BILL ANALYSIS                                                                                                                                                                                                    Ó




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          |SENATE RULES COMMITTEE            |                        AB 432|
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                                      CONSENT 


          Bill No:  AB 432
          Author:   Chang (R), et al.
          Amended:  3/25/15 in Assembly
          Vote:     21  

           SENATE JUDICIARY COMMITTEE:  7-0, 6/9/15
           AYES:  Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning,  
            Wieckowski

           ASSEMBLY FLOOR:  78-0, 4/9/15 (Consent) - See last page for  
            vote

           SUBJECT:   Civil procedure:  electronic signatures


          SOURCE:    Conference of California Bar Associations


          DIGEST:  This bill provides that an electronic signature by a  
          court or judicial officer is effective as an original signature.  
          This bill defines "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 makes other  
          non-substantive changes to existing definitions for the Code of  
          Civil Procedure.  


          ANALYSIS:   


          Existing law:










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          1)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.  


          2)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.  


          3)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.  


          4)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  








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            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.  


          5)Provides definitions for various terms used throughout the  
            Code of Civil Procedure.  


          This bill:


          1)Adds 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. 


          2)Defines "electronic signature," for the purposes 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.


          3)Makes other technical, non-substantive changes.





          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, regulating the electronic  
          transmission of documents and signatures.  (SB 820, Sher,  
          Chapter 428, Statutes of 1999.)  Six years later, in 2004, the  








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          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 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, now defines the term "electronic signature" for  
          purposes of the Code of Civil Procedure and mirrors existing  
          definitions of electronic signature definitions under California  
          law, as enacted by SB 820 and AB 2394, above.  This bill also  
          provides that an electronic signature, as defined under this  
          bill, by a court or judicial officer shall be as effective as an  
          original signature.


          Comments









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          As stated by 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,  
            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. 









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            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.


          FISCAL EFFECT:   Appropriation:    No          Fiscal  
          Com.:NoLocal:    No


          SUPPORT:   (Verified6/11/15)


          Conference of California Bar Associations (source)
          California Chamber of Commerce
          Judicial Council


          OPPOSITION:   (Verified6/11/15)










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          None received


          ASSEMBLY FLOOR:  78-0, 4/9/15
          AYES:  Achadjian, Alejo, Travis Allen, Baker, Bigelow, Bloom,  
            Bonilla, Bonta, Brough, Brown, Burke, Campos, Chang, Chau,  
            Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly,  
            Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina  
            Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez,  
            Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden,  
            Irwin, Jones, Jones-Sawyer, Kim, Lackey, Levine, Linder,  
            Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina,  
            Melendez, Mullin, Nazarian, Obernolte, Olsen, Patterson,  
            Perea, Quirk, Rendon, Ridley-Thomas, Rodriguez, Salas,  
            Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner,  
            Waldron, Weber, Wilk, Williams, Wood, Atkins
          NO VOTE RECORDED:  Calderon, O'Donnell



          Prepared by:Ronak Daylami / JUD. / (916) 651-4113
          6/11/15 13:46:18


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