BILL NUMBER: SB 647 AMENDED
BILL TEXT
AMENDED IN SENATE MARCH 24, 2011
INTRODUCED BY Committee on Judiciary (Senators Evans (Chair),
Blakeslee, Corbett, Harman, and Leno)
FEBRUARY 18, 2011
An act to amend Sections 116.780 and 116.820
, 116.820, 700.160, 2029.610, and 2029.620 of
the Code of Civil Procedure, to amend Section 7100 of the
Health and Safety Code, and to amend Sections 259, 2583, and 8250 of
the Probate Code, relating to civil law.
LEGISLATIVE COUNSEL'S DIGEST
SB 647, as amended, Committee on Judiciary. Civil law: omnibus
bill.
Existing
(1) Existing law, the Small
Claims Act, governs the procedures in small claims court. The act
provides that the judgment of the superior court of a small claims
appeal is final, and specifies the procedures for the enforcement of
judgments.
Existing law provides that a deposit account or safe-deposit
account standing in the name of a person other than a judgment debtor
is not subject to levy unless authorized by the court.
This bill would make technical changes to those provisions
by deleting and would delete erroneous
cross-references.
(2) Existing law establishes a process for obtaining a subpoena in
connection with an out-of-state proceeding.
This bill would require additional information to be included in
specified documents filed pursuant to those provisions.
(3) Under existing law, if a decedent has not otherwise given
directions, the right to control the disposition of the remains of
the deceased person vests in a specified order of a list of persons.
This bill would include in that list a conservator of the person
or estate appointed in accordance with specified provisions when the
decedent has sufficient assets.
(4) Existing law imposes restrictions upon a person's or
beneficiary's entitlement to the estate of a decedent who was an
elder or dependent adult, if the person or beneficiary has committed
certain acts against the decedent, including, but not limited to,
physical abuse, neglect, or financial abuse.
This bill would make technical, nonsubstantive changes to those
provisions.
(5) Existing law establishes the procedure for the issuance and
service of a summons, and authorizes a plaintiff to have a clerk
issue one or more summons for any defendant.
This bill would provide that the provisions that authorize a clerk
to issue a summons are applicable when a person files an objection
to the probate of a will.
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 116.780 of the Code of Civil Procedure is
amended to read:
116.780. (a) The judgment of the superior court after a hearing
on appeal is final and not appealable.
(b) Article 6 (commencing with Section 116.610) on judgments of
the small claims court applies to judgments of the superior court
after a hearing on appeal, except as provided in subdivision (c).
(c) For good cause and where necessary to achieve substantial
justice between the parties, the superior court may award a party to
an appeal reimbursement of (1) attorney's fees actually and
reasonably incurred in connection with the appeal, not exceeding one
hundred fifty dollars ($150), and (2) actual loss of earnings and
expenses of transportation and lodging actually and reasonably
incurred in connection with the appeal, not exceeding one hundred
fifty dollars ($150).
SEC. 2. Section 116.820 of the Code of Civil Procedure is amended
to read:
116.820. (a) The judgment of a small claims court, or the
judgment of the superior court after a hearing on appeal, may be
enforced by the small claims court as provided in Title 9
(commencing with Section 680.010) of Part 2 and in Sections 674 and
1174 on the enforcement of judgments of other courts.
(b) The clerk of the court shall charge and collect all fees
associated with the enforcement of judgments under Title 9
(commencing with Section 680.010) of Part 2. The clerk shall
immediately deposit all the fees collected under this section into a
bank account established for this purpose by the Administrative
Office of the Courts. The money shall be remitted to the State
Treasury under rules adopted by, or trial court financial policies
and procedures authorized by, the Judicial Council under subdivision
(a) of Section 77206 of the Government Code. The Controller shall
distribute the fees to the Trial Court Trust Fund as provided in
Section 68085.1 of the Government Code.
(c) The prevailing party in any action subject to this chapter is
entitled to the costs of enforcing the judgment and accrued interest.
SEC. 3. Section 700.160 of the Code of
Civil Procedure is amended to read:
700.160. (a) Except as provided in subdivision (b), a deposit
account or safe-deposit box standing in the name of a person other
than the judgment debtor, either alone or together with other third
persons, is not subject to levy under Section 700.140 or 700.150
unless the levy is authorized by court order. The levying officer
shall serve a copy of the court order on the third person at the time
the copy of the writ of execution and the notice of levy are served
on the third person.
(b) A court order is not required as a prerequisite to levy on a
deposit account or safe-deposit box standing in the name of any of
the following:
(1) The judgment debtor, whether alone or together with third
persons.
(2) The judgment debtor's spouse, whether alone or together with
other third persons. An affidavit showing that the person in whose
name the account stands is the judgment debtor's spouse shall be
delivered to the financial institution at the time of levy.
(3) A fictitious business name if an unexpired fictitious business
name statement filed pursuant to Chapter 5 (commencing with Section
17900) of Part 3 of Division 7 of the Business and Professions Code
lists as the persons doing business under the fictitious business
name either (A) the judgment debtor or (B) the judgment debtor's
spouse or (C) the judgment debtor and the judgment debtor's spouse,
but does not list any other person. A copy of a fictitious business
name statement, certified as provided in Section 17926 of the
Business and Professions Code, that satisfies these requirements
shall be delivered to the financial institution at the time of levy,
and if a person other than the defendant
judgment debtor is listed in the statement, an affidavit
showing that the other person is the judgment debtor's spouse shall
also be delivered to the financial institution at the time of levy.
(4) The additional name of a judgment debtor listed on the writ of
execution pursuant to an affidavit of identity as provided by
Section 680.135, whether alone or together with third persons.
(c) In any case where a deposit account in the name of a person
other than the judgment debtor, whether alone or together with the
judgment debtor, is levied upon, the financial institution shall not
pay to the levying officer the amount levied upon until being
notified to do so by the levying officer. The levying officer may not
require the financial institution to pay the amount levied upon
until the expiration of 15 days after service of notice of levy on
the third person.
SEC. 4. Section 2029.610 of the Code of
Civil Procedure is amended to read:
2029.610. (a) On filing a petition under Section 2029.600, a
petitioner who is a party to the out-of-state proceeding shall pay a
first appearance fee as specified in Section 70611 of the Government
Code. A petitioner who is not a party to the out-of-state proceeding
shall pay the fee specified in subdivision (c) of Section 70626 of
the Government Code.
(b) The court in which the petition is filed shall assign it a
case number.
(c) On responding to a petition under Section 2029.600, a party to
the out-of-state proceeding shall pay a first appearance fee as
specified in Section 70612 of the Government Code. A person who is
not a party to the out-of-state proceeding may file a response
without paying a fee.
(d) Any petition, response, or other document filed under this
section shall satisfy all of the following conditions:
(1) It shall bear the caption and case number of the out-of-state
case to which it relates.
(2) The first page shall state the name of the court in which the
document is filed.
(3) The first page shall state the case number assigned by the
court under subdivision (b).
(4) The first page shall state whether or not the person filing
the document is a party to the out-of-state case.
SEC. 5. Section 2029.620 of the Code of
Civil Procedure is amended to read:
2029.620. (a) If a petition has been filed under Section 2029.600
and another dispute later arises relating to discovery being
conducted in the same county for purposes of the same out-of-state
proceeding, the deponent or other disputant may file a petition for
appropriate relief in the same superior court as the previous
petition.
(b) The first page of the petition shall clearly indicate that it
is not the first petition filed in that court that relates to the
out-of-state case.
(c) (1) If the petitioner in the new dispute is a party to the
out-of-state case who previously paid a first appearance fee under
this article, the petitioner shall pay a motion fee as specified in
subdivision (a) of Section 70617 of the Government Code. If the
petitioner in the new dispute is a party to the out-of-state case but
has not previously paid a first appearance fee under this article,
the petitioner shall pay a first appearance fee as specified in
Section 70611 of the Government Code.
(2) If the petitioner in the new dispute is not a party to the
out-of-state case, the petitioner shall pay the fee specified in
subdivision (c) of Section 70626 of the Government Code, unless the
petitioner previously paid that fee. If the petitioner previously
paid the fee specified in subdivision (c) of Section 70626 of the
Government Code, the petitioner shall pay a motion fee as specified
in subdivision (a) of Section 70617 of the Government Code.
(d) If a person responding to the new petition is not a party to
the out-of-state case, or is a party who previously paid a first
appearance fee under this article, that person does not have to pay a
fee for responding. If a person responding to the new petition is a
party to the out-of-state case but has not previously paid a first
appearance fee under this article, that person shall pay a first
appearance fee as specified in Section 70612 of the Government Code.
(e) Any petition, response, or other document filed under this
section shall satisfy all of the following conditions:
(1) It shall bear the caption and case number of the out-of-state
case to which it relates.
(2) The first page shall state the name of the court in which the
document is filed.
(3) The first page shall state the same case number that the court
assigned to the first petition relating to the out-of-state case.
(4) The first page shall state whether or not the person filing
the document is a party to the out-of-state case.
(f) A petition for relief pursuant to this section shall be
accompanied by a civil case cover sheet.
SEC. 6. Section 7100 of the Health and
Safety Code is amended to read:
7100. (a) The right to control the disposition of the remains of
a deceased person, the location and conditions of interment, and
arrangements for funeral goods and services to be provided, unless
other directions have been given by the decedent pursuant to Section
7100.1, vests in, and the duty of disposition and the liability for
the reasonable cost of disposition of the remains devolves upon, the
following in the order named:
(1) An agent under a power of attorney for health care who has the
right and duty of disposition under Division 4.7 (commencing with
Section 4600) of the Probate Code, except that the agent is liable
for the costs of disposition only in either of the following cases:
(A) Where the agent makes a specific agreement to pay the costs of
disposition.
(B) Where, in the absence of a specific agreement, the agent makes
decisions concerning disposition that incur costs, in which case the
agent is liable only for the reasonable costs incurred as a result
of the agent's decisions, to the extent that the decedent's estate or
other appropriate fund is insufficient.
(2) The competent surviving spouse.
(3) The sole surviving competent adult child of the decedent, or
if there is more than one competent adult child of the decedent, the
majority of the surviving competent adult children. However, less
than the majority of the surviving competent adult children shall be
vested with the rights and duties of this section if they have used
reasonable efforts to notify all other surviving competent adult
children of their instructions and are not aware of any opposition to
those instructions by the majority of all surviving competent adult
children.
(4) The surviving competent parent or parents of the decedent. If
one of the surviving competent parents is absent, the remaining
competent parent shall be vested with the rights and duties of this
section after reasonable efforts have been unsuccessful in locating
the absent surviving competent parent.
(5) The sole surviving competent adult sibling of the decedent, or
if there is more than one surviving competent adult sibling of the
decedent, the majority of the surviving competent adult siblings.
However, less than the majority of the surviving competent adult
siblings shall be vested with the rights and duties of this section
if they have used reasonable efforts to notify all other surviving
competent adult siblings of their instructions and are not aware of
any opposition to those instructions by the majority of all surviving
competent adult siblings.
(6) The surviving competent adult person or persons respectively
in the next degrees of kinship, or if there is more than one
surviving competent adult person of the same degree of kinship, the
majority of those persons. Less than the majority of surviving
competent adult persons of the same degree of kinship shall be vested
with the rights and duties of this section if those persons have
used reasonable efforts to notify all other surviving competent adult
persons of the same degree of kinship of their instructions and are
not aware of any opposition to those instructions by the majority of
all surviving competent adult persons of the same degree of kinship.
(7) A conservator of the person appointed under Part 3
(commencing with Section 1800) of Division 4 of the Probate Code when
the decedent has sufficient assets.
(8) A conservator of the estate appointed under Part 3
(commencing with Section 1800) of Division 4 of the Probate Code when
the decedent has sufficient assets.
(7)
(9) The public administrator when the deceased has
sufficient assets.
(b) (1) If any person to whom the right of control has vested
pursuant to subdivision (a) has been charged with first or second
degree murder or voluntary manslaughter in connection with the
decedent's death and those charges are known to the funeral director
or cemetery authority, the right of control is relinquished and
passed on to the next of kin in accordance with subdivision (a).
(2) If the charges against the person are dropped, or if the
person is acquitted of the charges, the right of control is returned
to the person.
(3) Notwithstanding this subdivision, no person who has been
charged with first or second degree murder or voluntary manslaughter
in connection with the decedent's death to whom the right of control
has not been returned pursuant to paragraph (2) shall have any right
to control disposition pursuant to subdivision (a) which shall be
applied, to the extent the funeral director or cemetery authority
know about the charges, as if that person did not exist.
(c) A funeral director or cemetery authority shall have complete
authority to control the disposition of the remains, and to proceed
under this chapter to recover usual and customary charges for the
disposition, when both of the following apply:
(1) Either of the following applies:
(A) The funeral director or cemetery authority has knowledge that
none of the persons described in paragraphs (1) to (6)
(8) , inclusive, of subdivision (a) exists.
(B) None of the persons described in paragraphs (1) to
(6) (8) , inclusive, of subdivision (a) can be
found after reasonable inquiry, or contacted by reasonable means.
(2) The public administrator fails to assume responsibility for
disposition of the remains within seven days after having been given
written notice of the facts. Written notice may be delivered by hand,
U.S. mail, facsimile transmission, or telegraph.
(d) The liability for the reasonable cost of final disposition
devolves jointly and severally upon all kin of the decedent in the
same degree of kinship and upon the estate of the decedent. However,
if a person accepts the gift of an entire body under subdivision (a)
of Section 7155.5, that person, subject to the terms of the gift,
shall be liable for the reasonable cost of final disposition of the
decedent.
(e) This section shall be administered and construed to the end
that the expressed instructions of the decedent or the person
entitled to control the disposition shall be faithfully and promptly
performed.
(f) A funeral director or cemetery authority shall not be liable
to any person or persons for carrying out the instructions of the
decedent or the person entitled to control the disposition.
(g) For purposes of this section, "adult" means an individual who
has attained 18 years of age, "child" means a natural or adopted
child of the decedent, and "competent" means an individual who has
not been declared incompetent by a court of law or who has been
declared competent by a court of law following a declaration of
incompetence.
SEC. 7. Section 259 of the Probate Code
is amended to read:
259. (a) Any person shall be deemed to have predeceased a
decedent to the extent provided in subdivision (c) where all of the
following apply:
(1) It has been proven by clear and convincing evidence that the
person is liable for physical abuse, neglect, or fiduciary
financial abuse of the decedent, who was an
elder or dependent adult.
(2) The person is found to have acted in bad faith.
(3) The person has been found to have been reckless, oppressive,
fraudulent, or malicious in the commission of any of these acts upon
the decedent.
(4) The decedent, at the time those acts occurred and thereafter
until the time of his or her death, has been found to have been
substantially unable to manage his or her financial resources or to
resist fraud or undue influence.
(b) Any person shall be deemed to have predeceased a decedent to
the extent provided in subdivision (c) if that person has been
convicted of a violation of Section 236 of the Penal Code or any
offense described in Section 368 of the Penal Code.
(c) Any person found liable under subdivision (a) or convicted
under subdivision (b) shall not (1) receive any property, damages, or
costs that are awarded to the decedent's estate in an action
described in subdivision (a) or (b), whether that person's
entitlement is under a will, a trust, or the laws of intestacy; or
(2) serve as a fiduciary as defined in Section 39, if the instrument
nominating or appointing that person was executed during the period
when the decedent was substantially unable to manage his or her
financial resources or resist fraud or undue influence. This section
shall not apply to a decedent who, at any time following the act or
acts described in paragraph (1) of subdivision (a), or the act or
acts described in subdivision (b), was substantially able to manage
his or her financial resources and to resist fraud or undue influence
within the meaning of subdivision (b) of Section 1801 of the Probate
Code and subdivision (b) of Section 39 of the Civil Code.
(d) For purposes of this section, the following definitions shall
apply:
(1) Physical abuse as defined in Section 15610.63 of the Welfare
and Institutions Code.
(2) Neglect as defined in Section 15610.57 of the Welfare and
Institutions Code.
(3) False imprisonment as defined in Section 368 of the Penal
Code.
(4) Fiduciary Financial abuse as
defined in Section 15610.30 of the Welfare and Institutions Code.
(e) Nothing in this section shall be construed to prohibit the
severance and transfer of an action or proceeding to a separate civil
action pursuant to Section 801.
SEC. 8. Section 2583 of the Probate
Code is amended to read:
2583. In determining whether to authorize or require a proposed
action under this article, the court shall take into consideration
all the relevant circumstances, which may include, but are not
limited to, the following:
(a) Whether the conservatee has legal capacity for the proposed
transaction and, if not, the probability of the conservatee's
recovery of legal capacity.
(b) The past donative declarations, practices, and conduct of the
conservatee.
(c) The traits of the conservatee.
(d) The relationship and intimacy of the prospective donees with
the conservatee, their standards of living, and the extent to which
they would be natural objects of the conservatee's bounty by any
objective test based on such relationship, intimacy, and standards of
living.
(e) The wishes of the conservatee.
(f) Any known estate plan of the conservatee (including, but not
limited to, the conservatee's will, any trust of which the
conservatee is the settlor or beneficiary, any power of appointment
created by or exercisable by the conservatee, and any contract,
transfer, or joint ownership arrangement with provisions for payment
or transfer of benefits or interests at the conservatee's death to
another or others which the conservatee may have originated).
(g) The manner in which the estate would devolve upon the
conservatee's death, giving consideration to the age and the mental
and physical condition of the conservatee, the prospective devisees
or heirs of the conservatee, and the prospective donees.
(h) The value, liquidity, and productiveness of the estate.
(i) The minimization of current or prospective income, estate,
inheritance, or other taxes or expenses of administration.
(j) Changes of tax laws and other laws which would likely have
motivated the conservatee to alter the conservatee's estate plan.
(k) The likelihood from all the circumstances that the conservatee
as a reasonably prudent person would take the proposed action if the
conservatee had the capacity to do so.
(l) Whether any beneficiary is the spouse or domestic partner of
the conservatee.
(m) Whether a beneficiary has committed physical abuse, neglect,
false imprisonment, or fiduciary financial
abuse against the conservatee after the conservatee was
substantially unable to manage his or her financial resources, or
resist fraud or undue influence, and the conservatee's disability
persisted throughout the time of the hearing on the proposed
substituted judgment.
SEC. 9. Section 8250 of the Probate
Code is amended to read:
8250. (a) When a will is contested under Section 8004, the
contestant shall file with the court an objection to probate of the
will. Thereafter, a summons shall be issued and served, with a copy
of the objection, on the persons required by Section 8110 to be
served with notice of hearing of a petition for administration of the
decedent's estate. The summons shall be issued and served as
provided in Chapter 3 (commencing with Section
412.10) and Chapter 4 (commencing with Section 413.10) of Title
5 of Part 2 of the Code of Civil Procedure. The summons shall
contain a direction that the persons summoned file with the court a
written pleading in response to the contest within 30 days after
service of the summons.
(b) A person named as executor in the will is under no duty to
defend a contest until the person is appointed personal
representative.