Amended in Assembly April 5, 2016

California Legislature—2015–16 Regular Session

Assembly Bill No. 2244

Introduced by Assembly Member Gatto

February 18, 2016

An act to amend begin delete Section end delete begin insert Sections 1010.6 and end insert 1033.5 of the Code of Civil Procedure, and to amend Section 6159 of the Government Code, relating to court fees.

LEGISLATIVE COUNSEL’S DIGEST

AB 2244, as amended, Gatto. Court fees: electronic filing.

begin insert

Existing law authorizes the electronic service of documents in accordance with uniform rules adopted by the Judicial Council, as specified. Upon Judicial Council adoption of the uniform rules, existing law authorizes a superior court, by local rule, to require mandatory electronic filing and service of documents for specified civil actions in accordance with certain requirements including a requirement that any fees charged by the court do not exceed the actual cost of electronic filing and service of documents.

end insert begin insert

This bill would add the additional requirement that fees to process a payment that is charged by the court, an electronic filing manager, or an electronic filing service provider, not exceed the actual costs incurred for processing the payment. The bill would require waiver of fees to process a payment if the court deems waiver appropriate.

end insert

Existing law authorizes a court, subject to Judicial Council approval, to accept a credit card, debit card, or electronic funds transfer in payment of designated obligations, including filing fees and other court costs. Existing law authorizes a court, subject to Judicial Council approval, to impose a fee for the use of a credit or debit card or electronic funds transfer, not to exceed the costs incurred by the court in providing for payment by credit or debit card or electronic funds transfer.

This bill would additionally authorize an agent of the court to impose a fee, subject to Judicial Council approval, for the use of a credit or debit card or electronic funds transfer, not to exceed the costs incurred by the court in providing for payment by credit or debit card or electronic funds transfer. begin insert For purposes of this provision, the bill would deem an electronic filing service provider who is required to collect and remit funds in order to complete an electronic filing transaction to be an agent of the court. The bill would prohibit an electronic filing service provider from colleting or attempting to collect a fee to complete an electronic filing transaction from a party who is exempt from paying fees but would still require the electronic filing service provider to complete the filing. The bill would also prohibit a court or specified entities contracting with a court from requiring an electronic filing service provider to use end insert begin insert any single method of payment, as specified. end insert

Existing law also enumerates costs that a prevailing party may recover in a civil action.

This bill would authorize a prevailing party to recover electronic filing service provider fees as costs, as specified.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.

The people of the State of California do enact as follows:

begin insert

begin insert SECTION 1. end insert   

end insert

begin insert Section 1010.6 of the end insert begin insert Code of Civil Procedure end insert begin insert is
amended to read: end insert

1010.6.  

(a) A document may be served electronically in an
action filed with the court as provided in this section, in accordance
with rules adopted pursuant to subdivision (e).

(1) For purposes of this section:

(A) “Electronic service” means service of a document, on a
party or other person, by either electronic transmission or electronic
notification. Electronic service may be performed directly by a
party, by an agent of a party, including the party’s attorney, or
through an electronic filing service provider.

(B) “Electronic transmission” means the transmission of a
document by electronic means to the electronic service address at
or through which a party or other person has authorized electronic
service.

(C) “Electronic notification” means the notification of the party
or other person that a document is served by sending an electronic
message to the electronic address at or through which the party or
other person has authorized electronic service, specifying the exact
name of the document served, and providing a hyperlink at which
the served document may be viewed and downloaded.

(2) If a document may be served by mail, express mail, overnight
delivery, or facsimile transmission, electronic service of the
document is authorized when a party has agreed to accept service
electronically in that action.

(3) In any action in which a party has agreed to accept electronic
service under paragraph (2), or in which the court has ordered
electronic service under subdivision (c) or (d), the court may
electronically serve any document issued by the court that is not
required to be personally served in the same manner that parties
electronically serve documents. The electronic service of
documents by the court shall have the same legal effect as service
by mail, except as provided in paragraph (4).

(4)  begin insert (A) end insert begin insert   end insert Electronic service of a document is complete at the
time of the electronic transmission of the document or at the time
that the electronic notification of service of the document is sent.
However, any period of notice, or any right or duty to do any act
or make any response within any period or on a date certain after
the service of the document, which time period or date is prescribed
by statute or rule of court, shall be extended after service by
electronic means by two court days, but the extension shall not
apply to extend the time for filing any of the following:

begin delete

(A)

end delete

begin insert (i) end insert  A notice of intention to move for new trial.

begin delete

(B)

end delete

begin insert (ii) end insert  A notice of intention to move to vacate judgment under
Section 663a.

begin delete

(C)

end delete

begin insert (iii) end insert  A notice of appeal.

begin delete

This

end delete

begin insert (B) end insert begin insert   end insert begin insert This end insert begin insert end insert extension applies in the absence of a specific exception
provided by any other statute or rule of court.

(b) A trial court may adopt local rules permitting electronic
filing of documents, subject to rules adopted pursuant to
subdivision (e) and the following conditions:

(1) A document that is filed electronically shall have the same
legal effect as an original paper document.

(2) (A) When a document to be filed requires the signature, not
under penalty of perjury, of an attorney or a self-represented party,
the document shall be deemed to have been signed by that attorney
or self-represented party if filed electronically.

(B) When a document to be filed requires the signature, under
penalty of perjury, of any person, the document shall be deemed
to have been signed by that person if filed electronically and if a
printed form of the document has been signed by that person begin delete prior
to, end delete begin insert before end insert or on the same day as, the date of filing. The attorney
or person filing the document represents, by the act of filing, that
the declarant has complied with this section. The attorney or person
filing the document shall maintain the printed form of the document
bearing the original signature and make it available for review and
copying upon the request of the court or any party to the action or
proceeding in which it is filed.

(3) Any document that is electronically filed with the court after
the close of business on any day shall be deemed to have been
filed on the next court day. “Close of business,” as used in this
paragraph, begin delete shall mean end delete begin insert means end insert 5 p.m. or the time at which the court
begin delete would end delete begin insert will end insert not accept filing at the court’s filing counter, whichever
is earlier.

(4) The court receiving a document filed electronically shall
issue a confirmation that the document has been received and filed.
The confirmation shall serve as proof that the document has been
filed.

(5) Upon electronic filing of a complaint, petition, or other
document that must be served with a summons, a trial court, upon
request of the party filing the action, shall issue a summons with
the court seal and the case number. The court shall keep the
summons in its records and may electronically transmit a copy of
the summons to the requesting party. Personal service of a printed
form of the electronic summons shall have the same legal effect
as personal service of an original summons. If a trial court plans
to electronically transmit a summons to the party filing a complaint,
the court shall immediately upon receipt of the complaint notify
the attorney or party that a summons will be electronically
transmitted to the electronic address given by the person filing the
complaint.

(6) The court shall permit a party or attorney to file an
application for waiver of court fees and costs, in lieu of requiring
the payment of the filing fee, as part of the process involving the
electronic filing of a document. The court shall consider and
determine the application in accordance with begin delete Sections 68630 to
68641, inclusive, end delete begin insert Article 6 (commencing with Section 68630) of
Chapter 2 of Title 8 end insert of the Government Code and shall not require
the party or attorney to submit any documentation other than that
set forth in begin delete Sections 68630 to 68641, inclusive, end delete begin insert Article 6
(commencing with Section 68630) of Chapter 2 of Title 8 end insert of the
Government Code. Nothing in this section shall require the court
to waive a filing fee that is not otherwise waivable.

(c) If a trial court adopts rules conforming to subdivision (b),
it may provide by order that all parties to an action file and serve
documents electronically in a class action, a consolidated action,
begin delete or end delete a group of actions, a coordinated action, or an action that is
deemed complex under Judicial Council rules, provided that the
trial court’s order does not cause undue hardship or significant
prejudice to any party in the action.

(d) (1) Notwithstanding subdivision (b), the Orange County
Superior Court may, by local rule and until July 1, 2014, establish
a pilot project to require parties to specified civil actions to
electronically file and serve documents, subject to the requirements
set forth in paragraphs (1), (2), (4), (5), and (6) of subdivision begin delete (b)
and end delete begin insert (b), end insert rules adopted pursuant to subdivision begin delete (e) end delete begin insert (e), end insert and the
following conditions:

(A) The court shall have the ability to maintain the official court
record in electronic format for all cases where electronic filing is
required.

(B) The court and the parties shall have access begin delete either end delete to more
than one electronic filing service provider capable of electronically
filing documents with the begin delete court, end delete begin insert court end insert or to electronic filing access
directly through the court. begin delete Any fees charged by the court shall be
for end delete begin insert The court may charge fees of end insert no more than the actual cost of
the electronic filing and service of the begin delete documents, and shall be
waived when deemed appropriate by the court, including, but not
limited to, for any party who has received a fee waiver. end delete begin insert documents. end insert
Any fees charged by an electronic filing service provider shall be begin delete reasonable and shall be waived when deemed appropriate by the
court, including, but not limited to, for any party who has received
a fee waiver. end delete begin insert reasonable. Fees, if any, charged by the court, an
electronic filing manager, or an electronic filing service provider
to process a payment shall not exceed the actual costs incurred
for processing. The court, an electronic filing manager, or an
electronic filing service provider shall waive any fees charged if
the court deems waiver appropriate, including in instances where
a party has received a fee waiver. end insert

(C) The court shall have a procedure for the filing of
nonelectronic documents in order to prevent the program from
causing undue hardship or significant prejudice to any party in an
action, including, but not limited to, unrepresented parties.

(D) A court that elects to require electronic filing pursuant to
this subdivision may permit documents to be filed electronically
until 12 a.m. of the day after the court date that the filing is due,
and the filing shall be considered timely. However, if same day
service of a document is required, the document shall be
electronically filed by 5 p.m. on the court date that the filing is
due. Ex parte documents shall be electronically filed on the same
date and within the same time period as would be required for the
filing of a hard copy of the ex parte documents at the clerk’s
window in the participating county. Documents filed on or after
12 a.m., or filed upon a noncourt day, will be deemed filed on the
soonest court day following the filing.

(2) If a pilot project is established pursuant to paragraph (1),
the Judicial Council shall conduct an evaluation of the pilot project
and report to the Legislature, on or before December 31, 2013, on
the results of the evaluation. The evaluation shall review, among
other things, the cost of the program to participants,
cost-effectiveness for the court, effect on unrepresented parties
and parties with fee waivers, and ease of use for participants.

(e) The Judicial Council shall adopt uniform rules for the
electronic filing and service of documents in the trial courts of the
state, which shall include statewide policies on vendor contracts,
privacy, and access to public records, and rules relating to the
integrity of electronic service. These rules shall conform to the
conditions set forth in this section, as amended from time to time.

(f) The Judicial Council shall, on or before July 1, 2014, adopt
uniform rules to permit the mandatory electronic filing and service
of documents for specified civil actions in the trial courts of the
state, which shall be informed by any study performed pursuant
to paragraph (2) of subdivision (d) and which shall include
statewide policies on vendor contracts, privacy, access to public
records, unrepresented parties, parties with fee waivers, hardships,
reasonable exceptions to electronic filing, and rules relating to the
integrity of electronic service. These rules shall conform to the
conditions set forth in this section, as amended from time to time.

(g) (1) Upon the adoption of uniform rules by the Judicial
Council for mandatory electronic filing and service of documents
for specified civil actions in the trial courts of the state, as specified
in subdivision (f), a superior court may, by local rule, require
mandatory electronic filing, pursuant to paragraph begin delete (2) of this
subdivision. end delete begin insert (2). end insert

(2)  begin delete Any end delete begin insert A end insert superior court that elects to adopt mandatory
electronic filing shall do so pursuant to the requirements and
conditions set forth in this section, including, but not limited to,
paragraphs (1), (2), (4), (5), and (6) of subdivision begin delete (b) of this
section, end delete begin insert (b), end insert and subparagraphs (A), (B), and (C) of paragraph (1)
of subdivision (d), and pursuant to the rules adopted by the Judicial
Council, as specified in subdivision (f).

begin delete SECTION 1. end delete

begin insert SEC. 2. end insert   

Section 1033.5 of the Code of Civil Procedure is
amended to read:

1033.5.  

(a) The following items are allowable as costs under
Section 1032:

(1) Filing, motion, and jury fees.

(2) Juror food and lodging while they are kept together during
trial and after the jury retires for deliberation.

(3) (A) Taking, video recording, and transcribing necessary
depositions, including an original and one copy of those taken by
the claimant and one copy of depositions taken by the party against
whom costs are allowed.

(B) Fees of a certified or registered interpreter for the deposition
of a party or witness who does not proficiently speak or understand
the English language.

(C) Travel expenses to attend depositions.

(4) Service of process by a public officer, registered process
server, or other means, as follows:

(A) When service is by a public officer, the recoverable cost is
the fee authorized by law at the time of service.

(B) If service is by a process server registered pursuant to
Chapter 16 (commencing with Section 22350) of Division 8 of the
Business and Professions Code, the recoverable cost is the amount
actually incurred in effecting service, including, but not limited
to, a stakeout or other means employed in locating the person to
be served, unless those charges are successfully challenged by a
party to the action.

(C) When service is by publication, the recoverable cost is the
sum actually incurred in effecting service.

(D) When service is by a means other than that set forth in
subparagraph (A), (B), or (C), the recoverable cost is the lesser of
the sum actually incurred, or the amount allowed to a public officer
in this state for that service, except that the court may allow the
sum actually incurred in effecting service upon application pursuant
to paragraph (4) of subdivision (c).

(5) Expenses of attachment including keeper’s fees.

(6) Premiums on necessary surety bonds.

(7) Ordinary witness fees pursuant to Section 68093 of the
Government Code.

(8) Fees of expert witnesses ordered by the court.

(9) Transcripts of court proceedings ordered by the court.

(10) Attorney’s fees, when authorized by any of the following:

(A) Contract.

(B) Statute.

(C) Law.

(11) Court reporter fees as established by statute.

(12) Court interpreter fees for a qualified court interpreter
authorized by the court for an indigent person represented by a
qualified legal services project, as defined in Section 6213 of the
Business and Professions begin delete Code end delete begin insert Code, end insert or a pro bono begin delete attorney end delete
begin insert attorney, end insert as defined in Section 8030.4 of the Business and
Professions Code.

(13) Models and enlargements of exhibits and photocopies of
exhibits may be allowed if they were reasonably helpful to aid the
trier of fact.

(14) Electronic filing service provider fees. If a court requires
or orders a party to file and serve documents electronically with
the court, the recoverable costs are those actually incurred to
electronically file, serve, and host documents through begin delete a certified end delete
begin insert an end insert electronic filing service provider.

(15) Any other item that is required to be awarded to the
prevailing party pursuant to statute as an incident to prevailing in
the action at trial or on appeal.

(b) The following items are not allowable as costs, except when
expressly authorized by law:

(1) Fees of experts not ordered by the court.

(2) Investigation expenses in preparing the case for trial.

(3) Postage, telephone, and photocopying charges, except for
exhibits.

(4) Costs in investigation of jurors or in preparation for voir
dire.

(5) Transcripts of court proceedings not ordered by the court.

(c) An award of costs shall be subject to the following:

(1) Costs are allowable if incurred, whether or not paid.

(2) Allowable costs shall be reasonably necessary to the conduct
of the litigation rather than merely convenient or beneficial to its
preparation.

(3) Allowable costs shall be reasonable in amount.

(4) Items not mentioned in this section and items assessed upon
application may be allowed or denied in the court’s discretion.

(5) If a statute of this state refers to the award of “costs and
attorney’s fees,” attorney’s fees are an item and component of the
costs to be awarded and are allowable as costs pursuant to
subparagraph (B) of paragraph (10) of subdivision (a). begin delete Any end delete begin insert A end insert claim
not based upon the court’s established schedule of attorney’s fees
for actions on a contract shall bear the burden of proof. Attorney’s
fees allowable as costs pursuant to subparagraph (B) of paragraph
(10) of subdivision (a) may be fixed as follows: (A) upon a noticed
motion, (B) at the time a statement of decision is rendered, (C)
upon application supported by affidavit made concurrently with a
claim for other costs, or (D) upon entry of default judgment.
Attorney’s fees allowable as costs pursuant to subparagraph (A)
or (C) of paragraph (10) of subdivision (a) shall be fixed either
upon a noticed motion or upon entry of a default judgment, unless
otherwise provided by stipulation of the parties.

Attorney’s fees awarded pursuant to Section 1717 of the Civil
Code are allowable costs under Section 1032 of this code as
authorized by subparagraph (A) of paragraph (10) of subdivision
(a).

begin delete SEC. 2. end delete

begin insert SEC. 3. end insert   

Section 6159 of the Government Code is amended to
read:

6159.  

(a) The following definitions apply for purposes of this
section:

(1) “Credit card” means a card, plate, coupon book, or other
credit device existing for the purpose of being used from time to
time upon presentation to obtain money, property, labor, or services
on credit.

(2) “Card issuer” means a person, or his or her agent, who issues
a credit card and purchases credit card drafts.

(3) “Cardholder” means a person to whom a credit card is issued
or any person who has agreed with the card issuer to pay
obligations arising from the issuance of a credit card to another
person.

(4) “Debit card” means a card or other means of access to a
debit card cardholder’s account that may be used to initiate
electronic funds transfers from that account.

(5) “Draft purchaser” means a person who purchases credit card
drafts.

(6) “Electronic funds transfer” means a method by which a
person permits electronic access to, and transfer of, money held
in an account by that person.

(b) Subject to subdivisions (c) and (d), a court, city, county, city
and county, or other public agency may authorize the acceptance
of a credit card, debit card, or electronic funds transfer for any of
the following:

(1) The payment for the deposit of bail for any offense not
declared to be a felony or for a court-ordered fee, fine, forfeiture,
penalty, assessment, or restitution. Use of a card or electronic funds
transfer pursuant to this paragraph may include a requirement that
the defendant be charged begin delete a end delete begin insert an end insert administrative fee charged by the
company issuing the card or processing the account for the cost
of the transaction.

(2) The payment of a filing fee or other court fee.

(3) The payment of towage or storage costs for a vehicle that
has been removed from a highway, or from public or private
property, as a result of parking violations.

(4) The payment of child, family, or spousal support, including
reimbursement of public assistance, related fees, costs, or penalties,
with the authorization of the cardholder or accountholder.

(5) The payment for services rendered by a city, county, city
and county, or other public agency.

(6) The payment of a fee, charge, or tax due a city, county, city
and county, or other public agency.

(7) The payment of moneys payable to the sheriff pursuant to
a levy under a writ of attachment or writ of execution. If the use
of a card or electronic funds transfer pursuant to this paragraph
includes any administrative fee charged by the company issuing
the card or processing the account for the cost of the transaction,
that fee shall be paid by the person who pays the money to the
sheriff pursuant to the levy.

(8) The payment of a donation, gift, bequest, or devise made to
or in favor of a county, or to or in favor of begin delete the end delete begin insert a county end insert board of
begin delete supervisors end delete begin delete of a county, end delete begin insert supervisors, end insert pursuant to Section 25355.

(c) A court desiring to authorize the use of a credit card, debit
card, or electronic funds transfer pursuant to subdivision (b) shall
obtain the approval of the Judicial Council. A city desiring to
authorize the use of a credit card, debit card, or electronic funds
transfer pursuant to subdivision (b) shall obtain the approval of its
city council. Any other public agency desiring to authorize the use
of a credit card, debit card, or electronic funds transfer pursuant
to subdivision (b) shall obtain the approval of the governing body
that has fiscal responsibility for that agency.

(d) After approval is obtained, a contract may be executed with
one or more credit card issuers, debit card issuers, electronic funds
transfer processors, or draft purchasers. The contract shall provide
for the following matters:

(1) The respective rights and duties of the court, city, county,
city and county, or other public agency and card issuer, funds
processor, or draft purchaser regarding the presentment,
acceptability, and payment of credit and debit card drafts and
electronic funds transfer requests.

(2) The establishment of a reasonable means by which to
facilitate payment settlements.

(3) The payment to the card issuer, funds processor, or draft
purchaser of a reasonable fee or discount.

(4) Any other matters appropriately included in contracts with
respect to the purchase of credit and debit card drafts and
processing of electronic funds transfer requests as may be agreed
upon by the parties to the contract.

(e) The honoring of a credit card, debit card, or electronic funds
transfer pursuant to subdivision (b) begin delete hereof end delete constitutes payment of
the amount owing to the court, city, county, city and county, or
other public agency as of the date the credit or debit card is honored
or the electronic funds transfer is processed, begin delete provided end delete begin insert if end insert the credit
or debit card draft is paid following its due presentment to a card
issuer or draft purchaser or the electronic funds transfer is
completed with transfer to the agency requesting the transfer.

(f) If a credit or debit card draft is not paid following due
presentment to a card issuer or draft purchaser or is charged back
to the court, city, county, city and county, or other public agency
for any reason, any record of payment made by the court, city, or
other public agency honoring the credit or debit card shall be void.
If an electronic funds transfer request is not completed with transfer
to the agency requesting the transfer or is charged back to the
agency for any reason, any record of payment made by the agency
processing the electronic funds transfer shall be void. A receipt
issued in acknowledgment of payment shall also be void. The
obligation of the cardholder or accountholder shall continue as an
outstanding obligation as if no payment had been attempted.

(g) If a credit card, debit card draft, electronic funds transfer,
or other payment offered in payment is returned without payment,
for any reason, a reasonable charge for the charge back or return,
not to exceed the actual costs incurred by the public agency, may
be imposed to recover the public agency’s processing and
collection costs. This charge may be added to, and become part
of, any underlying obligation other than an obligation begin delete which end delete begin insert that end insert
constitutes a lien on real property, and a different method of
payment for that payment and future payments by this person may
be prescribed.

(h)  begin insert (1) end insert begin insert   end insert Notwithstanding Title 1.3 (commencing with Section
1747) of Part 4 of Division 3 of the Civil Code, a court or agent
of the court, city, county, city and county, or any other public
agency may impose a fee for the use of a credit or debit card or
electronic funds transfer, not to exceed the costs incurred by the
agency in providing for payment by credit or debit card or
electronic funds transfer. These costs may include, but shall not
be limited to, the payment of fees or discounts as specified in
paragraph (3) of subdivision (d). A fee imposed by a court or agent
of the court pursuant to this subdivision shall be approved by the
Judicial Council. A fee imposed by any other public agency
pursuant to this subdivision for the use of a credit or debit card or
electronic funds transfer shall be approved by the governing body
responsible for the fiscal decisions of the public agency.

begin insert

(2) For purposes of this subdivision, an electronic filing service
provider who is required to collect and remit funds in order to
complete an electronic filing transaction is deemed an agent of
the court.

end insert

(i) Fees or discounts provided for under paragraph (3) of
subdivision (d) shall be deducted or accounted for begin delete prior to end delete begin insert before end insert
any statutory or other distribution of funds received from the card
issuer, funds processor, or draft purchaser to the extent not
recovered from the cardholder or accountholder pursuant to
subdivision (h).

(j) The Judicial Council may enter into a master agreement with
one or more credit or debit card issuers, funds processors, or draft
purchasers for the acceptance and payment of credit or debit card
drafts and electronic funds transfer requests received by the courts.
A court may join in any of these master agreements or may enter
into a separate agreement with a credit or debit card issuer, funds
processor, or draft purchaser.

begin insert

(k) An electronic filing service provider, as described in
subdivision (h), shall not collect or attempt to collect a fee to
complete an electronic filing transaction from a party who is
exempt from paying fees; provided, however, that the electronic
filing service provider shall complete the filing notwithstanding
the fee exemption.

end insert begin insert

(l) A court or an entity contracted with a court to provide a
system for acceptance of electronically transmitted documents and
associated fees shall not require an electronic filing service
provider to use any single method of payment but shall instead
offer a menu of payment options that may include credit or debit
cards, electronic funds transfers, electronic networks for financial
transactions such as Automated Clearing House (ACH), or
payment methods that do not charge a transaction cost.

end insert