BILL NUMBER: AB 844 CHAPTERED
BILL TEXT
CHAPTER 57
FILED WITH SECRETARY OF STATE JULY 6, 2015
APPROVED BY GOVERNOR JULY 6, 2015
PASSED THE SENATE JUNE 22, 2015
PASSED THE ASSEMBLY MAY 7, 2015
INTRODUCED BY Assembly Member Bloom
FEBRUARY 26, 2015
An act to amend Sections 2105 and 17708.02 of the Corporations
Code, and to amend Section 1524.2 of the Penal Code, relating to
search warrants.
LEGISLATIVE COUNSEL'S DIGEST
AB 844, Bloom. Search warrants: foreign corporations and foreign
limited liability companies.
Existing law prohibits a foreign corporation from transacting
intrastate business without a certificate of qualification from the
Secretary of State, and requires a statement filed for a certificate
of qualification to include, among other things, an agent for service
of process within the state. Existing law prohibits a foreign
limited liability company transacting intrastate business in this
state from maintaining an action or proceeding in this state unless
it has a certificate of registration filed with the Secretary of
State, and requires an application for a certificate of registration
to include, among other things, an agent for service of process.
This bill would specify that a foreign corporation and foreign
limited liability company may consent to service of process for a
search warrant by email or submission to a designated Internet Web
portal.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 2105 of the Corporations Code is amended to
read:
2105. (a) A foreign corporation shall not transact intrastate
business without having first obtained from the Secretary of State a
certificate of qualification. To obtain that certificate it shall
file, on a form prescribed by the Secretary of State, a statement and
designation signed by a corporate officer or, in the case of a
foreign association that has no officers, signed by a trustee
stating:
(1) Its name and the state or place of its incorporation or
organization.
(2) The street address of its principal executive office.
(3) The street address of its principal office within this state,
if any.
(4) The mailing address of its principal executive office, if
different from the addresses specified pursuant to paragraphs (2) and
(3).
(5) The name of an agent upon whom process directed to the
corporation may be served within this state. The designation shall
comply with the provisions of subdivision (b) of Section 1502.
(6) (A) Its irrevocable consent to service of process directed to
it upon the agent designated and to service of process on the
Secretary of State if the agent so designated or the agent's
successor is no longer authorized to act or cannot be found at the
address given.
(B) Consent under this paragraph extends to service of process
directed to the foreign corporation's agent in California for a
search warrant issued pursuant to Section 1524.2 of the Penal Code,
or for any other validly issued and properly served search warrant,
for records or documents that are in the possession of the foreign
corporation and are located inside or outside of this state. This
subparagraph shall apply to a foreign corporation that is a party or
a nonparty to the matter for which the search warrant is sought. For
purposes of this subparagraph, "properly served" means delivered by
hand, or in a manner reasonably allowing for proof of delivery if
delivered by United States mail, overnight delivery service, or
facsimile to a person or entity listed in Section 2110, or any other
means specified by the foreign corporation, including, but not
limited to, email or submission via an Internet web portal that the
foreign corporation has designated for the purpose of service of
process.
(7) If it is a corporation which will be subject to the Insurance
Code as an insurer, it shall so state that fact.
(b) Annexed to that statement and designation shall be a
certificate by an authorized public official of the state or place of
incorporation of the corporation to the effect that the corporation
is an existing corporation in good standing in that state or place
or, in the case of an association, an officers' certificate stating
that it is a validly organized and existing business association
under the laws of a specified foreign jurisdiction.
(c) Before it may be designated by any foreign corporation as its
agent for service of process, any corporate agent must comply with
Section 1505.
SEC. 2. Section 17708.02 of the Corporations Code is amended to
read:
17708.02. (a) A foreign limited liability company may apply for a
certificate of registration to transact business in this state by
delivering an application to the Secretary of State for filing on a
form prescribed by the Secretary of State. The application shall
state all of the following:
(1) The name of the foreign limited liability company, and, if the
name does not comply with Section 17701.08, an alternate name
adopted pursuant to subdivision (a) of Section 17708.05.
(2) The state or other jurisdiction under whose law the foreign
limited liability company is organized and the date of its
organization in that state or other jurisdiction, and a statement
that the foreign limited liability company is authorized to exercise
its powers and privileges in that state or other jurisdiction.
(3) The street address of the foreign limited liability company's
principal office and of its principal business office in this state,
if any.
(4) (A) The name and street address of the foreign limited
liability company's initial agent for service of process in this
state who consents to service of process and meets the qualifications
specified in subdivision (c) of Section 17701.13. If a corporate
agent is designated, only the name of the agent shall be set forth.
(B) Consent under this paragraph extends to service of process
directed to the foreign limited liability company's agent in
California for a search warrant issued pursuant to Section 1524.2 of
the Penal Code, or for any other validly issued and properly served
search warrant, for records or documents that are in the possession
of the foreign limited liability company and are located inside or
outside of this state. This subparagraph shall apply to a foreign
limited liability company that is a party or a nonparty to the matter
for which the search warrant is sought. For purposes of this
subparagraph, properly served means delivered by hand, or in a manner
reasonably allowing for proof of delivery if delivered by United
States mail, overnight delivery service, facsimile, or any other
means specified by the foreign limited liability company, including
email or submission via an Internet web portal the foreign limited
liability company has designated for the purpose of service of
process.
(5) A statement that the Secretary of State is appointed the agent
of the foreign limited liability company for service of process if
the agent has resigned and has not been replaced or if the agent
cannot be found or served with the exercise of reasonable diligence.
(6) The mailing address of the foreign limited liability company
if different than the street address of the principal office, or
principal business office in this state.
(b) A foreign limited liability company shall deliver with a
completed application under subdivision (a) a certificate of
existence, status, or good standing or a record of similar import
signed by the Secretary of State or other official having custody of
the foreign limited liability company's publicly filed records in the
state or other jurisdiction under whose law the foreign limited
liability company is formed.
(c) The Secretary of State shall include with instructional
materials, provided in conjunction with registration under
subdivision (a), a notice that filing the registration will obligate
the foreign limited liability company to pay an annual tax to the
Franchise Tax Board pursuant to Section 17941 of the Revenue and
Taxation Code. That notice shall be updated annually to specify the
dollar amount of the tax.
SEC. 3. Section 1524.2 of the Penal Code is amended to read:
1524.2. (a) As used in this section, the following terms have the
following meanings:
(1) The terms "electronic communication services" and "remote
computing services" shall be construed in accordance with the
Electronic Communications Privacy Act in Chapter 121 (commencing with
Section 2701) of Part I of Title 18 of the United State Code
Annotated. This section shall not apply to corporations that do not
provide those services to the general public.
(2) An "adverse result" occurs when notification of the existence
of a search warrant results in:
(A) Danger to the life or physical safety of an individual.
(B) A flight from prosecution.
(C) The destruction of or tampering with evidence.
(D) The intimidation of potential witnesses.
(E) Serious jeopardy to an investigation or undue delay of a
trial.
(3) "Applicant" refers to the peace officer to whom a search
warrant is issued pursuant to subdivision (a) of Section 1528.
(4) "California corporation" refers to any corporation or other
entity that is subject to Section 102 of the Corporations Code,
excluding foreign corporations.
(5) "Foreign corporation" refers to any corporation that is
qualified to do business in this state pursuant to Section 2105 of
the Corporations Code.
(6) "Properly served" means that a search warrant has been
delivered by hand, or in a manner reasonably allowing for proof of
delivery if delivered by United States mail, overnight delivery
service, or facsimile to a person or entity listed in Section 2110 of
the Corporations Code, or any other means specified by the recipient
of the search warrant, including email or submission via an Internet
web portal that the recipient has designated for the purpose of
service of process.
(b) The following provisions shall apply to any search warrant
issued pursuant to this chapter allowing a search for records that
are in the actual or constructive possession of a foreign corporation
that provides electronic communication services or remote computing
services to the general public, where those records would reveal the
identity of the customers using those services, data stored by, or on
behalf of, the customer, the customer's usage of those services, the
recipient or destination of communications sent to or from those
customers, or the content of those communications.
(1) When properly served with a search warrant issued by the
California court, a foreign corporation subject to this section shall
provide to the applicant, all records sought pursuant to that
warrant within five business days of receipt, including those records
maintained or located outside this state.
(2) Where the applicant makes a showing and the magistrate finds
that failure to produce records within less than five business days
would cause an adverse result, the warrant may require production of
records within less than five business days. A court may reasonably
extend the time required for production of the records upon finding
that the foreign corporation has shown good cause for that extension
and that an extension of time would not cause an adverse result.
(3) A foreign corporation seeking to quash the warrant must seek
relief from the court that issued the warrant within the time
required for production of records pursuant to this section. The
issuing court shall hear and decide that motion no later than five
court days after the motion is filed.
(4) The foreign corporation shall verify the authenticity of
records that it produces by providing an affidavit that complies with
the requirements set forth in Section 1561 of the Evidence Code.
Those records shall be admissible in evidence as set forth in Section
1562 of the Evidence Code.
(c) A California corporation that provides electronic
communication services or remote computing services to the general
public, when served with a warrant issued by another state to produce
records that would reveal the identity of the customers using those
services, data stored by, or on behalf of, the customer, the customer'
s usage of those services, the recipient or destination of
communications sent to or from those customers, or the content of
those communications, shall produce those records as if that warrant
had been issued by a California court.
(d) No cause of action shall lie against any foreign or California
corporation subject to this section, its officers, employees,
agents, or other specified persons for providing records,
information, facilities, or assistance in accordance with the terms
of a warrant issued pursuant to this chapter.