BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Noreen Evans, Chair
2011-2012 Regular Session
SB 647 (Committee on Judiciary)
As Amended April 25, 2011
Hearing Date: May 3, 2011
Fiscal: Yes
Urgency: No
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SUBJECT
Civil Law: Omnibus Bill
DESCRIPTION
This bill would enact assorted changes in various provisions of
law. The changes would range from clarifying the out-of-state
deposition court filing procedures to making a minor change to
the Judicial Council reimbursement program. The assorted
changes would additionally:
add conservators of the person or estate to the list of
persons with the right to control and duty of disposition
of remains;
clarify that mailing extensions do not apply to the
filing of an action against a public agency under the
California Tort Claims Act;
provide clean up revisions to the procedures and
requirements for the appointment of humane officers by
non-profit corporations formed for the purposes of
preventing cruelty to animals; and
make other technical and clarifying changes.
BACKGROUND
SB 647 is the Senate 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
(more)
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1.Existing law provides that a small claims court shall give the
final judgment after a judgment rendered by the superior court
after a hearing on appeal except, for good cause and where
necessary to achieve substantial justice between the parties,
the superior court may award an appealing party with
attorney's fees and costs, as specified, and actual loss of
earnings and expenses, as specified. (Code Civ. Proc. Sec.
116.780.)
Existing law provides that the judgment of a small claims
court may be enforced by the small claims court, as specified.
Existing law provides for the enforcement of a judgment after
transfer to a small claims court. Existing law provides that
a judgment of the superior court after a hearing on appeal may
be enforced like other judgments of the small claims court.
(Code Civ. Proc. Sec. 116.820.)
This bill would delete obsolete cross-references from these
statutes.
2. Existing law generally provides that a deposit account or
safe-deposit box standing in the name of a person other than
the judgment debtor is not subject to levy unless authorized
by a court order. Existing law provides that a court order is
not required as a prerequisite to levy on a deposit account or
safe-deposit box standing in the name of: (1) the judgment
debtor; (2) the judgment debtor's spouse; (3) a fictitious
business name, as specified; and (4) the additional name of a
defendant judgment debtor listed on a writ of execution, as
specified. (Code Civ. Proc. 700.160.)
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This bill would clarify the above exception as it relates to a
fictitious business name by replacing a reference to
"defendant" with "judgment debtor."
3. Existing law provides that if a petition is filed under the
Interstate and International Depositions and Discovery Act,
there are different first appearance filing fees for a
petitioner who is a party to an out-of-state proceeding and a
petitioner who is not a party to the out-of-state proceeding.
Existing law also requires any petition filed under this
section to contain all of the following:
The caption and case number of the out-of-state case.
The first page must state the name of the court in which
the document is filed.
The first page must state the case number assigned by
the court. (Code Civ. Proc. Sec. 2029.610.)
This bill would additionally require that any petition filed
in an out-of-state proceeding include whether or not the
person filing the document is a party to the out-of-state case
on the first page.
4. Existing law provides that if a petition has been filed under
the Interstate and International Depositions and Discovery Act
and another dispute arises in the same out-of-state
proceeding, different fees are imposed for a party to the
proceeding then to a petitioner that is not a party to the
proceeding. Existing law requires any document filed under
this section to contain all of the following:
The caption and case number of the out-of-state case.
The first page must state the name of the court in which
the document is filed.
The first page must state the case number assigned by
the court. (Code Civ. Proc. Sec. 2029.620.)
This bill would additionally require that any document filed
under this section include whether or not the person filing
the document is a party to the out-of-state case on the first
page.
5. Existing law provides that no entity, other than a humane
society or society for the prevention of cruelty to animals,
may be eligible to petition for confirmation of an appointment
of any individual as a humane officer, as specified. (Corp.
Code Sec. 14502.)
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Existing law requires a humane society or a society for the
prevention of cruelty to animals that seeks confirmation of a
humane officer's appointment to comply with the following: (1)
prior to filing a Petition for Order Confirming Appointment of
a Humane Officer, submit fingerprints and related information
of all humane officer applicants to the Department of Justice;
(2) prior to filing a petition, the humane society or society
for the prevention of cruelty to animals serves a copy of the
petition on specified individuals; (3) file the petition in
superior court, as specified; and (4) any party served with a
copy of the petition may file an opposition to the petition.
(Corp. Code Sec. 14502.)
This bill would additionally require the petition to be served
on the animal control jurisdiction in the city in which the
principal office of the appointing society is located;
provided, however, that if the sheriff's department or police
department entitled to notice provides animal control services
for the city, no notice is required, as specified.
This bill would make other technical, clarifying changes
related to humane officers.
6. Existing law , the California Tort Claims Act, generally
requires an aggrieved person to present claims for money or
damages to a local public entity prior to filing an action in
court. Existing law requires any suit against a public entity
to be commenced within six months after written notice of
rejection of the claim is personally delivered or deposited in
the mail. (Gov. Code Sec. 945.6.)
Existing law provides that any period of notice and any duty
of a public entity to respond after receipt of service of a
claim, amendment, application, or notice is extended five days
upon service of mail, as specified. (Gov. Code Sec. 915.2.)
This bill would clarify that the above five-day extension does
not apply to the six month time frame in which a suit must be
filed after receiving a written notice, as specified.
7. Existing law provides a list of the person or persons who,
in an order of priority, have the right to control and duty of
disposition of the remains of a deceased person if other
directions have not been given by the decedent. (Health &
Saf. Code Sec. 7100.)
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This bill would add the conservator of the person and
conservator of the estate, with priority order below all
persons who are in any degree of kinship with the deceased
person and only above that of the public administrator, to the
list of persons who have the right to control and the duty of
disposition of the decedent's remains. The duty of
disposition of the remains on the conservator of the person
and the conservator of the estate would only be imposed if the
decedent had sufficient assets.
8. Existing law provides that any person found to have been
liable by clear and convincing evidence for fiduciary abuse of
a decedent shall not receive any property, damages, or costs
that are awarded to the decedent's estate. (Prob. Code Sec.
259(a)(1).) Existing law applies the definition of "fiduciary
abuse" as defined under Welfare and Institutions Code Section
15610.30. (Prob. Code Sec. 259(d)(4).)
Existing law provides that, when determining whether to
authorize or require a conservator to take a proposed action,
the court may consider whether a beneficiary has committed
fiduciary abuse against the conservatee. (Prob. Code Sec.
2583(m).)
Existing law defines "financial abuse" of an elder or
dependent adult as the assisting in or the taking, secreting,
appropriating, obtaining, or retaining real or personal
property for a wrongful use, with intent to defraud, or by
undue influence, and the person knew or should have known the
conduct was likely to be harmful to the elder or dependent
adult. (Welf. & Inst. Code Sec. 15610.30.)
This bill would replace the term "fiduciary abuse" with the
correct term of "financial abuse" in the above Probate Code
provisions.
9. Existing law provides that, after an objection to probate
of a will is filed, a summons shall be issued and served.
Existing law provides a cross-reference to the appropriate
service procedure for the summons. (Prob. Code Sec. 8250.)
Existing law provides that a summons shall be issued to a
plaintiff by the court clerk after payment of all applicable
fees. (Code Civ. Proc. Sec. 413.10.)
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This bill would provide the appropriate cross-reference for
the proper issuance of a summons.
10. Existing law authorizes the Franchise Tax Board to collect
specified fees imposed by a superior court of California,
totaling no less than one hundred dollars. (Rev. & Tax Code
Sec. 19280.)
This bill would further authorize the Franchise Tax Board to
collect fees associated with the costs incurred by the county
or court for the appointment of counsel to represent parents
or minors in dependency proceedings.
11. Existing law authorizes the Judicial Council to establish a
program to collect reimbursements for costs of counsel
appointed to represent parents and minors in dependency
proceedings. Existing law also allows courts to adopt
policies and procedures to recover costs associated with
collecting delinquent reimbursements. (Welf. & Inst. Code Sec.
903.47.)
This bill would delete the reference to "delinquent
reimbursements" and instead would allow courts to recover
costs associated with implementing the reimbursements program.
COMMENT
1. Require out-of-state petitioners to include whether or not
they are a party to the out-of-state case on the first page
(SECS. 4 and 5)
Under existing law, a petitioner who is a party to an
out-of-state proceeding filed under the Interstate and
International Depositions and Discovery Act must pay a $355
first appearance fee. A petitioner who is not a party to the
out-of-state proceeding is only required to pay an $80 first
appearance fee. Existing law also requires petitioners in an
out-of-state proceeding to include on the first page of the
petition the name of the court in which the document is filed,
as well as the case number. This proposal, sponsored by the
Judicial Council of California, would additionally require the
petitioners to include whether or not they are a party to the
out-of-state case on the first page.
Since the first appearance filing fee is significantly different
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between a party and non-party to the out-of-state case, the
first page should include whether or not the petitioner is a
party to the case in order for the courts to determine the
appropriate fee. In support of this change, Judicial Council
notes that "the legislation, if enacted, would ease the courts'
administration of the underlying law, which should save time and
money for courts."
2. Service of Petition for Order Confirming Appointment of a
Humane Officer (SEC. 6)
Last year, SB 1417 (Cox, Chapter 652, Statutes of 2010) imposed
new procedures and requirements for the appointment of humane
officers by non-profit corporations formed for the purposes of
preventing cruelty to animals. This proposal, sponsored the
State Humane Association of California, seeks to correct
technical errors and one substantive omission that occurred as
the bill progressed through the legislative process.
Specifically, in addition to correcting cross references and
other technical errors, this proposal would require the humane
society or society for prevention of cruelty to animals to serve
a copy of a Petition for Order Confirming Appointment of a
Humane Officer on the animal control agency having jurisdiction
in the city, unless the sheriff's department or police
department provides animal control services for the city. That
petition is required when a humane society or a society for the
prevention of cruelty to animals seeks confirmation of a humane
officer's appointment. The sponsor of this proposal, in support,
further notes that "noticing of the local animal control agency
was dropped out of ÝSB 1417] and they have asked to be included.
(In some localities, animal control is provided by law
enforcement, but not always. Adding them back in makes sure
animal control is noticed.)"
3. Clarify filing deadline of suits against public agencies
(SEC. 7)
Under the California Tort Claims Act, a person has six months to
bring an action against a public entity after receiving written
notice that his or her claim has been rejected. That notice of
rejection must include a statement in substantially the
following form:
WARNING
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You may seek the advice of an attorney of your choice in
connection with this matter. If you desire to consult an
attorney, you should do so immediately.
Subject to certain exceptions, you have only six (6) months
from the date this notice was personally delivered or
deposited in the mail to file a court action on this claim.
See Government Code Section 945.6. (Gov. Code Sec. 913(b).)
The San Francisco City Attorney's Office, sponsor of this
proposal, notes that a related section concerning extension of
timeframes when notice is mailed has created some confusion
regarding the above six-month statutory time frame, and that
"Ýp]laintiffs have argued that section 915.2 extends the
deadline by an additional five days to file a Complaint." The
section at issue, Government Code Section 915.2, provides a
public entity with an additional time to respond to claims by
providing that "Ýa]ny period of notice and any duty to respond
after receipt of service of a claim, amendment, application or
notice is extended five days upon service by mail, if the place
of address is within the State of California, 10 days if the
place of address is within the United States, and 20 days if the
place of address is outside the United States." Staff notes
that the intent of that section is to provide the public entity
with additional time when there is a duty to respond, not to
provide plaintiffs with additional time to file a claim. It
should also be noted that the six-month timeframe is stated not
only in the written notice of rejection, but also in Government
Code Section 945.6.
To address the above confusion, this bill would add language
clarifying that the five-day extension for mailing does not
apply to the six-month period in which the person has the
ability to file an action in court.
4. Persons with the right to control and duty of disposition of
remains (SEC. 8)
This proposal would add the conservator of the person and estate
to the list of persons with the right to control and duty of
disposition of the remains of a deceased person. Existing law
lists the person or persons who, in an order of priority, have
the right to control and duty of disposition of the remains of a
deceased person (decedent) if other directions have not been
given by the decedent. (Health & Saf. Code Sec. 7100.)
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Currently, court appointed conservators of the person or estate
are not included in the order of priority. The Executive
Committee of the Trusts & Estates Section of the State Bar of
California, the sponsor of this proposal, notes that
conservators of the person or the estate at times are the only
people who have a relationship with the decedent. This proposal
would add the conservator of the person and conservator of the
estate to the list of persons who may control the disposition of
the decedent's remains. This bill would place the priority of
the conservator of the person and the conservator of the estate
below all persons who are in any degree of kinship with the
deceased person and only above that of the public administrator.
This bill would impose the duty of disposition of the remains
on the conservator of the person and the conservator of the
estate only if the decedent had sufficient assets to cover the
cost of disposition.
5. Cost-recovery program for appointed counsel in dependency
cases (SEC. 13)
In 2009, AB 131 (Evans, Chapter 413, Statutes of 2009)
authorized the Judicial Council of California to establish a
program to recover the costs of providing counsel to parents and
children in dependency actions from parents who have the ability
to pay. AB 131 also authorized courts to adopt policies and
procedures to allow courts to recover the costs associated with
collecting delinquent reimbursements. This proposal, sponsored
by the Judicial Council of California, would clarify that courts
may recover the costs associated with implementing the
reimbursement program, rather than only to recover costs
associated with delinquent reimbursements.
Currently, courts are required to assess whether parents have
the ability to pay for court appointed counsel. This process
incurs costs for the courts on the front-end that are currently
not being reimbursed. The intent of AB 131, according to
Judicial Council, was for the courts to not incur any additional
costs for implementing this program. This proposal would allow
the courts to be reimbursed for their costs associated with
assessing whether or not a parent can pay for court appointed
counsel. The remaining funds collected from the parents who are
able to pay are then deposited into the Trial Court Trust Fund
and distributed to the courts with the highest caseloads and
that have also demonstrated the ability to immediately improve
outcomes for parents and children as the result of reduced
caseloads. In support of this proposal, Judicial Council writes
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"this proposal would improve the ability of the court to
generate revenues for court appointed counsel in dependency
matters, by ensuring that courts have the ability to implement
such programs. . . ." Instead of recovering costs for the
recovery of delinquent reimbursements, courts would be able to
recover the costs of implementing the reimbursement program.
The following amendment would refine this provision.
Suggested amendment :
On page 27, line 6, after "reimbursements." insert: "For the
purposes of this section, "implementing" would mean the court
costs of assessing a parent's ability to pay for court
appointed counsel."
6. Franchise Tax Board would be authorized to collect fees
associated with the appointment of counsel in dependency
proceedings (SEC. 12)
Existing law authorizes the Franchise Tax Board (FTB) to collect
specified fees imposed by a superior court in California. This
proposal, sponsored by the Judicial Council of California, would
authorize the FTB to collect fees for the appointment of counsel
to represent parents or minors in dependency proceedings.
In support of this proposal, Judicial Council writes "this
proposal would improve the ability of the court to generate
revenues for court appointed counsel in dependency matters, by .
. . providing courts that use FTB for other court ordered debt
collections with the ability to use their services for this
court-ordered debt as well." This proposal would authorize FTB
to collect fees incurred by the courts for appointing counsel in
dependency cases gives courts a way to recover their costs and
should lead to increased revenues for the courts.
7. Remaining changes are technical and clarifying
In addition to the above provisions, this bill would:
delete obsolete cross-references in Code of Civil
Procedure Sections 116.780 and 116.820;
replace the term "fiduciary abuse" in Probate Code
Sections 259 and 2583 with the correct term of "financial
abuse";
clarify the exception under Code of Civil Procedure
Section 700.160 as it relates to a fictitious business name
by replacing a reference to "defendant" with "judgment
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debtor"; and
provide a cross-reference for the proper issuance of a
summons issued in connection with an objection to probate
of a will under Probate Code Section 8250.
Support : None Known
Opposition : None Known
HISTORY
Sources : California Law Revision Commission; Executive
Committee of the Trusts & Estates Section of the State Bar of
California; Judicial Council of California; Los Angeles County
Sheriff's Department; San Francisco City Attorney's Office;
State Humane Association of California; two individuals
Related Pending Legislation : AB 905 (Pan) would provide
priority of right of duty and disposition of remains for the
person designated on a United States Department of Defense
Record of Emergency Data, DD Form 93. AB 905 is in the Assembly
Committee on Veterans Affairs.
Prior Legislation : See Comments 2 and 5.
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