BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 432|
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|(916) 651-1520 Fax: (916) | |
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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:
AB 432
Page 2
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
AB 432
Page 3
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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Page 4
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
AB 432
Page 5
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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Page 6
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)
AB 432
Page 7
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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