BILL ANALYSIS Ó
AB 1918
Page 1
Date of Hearing: April 10, 2012
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 1918 (Jones) - As Introduced: February 22, 2012
SUBJECT : Civil Procedure: Depositions: Unlawful Detainer
KEY ISSUE : Should the period of time in which a deponent in an
unlawful detainer proceeding may approve or correct a deposition
transcript be shortened from 30 days to 5 days?
FISCAL EFFECT : As currently in print this bill is key
non-fiscal.
SYNOPSIS
Sponsored by the Conference of California Bar Associations, this
bill would reduce the amount of time that a deponent in an
unlawful detainer (UD) proceeding would have to approve or
correct a deposition transcript from 30 days to 5 days after
notice that the deposition transcript is available for reading,
correcting, and signing. The sponsor claims that this bill will
correct a logical inconsistency in existing law: that is, a UD
action must go to trial within 20 days but, in theory, a party
has 30 days to correct a deposition transcript. However, the
"problem" that this bill seeks to address appears to be mostly
if not entirely theoretical. Based on inquiries that the
Committee made to attorneys who practice in this area, it
appears that as a practical matter the 30-day deadline is not
applied to UD cases. Instead, courts set trials within the
20-day period, as they are required to do by law, and in those
rare instances in which a deposition is taken in a UD and more
time is needed for review, the parties can ask the court for an
extension, which the court typically grants. The bill is
supported by the California Apartment Association. It is
opposed by the Western Center on Law & Poverty on the grounds
that there appears to be no evidence of a problem and that this
bill would merely "replace a requirement that is inconsistent in
theory with one that is impractical in practice."
SUMMARY : Reduces the period of time in which a deponent in an
unlawful detainer proceeding may approve or correct a deposition
transcript from 30 days to 5 days after the deposition officer
has sent notice that the transcript of the deposition is
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available for reading, correcting, and signing.
EXISTING LAW :
1)Requires a deposition officer to send written notice to the
deponent and all parties attending a deposition when the
original transcript of the testimony of each session of the
deposition is available for reading, correcting or signing,
unless the deponent and the attending parties agree on the
record that the reading, correcting, or signing of the
transcript will be waived or will take place after the entire
deposition has been concluded or at some other specified time.
(Code of Civil Procedure Section 2025.520(a).)
2)Provides, unless the deponent and the parties have agreed
otherwise, that for 30s days following the above notice the
deponent may change the form or the substance of the answer to
a question, and may either approve the transcript of the
deposition by signing it, or refuse to approve it by not
signing it. If the deponent fails or refuses to approve the
transcript within the allotted period, the deposition shall be
given the same effect as though it had been approved, subject
to any changes timely made. (Code of Civil Procedure Section
2025.520 (b).)
3)Requires that a trial in an unlawful detainer action shall be
held, if at all, not later than the 20th day following the
date that the request for trial is made. Permits the court to
extend the period for trial as specified. (Code of Civil
Procedure Section 1170.5.)
COMMENTS : According to the author, this bill seeks to reduce
the time period in which a deponent can make changes to a
deposition transcript in an unlawful detainer proceeding.
Existing law provides that, unless the parties agree to a longer
or shorter time, a deponent in a civil action has 30 days after
receiving notice that the deposition transcript is complete and
ready to either approve or correct. This bill would decrease
this 30-day time frame to just five days in an unlawful detainer
action.
Background : When a tenancy has been terminated, but the tenant
remains in possession of the rental property, an unlawful
detainer (UD) is the remedy that the landlord uses to evict the
tenant and regain possession of the property. For example, if
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the landlord has issued a three-day notice to pay or quit to the
tenant, and the tenant does not pay or vacate within the
three-day period, then the landlord may initiate an unlawful
detainer action. The UD action is typically considered a
"summary" procedure - meaning that the time for pleading,
noticing, and setting the action for trial is much shorter than
in other civil actions. For example, a defendant has five days
to answer a UD complaint or respond to a discovery request, as
opposed to 30 days in most other civil actions. (Compare Code
of Civil Procedure Section 1167 with Section 412.20(a)(3).)
Most notably, in a contested UD action, the court must set the
date for trial within 20 days of the time that a request for
trial has been filed. (Code of Civil Procedure Section 1170.5.)
In theory, if a UD action must be set for trial within 20 days,
then a provision that gives a deponent 30 days to approve or
correct a deposition transcript would appear to be inconsistent
with the summary nature of the UD proceeding. However, there
does not appear to be any evidence that this apparent
inconsistency creates any problems in the real world. According
to persons who litigate in this area and who were contacted by
the Committee, as a practical matter the 30-day review period
does not delay UD proceedings. Rather, the court generally sets
the UD trial within the 20-day period required by law whether or
not depositions have been taken. When the 20-day deadline is not
met, which is not uncommon, it is usually because of a backlog
of criminal cases, which take precedence over UD actions. (See
Code of Civil Procedure Section 1170.5(i).) In the relatively
small percentage of UD cases where depositions are taken,
practitioners inform the Committee that if more time were needed
to review transcripts, then the parties can seek and courts
usually grant extensions of time. Practitioners also point out
that limiting the time to review a deposition would not
necessarily expedite matters, since existing law does not impose
any time period on when a reporter must have the deposition
transcript completed and ready for review.
Is there a Problem ? The practitioners contacted by the
Committee indicate that they have never encountered a problem
related to this issue. To be fair, these practitioners mostly
represent tenants in UD disputes. However, the letters in
support of this bill - one by the sponsor and the other by the
California Apartment Association (CAA) - do not provide any
concrete examples but speak only in terms of what could
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"potentially" happen due to this "statutory inconsistency." In
fact, one could argue that the statutes are not necessarily
inconsistent. That is, existing law requires setting a trial
date within 20 days of a request for trial and creates no
exemptions for review of deposition transcripts; however,
existing law does permit a court to grant an extension of time
on its own motion or at the request of the parties. In the
absence of any evidence of a concrete problem, the Committee may
wish to consider whether it would be wise to establish an
inflexible five-day review period when the courts and the
parties appear to resolve this issue, on the rare occasions when
it arises, within the existing statutory framework.
ARGUMENTS IN SUPPORT : According to the author, this bill is
needed in order to make the time line for approving or
correcting a deposition consistent with the other existing
deadlines, such as the five-day deadline for filing an answer to
a UD complaint or the five-day deadline to respond to a written
discovery request. "Given these expedited deadlines," the
author argues, "allowing a deponent thirty days to change a
deposition transcript is inconsistent with the other shortened
deadlines in an unlawful detainer proceeding."
According to Conference of California Bar Associations (CCBA),
the sponsor of this bill, the change proposed by this bill is
"intended to make the provision Ýon correcting deposition
transcripts] consistent with all provisions of the CCP relating
to unlawful detainer proceedings." CCBA contends that this
inconsistency "creates uncertainty as to the use of unlawful
detainer deposition transcripts at trial, and could allow for
improper game-playing to prevent their introduction at trial."
The sponsor also believes that existing law could allow "for a
situation where trail could occur before the deadline for
changes has lapsed, thereby potentially precluding a party from
using that deposition at trial."
The California Apartment Association (CAA) supports this bill
for substantially the same reasons, claiming that "AB 1918 cures
the statutory inconsistency in the law and helps to ensure
fairness in the case of a trial." CAA asserts that
"unscrupulous tenant attorneys have found ways to delay
evictions and have worked to prevent relevant evidence at trial"
- although CAA does not necessarily claim that tenant attorneys
have used this particular statutory inconsistency for those
unscrupulous ends, but the implication seems to be that they
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might if the law is not changed.
ARGUMENTS IN OPPOSITION : While the Western Center on Law &
Poverty (WCLP) appreciates the author's intent - to correct a
logical inconsistency in the statutes - it opposes this bill
because it would "replace a requirement that is inconsistent in
theory with one that is impractical in practice." WCLP claims
that reports from its legal services organizations indicate that
"courts adequately deal with deposition timing issues on a
case-by-case basis that can be tailored to fit the circumstances
of the parties." Furthermore, WCLP believes that shortening the
time to review deposition transcripts "to an inflexible 5-day
deadline will create hardship for low-income tenants who cannot
take time off from work on short notice, and who are paid hourly
and lose pay even if they take time off." In such cases, five
days might not be sufficient for a thoughtful review. "Absent a
showing of harm," WCLP would prefer letting the courts and the
parties maintain "the flexibility to address individual
situations."
REGISTERED SUPPORT / OPPOSITION :
Support
Conference of California Bar Associations (sponsor)
California Apartment Association
Opposition
Western Center on Law & Poverty
Analysis Prepared by : Thomas Clark / JUD. / (916) 319-2334