BILL ANALYSIS                                                                                                                                                                                                    Ó



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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