BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 2244|
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THIRD READING
Bill No: AB 2244
Author: Gatto (D)
Amended: 6/13/16 in Senate
Vote: 21
SENATE JUDICIARY COMMITTEE: 7-0, 6/21/16
AYES: Jackson, Moorlach, Anderson, Hertzberg, Leno, Monning,
Wieckowski
SENATE APPROPRIATIONS COMMITTEE: 7-0, 8/11/16
AYES: Lara, Bates, Beall, Hill, McGuire, Mendoza, Nielsen
ASSEMBLY FLOOR: 78-0, 5/12/16 (Consent) - See last page for
vote
SUBJECT: Court fees: electronic filing
SOURCE: Author
DIGEST: This bill ensures that if any trial court permits or
mandates electronic filing and service of documents, any fees
charged by the court, an electronic filing manager (EFM), or an
electronic filing service provider (EFSP) to process a payment
for filing fees and other court fees shall not exceed the costs
incurred. This bill further ensures that if a trial court
mandates e-filing: (1) a court or an EFM contracted with a court
to provide a system for acceptance of electronically transmitted
documents and associated fees accept more than one method of
payment to an EFSP, as specified; and (2) clarifies that an EFSP
is an agent of the court for the sole purpose of collecting and
remitting specified payments and any fees set by an EFSP must,
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Page 2
consistent with existing law, be approved by the Judicial
Council. This bill also allows for prevailing parties to
recover fees associated with electronic filing and service
through an EFSP, as specified.
ANALYSIS:
Existing law:
1) Provides that except as otherwise provided by statute, a
prevailing party, as defined, is entitled as a matter of
right to recover costs in any action or proceeding. Existing
law enumerates the items allowable as costs under the above
provision, including, among other things:
filing, motion, and jury fees;
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.
1) Provides that any award of costs is subject to the
following, among other things:
allowable costs shall be reasonably necessary to the
conduct of the litigation rather than merely convenient or
beneficial to its preparation; and
allowable costs shall be reasonable in amount.
1) Authorizes a court and other specified public entities to
accept credit card, debit card, or electronic fund transfers
for the payment of certain government services and fees,
including the payment of a filing fee or other court fee. A
court desiring to authorize the use of a credit card, debit
card, or electronic funds transfer must first obtain the
approval of the Judicial Council. Provides that,
notwithstanding specified law, a court may impose a fee for
the use of a credit or debit card or electronic funds
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transfer, not to exceed the costs incurred by the agency in
providing for payment by credit or debit card or electronic
funds transfer. The Judicial Council must approve any such
fee imposed.
2) Provides that in any action in which a party has agreed to
accept electronic service or in which the court has ordered
electronic service, as specified, 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. Provides that
electronic service shall have the same legal effect as
service by mail, except as provided.
3) Provides that a trial court may adopt local rules permitting
electronic filing (e-filing) of documents, subject to Rules
of Court adopted as specified and subject to specified
conditions. These include conditions relating to electronic
signatures and fee waivers, among other things. Requires the
court to 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 e-filing of a document, as specified.
4) Permits a court to require electronic filing of documents in
complex civil litigation cases, as specified, provided that
it does not cause undue hardship or significant prejudice to
any party in the action.
5) Requires the Judicial Council to 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 the electronic
service. Requires these rules to conform to the conditions
set in the Code of Civil Procedure, as specified.
6) Sets forth, under Rules of Court, uniform rules regarding
e-filing and serving of documents. (Cal. Rules of Court
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2.250-2.261.)
7) Provides authority for the Orange County Superior Court, by
local rule and until July 1, 2014, to establish a pilot
project to require parties to specified civil actions to
electronically file and serve documents, subject to specified
requirements and rules adopted by Judicial Council, and
certain additional statutory conditions. Those additional
conditions include that the court and the parties either have
access to more than one electronic service provider capable
of electronically filing documents with the court, or have
e-filing access directly through the court. Any fees charged
by the court must be for no more than the actual cost of
e-filing and service of the documents, whereas any fees
charged by the electronic service provider must be
reasonable. In both instances, fees must be waived when
deemed appropriate by the court, including for any party who
has received a fee waiver.
8) Requires the Judicial Council, on or before July 1, 2014, to
adopt uniform rules for mandatory e-filing and service of
documents for specified actions in the state's trial courts,
which are to be informed by the pilot project, above, and are
to include statewide policies on various items, including,
among other things, privacy, unrepresented parties, fee
waivers, hardships, reasonable exceptions to e-filing, and
rules relating to the integrity of electronic service. Upon
adoption of those rules, a superior court may, by local rule,
mandate e-filing, pursuant to specified statutory
requirements and conditions, including several of the
conditions that were specified for the mandatory e-filing
pilot project, above.
This bill:
1)Adds a new condition to the list of conditions that courts
must meet when electing to permit, or otherwise mandating,
e-filing and service of documents. Specifically, a fee, if
any, charged by a court, an EFM, or an EFSP to process a
payment for filing fees and other court fees shall not exceed
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the costs incurred.
2)Specifies, consistent with existing law, that the court, an
EFM, or an EFSP shall waive any fees charged if the court
deems waiver appropriate, including in instances where a party
has received a fee waiver.
3)Prohibits an EFSP, as described, from collecting or attempting
to collect a fee to complete an electronic filing transaction,
including a fee to process a payment, a filing or other court
fee, or a fee charged by the EFSP for electronically filing
documents, from a party who is exempt from paying fees;
provided, however, that the EFSP must complete the filing
notwithstanding the fee exemption.
4)Requires a court or an EFM that provides a court, pursuant to
contract, a system for acceptance of electronically
transmitted documents and associated filing and other court
fees accept more than one method of payment to an EFSP who is
required to collect and remit a payment of a filing or other
court as an agent of the court, as specified, below.
Requires the court to determine which methods of payment shall
be accepted by the court and the EFM, and specifies that the
methods of payment may include credit or debit cards,
electronic funds transfers, electronic networks for financial
transactions such as Automated Clearing House and other
methods that do not charge a transaction cost.
5)Authorizes an "agent of the court" to impose a fee for use of
a credit or debit card or electronic funds transfer, not to
exceed the costs incurred by the agent in providing for
payment by credit or debit card or electronic funds transfer.
For these purposes, an EFSP who is required to collect and
remit a payment of a filing fee or other court fee, as
specified, to complete an electronic filing transaction is
deemed an agent of the court, and, unless specified otherwise,
the EFSP is deemed an agent of the court for the sole purpose
of collecting and remitting such payments for an electronic
filing transaction. Further ensures that, consistent with a
specified requirement under existing law, that any such fees
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charged by the court or the EFSP be approved by the Judicial
Council.
6)Prohibits a court from being held liable for the actions of an
agent of the court under the above provisions and requires
that an agent report its costs in providing for payment by
credit or debit card or electronic funds transfer, as
specified. Requires that the Judicial Council or its
authorized representative have access to and the right to
examine the records and documents of an agent for purposes of
verifying the accuracy of these reports and compliance with
this reporting requirement. The agent must, among other things
provide the Judicial Council all relevant information
requested and maintain all records and documents relating to
its fees and costs, as specified.
7)Adds to the list of recoverable costs by prevailing parties:
fees for the electronic filing or service of documents
through an EFSP if a court requires or orders electronic
filing or service; and
until January 1, 2022, fees for the hosting of
electronic documents if a court requires or orders a party
to have documents hosted by an EFSP.
1)Makes other technical, clarifying or non-substantive changes.
Background
The federal courts, have long allowed for electronic filing of
court documents. (See Fed. Rule Civ. Proc. rule 5(d)(3), which
provides that a court may, by local rule, allow papers to be
filed, signed, or verified by electronic means that are
consistent with any technical standards established by the
Judicial Conference of the United States, and may require e-
filing only if reasonable exceptions are allowed.) The federal
rules also, however, prohibit a court clerk from refusing to
accept paper filings - even if a local court rule mandates e-
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filing. (Fed. Rule Civ. Proc. Rule 5(d)(4); see also Klemm v.
Astrue (9th Cir. 2008) 543 F.3d 1139, 1143.)
E-filing proponents argue that it creates substantial
efficiencies and cost savings for both litigants and the courts:
it saves in time, labor, postage, supplies, storage, and travel;
creates easier and timelier access to records and documents by
the courts and the public; engenders more efficient use of staff
time; allows for remote access to court records by lawyers and
the public over the Internet; grants attorneys the flexibility
to file documents after hours when courts are closed; and gives
multiple parties the ability to view the same documents, at the
same time. At the same time, however, this state has been
cautious of the hardships that e-filing might cause for some
courts or litigants-particularly low income or unrepresented
litigants-given that access to electronic communications are
still widely disparate among different cities and counties
within this state, and even from home to home in the same
neighborhoods based on one's economic means. Some might not be
able to even afford the technology needed for e-filing, or have
access to broadband or Internet services, even if they do have
the technology (i.e. computers.) Thus, while it has been long
anticipated that e-filing and e-service will become the norm,
and not the exception, it has been with the understanding that
public policy ultimately dictates that, when it comes to our
courts, access - and uniform access at that - is imperative.
This is not to state that the competing interests in
efficiencies and access cannot coexist or help advance one
another (indeed, allowing e-filing can grant litigants remote
access to their courts, saving them valuable time that would
otherwise be spent standing in line and away from work -which
can be particularly difficult for low-wage and self-represented
litigants); it is merely to acknowledge that any rules adopted
in this state for e-filing need to be cognizant of the very real
concerns related to access so as to not compromise them in the
name of technological advancement and efficiency.
Accordingly, for years, California has authorized limited
e-filing under Section 1010.6 of the Code of Civil Procedure. In
1999, SB 367 (Dunn, Chapter 514, Statutes of 1999), among other
things, enacted Section 1010.6 to allow trial courts to adopt
local rules permitting e-filing and service of documents, and to
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Page 8
require the Judicial Council to adopt uniform rules for the
e-filing and service of documents in the trial courts of the
state, as specified. SB 367 also reflected the legislative
intent to: (1) provide for the eventual standardization of
e-filing and service procedures on a statewide level; and (2) to
provide that a court shall not adopt an e-filing procedure that
requires a litigant or attorney to possess specialized,
cumbersome, or expensive equipment or software to utilize the
e-filing system. Subsequently, in 2010, SB 1274 (Committee on
Judiciary, Chapter 156, Statutes of 2010) authorized parties to
consent to, or the court to order, electronic service of
documents that are not required to be personally served. SB
1274 also required the Judicial Council to adopt uniform rules
relating to the integrity of e-filing and service of documents
in the trial courts of the state, and redefined "electronic
service" to include both electronic notification and electronic
transmission, as specified.
Most recently, in 2012, this state enacted additional
legislation to authorize a pilot program in Orange County's
Superior Court that would allow for mandated e-filing in
specified cases, as long as certain enumerated conditions were
met. (AB 2073, Silva, Chapter 320, Statutes of 2012.)
Recognizing that other courts may subsequently wish to move
toward mandatory e-filing as well, AB 2073 also allowed for that
possibility, on the condition that any future courts must also
meet requirements of Section 1010.6 and any additional uniform
rules adopted by the Judicial Council for the filing and service
of documents in the trial courts of the state based upon its
study of the Orange County pilot program. Indeed, in 2013, the
Judicial Council approved a proposal, effective July 1, 2013, to
allow superior courts to require that parties electronically
file and serve documents in civil cases. Notably, those new
rules exempt self-represented parties from any mandatory
e-filing and service requirements adopted by participating
courts, but also include language that encourages these parties
to participate voluntarily. To the extent feasible, courts and
other entities are encouraged to assist self-represented parties
to electronically file and serve documents. (See California
Courts Press Release, Judicial Council Allows Superior Courts to
Require E-filing in Civil Cases (Jun. 28, 2013)
Page 9
This bill updates various statutory rules and conditions
surrounding mandatory e-filing, in particular relating to
processing fees charged for e-filing payments, payment options,
and the ability of prevailing parties to recover e-filing fees.
Comments
As stated by the author:
The Judicial Council's Court Case Management System (CCMS), an
ambitious court technology project to provide all 58 superior
courts with a long-needed uniform, linked case management
system would have, among other things, made it easier for
parties to file their legal documents electronically with the
courts. Since its demise in the heights of the Great
Recession, California courts have moved to upgrade their
information technology systems with local contracts with
various vendors. These contracts typically provide for case
management systems, electronic filing of documents, and more.
Usually the third party vendor acts as an "electronic filing
manager" (EFM) in creating the portals through which
"electronic filing service providers" (EFSPs) actually file
documents on behalf of law firms and other users of court
services.
Increasingly, courts are moving to require the filing of
documents electronically. In some counties, certain case types
must be filed electronically, and often complex civil cases
require e-filing. In some counties, EFSPs must pay court
filing fees and e-filing transaction costs with credit cards,
and pay convenience fees to electronic filing managers for the
use of credit cards. While electronic filing represents a
major benefit to the courts and public, how the systems are
implemented can raise policy questions of fair access to the
judicial system. In addition, present law contains a number of
ambiguities which should be resolved as these systems are
being implemented. AB 2244 is intended to address these
ambiguities.
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FISCAL EFFECT: Appropriation: No Fiscal
Com.:YesLocal: No
According to the Senate Appropriations Committee:
Fee restrictions: Potentially significant costs to EFSPs and
EFMs for processing costs that are unrecoverable due to fee
exemptions/waivers. To the extent a court serves as the EFSP
and/or EFM for low-income and self-represented litigants, many
of whom are indigent and qualify for fee waivers, these
processing costs would be absorbed by the court's operating
budget (General Fund*). Alternatively, to the extent courts
enter into vendor contracts for EFSP/EFM services, these
unrecoverable costs could be built into the costs of the
contracts (General Fund*).
EFSP verification process: Potential future increase in
workload (General Fund*) to the Judicial Council to conduct
the verification process described in this bill which would
include interviewing EFSP employees, as well as accessing,
inspecting, and copying relevant records of fees/costs for
auditing purposes. To the extent this process is already in
place and operating, any impact to the Judicial Council would
be absorbable.
*Trial Court Trust Fund
SUPPORT: (Verified8/12/16)
Coalition for Improving Court Access
Judicial Council
OPPOSITION: (Verified8/12/16)
None received
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ASSEMBLY FLOOR: 78-0, 5/12/16
AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker,
Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Calderon,
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, Kim, Lackey, Levine, Linder,
Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina,
Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen,
Patterson, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago,
Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber,
Wilk, Williams, Wood, Rendon
NO VOTE RECORDED: Burke, Jones-Sawyer
Prepared by:Ronak Daylami / JUD. / (916) 651-4113
8/15/16 20:22:16
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