BILL ANALYSIS Ó
SB 647
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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.
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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.
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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
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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,
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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
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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.
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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
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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
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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 :
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Support
Judicial Council of California
Opposition
None on file
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334