BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 1927
                                                                  Page  1


          ASSEMBLY THIRD READING
          AB 1927 (Jones)
          As Amended April 9, 2012
          Majority vote 

           JUDICIARY           10-0        LOCAL GOVERNMENT    9-0         
           
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          |Ayes:|Feuer, Wagner, Atkins,    |Ayes:|Smyth, Alejo, Bradford,   |
          |     |Dickinson, Gorell, Huber, |     |Campos, Davis, Gordon,    |
          |     |Jones, Monning,           |     |Hueso, Knight, Norby      |
          |     |Wieckowski, Bonnie        |     |                          |
          |     |Lowenthal                 |     |                          |
          |-----+--------------------------+-----+--------------------------|
          |     |                          |     |                          |
           ----------------------------------------------------------------- 
           SUMMARY  :  Authorizes the owner of a right-of-way easement to 
          seek a judgment from a small claims court determining 
          proportionate liability of each owner for maintenance costs, if 
          the amount of controversy is within the jurisdictional limits of 
          the small claims court.  If the application is not made in small 
          claims, then the owner may, consistent with existing law, seek 
          the appointment of an impartial arbitrator in superior court.  

           EXISTING LAW  : 

          1)Requires the owner of an easement in the nature of a private 
            right-of-way, or of land to which the easement is attached, to 
            maintain the easement in repair.  

          2)Provides that if an easement is owned by more than one person, 
            or is attached to parcels of land under different ownership, 
            the costs of maintaining the easement shall be shared by each 
            owner pursuant to the terms of any agreement entered into by 
            the owners.  Specifies that if any owner who is a party to the 
            agreement refuses to contribute to the costs, an action for 
            specific performance may be brought against that owner in a 
            court of competent jurisdiction by the other owners, either 
            jointly or severally.  

          3)Authorizes, in the absence of an agreement, any owner of an 
            easement, or land to which the easement is attached, to apply 
            to any court where the right-of-way is located, and that has 
            jurisdiction over the amount in controversy, for the 








                                                                  AB 1927
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            appointment of an impartial arbitrator to apportion the costs. 
             

          4)Specifies that the above provisions do not apply to 
            rights-of-way held or used by railroad common carriers subject 
            to the jurisdiction of the Public Utilities Commission.  

          5)Provides that small claims courts have jurisdiction for an 
            action brought by a natural person, if the amount of the 
            demand does not exceed $10,000.  

           FISCAL EFFECT  :  None 
           
          COMMENTS  :  Existing law requires the owner of a right-of-way 
          easement, or in the land to which the easement attaches, to 
          maintain the easement.  Where the easement is owned by more than 
          one person, all owners are expected to contribute to the costs 
          of maintaining the easement.  Sometimes the distribution of 
          these costs is provided for by agreement between the owners, and 
          if one owner refuses to pay his or her share, the other owners 
          can bring an action for specific performance of the agreement.  
          Where there is no prior agreement, however, existing law makes a 
          presumption that the costs of maintenance shall be shared in 
          proportion to the use made by each owner.  In the latter case, 
          where there is no agreement, existing law authorizes an owner of 
          the easement to apply to a court of competent jurisdiction for 
          the appointment of an impartial arbitrator to apportion the 
          costs.  Although the language of existing law is permissive, 
          some courts have interpreted this to mean that the owner must 
          apply to superior court for the appointment of an arbitrator, 
          and therefore an owner is precluded from seeking a judgment 
          directly from a small claims court, even if the amount in 
          controversy is within the jurisdictional limit of the small 
          claims court.  Because the arbitrator's award is non-binding, 
          any owner who is unhappy with the award may ask the court to 
          enter a judgment determining the proportional liability of each 
          owner. 

          According to the author, however, in many cases these disputes 
          involve relatively small amounts that could be determined more 
          efficiently and cost effectively by a small claims court.  For 
          example, the author notes that a $500 dispute might require 
          owners to file in superior court (which is more expensive) and 
          then go through an arbitration process with a court-appointed 








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          arbitrator.  If any owner disagrees with the arbitrator's award, 
          that owner can force the superior court to determine the 
          proportional liability of each owner.  The author believes that 
          in appropriate cases, it would make more sense for an owner or 
          owners to seek a judgment directly from the small claims court - 
          especially given that, even after going through the arbitration 
          process, the court may be required to determine the proportional 
          share of each owner anyway.  

          This bill would make it clear that, for amounts that are within 
          the jurisdiction of the small claims court, an owner may seek a 
          judgment (as opposed to the appointment of an arbitrator) from a 
          small claims court.  However, this bill does not require an 
          owner to file in small claims court.  Regardless of the amount 
          in controversy, if the owner elects not to file in small claims 
          court, he or she may still apply to superior court for the 
          appointment of an impartial arbitrator, and the case will only 
          go to trial for a judgment if a party rejects the arbitrator's 
          determination.  It should also be stressed that the change made 
          by this bill only applies where co-owners have not entered into 
          a prior agreement on apportionment of the costs.  Where there is 
          an agreement, the law will be unchanged:  if an owner fails to 
          pay his or her share, then the other owners, jointly or 
          severally, may bring an action for specific performance in any 
          court of competent jurisdiction. 

           
          Analysis Prepared by  :    Thomas Clark / JUD. / (916) 319-2334 


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