject to any changes timely made by
the deponent. However, on a seasonable motion to suppress the
deposition, accompanied by a declaration stating facts showing a
reasonable and good faith attempt at an informal resolution of each
issue presented by the motion, the court may determine that the
reasons given for the failure or refusal to approve the transcript
require rejection of the deposition in whole or in part.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to suppress a deposition, unless it finds that the
one subject to the sanction acted with substantial justification or
that other circumstances make the imposition of the sanction unjust.
(2) If there is no stenographic transcription of the deposition,
the deposition officer shall send written notice to the deponent and
to all parties attending the deposition that the recording is
available for review, unless the deponent and all these parties agree
on the record to waive the hearing or viewing of an audiotape or
videotape recording of the testimony. For 30 days following this
notice the deponent, either in person or by signed letter to the
deposition officer, may change the substance of the answer to any
question.
The deposition officer shall set forth in a writing to accompany
the recording any changes made by the deponent, as well as either the
deponent's signature identifying the deposition as his or her own,
or a statement of the deponent's failure to supply the signature, or
to contact the officer within the allotted period. When a deponent
fails to contact the officer within the allotted period, or expressly
refuses by a signature to identify the deposition as his or her own,
the deposition shall be given the same effect as though signed.
However, on a reasonable motion to suppress the deposition,
accompanied by a declaration stating facts showing a reasonable and
good faith attempt at an informal resolution of each issue presented
by the motion, the court may determine that the reasons given for the
refusal to sign require rejection of the deposition in whole or in
part.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to suppress a deposition, unless it finds that the
one subject to the sanction acted with substantial justification or
that other circumstances make the imposition of the sanction unjust.
(r) (1) The deposition officer shall certify on the transcript of
the deposition, or in a writing accompanying an audiotaped or
videotaped deposition as described in paragraph (2) of subdivision
(q), that the deponent was duly sworn and that the transcript or
recording is a true record of the testimony given.
(2) When prepared as a rough draft transcript, the transcript of
the deposition may not be certified and may not be used, cited, or
transcribed as the certified transcript of the deposition
proceedings. The rough draft transcript may not be cited or used in
any way or at any time to rebut or contradict the certified
transcript of deposition proceedings as provided by the deposition
officer.
(s) (1) The certified transcript of a deposition shall not be
filed with the court. Instead, the deposition officer shall securely
seal that transcript in an envelope or package endorsed with the
title of the action and marked: "Deposition of (here insert name of
deponent)," and shall promptly transmit it to the attorney for the
party who noticed the deposition. This attorney shall store it under
conditions that will protect it against loss, destruction, or
tampering.
The attorney to whom the transcript of a deposition is transmitted
shall retain custody of it until six months after final disposition
of the action. At that time, the transcript may be destroyed, unless
the court, on motion of any party and for good cause shown, orders
that the transcript be preserved for a longer period.
(2) An audiotape or videotape record of deposition testimony,
including a certified tape made by an operator qualified under
subparagraph (B) of paragraph (2) of subdivision (l), shall not be
filed with the court. Instead, the operator shall retain custody of
that record and shall store it under conditions that will protect it
against loss, destruction, or tampering, and preserve as far as
practicable the quality of the tape and the integrity of the
testimony and images it contains.
At the request of any party to the action, including a party who
did not attend the taking of the deposition testimony, or at the
request of the deponent, that operator shall promptly (A) permit the
one making the request to hear or to view the tape on receipt of
payment of a reasonable charge for providing the facilities for
hearing or viewing the tape, and (B) furnish a copy of the audiotape
or the videotape recording to the one making the
request on receipt of payment of the reasonable cost of making that
copy of the tape.
The attorney or operator who has custody of an audiotape or
videotape record of deposition testimony shall retain custody of it
until six months after final disposition of the action. At that
time, the audiotape or videotape may be destroyed or erased, unless
the court, on motion of any party and for good cause shown, orders
that the tape be preserved for a longer period.
(t) Once any party has taken the deposition of any natural person,
including that of a party to the action, neither the party who gave,
nor any other party who has been served with a deposition notice
pursuant to subdivision (c) may take a subsequent deposition of that
deponent. However, for good cause shown, the court may grant leave
to take a subsequent deposition, and the parties, with the consent of
any deponent who is not a party, may stipulate that a subsequent
deposition be taken. This subdivision does not preclude taking one
subsequent deposition of a natural person who has previously been
examined (1) as a result of that person's designation to testify on
behalf of an organization under subdivision (d), or (2), pursuant to
a court order under Section 485.230, for the limited purpose of
discovering pursuant to Section 485.230 the identity, location, and
value of property in which the deponent has an interest. This
subdivision does not authorize the taking of more than one subsequent
deposition for the limited purpose of Section 485.230.
(u) At the trial or any other hearing in the action, any part or
all of a deposition may be used against any party who was present or
represented at the taking of the deposition, or who had due notice of
the deposition and did not serve a valid objection under subdivision
(g), so far as admissible under the rules of evidence applied as
though the deponent were then present and testifying as a witness, in
accordance with the following provisions:
(1) Any party may use a deposition for the purpose of
contradicting or impeaching the testimony of the deponent as a
witness, or for any other purpose permitted by the Evidence Code.
(2) An adverse party may use for any purpose, a deposition of a
party to the action, or of anyone who at the time of taking the
deposition was an officer, director, managing agent, employee, agent,
or designee under subdivision (d) of a party. It is not ground for
objection to the use of a deposition of a party under this paragraph
by an adverse party that the deponent is available to testify, has
testified, or will testify at the trial or other hearing.
(3) Any party may use for any purpose the deposition of any person
or organization, including that of any party to the action, if the
court finds any of the following:
(A) The deponent resides more than 150 miles from the place of the
trial or other hearing.
(B) The deponent, without the procurement or wrongdoing of the
proponent of the deposition for the purpose of preventing testimony
in open court, is (i) exempted or precluded on the ground of
privilege from testifying concerning the matter to which the deponent'
s testimony is relevant, (ii) disqualified from testifying, (iii)
dead or unable to attend or testify because of existing physical or
mental illness or infirmity, (iv) absent from the trial or other
hearing and the court is unable to compel the deponent's attendance
by its process, or (v) absent from the trial or other hearing and the
proponent of the deposition has exercised reasonable diligence but
has been unable to procure the deponent's attendance by the court's
process.
(C) Exceptional circumstances exist that make it desirable to
allow the use of any deposition in the interests of justice and with
due regard to the importance of presenting the testimony of witnesses
orally in open court.
(4) Any party may use a videotape deposition of a treating or
consulting physician or of any expert witness even though the
deponent is available to testify if the deposition notice under
subdivision (d) reserved the right to use the deposition at trial,
and if that party has complied with subparagraph (I) of paragraph (2)
of subdivision (l).
(5) Subject to the requirements of this section, a party may offer
in evidence all or any part of a deposition, and if the party
introduces only part of the deposition, any other party may introduce
any other parts that are relevant to the parts introduced.
(6) Substitution of parties does not affect the right to use
depositions previously taken.
(7) When an action has been brought in any court of the United
States or of any state, and another action involving the same subject
matter is subsequently brought between the same parties or their
representatives or successors in interest, all depositions lawfully
taken and duly filed in the initial action may be used in the
subsequent action as if originally taken in that subsequent action.
A deposition previously taken may also be used as permitted by the
Evidence Code.
(v) Violation of subdivision (k) by any person may result in a
civil penalty of up to five thousand dollars ($5,000) imposed by a
court of competent jurisdiction.
SEC. 10. Section 2026 of the Code of Civil Procedure is amended to
read:
2026. (a) Any party may obtain discovery by taking an oral
deposition, as described in subdivision (a) of Section 2025, in
another state of the United States, or in a territory or an insular
possession subject to its jurisdiction. Except as modified in this
section, the procedures for taking oral depositions in California set
forth in Section 2025 apply to an oral deposition taken in another
state of the United States, or in a territory or an insular
possession subject to its jurisdiction.
(b) (1) If a deponent is a party to the action or an officer,
director, managing agent, or employee of a party, the service of the
deposition notice is effective to compel that deponent to attend and
to testify, as well as to produce any document or tangible thing for
inspection and copying. The deposition notice shall specify a place
in the state, territory, or insular possession of the United States
that is within 75 miles of the residence or a business office of a
deponent.
(2) If the deponent is not a party to the action or an officer,
director, managing agent, or employee of a party, a party serving a
deposition notice under this section shall use any process and
procedures required and available under the laws of the state,
territory, or insular possession where the deposition is to be taken
to compel the deponent to attend and to testify, as well as to
produce any document or tangible thing for inspection, copying, and
any related activity.
(c) A deposition taken under this section shall be conducted (1)
under the supervision of a person who is authorized to administer
oaths by the laws of the United States or those of the place where
the examination is to be held, and who is not otherwise disqualified
under subdivision (k) and subparagraph (B) of paragraph (2) of
subdivision (l) of Section 2025, or (2) before a person appointed by
the court. This appointment is effective to authorize that person to
administer oaths and to take testimony. On request, the clerk of
the court shall issue a commission authorizing the deposition in
another state or place. The commission shall request that process
issue in the place where the examination is to be held, requiring
attendance and enforcing the obligations of the deponents to produce
documents and answer questions. The commission shall be issued by
the clerk to any party in any action pending in its venue without a
noticed motion or court order. The commission may contain such terms
as are required by the foreign jurisdiction to initiate the process.
If a court order is required by the foreign jurisdiction, an order
for a commission may be obtained by ex parte application.
SEC. 11. Section 2033.5 of the Code of Civil Procedure is amended
to read:
2033.5. (a) The Judicial Council shall develop and approve
official form interrogatories and requests for admission of the
genuineness of any relevant documents or of the truth of any relevant
matters of fact for use in any civil action in a state court based
on personal injury, property damage, wrongful death, unlawful
detainer, breach of contract, family law, or fraud and for any other
civil actions the Judicial Council deems appropriate. Use of the
approved form interrogatories and requests for admission shall be
optional.
(b) In developing the form interrogatories and requests for
admission required by this section, the Judicial Council shall
consult with a representative advisory committee which shall include,
but not be limited to, representatives of the plaintiff's bar, the
defense bar, the public interest bar, court administrators, and the
public. The form interrogatories and requests for admission shall be
drafted in nontechnical language and shall be made available through
the office of the clerk of the appropriate trial court.
(c) The Judicial Council also shall promulgate any necessary rules
to govern the use of the form interrogatories and requests for
admission.
(d) The Judicial Council shall develop and approve official form
interrogatories for use by a victim who has not received complete
payment of a restitution order made pursuant to Section 1202.4 of the
Penal Code.
(e) Notwithstanding whether a victim initiates or maintains an
action to satisfy the unpaid restitution order, a victim may propound
the form interrogatories approved pursuant to this section once each
calendar year. The defendant subject to the restitution order
shall, in responding to the interrogatories propounded, provide
current information regarding the nature, extent, and location of any
assets, income, and liabilities in which the defendant claims a
present or future interest.
(f) This section shall become operative on January 1, 2000.
SEC. 12. Section 2093 of the Code of Civil Procedure is amended to
read:
2093. (a) Every court, every judge, or clerk of any court, every
justice, and every notary public, and every officer or person
authorized to take testimony in any action or proceeding, or to
decide upon evidence, has the power to administer oaths or
affirmations.
(b) (1) Every shorthand reporter certified pursuant to Article 3
(commencing with Section 8020) of Chapter 13 of Division 3 of the
Business and Professions Code has the power to administer oaths or
affirmations and may perform the duties of the deposition officer
pursuant to Section 2025. The certified shorthand reporter shall be
entitled to receive fees for services rendered during a deposition,
including fees for deposition services, as specified in subdivision
(c) of Section 8211 of the Government Code.
(2) This subdivision shall also apply to depositions taken by
telephone or other remote electronic means as specified in Sections
2017 and 2025.
(c) A former judge or justice of a court of record in this state
who retired or resigned from office, other than a judge or justice
who was retired by the Supreme Court for disability, shall have the
power to administer oaths or affirmations, if the former judge or
justice requests and receives a certification from the Commission on
Judicial Performance that there was no formal disciplinary proceeding
pending at the time of retirement or resignation. Where no formal
disciplinary proceeding was pending at the time of retirement or
resignation, the Commission on Judicial Performance shall issue the
certification.
No law, rule, or regulation regarding the confidentiality of
proceedings of the Commission on Judicial Performance shall be
construed to prohibit the Commission on Judicial Performance from
issuing a certificate as provided for in this section.
SEC. 13. Section 915 of the Evidence Code is amended to read:
915. (a) Subject to subdivision (b), the presiding officer may
not require disclosure of information claimed to be privileged under
this division or attorney work product under subdivision (c) of
Section 2018 of the Code of Civil Procedure in order to rule on the
claim of privilege; provided, however, that in any hearing conducted
pursuant to subdivision (c) of Section 1524 of the Penal Code in
which a claim of privilege is made and the court determines that
there is no other feasible means to rule on the validity of the claim
other than to require disclosure, the court shall proceed in
accordance with subdivision (b).
(b) When a court is ruling on a claim of privilege under Article 9
(commencing with Section 1040) of Chapter 4 (official information
and identity of informer) or under Section 1060 (trade secret) or
under subdivision (b) of Section 2018 of the Code of Civil Procedure
(attorney work product) and is unable to do so without requiring
disclosure of the information claimed to be privileged, the court may
require the person from whom disclosure is sought or the person
authorized to claim the privilege, or both, to disclose the
information in chambers out of the presence and hearing of all
persons except the person authorized to claim the privilege and any
other persons as the person authorized to claim the privilege is
willing to have present. If the judge determines that the
information is privileged, neither the judge nor any other person may
ever disclose, without the consent of a person authorized to permit
disclosure, what was disclosed in the course of the proceedings in
chambers.
SEC. 14. Section 68113 of the Government Code is repealed.
SEC. 15. Section 68502.5 of the Government Code is amended to
read:
68502.5.
(a) The Judicial Council may, as part of its trial court budget
process, seek input from groups and individuals as it deems
appropriate including, but not limited to, advisory committees and
the Administrative Director of the Courts. The trial court budget
process may include, but is not limited to, the following:
(1) The receipt of budget requests from the trial courts.
(2) The review of the trial courts' budget requests and evaluate
them against performance criteria established by the Judicial Council
by which a court's performance, level of coordination, and
efficiency can be measured.
(3) The annual adoption of the projected cost in the subsequent
fiscal year of court operations as defined in Section 77003 for each
trial court. This estimation shall serve as a basis for recommended
court budgets, which shall be developed for comparison purposes and
to delineate funding responsibilities.
(4) The annual approval of a schedule for the allocation of moneys
to individual courts and an overall trial court budget for
forwarding to the Governor for inclusion in the Governor's proposed
State Budget. The schedule shall be based on the performance
criteria established pursuant to paragraph (2), on a minimum standard
established by the Judicial Council for the operation and staffing
of all trial court operations, and on any other factors as determined
by the Judicial Council. This minimum standard shall be modeled on
court operations using all reasonable and available measures to
increase court efficiency. The schedule of allocations shall assure
that all trial courts receive funding for the minimum operating and
staffing standards before funding operating and staffing requests
above the minimum standards, and shall include incentives and rewards
for any trial court's implementation of efficiencies and cost saving
measures.
(5) The reallocation of funds during the course of the fiscal year
to ensure equal access to the trial courts by the public, to improve
trial court operations, and to meet trial court emergencies.
Neither the state nor the counties shall have any obligation to
replace moneys appropriated for trial courts and reallocated pursuant
to this paragraph.
(6) The allocation of funds in the Trial Court Improvement Fund to
ensure equal access to trial courts by the public, to improve trial
court operations, and to meet trial court emergencies.
(7) Upon approval of the trial courts' budget by the Legislature,
the preparation during the course of the fiscal year of allocation
schedules for payments to the trial courts, consistent with Section
68085, which shall be submitted to the Controller's office by the
10th day of the month in which payments are to be made.
(8) The establishment of rules regarding a court's authority to
transfer trial court funding moneys from one functional category to
another in order to address needs in any functional category.
(9) At the request of the presiding judge of a trial court, an
independent review of the funding level of the court to determine
whether it is adequate to enable the court to discharge its statutory
and constitutional responsibilities.
(10) From time to time, a review of the level of fees charged by
the courts for various services and prepare recommended adjustments
for forwarding to the Legislature.
(11) Provisions set forth in rules adopted pursuant to Section
77206 of the Government Code.
(b) Courts and counties shall establish procedures to allow for
the sharing of information as it relates to approved budget proposals
and expenditures that impact the respective court and county
budgets. The procedures shall include, upon the request of a court
or county, that a respective court or county shall provide the
requesting court or county a copy of its approved budget and, to the
extent possible, approved program expenditure component information
and a description of budget changes that are anticipated to have an
impact on the requesting court or county. The Judicial Council shall
provide to the Legislature on December 31, 2001, and yearly
thereafter, budget expenditure data at the program component level
for each court.
(c) The Judicial Council shall retain the ultimate responsibility
to adopt a budget and allocate funding for the trial courts and
perform the other activities listed in subdivision (a) that best
assure their ability to carry out their functions, promote
implementation of statewide policies, and promote the immediate
implementation of efficiencies and cost savings measures in court
operations, in order to guarantee equal access to the courts.
SEC. 16. Section 68511.3 of the Government Code is amended to
read:
68511.3. (a) The Judicial Council shall formulate and adopt
uniform forms and rules of court for litigants proceeding in forma
pauperis. These rules shall provide for all of the following:
(1) Standard procedures for considering and determining
applications for permission to proceed in forma pauperis, including,
in the event of a denial of permission, a written statement detailing
the reasons for denial and an evidentiary hearing where there is a
substantial evidentiary conflict.
(2) Standard procedures to toll relevant time limitations when a
pleading or other paper accompanied by the application is timely
lodged with the court and delay is caused due to the processing of
the application to proceed in forma pauperis.
(3) Proceeding in forma pauperis at every stage of the proceedings
at both the appellate and trial levels of the court system.
(4) The confidentiality of the financial information provided to
the court by these litigants.
(5) That the court may authorize the clerk of the court, county
financial officer, or other appropriate county officer to make
reasonable efforts to verify the litigant's financial condition
without compromising the confidentiality of the application.
(6) That permission to proceed in forma pauperis be granted to all
of the following:
(A) Litigants who are receiving benefits pursuant to the
Supplemental Security Income (SSI) and State Supplemental Payments
(SSP) programs (Sections 12200 to 12205, inclusive, of the Welfare
and Institutions Code), the California Work Opportunity and
Responsibility to Kids Act (CalWORKs) program (Chapter 2 (commencing
with Section 11200) of Part 3 of Division 9 of the Welfare and
Institutions Code), the Food Stamp program (7 U.S.C. Sec. 2011 et
seq.), or Section 17000 of the Welfare and Institutions Code.
(B) Litigants whose monthly income is 125 percent or less of the
current monthly poverty line annually established by the Secretary of
Health and Human Services pursuant to the Omnibus Budget
Reconciliation Act of 1981, as amended.
(C) Other persons when in the court's discretion, this permission
is appropriate because the litigant is unable to proceed without
using money which is necessary for the use of the litigant or the
litigant's family to provide for the common necessaries of life.
(b) (1) Litigants who apply for permission to proceed in forma
pauperis pursuant to subparagraph (A) of paragraph (6) of subdivision
(a) shall declare under penalty of perjury that they are receiving
the benefits and may voluntarily provide the court with their date of
birth and social security number or their Medi-Cal identification
number to permit the court to verify the applicant's receipt of
public assistance. The court may require any applicant, except a
defendant in an unlawful detainer action, who chooses not to disclose
his or her social security number for verification purposes to
attach to the application documentation of benefits to support the
claim and all other financial information on a form promulgated by
the Judicial Council for this purpose.
(2) Litigants who apply for permission to proceed in forma
pauperis pursuant to subparagraph (B) or (C) of paragraph (6) of
subdivision (a) shall file a financial statement under oath on a form
promulgated by, and pursuant to rules adopted by, the Judicial
Council.
(c) The forms and rules adopted by the Judicial Council shall
provide for the disclosure of the following information about the
litigant:
(1) Current street address.
(2) Occupation and employer.
(3) Monthly income and expenses.
(4) Address and value of any real property owned directly or
beneficially.
(5) Personal property with a value that exceeds five hundred
dollars ($500).
The information furnished by the litigant shall be used by the
court in determining his or her ability to pay all or a portion of
the fees and costs.
(d) At any time after the court has granted a litigant permission
to proceed in forma pauperis and prior to final disposition of the
case, the clerk of the court, county financial officer, or other
appropriate county officer may notify the court of any changed
financial circumstances which may enable the litigant to pay all or a
portion of the fees and costs which had been waived. The court may
authorize the clerk of the court, county financial officer, or other
appropriate county officer to require the litigant to appear before
and be examined by the person authorized to ascertain the validity of
their indigent status. However, no litigant shall be required to
appear more than once in any four-month period. A litigant
proceeding in forma pauperis shall notify the court within five days
of any settlement or monetary consideration received in settlement of
this litigation and of any other change in financial circumstances
that affects the litigant's ability to pay court fees and costs.
After the litigant either (1) appears before and is examined by the
person authorized to ascertain the validity of his or her indigent
status or (2) notifies the court of a change in financial
circumstances, the court may then order the litigant to pay to the
county the sum and in any manner the court believes is compatible
with the litigant's financial ability.
In any action or proceeding in which the litigant whose fees and
costs have been waived would have been entitled to recover those fees
and costs from another party to the action or proceeding had they
been paid, the court may assess the amount of the waived fees and
costs against the other party and order the other party to pay that
sum to the county or to the clerk and serving and levying officers
respectively, or the court may order the amount of the waived fees
and costs added to the judgment and so identified by the clerk.
Execution may be issued on any order provided for in this
subdivision in the same manner as on a judgment in a civil action.
When an amount equal to the sum due and payable to the clerk has been
collected upon the judgment, these amounts shall be remitted to the
clerk within 30 days. Thereafter, when an amount equal to the sum
due to the serving and levying officers has been collected upon the
judgment, these amounts shall be due and payable to those officers
and shall be remitted within 30 days. If the remittance is not
received by the clerk within 30 days or there is a filing of a
partial satisfaction of judgment in an amount at least equal to the
fees and costs payable to the clerk or a satisfaction of judgment has
been filed, notwithstanding any other provision of law, the court
may issue an abstract of judgment, writ of execution, or both for
recovery of those sums, plus the fees for issuance and execution and
an additional fee for administering this section. The county board
of supervisors shall establish a fee, not to exceed actual costs of
administering this subdivision and in no case exceeding twenty-five
dollars ($25), which shall be added to the writ of execution.
(e) Notwithstanding subdivision (a), a person who is sentenced to
imprisonment in a state prison or confined in a county jail and,
during the period of imprisonment or confinement, files a civil
action or notice of appeal of a civil action in forma pauperis shall
be required to pay the full amount of the filing fee to the extent
provided in this subdivision.
(1) In addition to the form required by this section for filing in
forma pauperis, an inmate shall file a copy of a statement of
account for any sums due to the inmate for the six-month period
immediately preceding the filing of the civil action or notice of
appeal of a civil action. This copy shall be certified by the
appropriate official of the Department of Corrections or a county
jail.
(2) Upon filing the civil action or notice of appeal of a civil
action, the court shall assess, and when funds exist, collect, as a
partial payment of any required court fees, an initial partial filing
fee of 20 percent of the greater of one of the following:
(A) The average monthly deposits to the inmate's account.
(B) The average monthly balance in the inmate's account for the
six-month period immediately preceding the filing of the civil action
or notice of appeal.
(3) After payment of the initial partial filing fee, the inmate
shall be required to make monthly payments of 20 percent of the
preceding month's income credited to the inmate's account. The
Department of Corrections shall forward payments from this account to
the clerk of the court each time the amount in the account exceeds
ten dollars ($10) until the filing fees are paid.
(4) In no event shall the filing fee collected pursuant to this
subdivision exceed the amount of fees permitted by law for the
commencement of a civil action or an appeal of a civil action.
(5) In no event shall an inmate be prohibited from bringing a
civil action or appeal of a civil action solely because the inmate
has no assets and no means to pay the initial partial filing fee.
SEC. 17. Section 71629 of the Government Code is amended to read:
71629. Except as provided in Sections 71624, 71625, 71626,
71626.5, 71627, and 71628, and notwithstanding any other provision of
law:
(a) As provided in Section 71612, the implementation of this
chapter shall not be a cause for the modification of the level of
trial court employment benefits. If the same trial court employment
benefits are not permitted by law or the plan vendor, the trial court
shall provide other trial court employment benefits at the same
level subject to the provisions of subdivision (b). The level of
trial court employment benefits provided to a trial court employee as
of the implementation date of this chapter shall remain in effect
unless modified pursuant to subdivision (b).
(b) For employees who are represented by a recognized employee
organization, the level of trial court employment benefits provided
to a trial court employee may not be modified until after the
expiration of an existing memorandum of understanding or agreement or
a period of 24 months, whichever is longer, unless the trial court
and recognized employee organization mutually agree to a
modification. For employees who are not represented by a recognized
employee organization, the level of trial court employment benefits
may be revised by the trial court.
(c) The trial court shall reimburse the county for the cost of
coverage of trial court employees in trial court employment benefit
plans. If the county administers trial court employment benefits to
trial court employees, or if the trial court contracts with the
county to administer trial court employment benefits to
trial court employees, a trial court employee shall be eligible to
participate in trial court employment benefits subject to trial court
employment benefit regulations, policies, terms and conditions, and
subject to both of the following:
(1) A trial court employee shall have the right to receive the
same level of trial court employment benefits as county employees in
similar classifications, as designated by the trial court subject to
the obligation to meet and confer in good faith, without the
opportunity to meet and confer with the county as to those benefits.
(2) The level of trial court employment benefits accruing to a
trial court employee is subject to modification by the county if the
county changes the level of the same employment benefits accruing to
county employees in classifications that have been designated as
similar classification pursuant to paragraph (1).
(d) As of the implementation date of this chapter:
(1) If the trial court administers trial court employment benefits
to trial court employees separately from the county, the trial court
shall continue to administer these benefits as provided under
existing personnel policies, procedures, plans, or trial court
employee memoranda of understanding or agreements.
(2) If the county administers trial court employment benefits to
trial court employees or if the trial court contracts with the county
to administer trial court employment benefits to trial court
employees, the county may continue to administer trial court
employment benefits to trial court employees pursuant to subdivision
(e) or the trial court may administer trial court employment benefits
to trial court employees pursuant to the following transition
process:
(A) While an existing memorandum of understanding or agreement
remains in effect or for a transition period of 24 months, whichever
is longer, the county shall administer trial court employment
benefits for represented trial court employees as provided in the
applicable memorandum of understanding or agreement, unless the
county is notified by the trial court pursuant to subparagraph (D)
that the trial court no longer needs the county to administer
specified benefits, or the trial court and the county mutually agree
that the county will no longer administer specified benefits.
(B) For a transition period of up to 24 months after the
implementation date of this chapter, the county shall administer
trial court employment benefits for unrepresented trial court
employees, unless notified by the trial court pursuant to
subparagraph (D) that the trial court no longer needs the county to
administer specified benefits, or the trial court and the county
mutually agree that the county will no longer administer specified
benefits. During the transition period, if the county intends to
change unrepresented trial court employees' trial court employment
benefits, the county shall provide the trial court with at least 60
days' notice, or a mutually agreed to amount of notice, before any
change in benefits is implemented so the trial court can decide
whether to accept the county's change or consider alternatives and
arrange to provide benefits on its own.
(C) If, during the transition period, the trial court decides to
offer particular trial court employment benefits that are different
from what the county is administering, the trial court shall be
responsible for administering those particular benefits.
(D) If the trial court decides that it no longer needs the county
to administer specified trial court employment benefits to trial
court employees, the trial court shall provide the county with at
least 60 days' notice, or a mutually agreed to amount of notice.
(e) To facilitate trial court employee participation in county
trial court employment benefit plans, the trial court and county may
mutually agree that the county shall administer the payroll for trial
court employees.
(f) A county shall have authority to provide trial court
employment benefits to trial court employees if those benefits are
requested by the trial court and subject to county concurrence to
providing those benefits. A county's agreement to provide those
benefits shall not be construed to create a meet and confer
obligation between the county and any recognized employee
organization.
(g) Nothing in this section shall prevent the trial court from
arranging for trial court employees other trial court employment
benefits plans subject to the obligation to meet and confer in good
faith.
SEC. 18. Section 72055 of the Government Code is amended to read:
72055. (a) The total fee for filing of the first paper in a
limited civil case shall be ninety dollars ($90), except that in a
case where the amount demanded, excluding attorney's fees and costs,
is ten thousand dollars ($10,000) or less, the fee shall be
eighty-three dollars ($83). The first page of the first paper shall
state whether the amount demanded exceeds or does not exceed ten
thousand dollars ($10,000).
(b) This section applies to the initial complaint, petition, or
application, and any papers transmitted from another court on the
transfer of a civil action or proceeding, but does not include
documents filed pursuant to Section 491.150, 704.750, or 708.160 of
the Code of Civil Procedure.
(c) The term "total fee" as used in this section and Section 72056
includes any amount allocated to the Judges' Retirement Fund
pursuant to Section 72056.1, any automation fee imposed pursuant to
Section 68090.7, any construction fee imposed pursuant to Section
76238, and the law library fee established pursuant to Article 2
(commencing with Section 6320) of Chapter 5 of Division 3 of the
Business and Professions Code. The term "total fee" as used in this
section and Section 72056 also includes any dispute resolution fee
imposed pursuant to Section 470.3 of the Business and Professions
Code, but the Judicial Council may authorize any trial court to
exclude any portion of this dispute resolution fee from the term
"total fee."
(d) The fee shall be waived in any action for damages against a
defendant, based upon the defendant's commission of a felony offense,
upon presentation to the clerk of the court of a certified copy of
the abstract of judgment of conviction of the defendant of the felony
giving rise to the claim for damages. If the plaintiff would have
been entitled to recover those fees from the defendant had they been
paid, the court may assess the amount of the waived fees against the
defendant and order the defendant to pay that sum to the county.
SEC. 19. Section 77001 of the Government Code is amended to read:
77001. The Judicial Council shall adopt rules which establish a
decentralized system of trial court management. These rules shall
ensure:
(a) Local authority and responsibility of trial courts to manage
day-to-day operations.
(b) Countywide administration of the trial courts.
(c) The authority and responsibility of trial courts to manage all
of the following, consistent with statute, rules of court, and
standards of judicial administration:
(1) Annual allocation of funding, including policies and
procedures about moving funding between functions or line items or
programs.
(2) Local personnel plans, including the promulgation of personnel
policies.
(3) Processes and procedures to improve court operations and
responsiveness to the public.
(4) The trial courts of each county shall establish the means of
selecting presiding judges, assistant presiding judges, executive
officers or court administrators, clerks of court, and jury
commissioners.
(d) Trial court input into the Judicial Council budget process.
(e) Equal access to justice throughout California utilizing
standard practices and procedures whenever feasible.
SEC. 20. Section 77003 of the Government Code is amended to read:
77003. (a) As used in this chapter, "court operations" means all
of the following:
(1) Salaries, benefits, and public agency retirement contributions
for superior and municipal court judges and for subordinate judicial
officers. For purposes of this paragraph, "subordinate judicial
officers" includes all commissioner or referee positions created
prior to July 1, 1997, including positions created in the municipal
court prior to July 1, 1997, which thereafter became positions in the
superior court as a result of unification of the municipal and
superior courts in a county, and including those commissioner
positions created pursuant to Sections 69904, 70141, 70141.9,
70142.11, 72607, 73794, 74841.5, and 74908; and includes any staff
who provide direct support to commissioners; but does not include
commissioners or staff who provide direct support to the
commissioners whose positions were created after July 1, 1997, unless
approved by the Judicial Council, subject to availability of
funding.
(2) The salary, benefits, and public agency retirement
contributions for other court staff including all municipal court
staff positions specifically prescribed by statute.
(3) Those marshals and sheriffs as the court deems necessary for
court operations.
(4) Court-appointed counsel in juvenile court dependency
proceedings and counsel appointed by the court to represent a minor
pursuant to Chapter 10 (commencing with Section 3150) of Part 2 of
Division 8 of the Family Code.
(5) Services and supplies relating to court operations.
(6) Collective bargaining under Sections 71630 and 71639.3 with
respect to court employees.
(7) Subject to paragraph (1) of subdivision (d) of Section 77212,
actual indirect costs for county and city and county general services
attributable to court operations, but specifically excluding, but
not limited to, law library operations conducted by a trust pursuant
to statute; courthouse construction; district attorney services;
probation services; indigent criminal defense; grand jury expenses
and operations; and pretrial release services.
(b) However, "court operations" does not include collection
enhancements as defined in Rule 810 of the California Rules of Court
as it read on July 1, 1996.
SEC. 20.5. Section 77003 of the Government Code is amended to
read:
77003. (a) As used in this chapter, "court operations" means all
of the following:
(1) Salaries, benefits, and public agency retirement contributions
for superior and municipal court judges and for subordinate judicial
officers. For purposes of this paragraph, "subordinate judicial
officers" includes all commissioner or referee positions created
prior to July 1, 1997, including positions created in the municipal
court prior to July 1, 1997, which thereafter became positions in the
superior court as a result of unification of the municipal and
superior courts in a county, and including those commissioner
positions created pursuant to Sections 69904, 70141, 70141.9,
70142.11, 72607, 73794, 74841.5, and 74908; and includes any staff
who provide direct support to commissioners; but does not include
commissioners or staff who provide direct support to the
commissioners whose positions were created after July 1, 1997, unless
approved by the Judicial Council, subject to availability of
funding.
(2) The
salary, benefits, and public agency retirement contributions for
other court staff including all municipal court staff positions
specifically prescribed by statute.
(3) Those marshals and sheriffs as the court deems necessary for
court operations.
(4) Court-appointed counsel in juvenile court dependency
proceedings and counsel appointed by the court to represent a minor
pursuant to Chapter 10 (commencing with Section 3150) of Part 2 of
Division 8 of the Family Code.
(5) Services and supplies relating to court operations.
(6) Collective bargaining under the Meyers-Milias-Brown
Act or Sections 2201 to 2210, inclusive, of the California Rules of
Court Sections 71630 and 71639.3 with respect to
court employees specified in Section 3501.5 .
(7) Actual Subject to paragraph (1) of
subdivision (d) of Section 77212, actual indirect costs for
county and city and county general services attributable to court
operations, but specifically excluding, but not limited to, law
library operations conducted by a trust pursuant to statute;
courthouse construction; district attorney services; probation
services; indigent criminal defense; grand jury expenses and
operations; and pretrial release services.
(8) Except as provided in subdivision (b), other matters listed as
court operations in Rule 810 of the California Rules of Court as it
read on July 1, 1996.
(b) However, "court operations" does not include collection
enhancements as defined in Rule 810 of the California Rules of Court
as it read on July 1, 1996.
SEC. 21. Section 77009 of the Government Code is amended to read:
77009. (a) For the purposes of funding trial court operations,
each board of supervisors shall establish in the county treasury a
Trial Court Operations Fund, which will operate as an agency fund.
All funds appropriated in the Budget Act and allocated and
reallocated to each court in the county by the Judicial Council shall
be deposited into the fund. Accounts shall be established in the
Trial Court Operations Fund for each trial court in the county,
except that one account may be established for courts which have a
unified budget. In a county where court budgets include
appropriations for expenditures administered on a countywide basis,
including, but not limited to, court security, centralized
data-processing and planning and research services, an account for
each centralized service shall be established and funded from those
appropriations.
(b) The moneys of the Trial Court Operations Fund arising from
deposits of funds appropriated in the Budget Act and allocated or
reallocated to each court in the county by the Judicial Council shall
be payable only for the purposes set forth in Sections 77003 and
77006.5, and for services purchased by the court pursuant to
subdivisions (b) and (c) of Section 77212. The presiding judge of
each court in a county, or his or her designee, shall authorize and
direct expenditures from the fund and the county auditor-controller
shall make payments from the funds as directed. Approval of the
board of supervisors is not required for expenditure from this fund.
(c) All funds received by a trial court from any source shall be
deposited in the trial court operations fund, except as provided in
this section. Funds that are received to fulfill the requirements of
Article 4 (commencing with Section 4250) of Chapter 2 of Part 2 of
Division 9 and Division 14 (commencing with Section 10000) of the
Family Code shall be identified and maintained in a separate account
established in the fund for this purpose. All other funds that are
received for purposes other than court operations, as defined in
Section 77003 and Rule 810 of the California Rules of Court, shall be
identified and maintained in one or more separate accounts
established in the fund pursuant to procedures adopted by the
Judicial Council. This subdivision shall only apply to funds
received by the courts for operating and program purposes. This
subdivision shall not apply to either of the following:
(1) Funds received by the courts pursuant to Section 68084, if
those funds are not for operating or program use.
(2) Payments from a party or a defendant received by a trial court
or the county for any fees, fines, or forfeitures.
(d) Interest received by a county which is attributable to
investment of money required by this section to be deposited in its
Trial Court Operations Fund shall be deposited in the fund and shall
be used for trial court operations purposes.
(e) In no event shall interest be charged to the Trial Court
Operations Fund, except as provided in Section 77009.1.
(f) Reasonable administrative expenses incurred by the county
associated with the operation of this fund shall be charged to each
court on a pro rata basis in proportion to the total amount allocated
to each court in this fund.
(g) A county, or city and county, may bill trial courts within its
jurisdiction for costs for services provided by the county, or city
and county, as described in Sections 77003 and 77212, including
indirect costs as described in paragraph (7) of subdivision (a) of
Section 77003 and Section 77212. The costs billed by the county, or
the city and the county, pursuant to this subdivision shall not
exceed the costs incurred by the county, or the city and the county,
of providing similar services to county departments or special
districts.
(h) Pursuant to Section 77206, the Controller, at the request of
the Legislature, may perform financial and fiscal compliance audits
of this fund. The Judicial Council or its representatives may perform
audits and reviews of this fund wherever the records may be located.
(i) The Judicial Council, in consultation with the Controller's
office, shall establish procedures to implement the provisions of
this section and to provide for payment of trial court operations
expenses, as described in Sections 77003 and 77006.5, incurred on
July 1, 1997, and thereafter.
(j) Notwithstanding any other provision of law, including, but not
limited to, this section, the Judicial Council may establish trial
court operations funds separate from the county treasury. The
operations funds may supersede those provided for under this section
and may require the courts to include any or all money under the
control of the court in the funds.
SEC. 21.5. Section 77009 of the Government Code is amended to
read:
77009. (a) For the purposes of funding trial court operations,
each board of supervisors shall establish in the county treasury a
Trial Court Operations Fund, which will operate as an agency fund.
All funds appropriated in the Budget Act and allocated and
reallocated to each court in the county by the Judicial Council shall
be deposited into the fund. Accounts shall be established in the
Trial Court Operations Fund for each trial court in the county,
except that one account may be established for courts which have a
unified budget. In a county where court budgets include
appropriations for expenditures administered on a countywide basis,
including, but not limited to, court security, centralized
data-processing data processing and planning and
research services, an account for each centralized service shall be
established and funded from those appropriations.
(b) The moneys of the Trial Court Operations Fund arising from
deposits of funds appropriated in the Budget Act and allocated or
reallocated to each court in the county by the Judicial Council shall
be payable only for the purposes set forth in Sections 77003 and
77006.5, and for services purchased by the court pursuant to
subdivisions (b) and (c) of Section 77212. The presiding judge of
each court in a county, or his or her designee, shall authorize and
direct expenditures from the fund and the county auditor-controller
shall make payments from the funds as directed. Approval of the
board of supervisors is not required for expenditure from this fund.
(c) All funds received by a trial court from any source shall be
deposited in the trial court operations fund, except as provided in
this section. Funds that are received to fulfill the requirements of
Article 4 (commencing with Section 4250) of Chapter 2 of Part 2 of
Division 9 and Division 14 (commencing with Section 10000) of the
Family Code shall be identified and maintained in a separate account
established in the fund for this purpose. All other funds that are
received for purposes other than court operations, as defined in
Section 77003 and Rule 810 of the California Rules of Court, shall be
identified and maintained in one or more separate accounts
established in the fund pursuant to procedures adopted by the
Judicial Council. This subdivision shall only apply to funds
received by the courts for operating and program purposes. This
subdivision shall not apply to either of the following:
(1) Funds received by the courts pursuant to Section 68084, if
those funds are not for operating or program use.
(2) Payments from a party or a defendant received by a trial court
or the county for any fees, fines, or forfeitures.
(d) Interest received by a county which
that is attributable to investment of money required by this
section to be deposited in its Trial Court Operations Fund shall be
deposited in the fund and shall be used for trial court operations
purposes.
(e) In no event shall interest be charged to the Trial Court
Operations Fund, except as provided in Section 77009.1.
(f) Reasonable administrative expenses incurred by the county
associated with the operation of this fund shall be charged to each
court on a pro rata basis in proportion to the total amount allocated
to each court in this fund.
(g) A county, or city and county, may bill trial courts within its
jurisdiction for costs for services provided by the county, or city
and county, as described in Sections 77003 and 77212, including
indirect costs as described in paragraph (7) of subdivision (a) of
Section 77003 and Section 77212. The costs billed by the county, or
the city and the county, pursuant to this subdivision shall not
exceed the costs incurred by the county, or the city and the county,
of providing similar services to county departments or special
districts.
(h) Pursuant to Section 77206, the Controller, at the request of
the Legislature or the Judicial Council , may
perform financial and fiscal compliance audits of this fund.
The Judicial Council or its representatives may perform audits and
reviews of this fund wherever the records may be located.
(i) The Judicial Council with the concurrence of the
Department of Finance and , in consultation with
the Controller's office , shall establish procedures to
implement the provisions of this section and to
provide for payment of trial court operations expenses, as described
in Sections 77003 and 77006.5, incurred on July 1, 1997, and
thereafter.
(j) The Judicial Council shall study alternative methods
for the establishment and management of the Trial Court Operations
Fund as provided in this section, and shall report its findings and
recommendations to the Legislature not later than November 1, 1998.
Notwithstanding any other provision of law, including,
but not limited to, this section, the Judicial Council may establish
trial court operations funds separate from the county treasury. The
operations funds may supersede those provided for under this section
and may require the courts to include any or all money under the
control of the court in the funds.
SEC. 22. Section 77202 of the Government Code is amended to read:
77202. (a) The Legislature shall make an annual appropriation to
the Judicial Council for the general operations of the trial courts
based on the request of the Judicial Council. The Judicial Council'
s trial court budget request shall meet the needs of all trial courts
in a manner which promotes equal access to the courts statewide.
The Judicial Council shall allocate the appropriation to the trial
courts in a manner that best ensures the ability of the courts to
carry out their functions, promotes implementation of statewide
policies, and promotes the immediate implementation of efficiencies
and cost saving measures in court operations, in order to guarantee
access to justice to citizens of the state.
The Judicial Council shall ensure that its trial court budget
request and the allocations made by it reward each trial court's
implementation of efficiencies and cost saving measures.
These efficiencies and cost saving measures shall include, but not
be limited to, the following:
(1) The sharing or merger of court support staff among trial
courts across counties.
(2) The assignment of any type of case to a judge for all purposes
commencing with the filing of the case and regardless of
jurisdictional boundaries.
(3) The establishment of a separate calendar or division to hear a
particular type of case.
(4) In rural counties, the use of all court facilities for
hearings and trials of all types of cases and the acceptance of
filing documents in any case.
(5) The use of alternative dispute resolution programs, such as
arbitration.
(6) The development and use of automated accounting and
case-processing systems.
(b) The Judicial Council shall adopt policies and procedures
governing practices and procedures for budgeting in the trial courts
in a manner that best ensures the ability of the courts to carry out
their functions and may delegate the adoption to the Administrative
Director of the Courts. The Administrative Director of the Courts
shall establish budget procedures and an annual schedule of budget
development and management consistent with these rules.
SEC. 23. Section 77206 of the Government Code is amended to read:
77206. (a) Notwithstanding any other provision of law, the
Judicial Council may regulate the budget and fiscal management of the
trial courts. The Judicial Council, in consultation with the
Controller, shall maintain appropriate regulations for recordkeeping
and accounting by the courts. The Judicial Council shall seek to
ensure, by these provisions, that (1) the fiscal affairs of the trial
courts are managed efficiently, effectively, and responsibly, and
(2) all moneys collected by the courts, including filing fees, fines,
forfeitures, and penalties, and all revenues and expenditures
relating to court operations are known. The Judicial Council may
delegate their authority under this section, when appropriate, to the
Administrative Director of the Courts.
(b) Regulations, rules, and reporting requirements adopted
pursuant to this chapter shall be exempt from review and approval or
other processing by the Office of Administrative Law as provided for
in Chapter 3.5 (commencing with Section 11340) of Part 1 of Division
3 of Title 2.
(c) The Controller, at the request of the Legislature, may perform
and publish financial and fiscal compliance audits of the reports of
court revenues and expenditures. The Controller shall report the
results of these audits to the Legislature and the Judicial Council.
The Judicial Council or its representative may perform audits and
reviews of all court financial records wherever they may be located.
(d) The Judicial Council shall provide for the transmission of
summary information concerning court revenues and expenditures to the
Controller.
(e) The Judicial Council shall adopt rules to provide for
reasonable public access to budget allocation and expenditure
information at the state and local level.
(f) The Judicial Council shall adopt rules ensuring that, upon
written request, the trial courts provide, in a timely manner,
information relating to the administration of the courts, including
financial information and other information that affects the wages,
hours, and working conditions of trial court employees.
SEC. 24. Section 77212 of the Government Code is amended to read:
77212. (a) The State of California, the counties of California,
and the trial courts of California, recognize that a unique and
interdependent relationship has evolved between the courts and the
counties over a sustained period of time. While it is the intent of
this act to transfer all fiscal responsibility for the support of the
trial courts from the counties to the State of California, it is
imperative that the activities of the state, the counties, and the
trial courts be maintained in a manner that ensures that services to
the people of California not be disrupted. Therefore, to this end,
during the 1997-98 fiscal year, commencing on July 1, 1997, counties
shall continue to provide and courts shall continue to use, county
services provided to the trial courts on July 1, 1997, including, but
not limited to: auditor/controller services, coordination of
telephone services, data-processing and information technology
services, procurement, human resources services, affirmative action
services, treasurer/tax collector services, county counsel services,
facilities management, and legal representation. These services
shall be provided to the court at a rate that shall not exceed the
costs of providing similar services to county departments or special
districts. If the cost was not included in the county base pursuant
to paragraph (1) of subdivision (b) of Section 77201 or was not
otherwise charged to the court prior to July 1, 1997, and were court
operation costs as defined in Section 77003 in fiscal year 1994-95,
the court may seek adjustment of the amount the county is required to
submit to the state pursuant Section 77201.
(b) In fiscal year 1998-99 commencing on July 1, 1998, and
thereafter the county may give notice to the court that the county
will no longer provide a specific service except that the county
shall cooperate with the court to ensure that a vital service for the
court shall be available from the county or other entities that
provide the service. The notice must be given at least 90 days prior
to the end of the fiscal year and shall be effective only upon the
first day of the succeeding fiscal year.
(c) In fiscal year 1998-99, commencing on July 1, 1998, and
thereafter, the court may give notice to the county that the court
will no longer use a specific county service. The notice shall be
given at least 90 days prior to the end of the fiscal year and shall
be effective only upon the first day of the succeeding fiscal year.
However, for three years from the effective date of this section, a
court shall not terminate a service that involved the acquisition of
equipment, including, but not limited to, computer and data
processing systems, financed by a long-term financing plan whereby
the county is dependent upon the court's continued financial support
for a portion of the cost of the acquisition.
(d) (1) If a trial court desires to receive or continue to receive
a specific service from a county or city and county as provided in
subdivision (c), and the county or city and county desires to provide
or continue to provide that service as provided in subdivision (b),
the presiding judge of that court and the county or city and county
shall enter into a contract for that service. The contract shall
identify the scope of service, method of service delivery, term of
agreement, anticipated service outcomes, and the cost of the service.
The court and the county or city and county shall cooperate in
developing and implementing the contract.
For any contract entered into after January 1, 2002, the amount of
any indirect or overhead costs shall be individually stated in any
contract together with the method of calculation of the indirect or
overhead costs. This amount shall not contain items that are not
otherwise allowable court operations. The Judicial Council may audit
the county figures to ensure compliance with this section and to
determine the reasonableness of the figures.
(2) This subdivision applies to services to be provided in fiscal
year 1999-2000 and thereafter.
SEC. 25. Section 1463.1 of the Penal Code is amended to read:
1463.1. Notwithstanding any other provisions of law except
Section 77009 of the Government Code, any trial court may elect,
with prior approval of the Administrative Director of the Courts, to
deposit in a bank account pursuant to Section 53679 of the Government
Code, all moneys deposited as bail with the court, or with the clerk
thereof.
All moneys received and disbursed through the bank account shall
be properly and uniformly accounted for under any procedures the
Controller may deem necessary. The Judicial Council may regulate the
bank accounts, provided that its regulations are not inconsistent
with those of the Controller.
SEC. 26. Section 4750 of the Penal Code is amended to
read:
4750. A city or county and the superior court in the county shall
be entitled to reimbursement for reasonable and necessary costs
connected with state prisons or prisoners in connection with any of
the following:
(a) Any crime committed at a state prison, whether by a prisoner,
employee, or other person.
With respect to a prisoner, "crime committed at a state prison" as
used in this subdivision, includes, but is not limited to, crimes
committed by the prisoner while detained in local facilities as a
result of a transfer pursuant to Section 2910 or 6253, or in
conjunction with any hearing, proceeding, or other activity for which
reimbursement is otherwise provided by this section.
(b) Any crime committed by a prisoner in furtherance of an escape.
Any crime committed by an escaped prisoner within 10 days after the
escape and within 100 miles of the facility from which the escape
occurred shall be presumed to have been a crime committed in
furtherance of an escape.
(c) Any hearing on any return of a writ of habeas corpus
prosecuted by or on behalf of a prisoner.
(d) Any trial or hearing on the question of the sanity of a
prisoner.
(e) Any costs not otherwise reimbursable under Section 1557 or any
other related provision in connection with any extradition
proceeding for any prisoner released to hold.
(f) Any costs incurred by a coroner in connection with the death
of a prisoner.
(g) Any costs incurred in transporting a prisoner within the host
county or as requested by the prison facility or incurred for
increased security while a prisoner is outside a state prison.
SEC. 27. Section 4751 of the Penal Code is amended to read:
4751. Costs incurred include all of the following:
(a) Costs of law enforcement agencies in connection with any
matter set forth in Section 4750, including the investigation or
evaluation of any of those matters regardless of whether a crime has
in fact occurred, a hearing held, or an offense prosecuted.
(b) Costs of any trial or hearing of any matter set forth in
Section 4750, including costs for the preparation of the trial,
pretrial hearing, actual trial or hearing, expert witness fees, the
costs of guarding or keeping the prisoner, the transportation of the
prisoner, the costs of appeal, and the execution of the sentence.
The cost of detention in a city or county correctional facility shall
include the same cost factors as are utilized by the Department of
Corrections in determining the cost of prisoner care in state
correctional facilities.
(c) The costs of the prosecuting attorney in investigating,
evaluating, or prosecuting cases related to any matter set forth in
Section 4750, whether or not the prosecuting attorney decides to
commence legal action.
(d) Costs incurred by the public defender or court appointed
attorney with respect to any matter set forth in Section 4750.
(e) Any other costs reasonably incurred by a county or superior
court in connection with any matter set forth in Section 4750.
SEC. 28. Section 4753 of the Penal Code is amended to read:
4753. A city or county shall designate an officer or agency to
prepare a statement of costs of the city or county that shall be
reimbursed under this chapter. A superior court shall designate an
officer or employee to prepare a statement of costs of the court that
shall be reimbursed under this chapter.
The statements of the city or county and of the superior court
shall be sent together to the Controller for approval. The
Controller shall reimburse the city or county and the superior court
within 60 days after receipt of the statement or provide a written
statement as to the reason for not making reimbursement at that time.
The reimbursement to the superior court shall be made directly to
the court. If sufficient funds are not available, the Controller
shall request the Director of Finance to include any amounts
necessary to satisfy the claims in a request for a deficiency
appropriation. Section 9.7 of this bill incorporates
amendments to Section 2025 of the Code of Civil Procedure proposed
by both this bill and SB 805. It shall only become operative if (1)
both bills are enacted and become effective on or before January 1,
2002, (2) each bill amends Section 2025 of the Code of Civil
Procedure, and (3) this bill is enacted after SB 805, in which case
Section 9.6 of this bill shall not become operative.
SEC. 27. Section 20.5 of this bill incorporates amendments to
Section 77003 of the Government Code proposed by both this bill and
AB 1700. It shall only become operative if (1) both bills are
enacted and become effective on or before January 1, 2002, (2) each
bill amends Section 77003 of the Government Code, and (3) this bill
is enacted after AB 1700, in which case Section 20 of this bill shall
not become operative.
SEC. 28. Section 21.5 of this bill incorporates amendments to
Section 77009 of the Government Code proposed by this bill and SB
1191. It shall only become operative if (1) both bills are enacted
and become effective on or before January 1, 2002, (2) each bill
amends Section 77009 of the Government Code, and (3) this bill is
enacted after SB 1191, in which case Section 77009 of the Government
Code, as amended by SB 1191, shall remain operative only until the
operative date of this bill, at which time Section 21.5 of this bill
shall become operative, and Section 21 of this bill shall not become
operative.