BILL ANALYSIS Ó SB 647 Page 1 Date of Hearing: June 21, 2011 ASSEMBLY COMMITTEE ON JUDICIARY Mike Feuer, Chair SB 647 (Committee on Judiciary) - As Amended: June 16, 2011 PROPOSED CONSENT SENATE VOTE : 38-0 SUBJECT : CIVIL LAW: OMNIBUS BILL KEY ISSUE : SHOULD VARIOUS NON-CONTROVERSIAL CHANGES RELATING TO CIVIL LAW BE MADE TO THE CALIFORNIA CODES IN THIS OMNIBUS BILL? FISCAL EFFECT : As currently in print this bill is keyed fiscal. SYNOPSIS This non-controversial committee bill is the Judiciary Committees' omnibus civil law bill. In order to be included in the bill, each provision must be non-controversial and not so substantive as to be more appropriate for a stand-alone bill. This bill seeks to enact assorted changes to various sections of the California Codes. Among other things, this bill would: (1) provide clean up revisions to the procedures and requirements for the appointment of humane officers pursuant to last year's SB 1417; (2) clarify the out-of-state deposition filing procedures; (3) add conservators of the person or estate to the list of persons with the right to control and duty of disposition of remains;(4) clarify that mailing extensions do not apply to the filing of an action against a public agency under the California Tort Claims Act;(5) make other technical and clarifying changes. This bill was approved by the Senate without receiving any "no" votes. The bill is supported by the Judicial Council and has no known opposition. SUMMARY : Makes several non-controversial and clarifying changes to the California codes. Specifically, this bill : 1)Deletes obsolete cross-references to subdivision (d) of Code of Civil Procedure Section 116.780, relating to rules applicable to a judgment that is entered on a small claims appeal. SB 647 Page 2 2)Clarifies an erroneous reference to a "defendant" in Code Civil Procedure Section 700.160, relating to levying of safe-deposit accounts, which should refer instead to the "judgment debtor." 3)Requires that any petition filed under the Interstate and International Depositions and Discovery Act 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. Further provides that if such petition has been filed and another dispute arises in the same out-of-state proceeding, then any document filed in the case must include on its first page whether or not the person filing the document is a party to the out-of-state case. 4)Provides that a humane society or a society for the prevention of cruelty to animals that seeks confirmation of a humane officer's appointment must serve the Petition for Order Confirming Appointment of a Humane Officer upon the local animal control agency, 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. 5)Clarifies that service of the Petition upon all entities required to be served occurs when (but not before) the Petition is filed with the court, and fixes a previous drafting error. 6)Clarifies that service of notice of denial of a claim by mail does not extend by five days the statute of limitations for a person to file a complaint against a public agency pursuant to the California Tort Claims Act. 7)Adds 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. 8)Replaces the term "fiduciary abuse" with the correct term of "financial abuse" and provides the appropriate cross-reference for the proper issuance of a summons in three sections of the Probate Code, as specified. SB 647 Page 3 9)Authorizes 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. 10)Deletes a reference to "delinquent reimbursements" and instead would allow courts to recover costs associated with implementing the program for cost reimbursement of counsel appointed to represent parents and minors in dependency proceedings. 11)Makes other technical and non-controversial corrections and clarifications. EXISTING LAW : 1)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 of Civil Procedure Section 116.780.) 2)Provides that a judgment of the superior court after a hearing on appeal, and after transfer to the small claims court, may be enforced like other judgments of the small claims court, as provided. (Code of Civil Procedure Section 116.820.) 3)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. Further 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 of Civil Procedure Section 700.160.) 4)Provides that if a petition has been filed under the Interstate and International Depositions and Discovery Act, different fees are imposed for a party to the proceeding then SB 647 Page 4 to a petitioner that is not a party to the proceeding, and the petition must contain all of the following: a) The caption and case number of the out-of-state case. b) The first page must state the name of the court in which the document is filed. c) The first page must state the case number assigned by the court. (Code of Civil Procedure Section 2029.610.) 5)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. Further requires any document filed under this section to contain all of the following: a) The caption and case number of the out-of-state case. b) The first page must state the name of the court in which the document is filed. c) The first page must state the case number assigned by the court. (Code of Civil Procedure Section 2029.620.) 6)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. (Corporations Code Section 14502.) 7)Pursuant to the California Tort Claims Act, requires an aggrieved person to present claims for money or damages to a local public entity prior to filing an action in court, and 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. (Government Code Section 945.6.) Further provides that any period of notice and any duty of a public entity to respond after receipt of service of a claim, amendment, application, SB 647 Page 5 or notice is extended five days upon service of mail, as specified. (Government Code Section 915.2.) 8)Specifies the 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 & Safety Code Sec. 7100.) 9)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. (Probate Code Section 259(a)(1).) Further 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. (Probate Code Section 2583(m).) 10)Authorizes the Franchise Tax Board to collect specified fees imposed by a superior court of California, totaling no less than one hundred dollars. (Revenue & Tax Code Section 19280.) 11)Authorizes the Judicial Council to establish a program to collect reimbursements for costs of counsel appointed to represent parents and minors in dependency proceedings, and allows courts to adopt policies and procedures to recover costs associated with collecting delinquent reimbursements. (Welfare & Institutions Code Section 903.47.) COMMENTS : This non-controversial committee bill is the Judiciary Committees' omnibus civil law bill. In order to be included in the bill, each provision must be non-controversial and not so substantive as to be more appropriate for a stand-alone bill. The civil omnibus bill is comprised of several individual proposals meeting these two criteria, each submitted and sponsored by different organizations such as the Judicial Council and the California Law Revision Commission, among others. This bill corrects technical errors and inadvertent omissions from SB 1417 (2010). 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 SB 647 Page 6 formed for the purposes of preventing cruelty to animals. This proposal, sponsored by the State Humane Association of California (SHAC), seeks to correct technical errors and one substantive omission that occurred as the bill progressed through the legislative process last year. First, this proposal would require a humane society or a society for prevention of cruelty to animals (SPCA) 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. This proposal is intended to further the original intent of SB 1417 to ensure that the local entity providing animal control services is served with notice of the Petition, but only in non-redundant situations so as to minimize the cost and burden of service borne by the humane society or SPCA. This proposal therefore reflects that the need to serve a local animal control agency only arises in cases where there is no local law enforcement agency that already provides animal control services in the scope of its duties. In addition, this bill corrects a drafting error in SB 1417 with respect to when the Petition for Order Confirming Appointment of a Humane Officer must be served by the humane society or SPCA on the required entities. Existing law, as enacted by SB 1417, incorrectly requires the humane society or SPCA to serve the Petition upon the required entities prior to filing the Petition with the court. However, the petition cannot be served before it is filed because the filing date establishes the earliest moment when a party who has been served with the Petition may subsequently file an opposition to the Petition with the court. This bill would require out-of-state petitioners to include whether or not they are a party to the out-of-state case on the first page of a petition or document filed in the case. 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. SB 647 Page 7 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 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." This bill would authorize additional persons with the right to control and duty of disposition of remains. 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 if other directions have not been given by the decedent. 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 bill 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. This bill would clarify aspects of implementing the AB 131(2009) cost-recovery program for appointed counsel in dependency cases. 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, also SB 647 Page 8 sponsored by the Judicial Council, 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 "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, this bill would allow courts to recover the costs of implementing the reimbursement program. This bill would authorize the Franchise Tax Board to collect fees associated with the appointment of counsel in dependency proceedings. 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 bill would authorize FTB to collect fees incurred by the courts for appointing counsel in dependency cases giving courts a way to recover their costs and SB 647 Page 9 should lead to increased revenues for the courts. This bill would clarify the deadline to file suit against a public agency pursuant to the California Tort Claims Act. 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. Gov. Code Section 913(b) requires the notice of rejection to include a statement that reads in substantially the following form: WARNING: 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. 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. 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 "plaintiffs 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." It appears that the intent of Section 915.2 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. To address this confusion, this bill would specifically clarify 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. REGISTERED SUPPORT / OPPOSITION : SB 647 Page 10 Support Judicial Council of California Opposition None on file Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334