BILL NUMBER: SB 649 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JUNE 12, 2007
AMENDED IN SENATE MARCH 26, 2007
INTRODUCED BY Committee on Judiciary (Senators Corbett (Chair),
Ackerman, Harman, Kuehl, and Steinberg)
FEBRUARY 22, 2007
An act to amend Sections 6455, 12606, and 12606.2 of the Business
and Professions Code, to amend Sections 399, 580, 586, 688.010,
688.030, 904.1, and 904.2 of, and to add Section 904.3 to, the Code
of Civil Procedure, to amend Sections 25564, 29733, 43039, and 59289
of the Food and Agricultural Code, to amend Sections 12965 and 12980
of the Government Code, and to amend Sections 977 and 977.2 of the
Penal Code, relating to trial court restructuring.
LEGISLATIVE COUNSEL'S DIGEST
SB 649, as amended, Committee on Judiciary. Trial court
restructuring.
(1) The California Constitution provides for the abolition of
municipal courts and their unification within the superior courts, as
specified.
This bill would conform various statutory provisions of law to the
abolition of municipal courts and their unification within the
superior courts. The bill would also make related statutory changes
with respect to the classification of limited civil cases, appeals in
limited civil cases and misdemeanor and infraction cases, and
arraignment by 2-way electronic audiovideo communication.
(2) The bill would make other technical, nonsubstantive changes.
(3) This bill would incorporate additional changes in Section 977
of the Penal Code proposed by AB 678 that would become operative only
if AB 678 and this bill are both chaptered and become effective on
or before January 1, 2008, and this bill is chaptered last.
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 6455 of the Business and Professions Code is
amended to read:
6455. (a) Any consumer injured by a violation of this chapter may
file a complaint and seek redress in superior court for injunctive
relief, restitution, and damages. Attorney's fees shall be awarded in
this action to the prevailing plaintiff.
(b) Any person who violates the provisions of Section 6451 or 6452
is guilty of an infraction for the first violation, which is
punishable upon conviction by a fine of up to two thousand five
hundred dollars ($2,500) as to each consumer with respect to whom a
violation occurs, and is guilty of a misdemeanor for the second and
each subsequent violation, which is punishable upon conviction by a
fine of two thousand five hundred dollars ($2,500) as to each
consumer with respect to whom a violation occurs, or imprisonment in
a county jail for not more than one year, or by both that fine and
imprisonment. Any person convicted of a violation of this section
shall be ordered by the court to pay restitution to the victim
pursuant to Section 1202.4 of the Penal Code.
SEC. 2. Section 12606 of the Business and Professions Code is
amended to read:
12606. (a) No container wherein commodities are packed shall have
a false bottom, false sidewalls, false lid or covering, or be
otherwise so constructed or filled, wholly or partially, as to
facilitate the perpetration of deception or fraud.
(b) No container shall be made, formed, or filled as to be
misleading. A container that does not allow the consumer to fully
view its contents shall be considered to be filled as to be
misleading if it contains nonfunctional slack fill. Slack fill is the
difference between the actual capacity of a container and the volume
of product contained therein. Nonfunctional slack fill is the empty
space in a package that is filled to less than its capacity for
reasons other than the following:
(1) Protection of the contents of the package.
(2) The requirements of machines used for enclosing the contents
of the package.
(3) Unavoidable product settling during shipping and handling.
(4) The need to utilize a larger than required package or
container to provide adequate space for the legible presentation of
mandatory and necessary labeling information, such as those based on
the regulations adopted by the Food and Drug Administration or state
or federal agencies under federal or state law, laws or regulations
adopted by foreign governments, or under an industrywide voluntary
labeling program.
(5) The fact that the product consists of a commodity that is
packaged in a decorative or representational container where the
container is part of the presentation of the product and has value
that is both significant in proportion to the value of the product
and independent of its function to hold the product, such as a gift
combined with a container that is intended for further use after the
product is consumed, or durable commemorative or promotional
packages.
(6) An inability to increase the level of fill or to further
reduce the size of the package, such as where some minimum package
size is necessary to accommodate required labeling, discourage
pilfering, facilitate handling, or accommodate tamper-resistant
devices.
(7) The product container bears a reasonable relationship to the
actual amount of product contained inside, and the dimensions of the
actual product container, the product, or the amount of product
therein is visible to the consumer at the point of sale, or where
obvious secondary use packaging is involved.
(8) The dimensions of the product or immediate product container
are visible through the exterior packaging, or where the actual size
of the product or immediate product container is clearly and
conspicuously depicted on the exterior packaging, accompanied by a
clear and conspicuous disclosure that the representation is the
"actual size" of the product or the immediate product container.
(9) The presence of any head space within an immediate product
container necessary to facilitate the mixing, adding, shaking, or
dispensing of liquids or powders by consumers prior to use.
(10) The exterior packaging contains a product delivery or dosing
device if the device is visible, or a clear and conspicuous depiction
of the device appears on the exterior packaging, or it is readily
apparent from the conspicuous exterior disclosures or the nature and
name of the product that a delivery or dosing device is contained in
the package.
(11) The exterior packaging or immediate product container is a
kit that consists of a system, or multiple components, designed to
produce a particular result that is not dependent upon the quantity
of the contents, if the purpose of the kit is clearly and
conspicuously disclosed on the exterior packaging.
(12) The exterior packaging of the product is routinely displayed
using tester units or demonstrations to consumers in retail stores,
so that customers can see the actual, immediate container of the
product being sold, or a depiction of the actual size thereof prior
to purchase.
(13) The exterior packaging consists of single or
multi-unit multiunit presentation boxes of
holiday or gift packages if the purchaser can adequately determine
the quantity and sizes of the immediate product container at the
point of sale.
(14) The exterior packaging is for a combination of one purchased
product, together with a free sample or gift, wherein the exterior
packaging is necessarily larger than it would otherwise be due to the
inclusion of the sample or gift, if the presence of both products
and the quantity of each product are clearly and conspicuously
disclosed on the exterior packaging.
(15) The exterior packaging or immediate product container
encloses computer hardware or software designed to serve a particular
computer function, if the particular computer function to be
performed by the computer hardware or software is clearly and
conspicuously disclosed on the exterior packaging.
(c) Any sealer may seize a container that facilitates the
perpetration of deception or fraud and the contents of the container.
By order of the superior court of the county within which a
violation of this section occurs, the containers seized shall be
condemned and destroyed or released upon conditions the court may
impose to insure against their use in violation of this chapter. The
contents of any condemned container shall be returned to the owner
thereof if the owner furnishes proper facilities for the return. A
proceeding under this section is a limited civil case if the value of
the property in controversy is less than or equal to the maximum
amount in controversy for a limited civil case under Section 85 of
the Code of Civil Procedure.
SEC. 3. Section 12606.2 of the Business and Professions Code is
amended to read:
12606.2. (a) This section applies to food containers subject to
Section 403 (d) of the Federal Food, Drug, and Cosmetic Act (21
U.S.C. Sec. 343 (d)), and Section 100.100 of Title 21 of the Code of
Federal Regulations. Section 12606 does not apply to food containers
subject to this section.
(b) No food containers shall be made, formed, or filled as to be
misleading.
(c) A container that does not allow the consumer to fully view its
contents shall be considered to be filled as to be misleading if it
contains nonfunctional slack fill. Slack fill is the difference
between the actual capacity of a container and the volume of product
contained therein. Nonfunctional slack fill is the empty space in a
package that is filled to less than its capacity for reasons other
than the following:
(1) Protection of the contents of the package.
(2) The requirements of the machines used for enclosing the
contents in the package.
(3) Unavoidable product settling during shipping and handling.
(4) The need for the package to perform a specific function, such
as where packaging plays a role in the preparation or consumption of
a food, if that function is inherent to the nature of the food and is
clearly communicated to consumers.
(5) The fact that the product consists of a food packaged in a
reusable container where the container is part of the presentation of
the food and has value that is both significant in proportion to the
value of the product and independent of its function to hold the
food, such as a gift product consisting of a food or foods combined
with a container that is intended for further use after the food is
consumed or durable commemorative or promotional packages.
(6) Inability to increase the level of fill or to further reduce
the size of the package, such as where some minimum package size is
necessary to accommodate required food labeling exclusive of any
vignettes or other nonmandatory designs or label information,
discourage pilfering, facilitate handling, or accommodate
tamper-resistant devices.
(d) This section shall be interpreted consistent with the comments
by the United States Food and Drug Administration on the regulations
contained in Section 100.100 of Title 21 of the Code of Federal
Regulations, interpreting Section 403(d) of the Federal Food, Drug,
and Cosmetic Act (21 U.S.C. Sec. 343(d)), as those comments are
reported on pages 64123 to 64137, inclusive, of Volume 58 of the
Federal Register.
(e) If the requirements of this section do not impose the same
requirements as are imposed by Section 403(d) of the Federal Food,
Drug, and Cosmetic Act (21 U.S.C. Sec. 343(d)), or any regulation
promulgated pursuant thereto, then this section is not operative to
the extent that it is not identical to the federal requirements, and
for this purpose those federal requirements are incorporated into
this section and shall apply as if they were set forth in this
section.
(f) Any sealer may seize any container that is in violation of
this section and the contents of the container. By order of the
superior court of the county within which a violation of this section
occurs, the containers seized shall be condemned and destroyed or
released upon any conditions that the court may impose to ensure
against their use in violation of this chapter. The contents of any
condemned container shall be returned to the owner thereof if the
owner furnishes proper facilities for the return. A proceeding under
this section is a limited civil case if the value of the property in
controversy is less than or equal to the maximum amount in
controversy for a limited civil case under Section 85 of the Code of
Civil Procedure.
SEC. 4. Section 399 of the Code of Civil Procedure is amended to
read:
399. (a) When an order is made transferring an action or
proceeding under any of the provisions of this title, the clerk
shall, after expiration of the time within which a petition for writ
of mandate could have been filed pursuant to Section 400, or if a
writ petition is filed after judgment denying the writ becomes final,
and upon payment of the costs and fees, transmit the pleadings and
papers therein (or if the pleadings be oral a transcript of the same)
to the clerk of the court to which the same is transferred. When the
transfer is sought on any ground specified in subdivision (b), (c),
(d), or (e) of Section 397, the costs and fees thereof, and of filing
the papers in the court to which the transfer is ordered, shall be
paid at the time the notice of motion is filed, by the party making
the motion for the transfer. When the transfer is sought solely, or
is ordered, because the action or proceeding was commenced in a court
other than that designated as proper by this title, those costs and
fees (including any expenses and attorney's fees awarded to the
defendant pursuant to Section 396b) shall be paid by the
plaintiff before the transfer is made; and if the defendant has paid
those costs and fees at the time of filing a notice of motion, the
same shall be repaid to the defendant, upon the making of the
transfer order. If those costs and fees have not been so paid by the
plaintiff within five days after service of notice of the transfer
order, then any other party interested therein, whether named in the
complaint as a party or not, may pay those costs and fees, and the
clerk shall thereupon transmit the papers and pleadings therein as if
those costs and fees had been originally paid by the plaintiff, and
the same shall be a proper item of costs of the party so paying the
same, recoverable by that party in the event that party prevails in
the action; otherwise, the same shall be offset against and deducted
from the amount, if any, awarded the plaintiff in the event the
plaintiff prevails against that party in the action. The cause of
action shall not be further prosecuted in any court until those costs
and fees are paid. If those costs and fees are not paid within 30
days after service of notice of the transfer order, or if a copy of a
petition for writ of mandate pursuant to Section 400 is filed in the
trial court, or if an appeal is taken pursuant to Section 904.2,
then within 30 days after notice of finality of the order of
transfer, the court on a duly noticed motion by any party may dismiss
the action without prejudice to the cause on the condition that no
other action on the cause may be commenced in another court prior to
satisfaction of the court's order for costs and fees. When a petition
for writ of mandate or appeal does not result in a stay of
proceedings, the time for payment of those costs shall be 60 days
after service of the notice of the order.
(b) At the time of transmittal of the papers and pleadings, the
clerk shall mail notice to all parties who have appeared in the
action or special proceeding, stating the date on which transmittal
occurred. Promptly upon receipt of the papers and pleadings, the
clerk of the court to which the action or proceeding is transferred
shall mail notice to all parties who have appeared in the action or
special proceeding, stating the date of the filing of the case and
number assigned to the case in the court.
(c) The court to which an action or proceeding is transferred
under this title shall have and exercise over the same the like
jurisdiction as if it had been originally commenced therein, all
prior proceedings being saved, and the court may require amendment of
the pleadings, the filing and service of amended, additional, or
supplemental pleadings, and the giving of notice, as may be necessary
for the proper presentation and determination of the action or
proceeding in the court.
SEC. 5. Section 580 of the Code of Civil Procedure is amended to
read:
580. (a) The relief granted to the plaintiff, if there is no
answer, cannot exceed that demanded in the complaint, in the
statement required by Section 425.11, or in the statement provided
for by Section 425.115; but in any other case, the court may grant
the plaintiff any relief consistent with the case made by the
complaint and embraced within the issue. The court may impose
liability, regardless of whether the theory upon which liability is
sought to be imposed involves legal or equitable principles.
(b) Notwithstanding subdivision (a), the following types of relief
may not be granted in a limited civil case:
(1) Relief exceeding the maximum amount in controversy for a
limited civil case as provided in Section 85, exclusive of attorney's
fees, interest, and costs.
(2) A permanent injunction, except as otherwise authorized by
statute.
(3) A determination of title to real property.
(4) Declaratory relief, except as authorized by Section 86.
SEC. 6. Section 586 of the Code of Civil Procedure is amended to
read:
586. (a) In the following cases the same proceedings shall be
had, and judgment shall be rendered in the same manner, as if the
defendant had failed to answer:
(1) If the complaint has been amended, and the defendant fails to
answer it, as amended, or demur thereto, or file a notice of motion
to strike, of the character specified in Section 585, within 30 days
after service thereof or within the time allowed by the court.
(2) If the demurrer to the complaint is overruled and a motion to
strike, of the character specified in Section 585, is denied, or
where only one thereof is filed, if the demurrer is overruled or the
motion to strike is denied, and the defendant fails to answer the
complaint within the time allowed by the court.
(3) If a motion to strike, of the character specified in Section
585, is granted in whole or in part, and the defendant fails to
answer the unstricken portion of the complaint within the time
allowed by the court, no demurrer having been sustained or being then
pending.
(4) If a motion to quash service of summons or to stay or dismiss
the action has been filed, or writ of mandate sought and notice
thereof given, as provided in Section 418.10, and upon denial of the
motion or writ, the defendant fails to respond to the
complaint within the time provided in that section or as otherwise
provided by law.
(5) If the demurrer to the answer is sustained and the defendant
fails to amend the answer within the time allowed by the court.
(6) (A) If a motion to transfer pursuant to Section 396b is denied
and the defendant fails to respond to the complaint within the time
allowed by the court pursuant to subdivision (e) of Section 396b or
within the time provided in subparagraph (C).
(B) If a motion to transfer pursuant to Section 396b is granted
and the defendant fails to respond to the complaint within 30 days of
the mailing of notice of the filing and case number by the clerk of
the court to which the action or proceeding is transferred or within
the time provided in subparagraph (C).
(C) If the order granting or denying a motion to transfer pursuant
to Section 396a or 396b is the subject of an appeal pursuant to
Section 904.2 in which a stay is granted or of a mandate proceeding
pursuant to Section 400, the court having jurisdiction over the
trial, upon application or on its own motion after the appeal or
mandate proceeding becomes final or upon earlier termination of a
stay, shall allow the defendant a reasonable time to respond to the
complaint. Notice of the order allowing the defendant further time to
respond to the complaint shall be promptly served by the party who
obtained the order or by the clerk if the order is made on the court'
s own motion.
(7) If a motion to strike the answer in whole, of the character
specified in Section 585, is granted without leave to amend, or if a
motion to strike the answer in whole or in part, of the character
specified in Section 585, is granted with leave to amend and the
defendant fails to amend the answer within the time allowed by the
court.
(8) If a motion to dismiss pursuant to Section 583.250 is denied
and the defendant fails to respond within the time allowed by the
court.
(b) For the purposes of this section, "respond" means to answer,
to demur, or to move to strike.
SEC. 7. Section 688.010 of the Code of Civil Procedure is amended
to read:
688.010. A proceeding for the purpose of the remedies provided
under this article is a limited civil case if (a) the amount of
liability sought to be collected does not exceed the maximum amount
in controversy for a limited civil case provided in Section 85, and
(b) the legality of the liability being enforced is not contested by
the person against whom enforcement is sought.
SEC. 8. Section 688.030 of the Code of Civil Procedure is amended
to read:
688.030. (a) Whenever pursuant to any provision of the Public
Resources Code, Revenue and Taxation Code (excluding Sections 3201 to
3204, inclusive), or Unemployment Insurance Code, property is levied
upon pursuant to a warrant or notice of levy issued by the state or
by a department or agency of the state for the collection of a
liability:
(1) If the debtor is a natural person, the debtor is entitled to
the same exemptions to which a judgment debtor is entitled. Except as
provided in subdivisions (b) and (c), the claim of exemption shall
be made, heard, and determined as provided in Chapter 4 (commencing
with Section 703.010) of Division 2 in the same manner as if the
property were levied upon under a writ of execution.
(2) A third person may claim ownership or the right to possession
of the property or a security interest in or lien on the property.
Except as provided in subdivisions (b) and (c) or as otherwise
provided by statute, the third-party claim shall be made, heard, and
determined as provided in Division 4 (commencing with Section
720.010) in the same manner as if the property were levied upon under
a writ of execution.
(b) In the case of a levy pursuant to a notice of levy:
(1) The claim of exemption or the third-party claim shall be filed
with the state department or agency that issued the notice of levy.
(2) The state department or agency that issued the notice of levy
shall perform the duties of the levying officer, except that the
state department or agency need not give itself the notices that the
levying officer is required to serve on a judgment creditor or
creditor or the notices that a judgment creditor or creditor is
required to give to the levying officer. The state department or
agency in performing the duties of the levying officer under this
paragraph has no obligation to search public records or otherwise
seek to determine whether any lien or encumbrance exists on property
sold or collected.
(c) A claim of exemption or a third-party claim pursuant to this
section shall be heard and determined in the superior court in the
county where the property levied upon is located.
SEC. 9. Section 904.1 of the Code of Civil Procedure is amended to
read:
904.1. (a) An appeal, other than in a limited civil case, is to
the court of appeal. An appeal, other than in a limited civil case,
may be taken from any of the following:
(1) From a judgment, except (A) an interlocutory judgment, other
than as provided in paragraphs (8), (9), and (11), or (B) a judgment
of contempt that is made final and conclusive by Section 1222.
(2) From an order made after a judgment made appealable by
paragraph (1).
(3) From an order granting a motion to quash service of summons or
granting a motion to stay the action on the ground of inconvenient
forum, or from a written order of dismissal under Section 581d
following an order granting a motion to dismiss the action on the
ground of inconvenient forum.
(4) From an order granting a new trial or denying a motion for
judgment notwithstanding the verdict.
(5) From an order discharging or refusing to discharge an
attachment or granting a right to attach order.
(6) From an order granting or dissolving an injunction, or
refusing to grant or dissolve an injunction.
(7) From an order appointing a receiver.
(8) From an interlocutory judgment, order, or decree, hereafter
made or entered in an action to redeem real or personal property from
a mortgage thereof, or a lien thereon, determining the right to
redeem and directing an accounting.
(9) From an interlocutory judgment in an action for partition
determining the rights and interests of the respective parties and
directing partition to be made.
(10) From an order made appealable by the provisions of the
Probate Code or the Family Code.
(11) From an interlocutory judgment directing payment of monetary
sanctions by a party or an attorney for a party if the amount exceeds
five thousand dollars ($5,000).
(12) From an order directing payment of monetary sanctions by a
party or an attorney for a party if the amount exceeds five thousand
dollars ($5,000).
(13) From an order granting or denying a special motion to strike
under Section 425.16.
(b) Sanction orders or judgments of five thousand dollars ($5,000)
or less against a party or an attorney for a party may be reviewed
on an appeal by that party after entry of final judgment in the main
action, or, at the discretion of the court of appeal, may be reviewed
upon petition for an extraordinary writ.
SEC. 10. Section 904.2 of the Code of Civil Procedure is amended
to read:
904.2. An appeal of a ruling by a superior court judge or other
judicial officer in a limited civil case is to the appellate division
of the superior court. An appeal of a ruling by a superior court
judge or other judicial officer in a limited civil case may be taken
from any of the following:
(a) From a judgment, except (1) an interlocutory judgment, or (2)
a judgment of contempt that is made final and conclusive by Section
1222.
(b) From an order made after a judgment made appealable by
subdivision (a).
(c) From an order changing or refusing to change the place of
trial.
(d) From an order granting a motion to quash service of summons or
granting a motion to stay the action on the ground of inconvenient
forum, or from a written order of dismissal under Section 581d
following an order granting a motion to dismiss the action on the
ground of inconvenient forum.
(e) From an order granting a new trial or denying a motion for
judgment notwithstanding the verdict.
(f) From an order discharging or refusing to discharge an
attachment or granting a right to attach order.
(g) From an order granting or dissolving an injunction, or
refusing to grant or dissolve an injunction.
(h) From an order appointing a receiver.
SEC. 11. Section 904.3 is added to the Code of Civil Procedure, to
read:
904.3. An appeal shall not be taken from a judgment of the
appellate division of a superior court granting or denying a petition
for issuance of a writ of mandamus or prohibition directed to the
superior court, or a judge thereof, in a limited civil case or a
misdemeanor or infraction case. An appellate court may, in its
discretion, upon petition for extraordinary writ, review the
judgment.
SEC. 12. Section 25564 of the Food and Agricultural Code is
amended to read:
25564. If the lot of poultry meat that is held is perishable or
subject to rapid deterioration, the enforcing officer may file a
verified petition in superior court to destroy the lot or otherwise
abate the nuisance. The petition shall show the condition of the lot,
that the lot is situated within the county, that the lot is held,
and that notice of noncompliance has been served pursuant to this
chapter. The court may thereupon order that the lot be forthwith
destroyed or the nuisance otherwise abated as set forth in the order.
A proceeding under this section is a limited civil case if the value
of the property in controversy is less than or equal to the maximum
amount in controversy for a limited civil case under Section 85 of
the Code of Civil Procedure.
SEC. 13. Section 29733 of the Food and
Agricultural Code is amended to read:
29733. If a packer or owner of honey, or the agent of either,
after notification to the packer, owner, or agent that the honey and
its containers are a public nuisance, refuses, or fails within a
reasonable time, to recondition or remark the honey so as to comply
with all requirements of this chapter, the honey and its containers:
(a) May be seized by the director or any enforcement officer.
(b) By order of the superior court of the county within which the
honey and its containers may be located , shall be
condemned and destroyed, or released upon conditions the court, in
its discretion, may impose to ensure that it will not be packed,
delivered for shipment, shipped, transported, or sold in violation of
this chapter. A proceeding under this section is a limited civil
case if the value of the property in controversy is less than or
equal to the maximum amount in controversy for a limited civil case
under Section 85 of the Code of Civil Procedure.
SEC. 14. Section 43039 of the Food and Agricultural Code is
amended to read:
43039. If the lot which is held is perishable or subject to rapid
deterioration, the enforcing officer may file a verified petition in
superior court to destroy the lot or otherwise abate the nuisance.
The petition shall show the condition of the lot, that the lot is
situated within the county, that the lot is held, and that notice of
noncompliance has been served as provided in this article. The court
may thereupon order that the lot be forthwith destroyed or the
nuisance otherwise abated as set forth in the order. A proceeding
under this section is a limited civil case if the value of the
property in controversy is less than or equal to the maximum amount
in controversy for a limited civil case under Section 85 of the Code
of Civil Procedure.
SEC. 15. Section 59289 of the Food and Agricultural Code is
amended to read:
59289. (a) The enforcing officer may file a verified petition in
superior court requesting permission to divert the lot to any other
available lawful use or to destroy the lot. The verified petition
shall show all of the following:
(1) The condition of the lot.
(2) That the lot is situated within the territorial jurisdiction
of the court in which the petition is being filed.
(3) That the lot is held, and that the notice of noncompliance has
been served as provided in Section 59285.
(4) That the lot has not been reconditioned as required.
(5) The name and address of the owner and the person in possession
of the lot.
(6) That the owner has refused permission to divert or to destroy
the lot.
(b) A proceeding under this section is a limited civil case if the
value of the property in controversy is less than or equal to the
maximum amount in controversy for a limited civil case under Section
85 of the Code of Civil Procedure.
SEC. 16. Section 12965 of the Government Code is amended to read:
12965. (a) In the case of failure to eliminate an unlawful
practice under this part through conference, conciliation, or
persuasion, or in advance thereof if circumstances warrant, the
director in his or her discretion may cause to be issued in the name
of the department a written accusation. The accusation shall contain
the name of the person, employer, labor organization, or employment
agency accused, which shall be known as the respondent, shall set
forth the nature of the charges, shall be served upon the respondent
together with a copy of the verified complaint, as amended, and shall
require the respondent to answer the charges at a hearing.
For any complaint treated by the director as a group or class
complaint for purposes of investigation, conciliation, and accusation
pursuant to Section 12961, an accusation shall be issued, if at all,
within two years after the filing of the complaint. For any
complaint alleging a violation of Section 51.7 of the Civil Code, an
accusation shall be issued, if at all, within two years after the
filing of the complaint. For all other complaints, an accusation
shall be issued, if at all, within one year after the filing of a
complaint. If the director determines, pursuant to Section 12961,
that a complaint investigated as a group or class complaint under
Section 12961 is to be treated as a group or class complaint for
purposes of conciliation and accusation as well, that determination
shall be made and shall be communicated in writing within one year
after the filing of the complaint to each person, employer, labor
organization, employment agency, or public entity alleged in the
complaint to have committed an unlawful practice.
(b) If an accusation is not issued within 150 days after the
filing of a complaint, or if the department earlier determines that
no accusation will issue, the department shall promptly notify, in
writing, the person claiming to be aggrieved that the department
shall issue, on his or her request, the right-to-sue notice. This
notice shall indicate that the person claiming to be aggrieved may
bring a civil action under this part against the person, employer,
labor organization, or employment agency named in the verified
complaint within one year from the date of that notice. If the person
claiming to be aggrieved does not request a right-to-sue notice, the
department shall issue the notice upon completion of its
investigation, and not later than one year after the filing of the
complaint. A city, county, or district attorney in a location having
an enforcement unit established on or before March 1, 1991, pursuant
to a local ordinance enacted for the purpose of prosecuting HIV/AIDS
discrimination claims, acting on behalf of any person claiming to be
aggrieved due to HIV/AIDS discrimination, may also bring a civil
action under this part against the person, employer, labor
organization, or employment agency named in the notice. The superior
courts of the State of California shall have jurisdiction of those
actions, and the aggrieved person may file in these courts. An action
may be brought in any county in the state in which the unlawful
practice is alleged to have been committed, in the county in which
the records relevant to the practice are maintained and administered,
or in the county in which the aggrieved person would have worked or
would have had access to the public accommodation but for the alleged
unlawful practice, but if the defendant is not found within any of
these counties, an action may be brought within the county of the
defendant's residence or principal office. A copy of any complaint
filed pursuant to this part shall be served on the principal offices
of the department and of the commission. The remedy for failure to
send a copy of a complaint is an order to do so. Those actions may
not be filed as class actions or may not be maintained as class
actions by the person or persons claiming to be aggrieved where those
persons have filed a civil class action in the federal courts
alleging a comparable claim of employment discrimination against the
same defendant or defendants. In actions brought under this section,
the court, in its discretion, may award to the prevailing party
reasonable attorney's fees and costs, including expert witness fees,
except where the action is filed by a public agency or a public
official, acting in an official capacity.
(c) (1) If an accusation includes a prayer either for damages for
emotional injuries as a component of actual damages, or for
administrative fines, or for both, or if an accusation is amended for
the purpose of adding a prayer either for damages for emotional
injuries as a component of actual damages, or for administrative
fines, or both, the respondent may within 30 days after service of
the accusation or amended accusation, elect to transfer the
proceedings to a court in lieu of a hearing pursuant to subdivision
(a) by serving a written notice to that effect on the department, the
commission, and the person claiming to be aggrieved. The commission
shall prescribe the form and manner of giving written notice.
(2) No later than 30 days after the completion of service of the
notice of election pursuant to paragraph (1), the department shall
dismiss the accusation and shall, either itself or, at its election,
through the Attorney General, file in the appropriate court an action
in its own name on behalf of the person claiming to be aggrieved as
the real party in interest. In this action, the person claiming to be
aggrieved shall be the real party in interest and shall have the
right to participate as a party and be represented by his or her own
counsel. Complaints filed pursuant to this section shall be filed in
the superior court in any county in which unlawful practices are
alleged to have been committed, in the county in which records
relevant to the alleged unlawful practices are maintained and
administered, or in the county in which the person claiming to be
aggrieved would have worked or would have had access to public
accommodation, but for the alleged unlawful practices. If the
defendant is not found in any of these counties, the action may be
brought within the county of the defendant's residence or principal
office. Those actions shall be assigned to the court's delay
reduction program, or otherwise given priority for disposition by the
court in which the action is filed.
(3) A court may grant as relief in any action filed pursuant to
this subdivision any relief a court is empowered to grant in a civil
action brought pursuant to subdivision (b), in addition to any other
relief that, in the judgment of the court, will effectuate the
purpose of this part. This relief may include a requirement that the
employer conduct training for all employees, supervisors, and
management on the requirements of this part, the rights and remedies
of those who allege a violation of this part, and the employer's
internal grievance procedures.
(4) The department may amend an accusation to pray for either
damages for emotional injury or for administrative fines, or both,
provided that the amendment is made within 30 days of the issuance of
the original accusation.
(d) (1) Notwithstanding subdivision (b), the one-year statute of
limitations, commencing from the date of the right-to-sue notice by
the Department of Fair Employment and Housing, to the person claiming
to be aggrieved, shall be tolled when all of the following
requirements have been met:
(A) A charge of discrimination or harassment is timely filed
concurrently with the Equal Employment Opportunity Commission and the
Department of Fair Employment and Housing.
(B) The investigation of the charge is deferred by the Department
of Fair Employment and Housing to the Equal Employment Opportunity
Commission.
(C) A right-to-sue notice is issued to the person claiming to be
aggrieved upon deferral of the charge by the Department of Fair
Employment and Housing to the Equal Employment Opportunity
Commission.
(2) The time for commencing an action for which the statute of
limitations is tolled under paragraph (1) expires when the federal
right-to-sue period to commence a civil action expires, or one year
from the date of the right-to-sue notice by the Department of Fair
Employment and Housing, whichever is later.
(3) This subdivision is intended to codify the holding in Downs v.
Department of Water and Power of City of Los Angeles (1997) 58
Cal.App.4th 1093.
(e) (1) Notwithstanding subdivision (b), the one-year statute of
limitations, commencing from the date of the right-to-sue notice by
the Department of Fair Employment and Housing, to the person claiming
to be aggrieved, shall be tolled when all of the following
requirements have been met:
(A) A charge of discrimination or harassment is timely filed
concurrently with the Equal Employment Opportunity Commission and the
Department of Fair Employment and Housing.
(B) The investigation of the charge is deferred by the Equal
Employment Opportunity Commission to the Department of Fair
Employment and Housing.
(C) After investigation and determination by the Department of
Fair Employment and Housing, the Equal Employment Opportunity
Commission agrees to perform a substantial weight review of the
determination of the department or conducts its own investigation of
the claim filed by the aggrieved person.
(2) The time for commencing an action for which the statute of
limitations is tolled under paragraph (1) shall expire when the
federal right-to-sue period to commence a civil action expires, or
one year from the date of the right-to-sue notice by the Department
of Fair Employment and Housing, whichever is later.
SEC. 17. Section 12980 of the Government Code is amended to read:
12980. This article governs the procedure for the prevention and
elimination of discrimination in housing made unlawful pursuant to
Article 2 (commencing with Section 12955) of Chapter 6.
(a) Any person claiming to be aggrieved by an alleged violation of
Section 12955, 12955.1, or 12955.7 may file with the department a
verified complaint in writing that shall state the name and address
of the person alleged to have committed the violation complained of,
and that shall set forth the particulars of the alleged violation and
contain any other information required by the department.
The filing of a complaint and pursuit of conciliation or remedy
under this part shall not prejudice the complainant's right to pursue
effective judicial relief under other applicable laws, but if a
civil action has been filed under Section 52 of the Civil Code, the
department shall terminate proceedings upon notification of the entry
of final judgment unless the judgment is a dismissal entered at the
complainant's request.
(b) The Attorney General or the director may, in a like manner,
make, sign, and file complaints citing practices that appear to
violate the purpose of this part or any specific provisions of this
part relating to housing discrimination.
No complaint may be filed after the expiration of one year from
the date upon which the alleged violation occurred or terminated.
(c) The department may thereupon proceed upon the complaint in the
same manner and with the same powers as provided in this part in the
case of an unlawful practice, except that where the provisions of
this article provide greater rights and remedies to an aggrieved
person than the provisions of Article 1 (commencing with Section
12960), the provisions of this article shall prevail.
(d) Upon the filing of a complaint, the department shall serve
notice upon the complainant of the time limits, rights of the
parties, and choice of forums provided for under the law.
(e) The department shall commence proceedings with respect to a
complaint within 30 days of filing of the complaint.
(f) An investigation of allegations contained in any complaint
filed with the department shall be completed within 100 days after
receipt of the complaint, unless it is impracticable to do so. If the
investigation is not completed within 100 days, the complainant and
respondent shall be notified, in writing, of the department's reasons
for not doing so.
(g) Upon the conclusion of each investigation, the department
shall prepare a final investigative report containing all of the
following:
(1) The names of any witnesses and the dates of any contacts with
those witnesses.
(2) A summary of the dates of any correspondence or other contacts
with the aggrieved persons or the respondent.
(3) A summary of witness statements.
(4) Answers to interrogatories.
(5) A summary description of other pertinent records.
A final investigative report may be amended if additional evidence
is later discovered.
(h) If an accusation is not issued within 100 days after the
filing of a complaint, or if the department earlier determines that
no accusation will issue, the department shall promptly notify the
person claiming to be aggrieved. This notice shall, in any event, be
issued no more than 30 days after the date of the determination or 30
days after the date of the expiration of the 100-day period,
whichever date first occurs. The notice shall indicate that the
person claiming to be aggrieved may bring a civil action under this
part against the person named in the verified complaint within the
time period specified in Section 12989.1. The notice shall also
indicate, unless the department has determined that no accusation
will be issued, that the person claiming to be aggrieved has the
option of continuing to seek redress for the alleged discrimination
through the procedures of the department if he or she does not desire
to file a civil action. The superior courts of the State of
California shall have jurisdiction of these actions, and the
aggrieved person may file in these courts. The action may be brought
in any county in the state in which the violation is alleged to have
been committed, or in the county in which the records relevant to the
alleged violation are maintained and administered, but if the
defendant is not found within that county, the action may be brought
within the county of the defendant's residence or principal office. A
copy of any complaint filed pursuant to this part shall be served on
the principal offices of the department and of the commission. The
remedy for failure to send a copy of a complaint is an order to do
so. In a civil action brought under this section, the court, in its
discretion, may award to the prevailing party reasonable
attorneys' attorney's fees.
(i) All agreements reached in settlement of any housing
discrimination complaint filed pursuant to this section shall be made
public, unless otherwise agreed by the complainant and respondent,
and the department determines that the disclosure is not required to
further the purposes of the act.
(j) All agreements reached in settlement of any housing
discrimination complaint filed pursuant to this section shall be
agreements between the respondent and complainant, and shall be
subject to approval by the department.
SEC. 18. Section 977 of the Penal Code is amended to read:
977. (a) (1) In all cases in which the accused is charged with a
misdemeanor only, he or she may appear by counsel only, except as
provided in paragraphs (2) and (3). If the accused agrees, the
initial court appearance, arraignment, and plea may be by video, as
provided by subdivision (c).
(2) If the accused is charged with a misdemeanor offense involving
domestic violence, as defined in Section 6211 of the Family Code, or
a misdemeanor violation of Section 273.6, the accused shall be
present for arraignment and sentencing, and at any time during the
proceedings when ordered by the court for the purpose of being
informed of the conditions of a protective order issued pursuant to
Section 136.2.
(3) If the accused is charged with a misdemeanor offense involving
driving under the influence, in an appropriate case, the court may
order a defendant to be present for arraignment, at the time of plea,
or at sentencing. For purposes of this paragraph, a misdemeanor
offense involving driving under the influence shall include a
misdemeanor violation of any of the following:
(A) Paragraph (3) of subdivision (c) of Section 192.
(B) Section 23103 as specified in Section 23103.5 of the Vehicle
Code.
(C) Section 23152 of the Vehicle Code.
(D) Section 23153 of the Vehicle Code.
(b) (1) In all cases in which a felony is charged, the accused
shall be present at the arraignment, at the time of plea, during the
preliminary hearing, during those portions of the trial when evidence
is taken before the trier of fact, and at the time of the imposition
of sentence. The accused shall be personally present at all other
proceedings unless he or she shall, with leave of court, execute in
open court, a written waiver of his or her right to be personally
present, as provided by paragraph (2). If the accused agrees, the
initial court appearance, arraignment, and plea may be by video, as
provided by subdivision (c).
(2) The accused may execute a written waiver of his or her right
to be personally present, approved by his or her counsel, and the
waiver shall be filed with the court. However, the court may
specifically direct the defendant to be personally present at any
particular proceeding or portion thereof. The waiver shall be
substantially in the following form:"Waiver of Defendant 's
Defendant's Personal Presence"
"The undersigned defendant, having been advised of his or her
right to be present at all stages of the proceedings, including, but
not limited to, presentation of and arguments on questions of fact
and law, and to be confronted by and cross-examine all witnesses,
hereby waives the right to be present at the hearing of any motion or
other proceeding in this cause. The undersigned defendant hereby
requests the court to proceed during every absence of the defendant
that the court may permit pursuant to this waiver, and hereby agrees
that his or her interest is represented at all times by the presence
of his or her attorney the same as if the defendant were personally
present in court, and further agrees that notice to his or her
attorney that his or her presence in court on a particular day at a
particular time is required is notice to the defendant of the
requirement of his or her appearance at that time and place."
(c) The court may permit the initial court appearance and
arraignment of defendants held in any state, county, or local
facility within the county on felony or misdemeanor charges, except
for those defendants who were indicted by a grand jury, to be
conducted by two-way electronic audiovideo communication between the
defendant and the courtroom in lieu of the physical presence of the
defendant in the courtroom. If the defendant is represented by
counsel, the attorney shall be present with the defendant at the
initial court appearance and arraignment, and may enter a plea during
the arraignment. However, if the defendant is represented by counsel
at an arraignment on an information in a felony case, and if the
defendant does not plead guilty or nolo contendere to any charge, the
attorney shall be present with the defendant or if the attorney is
not present with the defendant, the attorney shall be present in
court during the hearing. The defendant shall have the right to make
his or her plea while physically present in the courtroom if he or
she so requests. If the defendant decides not to exercise the right
to be physically present in the courtroom, he or she shall execute a
written waiver of that right. A judge may order a defendant's
personal appearance in court for the initial court appearance and
arraignment. In a misdemeanor case, a judge may, pursuant to this
subdivision, accept a plea of guilty or no contest from a defendant
who is not physically in the courtroom. In a felony case, a judge
may, pursuant to this subdivision, accept a plea of guilty or no
contest from a defendant who is not physically in the courtroom if
the parties stipulate thereto.
(d) Notwithstanding subdivision (c), if the defendant is
represented by counsel, the attorney shall be present with the
defendant in any county exceeding 4,000,000 persons in population.
SEC. 18.5. Section 977 of the Penal
Code is amended to read:
977. (a) (1) In all cases in which the accused is charged with a
misdemeanor only, he or she may appear by counsel only, except as
provided in paragraphs (2) and (3). If the accused agrees, the
initial court appearance, arraignment, and plea may be by video, as
provided by subdivision (c).
(2) If the accused is charged with a misdemeanor offense involving
domestic violence, as defined in Section 6211 of the Family Code, or
a misdemeanor violation of Section 273.6, the accused shall be
present for arraignment and sentencing, and at any time during the
proceedings when ordered by the court for the purpose of being
informed of the conditions of a protective order issued pursuant to
Section 136.2.
(3) If the accused is charged with a misdemeanor offense involving
driving under the influence, in an appropriate case, the court may
order a defendant to be present for arraignment, at the time of plea,
or at sentencing. For purposes of this paragraph, a misdemeanor
offense involving driving under the influence shall include a
misdemeanor violation of any of the following:
(A) Paragraph (3) of subdivision (c) of Section 192
Subdivision (b) of Section 191.5 .
(B) Section 23103 as specified in Section 23103.5 of the Vehicle
Code.
(C) Section 23152 of the Vehicle Code.
(D) Section 23153 of the Vehicle Code.
(b) (1) In all cases in which a felony is charged, the accused
shall be present at the arraignment, at the time of plea, during the
preliminary hearing, during those portions of the trial when evidence
is taken before the trier of fact, and at the time of the imposition
of sentence. The accused shall be personally present at all other
proceedings unless he or she shall, with leave of court, execute in
open court, a written waiver of his or her right to be personally
present, as provided by paragraph (2). If the accused agrees, the
initial court appearance, arraignment, and plea may be by video, as
provided by subdivision (c).
(2) The accused may execute a written waiver of his or her right
to be personally present, approved by his or her counsel, and the
waiver shall be filed with the court. However, the court may
specifically direct the defendant to be personally present at any
particular proceeding or portion thereof. The waiver shall be
substantially in the following form:
"Waiver of Defendant 's Defendant's
Personal Presence"
"The undersigned defendant, having been advised of his or her
right to be present at all stages of the proceedings, including, but
not limited to, presentation of and arguments on questions of fact
and law, and to be confronted by and cross-examine all witnesses,
hereby waives the right to be present at the hearing of any motion or
other proceeding in this cause. The undersigned defendant hereby
requests the court to proceed during every absence of the defendant
that the court may permit pursuant to this waiver, and hereby agrees
that his or her interest is represented at all times by the presence
of his or her attorney the same as if the defendant were personally
present in court, and further agrees that notice to his or her
attorney that his or her presence in court on a particular day at a
particular time is required is notice to the defendant of the
requirement of his or her appearance at that time and place."
(c) The court may permit the initial
court appearance and arraignment in municipal or superior
court of defendants held in any state, county, or local
facility within the county on felony or misdemeanor charges, except
for those defendants who were indicted by a grand jury, to be
conducted by two-way electronic audiovideo communication between the
defendant and the courtroom in lieu of the physical presence of the
defendant in the courtroom. If the defendant is represented by
counsel, the attorney shall be present with the defendant at the
initial court appearance and arraignment, and may enter a plea during
the arraignment. However, if the defendant is represented by counsel
at an initial hearing in superior court
arraignment on an information in a felony case, and
if the defendant does not plead guilty or nolo contendere to any
charge, the attorney shall be present with the defendant or if the
attorney is not present with the defendant, the attorney shall be
present in court during the hearing. The defendant shall have the
right to make his or her plea while physically present in the
courtroom if he or she so requests. If the defendant decides not to
exercise the right to be physically present in the courtroom, he or
she shall execute a written waiver of that right. A judge may order a
defendant's personal appearance in court for the initial court
appearance and arraignment. In a misdemeanor case, a judge may,
pursuant to this subdivision, accept a plea of guilty or no contest
from a defendant who is not physically in the courtroom. In a felony
case, a judge may, pursuant to this subdivision, accept a plea of
guilty or no contest from a defendant who is not physically in the
courtroom if the parties stipulate thereto.
(d) Notwithstanding subdivision (c), if the defendant is
represented by counsel, the attorney shall be present with the
defendant in any county exceeding 4,000,000 persons in population.
SEC. 19. Section 977.2 of the Penal Code is amended to read:
977.2. (a) Notwithstanding Section 977 or any other law, in any
case in which the defendant is charged with a misdemeanor or a felony
and is currently incarcerated in the state prison, the Department of
Corrections may arrange for all court appearances in superior court,
except for the preliminary hearing, trial, judgment and sentencing,
and motions to suppress, to be conducted by two-way electronic
audiovideo communication between the defendant and the courtroom in
lieu of the physical presence of the defendant in the courtroom.
Nothing in this section shall be interpreted to eliminate the
authority of the court to issue an order requiring the defendant to
be physically present in the courtroom in those cases where the court
finds circumstances that require the physical presence of the
defendant in the courtroom. For those court appearances that the
department determines to conduct by two-way electronic audiovideo
communication, the department shall arrange for two-way electronic
audiovideo communication between the superior court and any state
prison facility located in the county. The department shall provide
properly maintained equipment and adequately trained staff at the
prison as well as appropriate training for court staff to ensure that
consistently effective two-way communication is provided between the
prison facility and the courtroom for all appearances that the
department determines to conduct by two-way electronic audiovideo
communication.
(b) If the defendant is represented by counsel, the attorney shall
be present with the defendant at the initial court appearance and
arraignment, and may enter a plea during the arraignment. However, if
the defendant is represented by counsel at an arraignment on an
information or indictment in a felony case, and if the defendant does
not plead guilty or nolo contendere to any charge, the attorney
shall be present with the defendant or if the attorney is not present
with the defendant, the attorney shall be present in court during
the hearing.
(c) In lieu of the physical presence of the defendant's counsel at
the institution with the defendant, the court and the department
shall establish a confidential telephone and facsimile transmission
line between the court and the institution for communication between
the defendant's counsel in court and the defendant at the
institution. In this case, counsel for the defendant shall not be
required to be physically present at the institution during any court
appearance that is conducted via electronic audiovideo
communication. Nothing in this section shall be construed to prohibit
the physical presence of the defense counsel with the defendant at
the state prison.
SEC. 20. Section 18.5 of this bill incorporates
amendments to Section 977 of the Penal Code proposed by both this
bill and AB 678. It shall only become operative if (1) both bills are
enacted and become effective on or before January 1, 2008, (2) each
bill amends Section 977 of the Penal Code, and (3) this bill is
enacted after AB 678, in which case Section 18 of this bill shall not
become operative.