BILL ANALYSIS Ó
AB 432
Page 1
Date of Hearing: March 24, 2015
ASSEMBLY COMMITTEE ON JUDICIARY
Mark Stone, Chair
AB
432 (Chang) - As Amended March 17, 2015
PROPOSED CONSENT (As Proposed to be Amended)
SUBJECT: Civil procedure: electronic signatures
KEY ISSUE: Should the code of civil procedure be amended to
define "electronic SIgnature" and clarify, consistent with
California Rules of Court, that a signature requirement for a
court order or judgment may be satisfied with an electronic
signature?
SYNOPSIS
Sponsored by the Conference of California Bar Associations, this
non-controversial bill defines "electronic signature" for
purposes of the Code of Civil Procedure and clarifies,
consistent with California Rules of Court, that electronic
signatures satisfy any signature requirement for judgments and
orders issued by a court or judicial officer. Beginning with
the 1999 Uniform Electronic Transaction Act, which authorized
electronic signatures for contracting purposes, the Legislature
has enacted piecemeal legislation recognizing the validity of
electronic documents and electronic signatures in various
contexts. In 2010, AB 1926 (Evans) required the Judicial
Council to establish rules and procedures for permitting any
notice, order, judgment, or similar court document to be signed,
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subscribed, or verified using an electronic signature. In
practice, most courts apparently already permit electronic
signatures on filings and allow judges to attach an electronic
signature to court orders and judgments - as is expressly
authorized by the California Rules of Court. However, the
sponsor contends, there is no uniform definition of "electronic
signature" in the Code of Civil Procedure and no express
authorization for electronic signatures in the relevant sections
of the Code of Civil Procedure. This bill will effectively
align the Code of Civil Procedure with the Rules of Court that
define "electronic signature" and authorize their use by courts
and judicial officers. The author will take clarifying
amendments in this Committee that are reflected in the analysis.
There is no known opposition to this bill.
SUMMARY: Defines "electronic signature" for purposes of the
Code of Civil Procedure and permits use of an electronic
signature on court orders and judgments, as specified.
Specifically, this bill:
1)Defines "electronic signature" to mean an electronic sound,
symbol, or process attached to or logically associated with an
electronic record and executed or adopted by a person with the
intent to sign the electronic record.
2)Provides that an electronic signature by a court or judicial
officer shall be effective as an original signature.
EXISTING LAW:
1)Provides that a "signature" includes a mark of a person, when
the person cannot write his or her own signature, with his or
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her name being written near it by a person who writes his or
her own name as a witness, as provided. (Code of Civil
Procedure Section 17.)
2)Requires the court, in a dismissal action, to sign a written
order and file the order in the action. In all cases other
than dismissals, the court issues a judgment that shall be
rendered on the merits. (Code of Civil Procedure Sections
581d and 582.)
3)Provides that any notice, order, judgment, decree, decision,
ruling, opinion, memorandum, warrant, certificate of service,
or similar document issued by a trial court or by a judicial
officer of a trail court may be signed, subscribed, or
verified using a computer or other technology in accordance
with guidelines established by the Judicial Council.
(Government Code Section 68150(g).)
4)Authorizes the use of electronic signatures in contracts.
Defines "electronic signature" to mean an electronic sound,
symbol, or process attached to or logically associated with an
electronic record and executed or adopted by a person with the
intent to sign the electronic record. (Civil Code Section
1633.1 et seq.)
FISCAL EFFECT: As currently in print this bill is keyed
non-fiscal.
COMMENTS: It comes as no surprise that the judicial branch
increasingly accepts and issues documents in electronic form.
Not only do electronic documents save paper, they greatly reduce
the need for storage space. The California Rules of Court (CRC)
not only authorize filing and service by electronic means, but
in some instances permit the court to require parties to file
and serve documents electronically, as long as doing so does not
cause any undue hardship or significantly prejudice any party.
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(CRC, Rule 2.253 (c).) The policy rationale for greater use of
electronic documents logically justifies the use of electronic
signatures; otherwise, the policy goal would be defeated as an
electronic document would need to be printed out in paper form
so that it could be signed in ink. AB 1926 (Chapter 167, Stats.
of 2010) sought to facilitate greater use of electronic
documents in the courts and, among other things, required the
Judicial Council to establish rules and procedures for
permitting any notice, order, judgment, or other court document
to be signed, subscribed, or verified using an electronic
signature.
Making the Code of Civil Procedure Consistent with the Rules of
Court: Even before AB 1926 required the Judicial Council to
adopt rules facilitating use of electronic documents, the
California Rules of Court had provided that "if a document
requires a signature by a court or judicial officer, the
document may be electronically signed in any manner permitted by
law." (Rule 2.257(e), emphasis added.) According to the
sponsor, the Conference of California Bar Associations, this
last clause - "in any manner permitted by law" - raises a
question as to whether a court can use an electronic signature,
as provided by the Rules of Court, without a statutory provision
permitting its use. This bill, by amending the Code of Civil
Procedure to expressly provide for electronic signatures, would
clarify that there is statutory authority for the Rule of Court.
Arguably, Government Code Section 68150 (enacted by AB 1926)
already provides that statutory authority; however, this is
somewhat ambiguous given that AB 1926 language was directed to
the Judicial Council (to develop rules), rather than the courts,
and placed in the Government Code, rather than in the Code of
Civil Procedure, where one might expect to find it.
In addition to an absence of clear statutory authority, the
sponsor also notes that there is no uniform definition of
"electronic signature" in the Code of Civil Procedure. This
bill will effectively align the Code of Civil Procedure with the
Rules of Court by expressly authorizing the use of electronic
signatures by courts and judicial officers on judgments and
orders. The bill also defines an electronic signature as "an
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electronic sound, symbol, or process attached to or logically
associated with an electronic record and executed or adopted by
a person with the intent to sign the electronic record." This
definition is consistent with those in California's Uniform
Electronic Transactions Act (Code of Civil Procedure Section
1633.2) and in the federal ESIGN Act.
Bill Does Not Affect Documents Submitted to Court or Service
Requirements. AB 1926 sought to permit electronic signatures on
documents submitted to the courts, such as pleadings, as well as
documents issued by the courts, such as judgments and orders.
This bill, however, only provides that electronic signatures
used by "a court or judicial officer" are valid as original
signatures. AB 1926 required the Judicial Council to develop
rules for use of electronic signatures in legal documents more
generally. While there is an existing Rule of Court authorizing
electronic signatures by courts and judicial officers, the
Judicial Council is still developing rules for the broader range
of use of electronic signatures, some of which may require
additional means of verification. It should also be noted that
this bill does not expand, restrict, or otherwise alter existing
requirements or conditions affecting the electronic service of
documents.
Author Amendments: The bill in print grants authorization for
court use of electronic signatures in several sections of the
Code of Civil Procedure where signatures are generally required
on dismissals, judgments, and orders. However, for clarity and
efficiency the author will amend the bill to provide
authorization in a preliminary provision of the Code of Civil
Procedure rather than individually amending each provision in
which a court is required or authorized to sign an order.
- On page 2 after line 12 add a new paragraph (3) which
reads:
Electronic signature" means an electronic sound, symbol, or
process attached to or logically associated with an electronic
record and executed or adopted by a person with the intent to
sign the electronic record.
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- Renumber subsequent paragraphs accordingly.
- On page 2 line 31 delete "both of the" and delete lines
32-34.
- On page 3 delete lines 1-2 and on line 3 delete "(B)"
and change "A" to "a"
- On page 3 after line 15 insert a new Section 34 which
reads as follows:
An electronic signature by a court or judicial officer shall be
effective as an original signature.
- On page 3 delete lines 16 to 38.
ARGUMENTS IN SUPPORT: According to the sponsor, the Conference
of California Bar Associations (CCBA), this bill "will provide a
clear and consistent definition of 'electronic signature' in the
provisions of the Code of Civil Procedure . . . and would
specifically authorize . . . judicial officers to sign related
documents electronically." CCBA notes that while Government
Code Section 68150 (enacted by AB 1926 in 2010) provides
statutory authority for judges to sign documents electronically
and requires the Judicial Council to develop rules relating to
the use of electronic signatures, there is no corresponding
definition or authorization in the Code of Civil Procedure, "and
there should be."
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Previous Related Legislation: AB 1926 (Chapter 167, Stats. of
2010) authorizes use of electronic documents filed with or
issued by the courts. Among other things, AB 1926 requires the
Judicial Council to develop guidelines for facilitating the use
of electronic signatures in various court documents.
REGISTERED SUPPORT / OPPOSITION:
Support
Conference of California Bar Associations (sponsor)
Opposition
None on file
Analysis Prepared
by: Thomas Clark/JUD./(916) 319-2334