BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AB 2747 (Committee on Judiciary)
As Amended June 12, 2014
Hearing Date: June 24, 2014
Fiscal: Yes
Urgency: No
TMW
SUBJECT
Civil Law: Omnibus Bill
DESCRIPTION
This bill would enact assorted changes in various provisions of
law. The changes would range from updating tenant prejudgment
claim of right of possession forms to permitting the appearance
of an employee of a party to be compelled by written notices to
the party employing the witness in lieu of personally serving
the employee with a subpoena. The assorted changes would
additionally:
apply the Uniform Electronic Transactions Act to tenant
security deposit agreements;
extend the sunset on rental car accident service of process
requirements;
extend from 18 months to 7-years for the waiting period from
delivery of property to the state prior to the disposal of
unclaimed property;
require a party or a party's attorney who disputes the
reasonableness of fees charged by a deposition officer for a
deposition transcription or any other deposition product or
service to file an independent civil action to determine the
reasonableness of the fees charged;
provide that the communications made between a client and a
lawyer referral service, and between a victim and a human
trafficking counselor, are presumed to be confidential, such
that the opponent of the privilege would have the burden to
rebut the presumption;
delete the requirement that a confidential marriage license
only be used in the county in which it was issued;
prohibit a court, unless requested to do so, as specified,
(more)
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from declaring a 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;
include bicycle motocross within the definition of a hazardous
recreational activity;
repeal the requirement that the official bond of the Secretary
of State be filed in the office of the Treasurer after it is
recorded;
exempt a probate referee acting in his or her official
capacity upon designation by the court and who performs any
act authorized or required pursuant to the Probate Code from
paying or depositing a fee for the filing of any document,
paper, report, supplemental report, or objection in any
proceeding that may constitute an appearance by a party to a
legal proceeding;
add to the list of acts punishable by a civil penalty of not
more than $1,500 a willful violation of the failure to
discharge fully and faithfully any of the duties or
responsibilities required of a notary public;
require a district, as defined, that furnishes residential
light, heat, water, or power through a master meter to provide
written notice of service termination to actual users in a
single-family dwelling and require that notice be written in
English, Spanish, Chinese, Tagalog, Vietnamese, and Korean;
authorize a fee waiver for assessments for court
investigations regarding guardianship and conservatorship
proceedings, and authorize the court to collect all or part of
any fees waived from the estate of the conservatee or ward, as
specified;
authorize the confidential disclosure of communications, as
specified, protected by the human trafficking
caseworker-victim privilege;
require the Judicial Council to report to the Legislature on
or before January 1, 2017, on the effects on the
administration of justice of the Jobs and Economic Improvement
Through Environmental Leadership Act of 2011;
repeal the authorization of the implementation of a 3-year
CalWORKs demonstration project in Kern County; and
make other technical and clarifying changes.
BACKGROUND
AB 2747 is the Assembly Committee on Judiciary's civil omnibus
bill. In order to be included in the bill, each provision
should not be so substantive as to be more appropriate for a
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stand-alone bill.
CHANGES TO EXISTING LAW
1. Existing law , the Uniform Electronic Transactions Act,
generally allows parties to contract to conduct transactions
by electronic means, imposes specified requirements on
electronic transactions, but does not apply to specific
transactions, including a transaction regarding security for a
rental agreement for residential property that is used as the
dwelling of the tenant. (Civ. Code Sec. 1633.3.)
This bill would remove those security transactions from the
list of transactions to which the Uniform Electronic
Transactions Act does not apply.
2. Existing law governs contracts between vehicle rental
companies and their customers and, until January 1, 2015,
requires 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. Existing law requires any plaintiff who
elects to serve the foreign renter by delivering the summons
and complaint and any other required documents to the rental
company pursuant to these provisions to agree to limit his or
her recovery against the foreign renter and rental company to
the limits of the protection of the liability insurance.
(Civ. Code Sec. 1936.)
This bill would extend these requirements until January 1,
2020.
3. Existing law authorizes a tenant who has made a payment to a
public utility or publicly owned utility to deduct the amount
of the payment from the rent when due, as specified. (Civ.
Code Sec. 1942.2.)
This bill would additionally authorize a tenant who has made a
payment to a district for public utility service to deduct the
amount of the payment from the rent when due, as specified.
4. Existing law authorizes a tenant or subtenant, in any action
for unlawful detainer resulting from a foreclosure sale of a
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rental housing unit pursuant to specified provisions, to file
a prejudgment claim of right of possession or to object to
enforcement of a judgment for possession, regardless of
whether the tenant or subtenant was served with a prejudgment
claim of right to possession, as specified. (Code Civ. Proc.
Sec. 415.46.)
This bill would make conforming changes to statutory
provisions and statutory forms regarding claim of right to
possession and prejudgment claim of right to possession.
5. Existing law , known as 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 Civ. Proc. Sec. 1501.5(a).)
Existing law declares the intent of the Legislature to adopt a
more expansive notification component as part of the unclaimed
property program that has a waiting period of not less than 18
months from delivery of property to the state prior to
disposal of any unclaimed property deemed to have no
commercial value. (Code Civ. Proc. Sec. 1501(c).)
This bill would modify the declaration of legislative intent
to provide for a 7-year waiting period from delivery of
property to the state prior to the disposal of unclaimed
property. The bill would also update an obsolete reference.
6. Existing law requires personal service, with certain
exceptions, of a subpoena requiring the appearance of a
witness. The appearance of a party or an officer, director,
or managing agent of a party, however, may be compelled by
written notes in lieu of a subpoena. (Code Civ. Proc. Sec.
1987.)
This bill would also permit the appearance of an employee of a
party to be compelled by written notices to the party
employing the witness in lieu of personally serving the
employee with a subpoena.
7. Existing law requires the party noticing a deposition to bear
the cost of stenographically transcribing the deposition,
unless the court, on motion and for good cause shown, orders
that the cost be borne or shared by another party. Existing
law provides that any other party or the deponent is
authorized to obtain a copy of the transcript at the expense
of that party or deponent. Existing law also requires the
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requesting attorney or party appearing in propria persona to
timely pay the deposition officer or the entity providing the
services of the deposition officer for the transcription or
copy of the transcription and any other requested deposition
product or service, as defined. (Code Civ. Proc. Sec.
2025.510.)
This bill would, unless the parties agree otherwise, require a
party or a party's attorney who disputes the reasonableness of
fees charged by a deposition officer or an entity providing
the services of a deposition officer for a deposition
transcription or copy of a transcription, or any other
deposition product or service, as specified, to file an
independent civil action to determine the reasonableness of
the fees charged.
8. Existing law governs the admissibility of evidence in court
proceedings and 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 with
the burden lying with the opponent of the claim of privilege
to rebut the presumption. (Evid. Code Sec. 912.)
Existing law recognizes a lawyer referral service-client
privilege and a human trafficking caseworker-victim privilege,
but does not extend the presumption of confidentiality to
communications between those parties. Existing law 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. (Evid. Code Sec. 917.)
This bill would provide that the communications made between a
client and a lawyer referral service, and between a victim and
a human trafficking counselor, are also presumed to be
confidential, such that the opponent of the privilege would
have the burden to rebut the presumption.
This bill would also provide that the evidentiary privilege
for confidential communications made between a victim, as
defined, and a human trafficking counselor are presumed to
have been made in confidence, and would apply the
above-described waiver provision to the disclosure of those
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communications.
This bill would also make technical, non-substantive changes
related to these provisions.
9. Existing law authorizes the county clerk to issue a
confidential marriage license upon the personal appearance
together of the parties to be married, except as specified,
and their payment of certain fees. Existing law 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.
(Fam. Code Sec. 504.)
This bill would delete the requirement that a confidential
marriage license only be used in the county in which it was
issued.
10. Existing law specifies the circumstances under which a
marriage is void or voidable and 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. (Fam. Code Sec. 2251.)
This bill would prohibit the court from making these
declarations or orders unless the party or parties that
believed in good faith that the marriage was valid request the
court to do so.
11. Existing law governs the tort liability and immunity of, and
claims and actions against, a public entity. (Gov. Code Sec.
814 et seq.) Existing law provides that neither a public
entity nor a public employee is liable to a person who
participates in a hazardous recreational activity, defined to
include, among other things, bicycle racing or jumping and
mountain bicycling. (Gov. Code Sec. 831.7.)
This bill would include bicycle motocross within the
definition of a hazardous recreational activity.
12. Existing law requires the official bond of the Secretary of
State to be filed in the office of the Treasurer after it is
recorded.
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This bill would repeal that provision.
13. Existing law 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 Sec. 6103.)
This bill would exempt a probate referee acting in his or her
official capacity upon designation by the court and who
performs any act authorized or required pursuant to the
Probate Code from paying or depositing a fee for the filing of
any document, paper, report, supplemental report, or objection
in any proceeding that may constitute an appearance by a party
to a legal proceeding.
14. Existing law authorizes the Secretary of State to refuse to
appoint any person as a notary public or may revoke or suspend
the commission of any notary public upon a list of specified
grounds, including failure to discharge fully and faithfully
any of the duties or responsibilities required of a notary
public. (Gov. Code Sec. 8214.1(d).)
Existing law provides that a violation of specified acts
committed by a notary public is punishable by a civil penalty
not to exceed $1,500, and a violation of other specified acts,
including a negligent violation of the failure to discharge
fully and faithfully any of the duties or responsibilities
required of a notary public is punishable by a civil penalty
not to exceed $750. (Gov. Code Sec. 8214.15(a), (b).)
This bill would add to the list of acts punishable by a civil
penalty of not more than $1,500 a willful violation of the
failure to discharge fully and faithfully any of the duties or
responsibilities required of a notary public.
15. Existing law provides that whenever a district, as defined,
furnishes residential light, heat, water, or power through a
master meter, or furnishes individually metered service in a
multiunit residential structure, mobilehome park, or farm
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labor camp where the owner, manager, or farm labor employer is
listed by the district as the customer of record, the district
is required to make every good faith effort to inform the
actual users of the services, by means of a specified notice,
when the account is in arrears, that service will be
terminated at least 10 days prior to termination and further
provides for the district to make service available to actual
users who are willing and able to assume responsibility for
the entire account. (Gov. Code Sec. 60371.)
This bill would additionally require a district to provide
that notice to actual users in a single-family dwelling.
The bill would require that the notice be written in English,
Spanish, Chinese, Tagalog, Vietnamese, and Korean.
16. Existing law directs, as specified, superior courts to
deposit fees and fines into a bank account established by the
Administrative Office of the Courts. (Gov. Code Sec.
68085.1.)
This bill would make minor technical revisions to those
provisions.
17. Existing law requires a court to grant an initial fee waiver
at any stage of the proceedings at both the appellate and
trial court levels if an applicant meets the standards of
eligibility and application requirements, and excuses the
applicant from paying fees for the first pleading or other
paper, and other courts fees, as specified. (Gov. Code Sec.
68631.)
Existing law requires a court to initially grant permission to
proceed without paying court fees and costs because of an
applicant's financial condition to a specified list of
persons. (Gov. Code Sec. 68632.)
This bill would also authorize a fee waiver for assessments
for court investigations regarding guardianship and
conservatorship proceedings, and authorize the court to
collect all or part of any fees waived from the estate of the
conservatee or ward, if the court finds that the estate has
the ability to pay the fees, or a portion thereof,
immediately, over a period of time, or under some other
equitable agreement, without using moneys that normally would
pay for the common necessaries of life for the applicant and
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the applicant's family.
This bill would further provide that a conservatee, ward, or
person for whom a conservatorship or guardianship is sought,
shall be deemed the "applicant," and the conservator,
guardian, or person or persons seeking to establish the
conservatorship or guardianship shall be deemed the
"petitioner." In those cases, this bill would require the
petitioner to complete all forms and provide all information
required to in connection with a fee waiver.
This bill would also make conforming changes to the list of
applicants that qualify for fee waivers.
18. Existing law authorizes a residential care facility for the
elderly that cares for people with dementia, upon the filing
of emergency regulations with the Secretary of State, to
utilize secured perimeter fences or locked exit doors, if it
meets the requirements for additional safeguards required by
those regulations. (Health & Saf. Code Sec. 1569.698.)
This bill would make non-substantive and technical changes to
those provisions.
19. Existing law authorizes a county to establish an interagency
domestic violence death review team to assist local agencies
in identifying and reviewing domestic violence deaths, and
authorizes the confidential disclosure by an individual or
agency of written or oral information, including those that
are subject to the evidentiary privilege for confidential
communications, as specified. (Pen. Code Sec. 11163.3.)
This bill would authorize the confidential disclosure of
communications protected by the human trafficking
caseworker-victim privilege. The bill would also revise a
cross-reference in this provision.
20. Existing law provides for the nomination of a conservator for
a proposed conservatee by a spouse, domestic partner, or an
adult child, parent, brother, or sister of the proposed
conservatee. (Prob. Code Secs. 1811, 1812, 1813.)
This bill would update cross-references in these provisions
and make other minor technical corrections.
21. Existing law governs the disposal of a decedent's estate by
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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. (Prob. Code Sec. 6401.)
This bill would update this provision by deleting the
cross-reference to a surviving domestic partner.
22. Existing law , the California Environmental Quality Act
(CEQA), requires a lead agency, as defined, to prepare, or
cause to be prepared, and certify the completion of, an
environmental impact report (EIR) on a project that it
proposes to carry out or approve that may have a significant
effect on the environment or to adopt a negative declaration
if it finds that the project will not have that effect. (Pub.
Resources Code Sec. 21100.) CEQA also requires a lead agency
to prepare a mitigated negative declaration for a project that
may have a significant effect on the environment if revisions
in the project would avoid or mitigate that effect and there
is no substantial evidence that the project, as revised, would
have a significant effect on the environment. (Pub. Resources
Code Sec. 21157.5.)
Existing law , the Jobs and Economic Improvement Through
Environmental Leadership Act of 2011 establishes, until
January 1, 2017, alternative procedures for creating the
administrative record and specified judicial review procedures
for the judicial review of the EIR and approvals granted for a
leadership project related to the development of a
residential, retail, commercial, sports, cultural,
entertainment, or recreational use project, or clean renewable
energy or clean energy manufacturing project. That act
authorizes the Governor, upon application, to certify a
leadership project for streamlining pursuant to the act if
certain conditions are met. (Pub. Res. Code Sec. 21178 et
seq.) That act also 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. (Pub. Res. Code Sec.
21189.2.)
The bill would require instead that the Judicial Council
report to the Legislature on or before January 1, 2017, on the
effects of the act on the administration of justice.
23. Existing law requires each county to provide cash assistance
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and other social services to needy families through the
California Work Opportunity and Responsibility to Kids
(CalWORKs) program using federal Temporary Assistance to Needy
Families block grant program, state, and county funds. Under
the CalWORKs program, a county may make a restricted payment
directly to a vendor when a recipient of homeless assistance
benefits has mismanaged funds or has requested the restricted
payment. (Welf. & Inst. Code Sec. 10530 et seq.)
Existing law authorizes a county, or 2 or more counties, to
implement 3-year CalWORKs demonstration projects to test
alternative methods of service delivery, if the county
receives approval from the Director of Social Services.
Existing law limits the duration of this demonstration project
to a period of not more than 3 years. (Welf & Inst. Code Sec.
10790 et seq.) Existing law authorizes the director to
conduct a demonstration project in Kern County pertaining to
restricted payments under the CalWORKs program. (Welf. &
Inst. Code Sec. 10830.)
This bill would repeal the provisions authorizing that
demonstration project in Kern County.
COMMENT
1. Updating tenant prejudgment claim of right of possession forms
Among other things, AB 2610 (Skinner, Ch. 562, Stats. 2012)
provided an exception to the usual 10-day rule for filing a
prejudgment claim of right to possession for tenants subject to
an unlawful detainer action resulting from a foreclosure sale of
a rental housing unit. AB 2610 also provided that a tenant may
object to enforcement of a judgment for possession regardless of
whether that tenant was served with a prejudgment claim of right
to possession at any time before the judgment is executed.
However, AB 2610 did not contain corresponding provisions to
update two statutory forms concerning prejudgment claims for
right to possession appearing in Sections 415.46 and 1174.3 of
the Code of Civil Procedure to reflect these changes in the law.
This bill would update those two statutory forms so their
contents accurately reflect changes to the rights of tenants to
claim right of possession after the enactment of AB 2610. This
bill would also add clarifying language in other sections of the
Code of Civil Procedure to reflect the rights of tenants to file
prejudgment claims of right to possession and claims of right to
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possession.
2. Removing exclusion from Uniform Electronic Transactions Act
(UETA) for rental property security deposits
Under existing law, the UETA applies to transactions between two
or more persons relating to the conduct of business. (See Civ.
Code Sec. 1633.2.) The UETA specifically exempts Section 1950.5
of the Civil Code concerning security for a rental agreement for
residential property from its provisions. This has led some
landlords to consider removing provisions regarding security
deposits provided in this section from residential leases so the
leases can be signed electronically and are not exempted from
the UETA. This bill would delete Section 1950.5 from the list
of exemptions to the UETA, effectively authorizing electronic
transfers of rental security deposits.
3. Extending sunset regarding rental car accident service of
process
Existing law requires a rental car company that enters into a
vehicle rental agreement with a renter who is not a resident of
this country to do the following when that renter purchases
liability insurance as part of the agreement: (1) accept service
of process of any summons and complaint against the renter for
any accident resulting from the operation of the rental car
within California; and (2) mail a copy of the summons and
complaint to the renter. Existing law specifies how process
must be served on a rental car company and requires that a
plaintiff agree to limit his or her recovery to the limits of
protection provided by the insurance. AB 621 (Calderon, Ch.
531, Stats. 2011) enacted those provisions until January 1,
2015. This bill would extend that sunset until January 1, 2020.
The Consumer Attorneys of California (CAOC), sponsor of this
provision, asserts that prior to the enactment of AB 621,
Californians faced a serious problem when an out-of-state driver
using a rental car recklessly injured or killed a California
resident. The out-of-state-driver would leave the country and
return home, and the California resident faced great difficulty
when trying to locate and serve the out-of-state resident with a
civil complaint.
By requiring rental car companies in certain instances to accept
service of process for international renters, this bill
implicates service of process outside of the United States.
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Both California law and the Hague Convention govern the
transmission of documents outside the United States. In
addition, under the Supremacy Clause of the U.S. Constitution
(U.S. Const., art. VI), the Hague Convention preempts any
inconsistent state laws. (See Volkswagenwerk Aktiengesellschaft
v. Schlunk (1988) 486 U.S. 694.) While the rules governing
service of summons outside of the United States are subject to
the provisions of the Hague Convention, depending on the
receiving country, it would appear that extending this provision
of existing law that requires rental car companies to mail a
copy of the summons and complaint to the out-of-country renter
would arguably meet service requirements.
4. Extending utility services shut-off notification
SB 120 (Lowenthal, Ch. 560, Stats. 2009) extended certain
protections requiring utilities, public utilities, and districts
to notify tenants of multifamily dwellings of an impending
shut-off of utility service to also include tenants living in
single-family homes. However, that bill did not include special
districts governed by Section 60371 of the Government Code that
provide utility service to similar residential structures. This
bill would require special districts to provide the same
protections as all other utility providers, as specified.
5. Authorizing service of subpoena on employee witness's employer
In order to compel the appearance of a party to the record or of
a person for whose immediate benefit an action or proceeding is
prosecuted or defended or of anyone who is an officer, director,
or managing agent of that party or person, a subpoena is not
required to be served on the witness if written notice
requesting the witness to attend before a court or at trial is
served on that party's attorney. (Code Civ. Proc. Sec. 1987.)
This bill would extend that provision to authorize a written
notice, in lieu of a subpoena, requesting the appearance of a
party's employee to be delivered to the party's attorney.
As a result, this provision raises a policy question as to
whether an employee should, for the purposes of service of a
subpoena to appear at trial, be treated as an agent of the
employer and if service on the employer's attorney should
displace personal service on the employee. Arguably, the
employer and employee's interests at trial may not be aligned in
the same manner as the interests of the employer and the
director, officer, or managing agent of the employer's business.
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It is also foreseeable that service upon the employer's
attorney in place of the employee, himself or herself, could
cause duress for the subpoenaed employee-for example, what if
the employee is called as a witness to testify by a former
employee of the same company in a sexual harassment case? In
the same example, if the situation instead involved the officer
or director, the interests of the company and the officer and
director arguably would align. Alternatively, what if the
employer does not want that employee to testify as the
employee's testimony may hurt the employer's position in the
case? Insofar as the service of the deposition notice can be
made on the attorney of the company under existing law and
conformity between the two provisions is sought, it may be more
appropriate to instead alter existing law so to require personal
service on the employee in that situation as well. Given the
above policy issues, this provision should be stricken so that
it can be included in a standalone bill.
6. Requiring a civil action to determine reasonableness of
deposition transcript fee
This bill would, unless the parties agree otherwise, require a
party or a party's attorney who disputes the reasonableness of
fees charged by a deposition officer or an entity providing the
services of a deposition officer for a deposition transcription
or copy of a transcription, or any other deposition product or
service, as specified, to file an independent civil action to
determine the reasonableness of the fees charged.
The Deposition Reporters Association of California, sponsor of
this provision, contend that a court of appeal case, Serrano v.
Merli Plastering Co. (2008) 162 Cal.App.4th 1014, has created a
way for unscrupulous lawyers to evade their legal responsibility
to pay for deposition services. In opposition, Richard L.
Manford, argues that this provision will "(1) create new and
different problems, (2) undermine the trial court's existing
statutory authority to control the conduct of its ministerial
officers and other persons connected to a pending judicial
proceeding, (3) load an additional burden on the courts, (4)
impose additional court filing fees on the disputing lawyer and
the deposition [certified shorthand reporter (CSR)], (5) drag
out the reasonable fee-determination process, and (6) probably
would constitute an unconstitutional deprivation of due
process." Due to the concerns raised by the opposition, the
author offers the following amendment, which would strike the
existing provision and instead provide clarification on personal
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jurisdiction over nonparties.
Author's amendments :
1. On page 60, strike lines 9-16
2. On page 60, remove and replace "(5)" with "(4)"
3. On page 60, between lines 22 and 23, insert:
Nothing in the case of Serrano v. Stefan Merli Plastering
Co., Inc. (2008) 162 Cal.App.4th 1014 shall be construed to
alter the standards by which a court acquires personal
jurisdiction over a nonparty to an action.
7. Limiting court's ability to issue a declaration of putative
spouse finding
Existing law, the putative spouse doctrine, is designed to
protect the financial and property interests of a person who
enters into a bigamous marriage believing in good faith that it
is a valid marriage. The person who is unaware his or her
spouse is already married is called the "putative spouse."
Existing law requires a court to declare, after having
determined that a marriage is void or voidable and either party
believed in good faith that the marriage was valid, 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. (Fam. Code Sec.
2251.) This doctrine entitles the putative spouse to marital
property rights along with the legal spouse, meaning, the
spouses will share rights to the marital property.
This bill would prohibit the court from making these
declarations or orders unless the party or parties, who believed
in good faith that the marriage was valid, request the court to
do so. CCBA, sponsor of this provision, contends this provision
is intended to resolve a split in California case law as to
whether Section 2251 of the Family Code mandates a community
property division of property in all cases in which one party
believed a void or voidable marriage was valid, or only in those
cases where such a division of property would benefit the
innocent party (the traditional "putative spouse"). Arguably,
statutorily resolving a conflict in case law, which would
determine whether a putative spouse has property rights, is a
substantive change to the law that is worthy of full discussion
in a standalone bill. Accordingly, this provision should be
stricken from the bill.
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8. Adding bicycle motocross as hazardous recreational activity
for the purpose of tort immunity of a public entity or
employee
Existing law governs the tort liability and immunity of, and
claims and actions against, a public entity and provides that
neither a public entity nor a public employee is liable to a
person who participates in a hazardous recreational activity,
defined to include, among other things, bicycle racing or
jumping and mountain bicycling. This bill would include
bicycle motocross within the definition of a hazardous
recreational activity.
The California Association of Joint Powers Authorities (CAJPA),
sponsor of this provision, contends that existing law already
includes "bicycling racing or jumping and mountain bicycling" as
hazardous recreational activities, and bicycle motocross is a
combination of all three of these activities. CAJPA asserts
that this provision would clarify the current liability
protection granted to public entities and employees from
individuals who voluntarily participate in the hazardous
activity of bicycle motocross.
9. Extending court filing fee waivers
Existing law provides relief, a fee waiver, from court filing
fees to individuals who meet specified standards or eligibility
requirements. This bill would authorize a court to grant a fee
waiver for assessments for court investigations regarding
guardianship and conservatorship proceedings, and authorize the
court to collect all or part of any fees waived from the estate
of the conservatee or ward, if the court finds that the estate
has the ability to pay the fees, or a portion thereof,
immediately, over a period of time, or under some other
equitable agreement, without using moneys that normally would
pay for the common necessaries of life for the applicant and the
applicant's family.
This bill would incorporate a conservatee, ward, or person for
whom a conservatorship or guardianship is sought into the
definition of fee waiver "applicant," and the conservator,
guardian, or person or persons seeking to establish the
conservatorship or guardianship would be incorporated into the
definition of "petitioner." In those cases, this bill would
require the petitioner to complete all forms and provide all
AB 2747 (Committee on Judiciary)
Page 17 of ?
information required to in connection with a fee waiver. This
bill would also make conforming changes to the list of
applicants that qualify for fee waivers.
10. Revising Judicial Council report requirement
AB 900 (Buchanan, Ch. 354, Stats. 2011) established the Jobs and
Economic Improvement Through Environmental Leadership Act of
2011 and, until January 1, 2017, created alternative procedures
for creating the administrative record and specified procedures
for the judicial review of an environmental impact report on a
project that may have a significant effect on the environment.
That Act requires the Judicial Council to report to the
Legislature on or before January 1, 2015, on the effects of that
Act, including specific information on benefits, costs, and
detriments.
This bill would require instead that the Judicial Council report
to the Legislature on or before January 1, 2017, on the effects
of the Act on the administration of justice. This provision was
included in SB 52 (Steinberg, 2012), but that bill failed
passage in the Assembly Committee on Jobs, Economic Development
and the Economy.
This provision, sponsored by Judicial Council, would narrow the
scope of the report to be prepared by Judicial Council to solely
address the Act's impacts on the administration of justice.
Restricting the report to the administration of justice would
arguably place the focus of this report more squarely within
Judicial Council's areas of expertise. This bill would also
delay the date by which the report must be submitted to the
Legislature to January 1, 2017.
11. Remaining changes are technical and clarifying
In addition to the above provisions, this bill would:
make technical, non-substantive changes related to
confidential communications made between a victim and a
human trafficking counselor;
make minor technical revisions to superior courts
deposits;
make non-substantive and technical changes related to
residential care facility safety regulations; and
update cross-references and make other minor technical
corrections related to the nomination of a conservator for
a proposed conservatee.
AB 2747 (Committee on Judiciary)
Page 18 of ?
12. Author's amendments
The author offers the following amendments to remove substantive
sections of this bill:
Author's amendments :
1. On page 57, strikes lines 11-40, and on page 58, strike
lines 1-32;
2. On page 64, strike lines 2 through 18.
Support : None Known
Opposition : One individual
HISTORY
Source : California Apartment Association; California
Association of Clerks and Election Officials; California
Association of Joint Powers Authorities; California Secretary of
State; California State Controller; Conference of California Bar
Associations; Consumer Attorneys of California; Deposition
Reporters Association of California; Judicial Council of
California
Related Pending Legislation :
AB 2611 (Bocanegra, 2014) would revise requirements related to
the State Controller's examination of records related to
property potentially reportable pursuant to the Unclaimed
Property Law. AB 2611 is currently for hearing in the Senate
Committee on Judiciary.
AB 1981 (Brown, 2014) would remove the manufacturer's suggested
retail price as one of the criteria for the rate of a damage
waiver sold by a rental company and increase maximum rates of
rental car damage waivers. AB 1981 is currently for hearing in
the Senate Committee on Judiciary.
Prior Legislation :
SB 52 (Steinberg, 2012) See Comment 10.
AB 2747 (Committee on Judiciary)
Page 19 of ?
AB 2610 (Skinner, Ch. 562, Stats. 2012) See Comment 1.
AB 900 (Buchanan, Ch. 354, Stats. 2011) See Comment 10.
AB 621 (Calderon, Ch. 531, Stats. 2011) See Comment 3.
SB 120 (Lowenthal, Ch. 560, Stats. 2009) See Comment 4.
Prior Vote :
Assembly Floor (Ayes 53, Noes 19)
Assembly Committee on Appropriations (Ayes 12, Noes 5)
Assembly Committee on Judiciary (Ayes 7, Noes 0)
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