BILL NUMBER: SB 562 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Morrow
FEBRUARY 22, 2001
An act to amend Section 2924j of the Civil Code, to amend Sections
86, 396a, 398, 472b, 564, 631, 638, 912, 1206, and 1281.5 of the
Code of Civil Procedure, to amend Section 11937 of the Food and
Agricultural Code, to amend Section 946.6 of the Government Code, and
to amend Sections 16370, 16373, and 16379 of the Vehicle Code,
relating to civil procedure.
LEGISLATIVE COUNSEL'S DIGEST
SB 562, as introduced, Morrow. Civil procedure: limited civil
cases.
(1) Existing law governs the procedures for a trustee's sale of
real property. Under existing law, when a trustee cannot determine
the priorities of written claims to real property, the trustee may
file a declaration of the unresolved claims and deposit with the
clerk of the court that portion of the sales proceeds that cannot be
distributed.
This bill would specify that where the amount that a trustee
deposits with a clerk is $25,000 or less, the proceeding described
above constitutes a limited civil case.
(2) Existing law establishes the parameters for limited civil
cases. Existing law provides that actions to enforce and foreclose
liens of mechanics, materialmen, artisans, laborers, and all other
persons having mechanics' liens, where the total amount of the liens
is $25,000 or less, constitute limited civil cases.
This bill would include petitions to release mechanics' liens
where the total amount of a lien is $25,000 or less, to the list of
proceedings that constitute limited civil cases.
(3) Existing law specifies the circumstances in the court may, on
motion change the place of trial. It also specifies the manner of
selection of the court to which the place of trial is transferred.
This bill would revise the latter provision to clarify
cross-references to the former provision.
(4) Existing law delineates various circumstances in which a
superior court may appoint a receiver in a pending action, but limits
that authority to cases other than limited civil cases.
This bill would delete the limitation of the provision to superior
courts and the limitation of the authority to cases other than
limited civil cases.
(5) Existing law establishes the requirements for the enforcement
of arbitration agreements in the context of liens on works of
improvement. Under existing law, a person who seeks to enforce a
claim of lien on a work of improvement does not waive any arbitration
rights pursuant to a written agreement if, in filing the complaint
in the action, the claimant also provides the court with an
application to stay the action pending arbitration.
This bill would provide that a person also does not waive any
arbitration rights if the person includes an allegation in the
complaint stating the intent not to waive arbitration rights and the
intent to move the court for an order to stay proceedings within 30
days after service of the summons and complaint. The bill would
additionally require a claimant seeking to preserve arbitration
rights to file and serve a motion and notice of motion to stay the
action pending arbitration within 30 days after service of the
summons and complaint. This bill would also establish that pursuant
to these provisions no party is entitled to discovery without leave
of court unless the claimant expressly waives the right to
arbitration, the court denies the motion for a stay, or the claimant
fails to comply with certain requirements, as specified.
(6) Existing law provides that when an application to bring a
claim against a public entity or public employee is denied by the
governing body of that entity, a person may petition the court for an
order relieving the petitioner from the prohibition against bringing
a suit against the public entity.
This bill would specify that where an action to which the claim
relates would be a limited civil case, the proceeding to petition a
court pursuant to these provisions would also constitute a limited
civil case.
(7) The bill would also make related changes.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 2924j of the Civil Code is amended to read:
2924j. (a) Unless an interpleader action has been filed, within
30 days of the execution of the trustee's deed resulting from a sale
in which there are proceeds remaining after payment of the amounts
required by paragraphs (1) and (2) of subdivision (a) of Section
2924k, the trustee shall send written notice to all persons with
recorded interests in the real property as of the date immediately
prior to the trustee's sale who would be entitled to notice pursuant
to subdivisions (b) and (c) of Section 2924b. The notice shall be
sent by first-class mail in the manner provided in paragraph (1) of
subdivision (c) of Section 2924b and inform each entitled person of
each of the following:
(1) That there has been a trustee's sale of the described real
property.
(2) That the noticed person may have a claim to all or a portion
of the sale proceeds remaining after payment of the amounts required
by paragraphs (1) and (2) of subdivision (a) of Section 2924k.
(3) The noticed person may contact the trustee at the address
provided in the notice to pursue any potential claim.
(4) That before the trustee can act, the noticed person may be
required to present proof that the person holds the beneficial
interest in the obligation and the security interest therefor. In
the case of a promissory note secured by a deed of trust, proof that
the person holds the beneficial interest may include the original
promissory note and assignment of beneficial interests related
thereto. The noticed person shall also submit a written claim to the
trustee, executed under penalty of perjury, stating the following:
(A) The amount of the claim to the date of trustee's sale.
(B) An itemized statement of the principal, interest, and other
charges.
(C) That claims must be received by the trustee at the address
stated in the notice no later than 30 days after the date the trustee
sends notice to the potential claimant.
(b) The trustee shall exercise due diligence to determine the
priority of the written claims received by the trustee to the trustee'
s sale surplus proceeds from those persons to whom notice was sent
pursuant to subdivision (a). In the event there is no dispute as to
the priority of the written claims submitted to the trustee, proceeds
shall be paid within 30 days after the conclusion of the notice
period. If the trustee has failed to determine the priority of
written claims within 90 days following the 30-day notice period,
then within 10 days thereafter the trustee shall deposit the funds
with the clerk of the court pursuant to subdivision (c) or file an
interpleader action pursuant to subdivision (e). Nothing in this
section shall preclude any person from pursuing other remedies or
claims as to surplus proceeds.
(c) If, after due diligence, the trustee is unable to determine
the priority of the written claims received by the trustee to the
trustee's sale surplus of multiple persons or if the trustee
determines there is a conflict between potential claimants, the
trustee may file a declaration of the unresolved claims and deposit
with the clerk of the superior or municipal court, as applicable, of
the county in which the sale occurred, that portion of the sales
proceeds that cannot be distributed, less any fees charged by the
clerk pursuant to this subdivision. Where the amount of the
deposit is twenty-five thousand dollars ($25,000) or less, a
proceeding pursuant to this subdivision is a limited civil case.
The declaration shall specify the date of the trustee's sale, a
description of the property, the names and addresses of all persons
sent notice pursuant to subdivision (a), a statement that the trustee
exercised due diligence pursuant to subdivision (b), that the
trustee provided written notice as required by subdivisions (a) and
(d) and the amount of the sales proceeds deposited by the trustee
with the superior or municipal court. Further, the trustee shall
submit a copy of the trustee's sales guarantee and any information
relevant to the identity, location, and priority of the potential
claimants with the superior or municipal court and shall file proof
of service of the notice required by subdivision (d) on all persons
described in subdivision (a).
The clerk shall deposit the amount with the county treasurer
subject to order of the superior or municipal court upon the
application of any interested party. The clerk may charge a
reasonable fee for the performance of activities pursuant to this
subdivision equal to the fee for filing an interpleader action
pursuant to Article 2 (commencing with Section 26820) of Division 2
of Title 3 of the Government Code. Upon deposit of that portion of
the sale proceeds that cannot be distributed by due diligence, the
trustee shall be discharged of further responsibility for the
disbursement of sale proceeds. A deposit with the clerk of the
superior or municipal court pursuant to this subdivision may be
either for the total proceeds of the trustee's sale, less any fees
charged by the clerk, if a conflict or conflicts exist with respect
to the total proceeds, or that portion that cannot be distributed
after due diligence, less any fees charged by the clerk.
(d) Before the trustee deposits the funds with the clerk of the
court pursuant to subdivision (c), the trustee shall send written
notice by first-class mail, postage prepaid, to all persons described
in subdivision (a) informing them that the trustee intends to
deposit the funds with the clerk of the superior or municipal court,
as applicable, and that a claim for the funds must be filed with the
court within 30 days from the date of the notice, providing the
address of the court in which the funds were deposited, and a phone
number for obtaining further information.
Within 90 days after deposit with the clerk, the court shall
consider all claims filed at least 15 days before the date on which
the hearing is scheduled by the court, the clerk shall serve written
notice of the hearing by first-class mail on all claimants identified
in the trustees' declaration at the addresses specified therein.
The court shall distribute the deposited funds to any and all
claimants entitled thereto.
(e) Nothing in this section restricts the ability of a trustee to
file an interpleader action in order to resolve a dispute about the
proceeds of a trustee's sale. Once an interpleader action has been
filed, thereafter the provisions of this section shall not apply.
(f) "Due diligence," for the purposes of this section means that
the trustee researched the written claims submitted or other evidence
of conflicts and determined that a conflict of priorities exists
between two or more claimants which the trustee is unable to resolve.
(g) To the extent required by the Unclaimed Property Law, a
trustee in possession of surplus proceeds not required to be
deposited with the court pursuant to subdivision (b) shall comply
with the Unclaimed Property Law (Chapter 7 (commencing with Section
1500) of Title 10 of Part 3 of the Code of Civil Procedure).
(h) Prior to July 1, 2000, the Judicial Council shall adopt a form
to accomplish the filing authorized by this section.
SEC. 2. Section 86 of the Code of Civil Procedure is amended to
read:
86. (a) The following civil cases and proceedings are limited
civil cases:
(1) Cases at law in which the demand, exclusive of interest, or
the value of the property in controversy amounts to twenty-five
thousand dollars ($25,000) or less. This paragraph does not apply to
cases that involve the legality of any tax, impost, assessment,
toll, or municipal fine, except actions to enforce payment of
delinquent unsecured personal property taxes if the legality of the
tax is not contested by the defendant.
(2) Actions for dissolution of partnership where the total assets
of the partnership do not exceed twenty-five thousand dollars
($25,000); actions of interpleader where the amount of money or the
value of the property involved does not exceed twenty-five thousand
dollars ($25,000).
(3) Actions to cancel or rescind a contract when the relief is
sought in connection with an action to recover money not exceeding
twenty-five thousand dollars ($25,000) or property of a value not
exceeding twenty-five thousand dollars ($25,000), paid or delivered
under, or in consideration of, the contract; actions to revise a
contract where the relief is sought in an action upon the contract if
the action otherwise is a limited civil case.
(4) Proceedings in forcible entry or forcible or unlawful detainer
where the whole amount of damages claimed is twenty-five thousand
dollars ($25,000) or less.
(5) Actions to enforce and foreclose liens on personal property
where the amount of the liens is twenty-five thousand dollars
($25,000) or less.
(6) Actions to enforce and foreclose , or petitions to
release, liens of mechanics, materialmen, artisans, laborers,
and of all other persons to whom liens are given under the provisions
of Chapter 2 (commencing with Section 3109) of Title 15 of Part 4 of
Division 3 of the Civil Code, or to enforce and foreclose an
assessment lien on a common interest development as defined in
Section 1351 of the Civil Code, where the amount of the liens is
twenty-five thousand dollars ($25,000) or less. However, where an
action to enforce the lien affects property that is also affected by
a similar pending action that is not a limited civil case, or where
the total amount of the liens sought to be foreclosed against the
same property aggregates an amount in excess of twenty-five thousand
dollars ($25,000), the action is not a limited civil case, and if the
action is pending in a municipal court, upon motion of any
interested party, the municipal court shall order the action or
actions pending therein transferred to the proper superior court.
Upon making the order, the same proceedings shall be taken as are
provided by Section 399 with respect to the change of place of trial.
(7) Actions for declaratory relief when brought pursuant to either
of the following:
(A) By way of cross-complaint as to a right of indemnity with
respect to the relief demanded in the complaint or a cross-complaint
in an action or proceeding that is otherwise a limited civil case.
(B) To conduct a trial after a nonbinding fee arbitration between
an attorney and client, pursuant to Article 13 (commencing with
Section 6200) of Chapter 4 of Division 3 of the Business and
Professions Code, where the amount in controversy is twenty-five
thousand dollars ($25,000) or less.
(8) Actions to issue temporary restraining orders and preliminary
injunctions, and to take accounts, and to appoint
receivers where necessary to preserve the property or
rights of any party to a limited civil case; to appoint a receiver
and to make any order or perform any act, pursuant to Title 9
(commencing with Section 680.010) of Part 2 (enforcement of
judgments) in a limited civil case; to determine title to personal
property seized in a limited civil case.
(9) Actions under Article 3 (commencing with Section 708.210) of
Chapter 6 of Division 2 of Title 9 of Part 2 for the recovery of an
interest in personal property or to enforce the liability of the
debtor of a judgment debtor where the interest claimed adversely is
of a value not exceeding twenty-five thousand dollars ($25,000) or
the debt denied does not exceed twenty-five thousand dollars
($25,000).
(10) Arbitration-related petitions filed pursuant to either of the
following:
(A) Article 2 (commencing with Section 1292) of Chapter 5 of Title
9 of Part 3, except for uninsured motorist arbitration proceedings
in accordance with Section 11580.2 of the Insurance Code, if the
petition is filed before the arbitration award becomes final and the
matter to be resolved by arbitration is a limited civil case under
paragraphs (1) to (9), inclusive, of subdivision (a) or if the
petition is filed after the arbitration award becomes final and the
amount of the award and all other rulings, pronouncements, and
decisions made in the award are within paragraphs (1) to (9),
inclusive, of subdivision (a).
(B) To confirm, correct, or vacate a fee arbitration award between
an attorney and client that is binding or has become binding,
pursuant to Article 13 (commencing with Section 6200) of Chapter 4 of
Division 3 of the Business and Professions Code, where the
arbitration award is twenty-five thousand dollars ($25,000) or less.
(b) The following cases in equity are limited civil cases:
(1) Cases to try title to personal property when the amount
involved is not more than twenty-five thousand dollars ($25,000).
(2) Cases when equity is pleaded as a defensive matter in any case
that is otherwise a limited civil case.
(3) Cases to vacate a judgment or order of the court obtained in a
limited civil case through extrinsic fraud, mistake, inadvertence,
or excusable neglect.
SEC. 3. Section 396a of the Code of Civil Procedure is amended to
read:
396a. (a) In a limited civil case that is subject to
Sections 1812.10 and 2984.4 of the Civil Code, or subdivision (b) of
Section 395 of the Code of Civil Procedure, or is an action or
proceeding for an unlawful detainer as defined in Section 1161 of the
Code of Civil Procedure, the plaintiff shall state facts in the
complaint, verified by the plaintiff's oath, or the oath of the
plaintiff's attorney, or in an affidavit of the plaintiff or of the
plaintiff's attorney filed with the complaint, showing that the
action has been commenced in the proper court for the trial of the
action or proceeding, and showing that the action is subject to the
provisions of Sections 1812.10 and 2984.4 of the Civil Code or
subdivision (b) of Section 395 of the Code of Civil Procedure, or is
an action for an unlawful detainer. When the affidavit is filed with
the complaint, a copy thereof shall be served with the summons.
Except as herein provided, if the complaint or affidavit be not so
filed, no further proceedings shall be had in the action or
proceeding, except to dismiss the same without
prejudice. However, the court may, on such terms
as may be just, permit the affidavit to be filed subsequent to the
filing of the complaint, and a copy of the affidavit shall be served
on the defendant and the time to answer or otherwise plead shall date
from that service. If
(b) If it appears from the complaint or affidavit, or
otherwise, that the court in which the action or proceeding is
commenced is not the proper court for the trial thereof, the court in
which the action or proceeding is commenced, or a judge thereof,
shall, whenever that fact appears, transfer it to the proper court,
on its own motion, or on motion of the defendant, unless the
defendant consents in writing, or in open court (consent in open
court being entered in the minutes or docket of
the court), to the keeping of the action or proceeding in the court
where commenced. If that consent be given, the action or proceeding
may continue in the court where commenced. Notwithstanding the
provisions of Section 1801.1 and subdivision (f) of Section 2983.7 of
the Civil Code, that consent may be given by a defendant who is
represented by counsel at the time the consent is given, and where an
action or proceeding is subject to subdivision (b) of Section 395 or
is for an unlawful detainer, that consent may only be given by a
defendant who is represented by counsel at the time the consent is
given. In any case where the transfer of the action or proceeding is
ordered under the provisions of this paragraph, if summons is served
prior to the filing of the action or proceeding in the court to
which it is transferred, as to any defendant, so served, who has not
appeared in the action or proceeding, the time to answer or otherwise
plead shall date from service upon that defendant of written notice
of the filing.
(c) When it appears from the complaint or affidavit of
the plaintiff that the court in which the action or proceeding is
commenced is a proper court for the trial thereof, all proper
proceedings may be had, and the action or proceeding may be tried
therein; provided, however, that a motion for a transfer of the
action or proceeding may be made as in other cases, within the time,
upon the grounds, and in the manner provided in this title, and if
upon that motion it appears that the action or proceeding is not
pending in the proper court, or should for other cause be
transferred, the same shall be ordered transferred as provided in
this title.
(d) When any action or proceeding is ordered
transferred as herein provided, proceedings shall be had, and the
costs and fees shall be paid, as provided in Sections 398 and 399
of this code .
SEC. 4. Section 398 of the Code of Civil Procedure is amended to
read:
398. (a) If, for any cause ,
specified in subdivisions 2, 3 and 4 of section
subdivision (b), (c), or (d) of Section 397 ,
the court orders the transfer of an action or proceeding, it must be
transferred to a court having jurisdiction of the subject matter of
the action which the parties may agree upon, by stipulation in
writing, or made in open court and entered in the minutes or
docket ; or, if they do not so agree, then to the nearest
or most accessible court, where the like objection or cause for
making the order does not exist.
(b) If an action or proceeding is commenced in a court,
other than one designated as a proper court for the trial
thereof by the provisions of this title, and the same be
ordered transferred for that reason, it must
shall be transferred to any such proper
court which the parties may agree upon by stipulation in writing, or
made in open court and entered in the minutes or docket
; if the parties do not so agree, then to any such
proper court in the county in which the action or
proceeding was commenced which the defendant may designate, or, if
there be no such proper court in such county, to
any such proper court, in a proper county,
designated by the defendant; if the parties do not so agree, and the
defendant does not so designate the court, as herein provided, or
where the court orders the transfer of an action on its own motion as
provided in this title, to such the proper court
as the court in which the action or proceeding is pending may
determine.
(c) The designation of the court by the defendant, herein
provided for, may be made in the notice of motion for change of venue
or in open court, entered in the minutes or docket, at the time the
order for transfer is made.
SEC. 5. Section 472b of the Code of Civil Procedure is amended to
read:
472b. When a demurrer to any pleading is sustained or overruled,
and time to amend or answer is given, the time so given runs from the
service of notice of the decision or order, unless the notice is
waived in open court, and the waiver entered in the minutes
or docket . When an order sustaining a demurrer without
leave to amend is reversed or otherwise remanded by any order issued
by a reviewing court, any amended complaint shall be filed within 30
days after the clerk of the reviewing court mails notice of the
issuance of the remittitur.
SEC. 6. Section 564 of the Code of Civil Procedure is amended to
read:
564. (a) A receiver may be appointed, in the manner provided in
this chapter, by the court in which an action or proceeding is
pending in any case in which the court is empowered by law to appoint
a receiver.
(b) In superior court a A receiver
may be appointed by the court in which an action or proceeding is
pending, or by a judge thereof, in the following cases ,
other than in a limited civil case :
(1) In an action by a vendor to vacate a fraudulent purchase of
property, or by a creditor to subject any property or fund to the
creditor's claim, or between partners or others jointly owning or
interested in any property or fund, on the application of the
plaintiff, or of any party whose right to or interest in the property
or fund, or the proceeds thereof, is probable, and where it is shown
that the property or fund is in danger of being lost, removed, or
materially injured.
(2) In an action by a secured lender for the foreclosure of
the a deed of trust or mortgage and
sale of the property upon which there is a lien
under a deed of trust or mortgage, where it appears that the property
is in danger of being lost, removed, or materially injured, or that
the condition of the deed of trust or mortgage has not been
performed, and that the property is probably insufficient to
discharge the deed of trust or mortgage debt.
(3) After judgment, to carry the judgment into effect.
(4) After judgment, to dispose of the property according to the
judgment, or to preserve it during the pendency of an appeal, or
pursuant to Title 9 (commencing with Section 680.010) (enforcement of
judgments), or after sale of real property pursuant to a decree of
foreclosure, during the redemption period, to collect, expend, and
disburse rents as directed by the court or otherwise provided by law.
(5) In the cases when Where a
corporation has been dissolved, or is insolvent, or in imminent
danger of insolvency, or has forfeited its corporate rights.
(6) In an action of unlawful detainer.
(7) At the request of the Public Utilities Commission pursuant to
Sections 855 and 5259.5 of the Public Utilities Code.
(8) In all other cases where necessary to preserve the
property or rights of any party, or where receivers have
heretofore been appointed by the usages of courts of equity.
(9) At the request of the Office of Statewide Health Planning and
Development, or the Attorney General, pursuant to Section
436.222 129173 of the Health and Safety Code.
(10) In an action by a secured lender for specified
specific performance of an assignment of rents
provision in a deed of trust, mortgage, or separate assignment
document. In addition, that The appointment
may be continued after entry of a judgment for specific
performance in that action, if appropriate to
protect, operate, or maintain real property encumbered by
the a deed of trust or mortgage or to collect
the rents therefrom while a pending nonjudicial
foreclosure under power of sale in the a
deed of trust or mortgage is being completed.
(11) In a case brought by an assignee under an assignment of
leases, rents, issues, or profits pursuant to subdivision (g) of
Section 2938 of the Civil Code.
(c) A receiver may be appointed, in the manner provided in this
chapter, including, but not limited to, Section 566, by the superior
court in an action other than a limited civil case
brought by a secured lender to enforce the rights provided in
Section 2929.5 of the Civil Code, to enable the secured lender to
enter and inspect the real property security for the purpose of
determining the existence, location, nature, and magnitude of any
past or present release or threatened release of any hazardous
substance into, onto, beneath, or from the real property security.
The secured lender shall not abuse the right of entry and inspection
or use it to harass the borrower or tenant of the property. Except
in case of an emergency, when the borrower or tenant of the property
has abandoned the premises, or if it is impracticable to do so, the
secured lender shall give the borrower or tenant of the property
reasonable notice of the secured lender's intent to enter and shall
enter only during the borrower's or tenant's normal business hours.
Twenty-four hours' notice shall be presumed to be reasonable notice
in the absence of evidence to the contrary.
(d) Any action by a secured lender to appoint a receiver pursuant
to this section shall not constitute an action within the meaning of
subdivision (a) of Section 726.
(e) For purposes of this section:
(1) "Borrower" means the trustor under a deed of trust, or a
mortgagor under a mortgage, where the deed of trust or mortgage
encumbers real property security and secures the performance of the
trustor or mortgagor under a loan, extension of credit, guaranty, or
other obligation. The term includes any successor-in-interest of the
trustor or mortgagor to the real property security before the deed
of trust or mortgage has been discharged, reconveyed, or foreclosed
upon.
(2) "Hazardous substance" means (A) any "hazardous substance" as
defined in subdivision (f) of Section 25281 of the Health and Safety
Code as effective on January 1, 1991, or as subsequently amended, (B)
any "waste" as defined in subdivision (d) of Section 13050 of the
Water Code as effective on January 1, 1991, or as subsequently
amended, or (C) petroleum, including crude oil or any fraction
thereof, natural gas, natural gas liquids, liquefied natural gas, or
synthetic gas usable for fuel, or any mixture thereof.
(3) "Real property security" means any real property and
improvements, other than a separate interest and any related interest
in the common area of a residential common interest development, as
the terms "separate interest," "common area," and "common interest
development" are defined in Section 1351 of the Civil Code, or real
property consisting of one acre or less that contains 1 to 15
dwelling units.
(4) "Release" means any spilling, leaking, pumping, pouring,
emitting, emptying, discharging, injecting, escaping, leaching,
dumping, or disposing into the environment, including continuing
migration, of hazardous substances into, onto, or through soil,
surface water, or groundwater.
(5) "Secured lender" means the beneficiary under a deed of trust
against the real property security, or the mortgagee under a mortgage
against the real property security, and any successor-in-interest of
the beneficiary or mortgagee to the deed of trust or mortgage.
SEC. 7. Section 631 of the Code of Civil Procedure is amended to
read:
631. (a) Trial by jury may be waived by the several parties to an
issue of fact in any of the following ways:
(1) By failing to appear at the trial.
(2) By written consent filed with the clerk or judge.
(3) By oral consent, in open court, entered in the minutes
or docket .
(4) By failing to announce that a jury is required, at the time
the cause is first set for trial, if it is set upon notice or
stipulation, or within five days after notice of setting if it is set
without notice or stipulation.
(5) By failing to deposit with the clerk, or judge, advance jury
fees 25 days prior to the date set for trial, except in unlawful
detainer actions where the
fees shall be deposited at least five days prior to the date set for
trial, or as provided by subdivision (b). An advance jury fee
deposited pursuant to this paragraph may not exceed a total of one
hundred fifty dollars ($150).
(6) By failing to deposit with the clerk or judge, promptly after
the impanelment of the jury, a sum equal to the mileage or
transportation (if allowed by law) of the jury accrued up to that
time.
(7) By failing to deposit with the clerk or judge, at the
beginning of the second and each succeeding day's session a sum equal
to one day's fees of the jury, and the mileage or transportation, if
any.
(b) In a superior court action, other than a limited civil case,
if a jury is demanded by either party in the memorandum to set the
cause for trial and the party, prior to trial, by announcement or by
operation of law, waives a trial by jury, then all adverse parties
shall have five days following the receipt of notice of the waiver to
file and serve a demand for a trial by jury and to deposit any
advance jury fees that are then due.
(c) When the party who has demanded trial by jury either (1)
waives the trial upon or after the assignment for trial to a specific
department of the court, or upon or after the commencement of the
trial, or (2) fails to deposit the fees as provided in paragraph (6)
of subdivision (a), trial by jury shall be waived by the other party
by either failing promptly to demand trial by jury before the judge
in whose department the waiver, other than for the failure to deposit
the fees, was made, or by failing promptly to deposit the fees
described in paragraph (6) of subdivision (a).
(d) The court may, in its discretion upon just terms, allow a
trial by jury although there may have been a waiver of a trial by
jury.
SEC. 8. Section 638 of the Code of Civil Procedure is amended to
read:
638. A referee may be appointed upon the agreement of the parties
filed with the clerk, or judge, or entered in the minutes
or in the docket , or upon the motion of a party to a
written contract or lease that provides that any controversy arising
therefrom shall be heard by a referee if the court finds a reference
agreement exists between the parties:
(a) To hear and determine any or all of the issues in an action or
proceeding, whether of fact or of law, and to report a statement of
decision thereon .
(b) To ascertain a fact necessary to enable the court to determine
an action or proceeding.
(c) In any matter in which a referee is appointed pursuant to this
section, a copy of the order shall be forwarded to the office of the
presiding judge. The Judicial Council shall, by rule, collect
information on the use of these referees. The Judicial Council shall
also collect information on fees paid by the parties for the use of
referees to the extent that information regarding those fees is
reported to the court. The Judicial Council shall report thereon to
the Legislature by January 1, 2003. This subdivision shall become
inoperative on January 1, 2004.
SEC. 9. Section 912 of the Code of Civil Procedure is amended to
read:
912. Upon final determination of an appeal by the reviewing
court, the clerk of the court shall remit to the trial court a
certified copy of the judgment or order of the reviewing court and of
its opinion, if any. The clerk of the trial court shall file the
certified copy of the judgment and opinion of the reviewing court,
shall attach the same to the judgment roll if the appeal was from a
judgment, and shall enter a note of the judgment of the reviewing
court stating whether the judgment or order appealed from has been
affirmed, reversed or modified, in the margin of the original entry
of the judgment or order, and also in the register of actions
or docket .
SEC. 10. Section 1206 of the Code of Civil Procedure is amended to
read:
1206. (a) Upon the levy under a writ of attachment or
execution not founded upon a claim for labor, any miner, mechanic,
salesman, servant, clerk, laborer or other person who has performed
work or rendered personal services for the defendant within 90 days
prior to the levy may file a verified statement of the claim therefor
with the officer executing the writ, file a copy thereof with the
court that issued the writ, and give copies thereof, containing his
or her address, to the plaintiff and the defendant, or any attorney,
clerk or agent representing them, or mail copies to them by
registered mail at their last known address, return of which by the
post office undelivered shall be deemed a sufficient service if no
better address is available, and that claim, not exceeding nine
hundred dollars ($900), unless disputed, must be paid by the officer,
immediately upon the expiration of the time for dispute of the claim
as prescribed in Section 1207, from the proceeds of the levy
remaining in the officer's hands at the time of the filing of the
statement or collectible by the officer on the basis of the writ.
(b) The court issuing the writ must make a notation
on its docket in the register of actions
of every preferred labor claim of which it receives a copy and
must endorse on any writ of execution or abstract of judgment issued
subsequently in the case that it is issued subject to the rights of a
preferred labor claimant or claimants thereunder
and giving the names and amounts of all preferred labor claims of
which it has notice. In levying under any writ of execution the
officer making the levy shall include in the amount due under the
execution any and all preferred labor claims that have been filed in
the action and of which the officer has notice, except any claims
that may have been finally disallowed by the court under the
procedure provided for herein and of which disallowance the officer
has actual notice. The amount due on preferred labor claims that have
not been finally disallowed by the court shall be considered a part
of the sum due under any writ of attachment or execution in
augmentation of the amount thereof and it shall be the duty of any
person, firm, association or corporation on whom a writ of attachment
or execution is levied to immediately pay to the levying officer the
amount of the preferred labor claims, out of any money belonging to
the defendant in the action, before paying the principal sum called
for in the writ.
(c) If any claim is disputed within the time, and in
the manner prescribed in Section 1207, and a copy of the dispute is
mailed by registered mail to the claimant or the claimant's attorney
at the address given in the statement of claim and the registry
receipt is attached to the original of the dispute when it is filed
with the levying officer, or is handed to the claimant or the
claimant's attorney, the claimant, or the claimant's assignee, must
within 10 days after the copy is deposited in the mail or is handed
to the claimant or the claimant's attorney petition the court having
jurisdiction of the action on which the writ is based, for a hearing
before it to determine the claim for priority, or the claim to
priority is barred. If more than one attachment or execution is
involved, the petition shall be filed in the court having
jurisdiction over the senior attachment or execution. The hearing
shall be held within 20 days from the filing of the petition unless
the court continues it for good cause. Ten days' notice of the
hearing shall be given by the petitioner to the plaintiff and the
defendant, and to all parties claiming an interest in the property,
or their attorneys. The notice may be informal and need specify
merely the name of the court, names of the principal parties to the
senior attachment or execution and name of the wage claimant or
claimants on whose behalf it is filed but shall specify that the
hearing is for the purpose of determining the claim for priority.
The plaintiff or the defendant, or any other party claiming an
interest may contest the amount or validity of the claim in spite of
any confession of judgment or failure to appear or to contest the
claim on the part of any other person.
(d) There shall be no cost for filing or hearing the
petition and the hearing on the petition shall be informal but all
parties testifying must be sworn. Any claimant may appear on the
claimant's own behalf at the hearing and may call and examine
witnesses to substantiate his or her claim. An appeal may be taken
from a judgment in a proceeding under this section in the manner
provided for appeals from judgments of the court where the proceeding
is had, in an action of the same jurisdictional classification.
(e) The officer shall retain in possession until the
determination of the claim for priority so much of the proceeds of
the writ as may be necessary to satisfy the claim, and if the claim
for priority is allowed, the officer shall pay the amount due,
including the claimant's cost of suit, from such proceeds,
immediately after the order allowing the claim becomes final.
SEC. 11. Section 1281.5 of the Code of Civil Procedure is amended
to read:
1281.5. (a) Any person who proceeds to record and enforce a claim
of lien by commencement of an action pursuant to Title 15
(commencing with Section 3082) of Part 4 of Division 3 of the Civil
Code, shall does not thereby waive any
right of arbitration which that the
person may have pursuant to a written agreement to arbitrate, if, in
filing an action to enforce the claim of lien, the claimant
at does either of the following:
(1) Includes an allegation in the complaint that the claimant does
not intend thereby to waive any right of arbitration, and intends to
move the court, within 30 days after service of the summons and
complaint, for an order to stay further proceedings in the action.
(2) At the same time presents to the court
that the complaint is filed, the claimant files
an application that the action be stayed pending the arbitration of
any issue, question, or dispute which that
is claimed to be arbitrable under the agreement and
which that is relevant to the action to enforce
the claim of lien. In a county in which there is a
municipal court, the applicant may join with the application for the
stay, pending arbitration, a claim of lien otherwise within the
jurisdiction of the municipal court.
(b) Within 30 days after service of the summons and
complaint, the claimant shall file and serve a motion and notice of
motion pursuant to Section 1281.4 to stay the action pending
arbitration of any issue, question, or dispute that is claimed to be
arbitrable under the agreement and that is relevant to the action to
enforce the claim of lien.
(c) Notwithstanding Article 3 (commencing with Section 2016) of
Chapter 3 of Title 3 of Part 4, if the claimant complies with
subdivision (a), no party to the action is entitled to discovery
without leave of court, until one of the following occurs:
(1) The claimant expressly waives the right to arbitration.
(2) The court denies the motion for a stay.
(3) The claimant fails to comply with subdivision (b).
(d) The failure of a defendant to file a petition pursuant
to Section 1281.2 at or before the time he or she
the defendant answers the complaint filed pursuant to
subdivision (a) shall constitute is a
waiver of that party's the defendant's
right to compel arbitration.
SEC. 12. Section 11937 of the Food and Agricultural Code is
amended to read:
11937. Upon the expiration of 30 days after any judgment becomes
final, which is not stayed or satisfied in any action which results
in a judgment for damages, the clerk of a court , or the
judge of a court which has no clerk, shall forward to the
director a certified copy of the judgment or a certified copy of the
docket entries in the action register of
actions , and a certificate of facts relative to such
the judgment, on a form which is provided by the
director.
SEC. 13. Section 946.6 of the Government Code is amended to read:
946.6. (a) Where an application for leave to present a claim is
denied or deemed to be denied pursuant to Section 911.6, a petition
may be made to the court for an order relieving the petitioner from
Section 945.4. The proper court for filing the petition is a court
which would be a competent court for the trial of an action on the
cause of action to which the claim relates and which is located in a
county or judicial district which would be a proper place for the
trial of the action, and if the petition is filed in a court which is
not a proper court for the determination of the matter, the court,
on motion of any party, shall transfer the proceeding to a proper
court. Where an action on the cause of action to which the
claim relates would be a limited civil case, a proceeding pursuant to
this section is a limited civil case.
(b) The petition shall show each of the following:
(1) That application was made to the board under Section 911.4 and
was denied or deemed denied.
(2) The reason for failure to present the claim within the time
limit specified in Section 911.2.
(3) The information required by Section 910.
The petition shall be filed within six months after the
application to the board is denied or deemed to be denied pursuant to
Section 911.6.
(c) The court shall relieve the petitioner from Section 945.4 if
the court finds that the application to the board under Section 911.4
was made within a reasonable time not to exceed that specified in
subdivision (b) of Section 911.4 and was denied or deemed denied
pursuant to Section 911.6 and that one or more of the following is
applicable:
(1) The failure to present the claim was through mistake,
inadvertence, surprise, or excusable neglect unless the public entity
establishes that it would be prejudiced in the defense of the claim
if the court relieves the petitioner from Section 945.4.
(2) The person who sustained the alleged injury, damage or loss
was a minor during all of the time specified in Section 911.2 for the
presentation of the claim.
(3) The person who sustained the alleged injury, damage or loss
was physically or mentally incapacitated during all of the time
specified in Section 911.2 for the presentation of the claim and by
reason of that disability failed to present a claim during that time.
(4) The person who sustained the alleged injury, damage or loss
died before the expiration of the time specified in Section 911.2 for
the presentation of the claim.
(d) A copy of the petition and a written notice of the time and
place of hearing thereof shall be served before
the hearing as prescribed by subdivision (b) of Section 1005 of the
Code of Civil Procedure on (1) the clerk or secretary or board of the
local public entity, if the respondent is a local public entity, or
(2) the Attorney General, if the respondent is the state. However,
if the petition involves a claim arising out of alleged actions or
inactions of the Department of Transportation, service of the
petition and notice of the hearing shall be made on the Attorney
General or the Director of Transportation. Service on the Attorney
General may be accomplished at any of the Attorney General's offices
in Los Angeles, Sacramento, San Diego, or San Francisco. Service on
the Director of Transportation may be accomplished only at the
Department of Transportation's headquarters office in Sacramento.
(e) The court shall make an independent determination upon the
petition. The determination shall be made upon the basis of the
petition, any affidavits in support of or in opposition to the
petition, and any additional evidence received at the hearing on the
petition.
(f) If the court makes an order relieving the petitioner from
Section 945.4, suit on the cause of action to which the claim relates
shall be filed with the court within 30 days thereafter.
SEC. 14. Section 16370 of the Vehicle Code is amended to read:
16370. The department shall suspend the privilege of any person
to operate a motor vehicle upon receiving a certified copy of a
judgment, or a certified copy of the
docket entries register of actions (or a comparable
court record of another jurisdiction) in an action resulting in
a judgment for damages, and a certificate of facts relative to the
judgment, on a form provided by the department, indicating that the
person has failed for a period of 30 days to satisfy a judgment
rendered against him or her.
SEC. 15. Section 16373 of the Vehicle Code is amended to read:
16373. (a) The clerk of a court , or the judge of a
court which has no clerk, shall, subject to subdivision
(b), issue upon the request of a judgment creditor a certified copy
of any judgment or a certified copy of the docket entries
register of actions (or a comparable court record of
another jurisdiction) in an action resulting in a judgment for
damages, and a certificate of facts relative to the judgment on a
form provided by the department.
(b) The judgment creditor may pay the required fees and request
the documents specified in subdivision (a) upon the expiration of 30
days after the judgment has become final, if the judgment has not
been stayed or satisfied within the amounts specified in this chapter
as shown by the records of the court. The court shall determine the
required fees, which shall be commensurate with the cost incurred by
the court in carrying out this section.
SEC. 16. Section 16379 of the Vehicle Code is amended to read:
16379. (a) The department shall not suspend a license and shall
restore any suspended license following nonpayment of a final
judgment when the judgment debtor gives proof of financial
responsibility for future damages and when the trial court in which
the judgment was rendered orders the payment of the judgment in
installments and while the payment of any installment payment is not
in default.
(b) Whenever the trial court orders the payment of a judgment in
installments as provided in this section, upon payment of the
required fees by the judgment creditor, it shall forward a certified
copy of the order to the department, together with a certified copy
of the judgment or a certified copy of the
docket entries register of actions (or a
comparable court record of another jurisdiction) in an action
resulting in a judgment for damages and a certificate of facts
relative to the judgment on a form provided by the department.
(c) The court shall determine the required fees, which shall be
commensurate with the cost incurred by the court in carrying out the
provisions of this section.