BILL ANALYSIS Ó
AB 2747
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Date of Hearing: April 29, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 2747 (Committee on Judiciary) - As Amended: April 22, 2014
As Proposed to be Amended
SUBJECT : CIVIL LAW: OMNIBUS
KEY ISSUE : SHOULD A NUMBER OF SMALL BUT NECESSARY SUBSTANTIVE,
TECHNICAL AND CLARIFYING CHANGES TO CIVIL LAW BE MADE TO VARIOUS
SECTIONS OF THE CALIFORNIA CODES?
SYNOPSIS
This non-controversial bill is the Assembly Judiciary
Committee's omnibus civil law bill. The purpose of the omnibus
bill is to increase the efficiency of the legislative process,
conserve legislative resources, and eliminate the need to
unnecessarily hear a number of stand-alone bills that might
otherwise have to be introduced and heard separately through the
legislative process.
In order to be included in the bill, each provision should be
not so substantive as to be more appropriate for a stand-alone
bill. It is believed that most, if not all, of these provisions
are non-controversial in nature. This year's omnibus bill
incorporates over a dozen different proposals submitted by
various groups seeking to make technical, clarifying, or other
modest changes to civil law, including the Judicial Council, the
Secretary of State, the State Controller's Office, and the
California Law Revision Commission. The omnibus bill has no
known opposition.
SUMMARY : Makes various changes to the California codes as part
of the Committee's civil omnibus bill. Specifically, this bill ,
among other things:
1)Restores a civil penalty for a willful violation of notary
public standards of conduct that as the result of a drafting
error was inadvertently repealed.
2)Updates the Evidence Code to reflect the addition of two types
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of evidentiary privilege that had inadvertently been omitted
from the list of all relationship-based privileged
communications, and corrects incorrect cross-references.
3)Removes specific references to domestic partners in the
Probate Code that became obsolete when spouses and domestic
partners were guaranteed the same rights and responsibilities
under California law.
4)Makes technical and conforming changes to statutory provisions
and statutory forms regarding claim of right to possession and
prejudgment claim of right to possession.
5)Corrects a drafting error in SB 120 (2009) that was intended
to cover all utility providers but inadvertently failed to
extend those provisions to one type of special utility
district.
6)Extends, for an additional five years, the sunset date for
provisions requiring a car rental company to be the agent for
service of process for claims against insureds who reside
outside of the United States.
7)Repeals the requirement that a confidential marriage license
may be used only in the county in which it was issued.
8)Exempts a probate referee from paying a filing fee for a
request for special notice when acting in his or her official
capacity.
9)Removes obsolete provisions regarding personal bonds.
10)Requires an independent civil action to be filed for any
dispute about the reasonableness of fees charged by a
deposition officer, as specified.
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11)Deletes inappropriately broad reporting requirements
inadvertently assigned to the Judicial Council pursuant to the
study established by AB 900 (2011), and instead limits the
scope of the report to the effects of AB 900 on the
administration of justice.
12)Clarifies that residential leases having a security deposit
provision are not by virtue of that fact barred from being
signed electronically by the parties, if they so wish, under
the Uniform Electronic Transactions Act (UETA).
13)Adds bicycle motocross to the list of hazardous recreational
activities under Government Code Section 831.7.
14) Clarifies that a putative spouse must be the innocent party
in a voidable marriage.
15)Clarifies that the court's decision to grant a fee waiver in
a case involving a conservatorship or guardianship should be
based on the financial resources of the proposed conservatee
or ward.
16)Includes employees among those persons a party must produce
at trial upon proper notice.
17)Makes other technical corrections and clarifying changes.
EXISTING LAW , among other things:
1)Requires until January 1, 2015, a rental company or its
registered agent to accept service of a summons and complaint
and any other required documents against a renter who resides
out of this country for an accident or collision resulting
from the operation of the rental vehicle in this state, if the
rental company provides liability insurance coverage as part
of, or associated with, the rental agreement. (Civil Code
Section 1936.)
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2)Pursuant to the Uniform Electronic Transactions Act, generally
allows parties to contract to conduct transactions by
electronic means and imposes specified requirements on
electronic transactions, with the exception of specific
enumerated transactions, including a transaction regarding
security for a rental agreement for residential property that
is used as the dwelling of the tenant. (Civil Code Section
1633.3.)
3)Provides that neither a public entity nor a public employee is
liable in tort to a person who participates in a hazardous
recreational activity, defined to include, among other things,
bicycle racing or jumping and mountain bicycling. (Government
Code Section 831.7.)
4)Provides for the disposal of a decedent's estate by intestate
succession, and declares that the surviving spouse or
surviving domestic partner is entitled to a specified share of
the decedent's separate property that is not effectively
disposed of by will. (Probate Code Section 6401(c).)
5)Pursuant to the Jobs and Economic Improvement Through
Environmental Leadership Act of 2011, requires the Judicial
Council to report to the Legislature on or before January 1,
2015, on the effects of the Act, including specific
information on benefits, costs, and detriments. (Public
Resources Code Section 21189.2.)
6)Pursuant to the Unclaimed Property Law, provides for the
escheat to the state of, among other property, certain
personal property held or owing in the ordinary course of the
holder's business. (Code of Civil Procedure Section 1520.)
7)Provides, in statute, the forms for claim of right to
possession and for service of a prejudgment claim of right to
possession. (Code of Civil Procedure Sections 415.46 and
1174.3.)
8)Provides that the right to claim the evidentiary privilege for
confidential communications is waived if any holder of the
privilege has, without coercion, disclosed a significant part
of the communication or consented to disclosure of the
communication, as specified. (Evidence Code Section 912.)
9)Governs the admissibility of evidence in court proceedings and
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permits a person to claim an evidentiary privilege for
confidential communications between that person and a
specified individual, including, but not limited to, a lawyer,
physician, clergy member, sexual assault counselor, and
domestic violence counselor, among others, and the
communication is presumed to have been made in confidence.
(Evidence Code Section 917.)
10)Provides that a confidential marriage license is valid only
for a period of 90 days after its issuance by the county clerk
and requires that it be used only in the county in which it
was issued. (Family Code Section 504.)
11) Requires a court, if a determination is made that a marriage
is void or voidable and either party believed in good faith
that the marriage was valid, to declare the party or parties
to have the status of putative spouse and to divide the
property that would have been community property if the
marriage was valid as if it were community property. (Family
Code Section 2251.)
12)Exempts the state, any county, city, district, or other
political subdivision, any public officer or body, acting in
his or her official capacity on behalf of the state, county,
city, district, or other district or other political
subdivision, from paying or depositing any fee for the filing
of any document or paper, for the performance of any official
service, or for the filing of any stipulation or agreement
which may constitute an appearance in any court by any other
party to the stipulation or agreement, except as specified.
(Gov. Code Section 6103.)
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
COMMENTS : This bill is the Assembly Judiciary Committee's
omnibus civil law bill. It incorporates over a dozen different
proposals submitted by various groups seeking to make technical,
clarifying, or other modest changes to civil law. In order to
be included in the bill, each provision must be not so
substantive as to be more appropriate for a stand-alone bill.
It is believed that most, if not all, of these provisions are
non-controversial in nature.
The purpose of the omnibus bill is to increase the efficiency of
the legislative process, conserve legislative resources, and
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eliminate the need to unnecessarily hear a number of stand-alone
bills that might otherwise have to be introduced and heard
separately through the legislative process. Several of the
individual proposals are briefly discussed below.
This bill narrows study requirements to appropriate focus for
the Judicial Council. Public Resources Code Section 21189.2,
enacted by AB 900 (Stats. 2011, ch. 354), currently requires the
Judicial Council to conduct a study and "report to the
Legislature, on or before January 1, 2015, on the effects of
[the bill], which shall include, but not be limited to, a
description of the benefits, costs, and detriments of the
certification of leadership projects pursuant to this chapter."
(emphasis added.) According to the Judicial Council, Senate
President Darrell Steinberg and his staff acknowledged that this
study language was inadvertently written too broadly, and deals
with issues that are outside the Judicial Council's expertise
and areas of experience. Steinberg and his staff also indicated
their intent to pursue clean-up legislation that would make
clear that the focus of the Judicial Council's study would be
limited to the impacts of the act on the administration of
justice. Such cleanup language was included in SB 52 of 2012
(See section 7 of the June 26, 2012 version, at p 7, lines
19-23) but that measure failed passage in the Assembly Committee
on Jobs, Economic Development and the Economy for reasons
unrelated to this proposal.
This provision of the bill clarifies and appropriately narrows
the statutorily mandated study language to limit its focus to
the impacts of the act on the administration of justice, as well
as extending the deadline of the study to coincide with the new
deadlines in the act that were recently extended by SB 743 (Ch.
386, Stats. 2013).
This bill revises two statutory forms to correspond to changes
to underlying law. AB 2610 (Skinner), Ch. 562, Stats. 2012,
gives occupants in foreclosed properties the right to file the
Prejudgment Claim of Right to Possession form (CP10.5) at any
time before judgment. However, there was an unfortunate but
significant legislative oversight in that the bill failed to
update the forms themselves to reflect the underlying changes in
the law. As a result, the existing statutory forms continue to
provide outdated and incorrect information about the rights and
procedural requirements that apply to the people who are served
with these forms under the new law enacted by AB 2610. Because
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the forms are statutory, rather than created by the Judicial
Council, legislation is needed to update the content of the
forms.
This proposal amends Sections 415.46 and 1174.3 of the Code of
Civil Procedure to update two statutory forms known as the
Prejudgment Claim of Right to Possession (CP 10.5), and the
Claim of Right to Possession (CP 10). The updates are necessary
to conform the statutory forms, which are often served upon
occupants in foreclosed properties, with the changes in the
underlying law that were made when AB 2610 (Skinner) was
chaptered in 2012. Additionally, Section 1174.25 is amended to
provide an additional cross-reference to the change in the law.
This bill updates a provision of the Unclaimed Property Law to
match current law. SB 495 (Ch. 305, Stats. 2011) increased the
waiting period to retain unclaimed property (safe deposit box
contents) of no apparent commercial value from 18 months to 'not
less than seven years'. That bill also specified changes to the
language in CCP Section 1565, but did not include Section 1501.5
which also referenced the retention time period. According to
the State Controller's Office, this was an oversight, and
Section 1501.5 (c) (3) needs to be updated to reflect the
correct time of retention and to be consistent with Section
1565.
This bill corrects a legislative oversight relating to the scope
of SB 120 (2009). This proposal amends Sec. 1942.2 of the Civil
Code, and Sec. 60371 of the Government Code to correct an
oversight stemming from the enactment of SB 120 (Lowenthal) of
2009. SB 120 changed the law regarding the notice that utility
districts must provide to tenants when the utilities are
shutoff, but through a legislative oversight, one type of
utility district was omitted from the scope of the bill-the
type of special district governed by Government Code Sec. 60371.
Without this proposal, all utility districts are subject to one
rule (articulated by SB 120), while a different rule (the pre-SB
120 rule) applies only to GC 60371 special districts. There is
no public policy justification for continuing this discrepancy
that was created by legislative oversight.
Additional Proposed Amendments That Were Inadvertently Omitted
From The Bill.
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Proposed Amendment 1 . This amendment is needed to restore
consistency to the set of Evidence Code sections on evidentiary
privilege, and specifically privileged communications. This
amendment would add two types of evidentiary privilege to
Section 917 of the Evidence Code that are included throughout
relevant neighboring sections, but were inadvertently omitted
from Section 917 due to drafting error.
Amend Evidence Code Section 917 to read:
Section 917(a). If a privilege is claimed on the ground that
the matter sought to be disclosed is a communication made in
confidence in the course of the lawyer-client, lawyer
referral service-client , physician-patient,
psychotherapist-patient, clergy-penitent, husband-wife,
sexual assault counselor-victim, or domestic violence
counselor-victim , or human trafficking caseworker-victim
relationship, the communication is presumed to have been
made in confidence and the opponent of the claim of
privilege has the burden of proof to establish that the
communication was not confidential.
(b) A communication between persons in a relationship
listed in subdivision (a) does not lose its privileged
character for the sole reason that it is communicated by
electronic means or because persons involved in the
delivery, facilitation, or storage of electronic
communication may have access to the content of the
communication.
(c) For purposes of this section, "electronic" has the
same meaning provided in Section 1633.2 of the Civil Code.
Proposed Amendment 2. This amendment is needed to address an
incorrect cross-reference in Government Code Section 68085.1.
When new subdivision (d) was added to Government Code 70626,
section 68085.1 was erroneously not conformed to refer to
subdivision (e) rather than subdivision (d).
Amend subdivision (c) of Government Code Section 68085.1 to
read:
GC Section 68085.1(c).
(1) Within 45 calendar days after the end of the month in
which the fees and fines listed in subdivision (a) are
collected, the Administrative Office of the Courts shall
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make the following distributions:
(A) To the small claims advisory services, as described
in subdivision (f) of Section 116.230 of the Code of
Civil Procedure.
(B) To dispute resolution programs, as described in
subdivision (b) of Section 68085.3 and subdivision (b) of
Section 68085.4.
(C) To the county law library funds, as described in
Sections 116.230 and 116.760 of the Code of Civil
Procedure, subdivision (b) of Section 68085.3,
subdivision (b) of Section 68085.4, and Section 70621 of
this code, and Section 14607.6 of the Vehicle Code.
(D) To the courthouse construction funds in the Counties
of Riverside, San Bernardino, and San Francisco, as
described in Sections 70622, 70624, and 70625.
(E) Commencing July 1, 2011, to the Trial Court Trust
Fund, as described in subdivision (d) (e) of Section
70626, to be used by the Judicial Council to implement
and administer the civil representation pilot program
under Section 68651.
(2) If any distribution under this subdivision is
delinquent, the Administrative Office of the Courts shall
add a penalty to the distribution as specified in
subdivision (i).
Proposed Amendment 3. This amendment is needed to correct a
drafting error in AB 886 (Runner, Ch. 399, 2007) that
unintentionally removed a civil penalty for a willful violation
of notary public standards of conduct. The statute previously
provided for penalties of both willful and negligent conduct,
but AB 886 neglected to retain the willful penalties when
recasting the code sections. This proposal reinstates the prior
$1,500 civil penalty for willful violation of Government Code
section 8214.1 (d). According to the Secretary of State, who
submitted this proposal, the drafting error has had the effect
of tying the hands of Administrative Law Judges who now only
have the option to classify these violations as negligent, which
carries a lesser penalty. As a result, some judges choose to
assess no penalty rather than downgrade a willful violation to
the lower status of a negligent act. The amendment appears
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below:
Section 8214.15 of the Government Code is amended to read:
8214.15 (a) In addition to any commissioning or
disciplinary sanction, a violation of subdivision (f), (i),
(l), (m), or (p) of Section 8214.1 , or a willful violation
of subdivision (d) of Section 8214.1, is punishable by a
civil penalty not to exceed one thousand five hundred
dollars ($1,500).
(b) In addition to any commissioning or disciplinary
sanction, a violation of subdivision (h), (j), or (k) of
Section 8214.1, or a negligent violation of subdivision (d)
of Section 8214.1 is punishable by a civil penalty not to
exceed seven hundred fifty dollars ($750).
(c) The civil penalty may be imposed by the Secretary of
State if a hearing is not requested pursuant to Section
8214.3. If a hearing is requested, the hearing officer
shall make the determination.
(d) Any civil penalties collected pursuant to this section
shall be transferred to the General Fund. It is the intent
of the Legislature that to the extent General Fund moneys
are raised by penalties collected pursuant to this section,
that money shall be made available to the Secretary of
State's office to defray its costs of investigating and
pursuing commissioning and monetary remedies for violations
of the notary public law.
REGISTERED SUPPORT / OPPOSITION :
Support
California Law Revision Commission (CLRC)
Opposition
None on file
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334