BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 432 (Chang)
Version: March 25, 2015
Hearing Date: June 9, 2015
Fiscal: No
Urgency: No
RD
SUBJECT
Civil procedure: electronic signatures
DESCRIPTION
This bill would provide that an electronic signature by a court
or judicial officer is effective as an original signature. This
bill would define "electronic signature" for the purposes of the
Code of Civil Procedure to mean electronic sounds, 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 bill would make other
non-substantive changes to existing definitions for the Code of
Civil Procedure.
BACKGROUND
California has taken various steps to utilize more electronic
resources within the various branches of government. For
example, beginning in 1999, the Legislature authorized courts to
adopt local rules of court permitting electronic filing and
service of documents, as specified. (SB 367 (Dunn, Chapter 514,
Statutes of 1999).) Also in 1999, the Legislature enacted the
Uniform Electronic Transactions Act (UETA), regulating the
electronic transmission of documents and signatures. (SB 820
(Sher, Chapter 428, Statutes of 1999).) Six years later, in
2004, the Legislature, recognizing a need for an efficient,
cost-effective means of maintaining and transmitting records by
public agencies, enacted the Electronic Recording Delivery Act
of 2004 regulating the electronic delivery, recording, and
return of instruments affecting right, title, or interest in
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real property. (AB 578 (Leno, Chapter 621, Statutes of 2004).)
More recently, in 2010, AB 1926 (Evans, Chapter 167, Statutes of
2010) was enacted to provide trial courts with the ability to
create, maintain, and preserve trial court records
electronically under procedures and guidelines to be provided
for by the Judicial Council. Also in 2010, AB 2394 (Brownley,
Chapter 428, Statutes of 2010) was enacted to establish the
Levying Officer Electronic Transactions Act, whereby a levying
officer could use electronic methods to create, generate, send,
receive, store, display, retrieve, or process information,
electronic records, and documents, as specified. Like SB 820,
above, AB 2394 defined "electronic signature" for these purposes
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. (See Civ. Code Sec. 1633.2(h) and Code Civ. Proc. Sec.
263.1(c), respectively.) The same definition of "electronic
signature" exists under various other California laws. (See
e.g. Civ. Code Secs. 1633(f), 1633.2(h); Corp. Code Secs.
31158(b)(1)(H)(2), 25620(b)(1)(H)(2); Fin. Code Secs.
12201(c)(1)(H)(2), 17201(c)(1)(H)(2), 22101(h)(1)(H)(2).)
This bill, sponsored by the Conference of California Bar
Associations, would now define the term "electronic signature"
for purposes of the Code of Civil Procedure and would mirror the
definition to the electronic signature definitions under
existing law, as enacted by SB 820 and AB 2394, above. The bill
would also provide that an electronic signature, as defined
under the bill, by a court or judicial officer shall be as
effective as an original signature.
CHANGES TO EXISTING LAW
Existing law defines "electronic signature" for purposes of
brokerage agreements, Uniform Electronic Transfer Act, Levying
Officer Transfer Act, California Franchise Investment Law,
Corporate Securities Law, and various purposes under the
Financial Code, 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. (Civ. Code Secs. 1633(f), 1633.2(h); Code
Civ. Proc. Sec. 263.1(c), Corp. Code Secs. 31158(b)(1)(H)(2),
25620(b)(1)(H)(2); Fin. Code Secs. 12201(c)(1)(H)(2),
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17201(c)(1)(H)(2), 22101(h)(1)(H)(2).))
Existing law authorizes trial court records to be created,
maintained, and preserved in any form or forms of communication
or representation, including paper, optical, electronic,
magnetic, micrographic, or photographic media or other
technology, if the form or forms of representation or
communication satisfy the rules adopted by the Judicial Council,
as specified, once those rules have been adopted. (Gov. Code
Sec. 68150(a).)
Existing law provides that any notice, order, judgment, decree,
decision, ruling, opinion, memorandum, warrant, certificate of
service, writ, subpoena, or other legal process or similar
document issued by a trial court or by a judicial officer of a
trial court may be signed, subscribed, or verified using a
computer or other technology in accordance with procedures,
standards, and guidelines established by the Judicial Council
pursuant to this section. Existing law provides that
notwithstanding any other provision of law, all notices, orders,
judgments, decrees, decisions, rulings, opinions, memoranda,
warrants, certificates of service, writs, subpoenas, or other
legal process or similar documents that are signed, subscribed,
or verified by computer or other technological means pursuant to
this subdivision shall have the same validity, and the same
legal force and effect, as paper documents signed, subscribed,
or verified by a trial court or a judicial officer of the court.
(Gov. Code Sec. 68150(g).)
Existing law provides that this section does not apply to court
reporters' transcripts or to specifications for electronic
recordings made as the official record of oral proceedings,
which shall be governed by the California Rules of Court.
Existing law also provides that this section does not apply to
original wills and codicils delivered to the clerk of the court,
as specified, which shall be retained pursuant to other law.
(Gov. Code Sec. 68150(b).)
Existing law provides definitions for various terms used
throughout the Code of Civil Procedure. (Code Civ. Proc. Sec.
17.)
This bill would add a separate provision to the Code of Civil
Procedure to specify that an electronic signature by a court or
judicial officer shall be as effective as an original signature.
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This bill would define "electronic signature," for the purpose
of the Code of Civil Procedure, 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.
This bill would make other technical, non-substantive changes.
COMMENT
1. Stated need for the bill
According to the author:
Electronic filing of court documents has been authorized by
statute (CCP [Sec.] 1010.6) since 1999 (SB 367 (Dunn), Chapter
514 of 1999), and has been increasing in use and favor ever
since. The use of electronic signatures has been authorized in
California for private contracts since the same year (SB 820
(Sher) of 1999, the Uniform Electronic Transactions Act).
However, the connection between electronic filing and the use
of electronic signatures is not consistent or clear in statute
or rule. With regard to documents filed with the court, both
the CCP ([Sec.] 1010.6) and the Rules of Court (2.257) require
the signing party to maintain and make available for
inspection a signed original of a document signed under
penalty of perjury that is filed electronically, but require
no signature of any kind on a document filed electronically
not under penalty of perjury (it is deemed signed by the act
of filing).
With regard to documents required to be signed by the court or
a judicial officer, the Judicial Council partially addressed
the issue in January, 2008, with the addition of subdivision
(e) to Rule of Court 2.257 [which provides that "if] a
document requires a signature by a court or a judicial
officer, the document may be electronically signed in any
manner permitted by law.["]
Subsequently, the Legislature enacted AB 1926 (Evans, Ch[.]
167, Stats. of 2010), which, among other things, amended
Government Code [Sec.] 68150 to require the Judicial Council
to establish rules and procedures for permitting any notice,
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order, judgment, or other court document to be signed,
subscribed, or verified using an electronic signature. Pending
establishment of those rules and procedures, however, it is
uncertain whether court use of an electronic signature on any
such notice, order, judgment, or other court document is
"permitted by law" pursuant to Rule of Court 2.257.
There are several statutes in the CCP (e.g., [Secs.] 581d,
582, and 1003) that specifically require a signature by a
court or court officer. A court's use of an electronic
signature without the necessary statutory authorization
seemingly required by Rule of Court 2.257 could be considered
no signature, with significant consequences (See Powell v.
County of Orange (2011) 197 Cal.App.4th 1573, 1578 [unsigned
minute order of dismissal was ineffective].)
[ . . . ] There is no corresponding definition of "electronic
signature" in the Code of Civil Procedure, generally, relating
to the use of electronic signatures in litigation or by
judicial officers. Consistency in this area would be
desirable.
AB 432 provides a clear and consistent definition of
"electronic signature" in the provisions of the Code of Civil
Procedure relating to litigation and the filing of documents
with the court. The bill also specifically provides that,
with regard to actions under the code, an electronic signature
by a court or judicial officer shall be as effective as an
original signature.
2. Bill incorporates a definition of "electronic signature"
used throughout California law into the Code of Civil
Procedure
As noted in the Background, throughout California law, the term
"electronic signature" is defined 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. (See e.g. Civ. Code Secs.
1633(f), 1633.2(h); Code Civ. Proc. Sec. 263.1(c); Corp. Code
Secs. 31158(b)(1)(H)(2), 25620(b)(1)(H)(2); Fin. Code Secs.
12201(c)(1)(H)(2), 17201(c)(1)(H)(2), 22101(h)(1)(H)(2).)
This bill would give the term "electronic signature" the same
meaning as these other sections when used under Code of Civil
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Procedure, unless otherwise apparent from the context. The
sponsor of this bill, the Conference of California Bar
Associations (CCBA) writes that:
Even though the California Rules of Court provide 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)), it is unclear whether such
permission exists with regard to court or judicial actions
under the Code of Civil Procedure. While Government Code
[Sec.] 68150 provides that any of numerous specified legal
processes or similar documents "issued by a trial court or by
a judicial officer of a trial court may be signed, subscribed,
or verified using a computer or other technology," the
authority is qualified by the requirement that the signing be
"in accordance with procedures, standards, and guidelines
established by the Judicial Council." The Judicial Council
has not yet finalized those procedures, standards and
guidelines, raising question about the effectiveness of
judicial electronic signatures until they do.
CCBA argues that there is "no corresponding definition of
'electronic signature' in the Code of Civil Procedure,
generally, relating to the use of electronic signatures in
litigation or by judicial officers, and there should be. AB 432
provides needed consistency and clarity to the law by providing
clear statutory authorization for courts and judicial officers
to use electronic signatures on documents under the Code of
Civil Procedure and effectively aligning the Code of Civil
Procedure with the Rules of Court that define 'electronic
signature.'"
3. Bill ensures electronic signatures by courts or judicial
officers are effective as original signatures
In 2009, the Judicial Council issued a report entitled
Modernizing Trial Courts Records Management, which detailed the
need to authorize trial courts to create, maintain, and preserve
court records in electronic forms. (See Judicial Council of
California Administrative Office of the Courts, Modernizing
Trial Courts Records Management (Nov. 13, 2009) <
http://www.courts.ca.gov/documents/121509item2.pdf > [as of May
29, 2015].) The report recommended allowing trial courts to
move away from paper files to electronic files which would
significantly decrease court storage costs.
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As a result, in 2010, AB 1926 (Evans, Ch. 167, Stats. 2010) was
enacted to overhaul the prior trial court records management
program and provide trial courts with the ability to create,
maintain, and preserve trial court records electronically under
procedures and guidelines to be provided by the Judicial
Council. That bill provided that any notice, order, judgment,
decree, decision, ruling, opinion, memorandum, warrant,
certificate of service, or similar document issued by a trial
court or trial court judicial officer can be signed, subscribed,
or verified, and have the same validity and legal force and
effect as paper documents. (See Gov. Code Sec. 68150(g).) As
noted by this Committee at that time, "[t]he federal e-file
system has established a procedure to electronically sign court
filings. Further, business in general is being conducted more
and more through the transmission of electronic documents
containing signatures. These procedures have been in effect for
many years and continue to work effectively. Providing for
electronic signatures furthers the efficiency of creating and
maintaining court records electronically." (Sen. Judiciary
Com., analysis of AB 1926 (2009-2010 Reg. Session) p. 7.)
This bill would now expressly state that a court or judicial
officer's electronic signature shall be effective as an original
signature. This authority would arguably be consistent with the
authority granted to the courts by AB 1926 in 1999, above. The
Judicial Council, in support, writes that the bill will increase
the ability of the courts to operate in an efficient manner by
clarifying and reinforcing the use of electronic signatures in
connection with the issuance of court orders.
Support : Judicial Council
Opposition : None Known
HISTORY
Source : Conference of California Bar Associations (CCBA)
Related Pending Legislation : None Known
Prior Legislation :
AB 2394 (Brownley, Ch. 680, Stats. 2010) See Background.
AB 1926 (Evans, Ch. 167, Stats. 2010) See Background and Comment
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3.
AB 578 (Leno, Ch. 621, Stats. 2004) See Background.
AB 820 (Sher, Ch. 428, Stats. 1999) See Background.
SB 367 (Dunn, Ch. 514, Stats. 1999) See Background.
Prior Vote :
Assembly Floor (Ayes 78, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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