BILL ANALYSIS                                                                                                                                                                                                    Ó



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          CONCURRENCE IN SENATE AMENDMENTS


          AB  
          2244 (Gatto)


          As Amended  June 13, 2016


          Majority vote


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          Original Committee Reference:  JUD.


          SUMMARY:  Prohibits electronic filing vendors from charging a  
          payment method convenience fee that exceeds the cost incurred to  
          provide the processing.  Specifically, this bill:  


          1)Provides that an agent of the court may impose a fee for the  
            use of a credit card or debit card or electronic funds  
            transfer, not to exceed the costs incurred by the agent in  
            providing for that payment method.  Provides that 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.


          2)Requires the court, an electronic filing manager, or an  
            electronic filing service provider to waive processing payment  
            fees if the court deems waiver appropriate, including in  
            instances where a party has received a fee waiver.








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          3)Requires a court or an entity contracted with a court to  
            provide a system for acceptance of electronically transmitted  
            documents to provide a menu of payment options that may  
            include credit or debit cards, electronic funds transfers,  
            electronic networks for financial transactions, and payment  
            methods that do not charge a transaction cost. 


          4)Allows a prevailing party to recover electronic filing service  
            provider fees as costs.


          5)Allows a prevailing party to recover electronic filing service  
            provider hosting fees as cost until January 1, 2022.


          The Senate amendments: 


          1)Specify that an electronic filing service provider as defined  
            is deemed an agent of the court for the sole purpose of  
            collecting electronic court filing fees.


          2)Provide that the court is not liable for the actions of an  
            agent of the court in imposing fees for the use of a credit or  
            debit card, or electronic funds transfer as a method of  
            payment.


          3)Require an agent of the court, as provided, to issue a report  
            on the agent's costs in providing various payment options, and  
            to maintain relevant records for inspection by the Judicial  
            Council.


          4)Make technical and clarifying changes.


          EXISTING LAW: 








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          1)Authorizes courts to allow parties to electronically file  
            court documents in accordance to rules established by the  
            Judicial Council, and as provided by state law.  (Code of  
            Civil Procedure Section 1010.6 (b).  Unless stated otherwise,  
            all further statutory references are to the Code of Civil  
            Procedure.)


          2)Provides that rules adopted by the Judicial Council relating  
            to mandatory electronic filing and service of documents in  
            trial courts 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 the integrity of  
            electronic service.  (Section 1010.6 (f).)


          3)Sets forth the rules adopted by the Judicial Council regarding  
            electronic filing and serving of court documents.  (Cal. Rules  
            of Court, Rules 2.250-2.261.)


          4)Requires the court to permit a party or an attorney to file an  
            application for a fee waiver as part of the electronic filing  
            process.  (Section 1010.6 (b)(6).)


          5)Authorizes a court and other specified public agencies to  
            accept credit card, debit card, or electronic fund transfers  
            for the payment of specified government services and fees.   
            Provides that when a court or other specified public agencies  
            authorizes one of the payment methods, the public agency may  
            impose a fee for the use of a debit card, or electronic fund  
            transfer not to exceed the costs incurred by the public agency  
            in providing for payment.  If a court is imposing the fee, the  
            fee shall be approved by the Judicial Council.  (Government  
            Code Section 6159.) 


          6)Provides that a prevailing party is entitled as a matter of  








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            right to recover costs in any action or proceeding, as  
            provided.  (Section 1032.)


          7)Provides specified items that are allowable recoverable costs  
            and others that are not allowable recoverable costs.  (Section  
            1033.5)


          8)Provides that any award of costs shall be subject to the  
            following:


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


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


             c)   Allowable costs shall be reasonable in amount.


             d)   Items not specifically mentioned and items assessed upon  
               application may be allowed or denied in the court's  
               discretion.  (Ibid.)


          FISCAL EFFECT:  According to the Senate Appropriation Committee:


          1)Fee restrictions:  Potentially significant costs to electronic  
            filing service providers (EFSPs) and electronic filing  
            managers (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  








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            costs of the contracts (General Fund*).     


          2)EFSP verification process:  Potential future increase in  
            workload (General Fund*) to the Judicial Council to conduct  
            the verification process described in this measure 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


          COMMENTS:  California's court system is one of the largest in  
          the world, with more than 2,000 judicial officers and  
          approximately 19,000 judicial branch employees statewide who  
          assist in the court's management of cases every year.  (2015  
          Courts Statistics Report: Statewide Caseload Trends, Judicial  
          Council of California (2015).)  During the 2013-14 fiscal year,  
          there were 7.5 million cases filed statewide in the superior  
          courts.  (Ibid.)


          Given the high volume of filings in California's courts each  
          year, a party's ability to file and serve documents  
          electronically significantly improves the court's capacity to  
          process filings.  Ideally, parties could file their legal  
          documents electronically directly to the court through a  
          statewide case management system at no additional cost (aside  
          from the court filing fee).  But given the reality of the courts  
          not having such a system, trial courts are doing the best they  
          can to facilitate electronic filing with county systems that  
          rely upon fees for service. 


          How Does Electronic Filing Work?  According to a recent staff  
          report from the Judicial Council, an electronic filing system  
          requires both an electronic filing service provider (EFSP) and  
          an electronic filing manager (EFM).  Generally, the litigant  








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          files the legal document with the EFSP which translates the  
          information, and sends it to the EFM, which delivers and  
          communicates that information to the court's case management  
          system.  (The Critical Role of the State Judiciary in Increasing  
          Access for Self-Represented Litigants: Self-Help Access 360,  
          Judicial Council, July 2015.)  


          If Electronic Filing Is Not Managed Correctly, It May Create  
          Barriers to Justice for Self-Represented and Low-Income  
          Litigants.  In that same report, concerns about electronic  
          filing and access to justice were raised:


            Early experiences with e-filing, both in California and in  
            other states, suggest that many private vendor EFSPs are not  
            focused on serving the market segment of self-represented  
            litigants, many of whom are indigent and qualify for fee  
            waivers.  The access community believes that the exclusion  
            of self-represented litigants from electronic filing "has  
            the potential to enlarge the access to justice gap in the  
            long run."  Electronic filing is an area in which a slight  
            tip of the balance means that the technology tool is no  
            longer used to achieve greater access; rather, it becomes a  
            barrier.  The California judicial branch has the opportunity  
            to "place a finger on the scale" in favor of low-income and  
            self-represented litigants by developing the capacity to  
            serve as the EFSP and EFM for all self-represented litigants  
            in the state.


          To date, thirteen trial courts have adopted some form of  
          mandatory electronic filing system.  Although mandatory  
          electronic filing may be an attractive option for trial courts  
          because of the significant efficiencies to courts, electronic  
          filing has not been perfect.  To some extent, this bill  
          addresses several of the issues confronting electronic filing.


          Consistent with Existing Law, this Bill Prevents Electronic  
          Filing Vendors from Charging a Payment Method Convenience Fee  
          that Exceeds the Cost to Vendors of that Payment Transaction.   








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          Government entities may accept credit cards, debit cards, or  
          electronic funds transfers for the payment of certain government  
          services, including court filings.  Although current law allows  
          a government entity, including a court, to impose a convenience  
          fee for those transactions, the government entity may not charge  
          a convenience fee that exceeds its costs for providing that  
          payment method.


          Consistent with current law, this bill sensibly provides that an  
          electronic filing service provider, who remits funds in order to  
          complete an electronic filing transaction, acts as an agent of  
          the court, and may not charge a convenience fee that exceeds the  
          provider's cost to provide that service.  In order to further  
          protect litigants and provide greater clarity about convenience  
          costs associated with processing payment methods, this bill also  
          requires that when a trial court adopts rules for mandatory  
          electronic filing, the fees (if any) that are 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 by the court, manager, or provider.  


          This Bill Makes Electronic Filing More Accessible to Indigent  
          Litigants and Litigants with Fee Waivers, Consistent with  
          California's Goals of Promoting Access to Justice.  To ensure  
          that litigants with fee waivers have true access to electronic  
          filing without fees, this bill does two important things.   
          First, it prohibits those litigants from being required to pay  
          transaction processing fees.  Second, it clarifies existing law  
          to require an electronic filing service provider to  
          electronically file a fee-waiver-litigant's documents if that is  
          the litigant's preferred method.  


          In order to protect litigants who may not have access to credit  
          or debit cards, this bill also sensibly requires electronic  
          filing managers to accept alternative forms of payment beyond  
          credit cards for the payment of filing fees and e-filing  
          transaction costs.  Specifically, this bill requires the court  
          (or the electronic filing manager) to offer a menu of payment  
          options, including but not limited to, credit cards or debit  








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          cards, electronic fund transfers, Automated Clearing House, and  
          other payment methods that do not charge a transaction cost,  
          such as an electronic check.


          Given That Some Courts Mandate Electronic Filing, this Bill  
          Would Allow Costs Associated With Electronic Filing to Be  
          Recoverable Litigation Costs.  Throughout litigation, parties  
          pay for costs associated with the legal proceeding, such as  
          filing fees, expert-witness fees, and attorney's fees.  In  
          addition to any judgment award, current law allows the  
          prevailing party to recover specific litigation costs from the  
          unsuccessful party.  Current law specifically provides which  
          items are allowable or not allowable as recoverable costs.   
          Given that some courts have mandated electronic filing, this  
          bill reasonably adds electronic filing service provider fees to  
          the list of allowable recoverable costs when a court requires or  
          orders a party to file and serve documents electronically with  
          the court.  This bill also limits those costs to costs that are  
          actually incurred.  


          Recovering Hosting Costs.  In some matters, courts will order  
          parties to have their documents "hosted" by an electronic filing  
          service provider.  This often occurs in complex cases when  
          certain documents are never lodged with the court, and courts  
          lack the infrastructure to hold these out-of-court documents.   
          Although this bill still allows parties to recover these hosting  
          costs, the bill includes a five-year sunset which allows the  
          Legislature to determine whether it is appropriate for these  
          responsibilities to be shifted to third-party vendors.


          Analysis Prepared by:                                             
          Eric Dang / JUD. / (916) 319-2334  FN: 0004197















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