BILL ANALYSIS SENATE JUDICIARY COMMITTEE Senator Ellen M. Corbett, Chair 2009-2010 Regular Session AB 2767 (Committee on Judiciary) As Amended May 13, 2010 Hearing Date: June 10, 2010 Fiscal: Yes Urgency: No BCP:jd SUBJECT Civil Law: Omnibus Bill DESCRIPTION This bill would enact assorted changes in various provisions of law. Specifically, those assorted changes would, among other things: correct a drafting error relating to a Judicial Council report on homestead exemptions; clarify the treatment of unclaimed restitution money by a court; correct a drafting error relating to nonprofit religious corporations; clarify the ability to copy paternity files under certain circumstances; and make various changes necessitated by trial court restructuring. BACKGROUND AB 2767 is the Assembly Committee on Judiciary's omnibus bill. To be considered for inclusion, each provision must be non-controversial and not be so substantive as to be more appropriate for a stand-alone bill. If a non-controversial provision later becomes controversial, that provision will be removed from the bill. CHANGES TO EXISTING LAW 1. Existing law requires the Legislature to protect, by law, a certain portion of the homestead and other property from (more) AB 2767 (Committee on Judiciary) Page 2 of ? forced sale. (Cal. Const, Art. XX Sec. 1.5.) Existing law contains both an automatic and a declared homestead exemption that serves to protect a portion of equity in a debtor's home from creditors. (Code Civ. Proc. Secs. 704.710 et seq., 704.910 et seq.) Existing law sets the amount of the homestead exemption as follows: $75,000, unless the judgment debtor or spouse of the judgment debtor who resides in the homestead is a person described below; $100,000 if the judgment debtor or spouse of the judgment debtor who resides in the homestead at the time of sale is a member of the family unit, and there is at least one member of the family unit who owns no interest in the homestead or whose only interest in the homestead is a community property interest with the judgment debtor; or $175,000 if the judgment debtor or spouse of the judgment debtor who resides in the homestead at the time of sale is either: (1) a person 65 years of age or older; (2) a person physically or mentally disabled and as a result of that disability is unable to engage in substantial gainful employment, as specified; or (3) a person 55 years of age or older with a limited gross annual income, as specified. (Code Civ. Proc. Sec. 704.730.) Existing law requires the Judicial Council, on April 1, 2010, and at each three-year interval ending on April 1 thereafter, to submit to the Legislature the amount by which the dollar amounts of the above homestead exemptions may be increased based upon the change in the annual California Consumer Price Index for All Urban Consumers, for the most recent three-year period, as specified. Those increases shall not take effect unless they are approved by the Legislature. (Code Civ. Proc. Sec. 703.150.) This bill would, instead, require the Judicial Council to submit those amounts by April 1, 2013, and at each three-year interval ending on April 1 thereafter. 2. Existing law states that any money, excluding restitution to victims, that has been deposited with a superior court, or that a superior court is holding in trust, in a court bank or trust account, that remains unclaimed for three years shall become the property of the superior court if, after published notice, the money is not claimed or no verified compliant is filed and served. (Gov. Code Sec. 68084.1.) AB 2767 (Committee on Judiciary) Page 3 of ? This bill would provide that any money representing restitution collected on behalf of victims that remains unclaimed for three years shall be deposited into either the State Restitution Fund for the purpose of providing victim services or into the general fund of a county that administers a victim services program for the provision of victim services. 3. Existing law provides that a paternity hearing or trial may be held in closed court, and that all papers and records, other than the final judgment, are subject to inspection only in exceptional cases upon an order of the court for good cause shown. (Fam. Code Sec. 7643(a).) Existing law provides that papers and records pertaining to the action that are part of the permanent record are subject to inspection by the parties to the action, their attorneys, and by agents acting pursuant to written authorization. An attorney must obtain consent prior to authorizing an agent to inspect the permanent record, as specified. (Fam. Code Sec. 7643(b).) This bill would clarify that inspection pursuant to the above provisions includes copying. 4. Existing law provides that where the appellate division of the superior court grants a writ of review directed to the superior court, the superior court is an inferior tribunal, as specified. (Code Civ. Proc. Secs. 1085, 1103.) This bill would replace "writ of review" with "writ of mandate" in Section 1085, and "writ of prohibition" in Section 1103. 5. Existing law provides that any number of offices of a nonprofit religious corporation may be held by the same person unless the articles or bylaws provide otherwise, except that the secretary, the treasurer, or the chief financial officer may serve concurrently as the president or chair of the board. (Corp. Code Sec. 9213.) This bill would clarify that the secretary, treasurer, or chief financial officer may not serve concurrently as the president or chair of the board. AB 2767 (Committee on Judiciary) Page 4 of ? 6. Existing law specifies how interpreters' and translators' fees shall be paid in criminal, coroners', and civil cases. (Gov. Code Sec. 68092.) This bill would make technical, clarifying changes, including moving fees for coroners' cases to a standalone section. 7. Existing law provides for the deposit of moneys, including bail, coming into possession of a judge or officer of a court and deposited in a bank account by the court, as provided. (Gov. Code Secs. 53647.5, 53679.) This bill would make technical, clarifying changes to these provisions. 8. Existing law defines subordinate judicial officer as an officer appointed to perform subordinate judicial duties, as authorized, including, but not limited to, a court commissioner, probate commissioner, referee, traffic referee, and juvenile referee. (Gov. Code Sec. 71601.) This bill would add child support commissioner and juvenile hearing officer to the definition of subordinate judicial officer and make another technical, clarifying changes to the definition. 9. Existing law authorizes the Commission on Peace Officer Standards and Training to amend rules establishing minimum standards relating to physical, mental, and moral fitness that govern the recruitment of various law enforcement officers. (Pen. Code Sec. 13510.) This bill would make technical, clarifying changes to those provisions. COMMENT 1. Correction of a drafting error in AB 1046 (Anderson, Chapter 499, Statutes of 2009) Last year, AB 1046 increased the then-existing homestead exemptions by $25,000 each (resulting in a $75,000 base exemption, $100,000 exemption for family units, and $175,000 exemption for those aged 65 or older, disabled, or 55 or older with limited income). Those exemptions serve to protect a specified portion of a person or family unit's principal AB 2767 (Committee on Judiciary) Page 5 of ? dwelling ("homestead") from being sold pursuant to a court order to satisfy a debt to creditors. If the dwelling cannot be sold for an amount that exceeds the exemption (plus liens and encumbrances on the property itself), it may not be sold to satisfy the judgment. To facilitate future increases, AB 1046 also required the Judicial Council on April 1, 2010, and at each three-year interval, to submit to the Legislature the dollar amounts that the exemptions may be increased based upon change in the annual California Consumer Price Index for All Urban Consumers. AB 1046 also stated that those increases would not take effect unless approved by the Legislature. After the enactment of AB 1046, Judicial Council expressed concern about the requirement to submit those dollar amounts on April 1, 2010, essentially three months after enactment of the bill. The author and sponsor of the bill, the California Teamsters Union, concurred that it was not their intent to require a report just months after enactment, and that the current requirement is the result of a drafting error. Those proponents of this omnibus provision contend: "The date specified in subdivision (c) of section 703.150 should have been April 1, 2013, and the proposed clean-up legislation will fix that error and avoid the need for the council to submit an unnecessary report to the Legislature." To address that drafting error, this bill would, instead, require Judicial Council's report to be provided on April 1, 2013, instead of on April 1, 2010. Committee staff notes that, if enacted, this non-urgency bill would not go into effect until January 1, 2011. As a result, this provision in the omnibus bill would not technically eliminate the requirement for Judicial Council to submit some form of report on April 1, 2010 (a date which has already passed at the time of this hearing). As a result, the effect of this provision would be to clarify, on a prospective basis, that the Judicial Council is now required to submit a report on April 1, 2013. 2. Disposition of unclaimed victim restitution money Under existing law, money that has been deposited with a court AB 2767 (Committee on Judiciary) Page 6 of ? and remains unclaimed after three years becomes the property of the court ("escheats") after compliance with specified notice and claims procedures. Those escheat provisions do not apply to restitution money that a defendant has deposited with a court for distribution to his or her victims. As a result, the court has no formal direction on how to deal with unclaimed restitution. The Judicial Council, sponsor of this provision, notes that the lack of direction on how to handle unclaimed victim restitution money results in the money being left in limbo, and that the lack of direction "was simply a drafting oversight when the court escheat law was created." To clarify what happens to that unclaimed restitution money after a period of three years, this provision would provide that if the court complies with specified notice and claims procedures, the money may be deposited either into: (1) the State Restitution Fund; or (2) the general fund of a county that administers a victim services program. The Judicial Council contends that those changes will clarify statute and provide superior courts with the necessary direction to process unclaimed victim restitution. 3. Correction of error in AB 1233 (Silva, Chapter 631, Statutes of 2009) Last year, AB 1233 (Silva, 2009) sought to clarify various provisions in the Corporations Code relating to different types of corporations and associations. As part of the clarification, AB 1233 amended Corporations Code Sections 5213 (pertaining to nonprofit public benefit corporations) and Section 9213 (pertaining to nonprofit religious corporations). Both sections previously contained the phrase "neither the secretary nor the chief financial officer may serve concurrently as the president or chairman of the board." AB 1233's clarifications correctly amended Section 5213 to read: ". . . the secretary, the treasurer, or the chief financial officer may not serve concurrently as the president or chair of the board" while the word "not" was omitted from that same phrase in Section 9213. This provision, sponsored by the Business Law Section of the State Bar of California would fix that inadvertent omission by inserting the word "not" into Section 9213. 4. Clarification of intent to allow for copying of paternity files in certain circumstances AB 2767 (Committee on Judiciary) Page 7 of ? In 2008, AB 1679 (Evans, Chapter 50, Statutes of 2008) amended Section 7643 of the Family Code to permit inspection of court files relating to paternity by the party's attorneys and agents of those attorneys that have written authorization. Those paternity cases may be held in closed court, and, aside from the above authorization for attorneys and their agents, the files are generally subject to inspection only in exceptional cases upon an order of the court (parties to the paternity action may also inspect those papers and records). The Executive Committee of the Family Law Section of the State Bar of California (FLEXCOM), sponsor of this provision, contends that the intent behind the amendment made by AB 1679 was to permit inspection and copying of the files, and that court clerks have literally interpreted the statute and are allowing for inspection, but not copying of those files. This provision would clarify that both inspection and copying are permitted under Section 7643. FLEXCOM states that this amendment "will allow a party to authorize an attorney or an agent for an attorney (i.e. a court service, paralegal, etc.) with both access and the ability to photocopy paternity court files. This [provision will] allow a party unable to take time off from work or with a physical disability due to illness or injury to have a friend or relative go to the court to get documents from the file; allow an attorney to view the court file before being retained; and allow an attorney service or non-attorney employees of prospective counsel to obtain documents from the court file." 5. Remaining provisions would make various changes necessitated by trial court restructuring Pursuant to Government Code Section 71675, the California Law Revision Commission (CLRC) is required to determine whether any provisions of law are obsolete as a result of trial court restructuring and to recommend to the Legislature any amendments to remove those obsolete provisions. The CLRC, sponsor of these provisions, states that the included changes are largely technical and "would not create new policy, but would add, amend, or delete language to reflect trial court restructuring." CLRC asserts that "[r]emoving material made obsolete by trial court restructuring would help avoid confusion and prevent disputes, thereby reducing litigation expenses and conserving judicial resources." AB 2767 (Committee on Judiciary) Page 8 of ? Consistent with their statutory directive, these provisions would make technical and clarifying changes to sections relating to, among other things, employment, assignment and compensation of interpreters and translators (Gov. Code Secs. 27473, 68092), interest on deposits of bail (Gov. Code Sec. 53647.5), municipal court bank accounts (Gov. Code Sec. 53679), municipal court marshals (Pen. Code Sec. 13510), and subordinate judicial officers (Gov. Code Sec. 71601.) 6. Author's amendment The author offers the following amendment to remove a section of the bill that is no longer necessary in light of the May 13, 2010 amendments: Amendment : On page 5, strike out lines 27 through 40, inclusive, and on page 6, lines 1 through 8, inclusive. Support : None Known Opposition : None Known HISTORY Source : Business Law Section of the State Bar; California Law Revision Commission; California Teamsters Union; Executive Committee of the Family Law Section of the State Bar; Judicial Council Related Pending Legislation : None Known Prior Legislation : AB 1046 (Anderson, Chapter 499, Statutes of 2009) (See Comment 1.) AB 1233 (Silva, Chapter 631, Statutes of 2009) (See Comment 3.) AB 1679 (Evans, Chapter 50, Statutes of 2008) (See Comment 4.) Prior Vote : Assembly Judiciary Committee (Ayes 10, Noes 0) Assembly Appropriations Committee (Ayes 15, Noes 0) Assembly Floor (Ayes 70, Noes 0) AB 2767 (Committee on Judiciary) Page 9 of ? **************