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  
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            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.)
                                                                      



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             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.

                                                                      



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          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  
                                                                      



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          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  
                                                                      



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          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
           
                                                                      



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          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."

                                                                      



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          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)

                                                                      



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