BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2015-2016 Regular Session
AB 2881 (Committee on Judiciary)
Version: May 31, 2016
Hearing Date: June 21, 2016
Fiscal: Yes
Urgency: No
NR
SUBJECT
Civil law
DESCRIPTION
This bill would enact assorted changes in various provisions of
law. The changes would range from establishing public notice
districts to requiring the State Controller to establish and
maintain trial court revenue distribution guidelines to
clarifying that members of state commissions are considered
"officers" for the purpose of the California Public Records Act.
The majority of the bill addresses the final task in trial
court unification: codification of notice publication
requirements.
BACKGROUND
AB 2881 is the Assembly Committee on Judiciary's omnibus bill.
To be considered for inclusion, each provision must be
non-controversial and not be so substantive as to be more
appropriate for a stand-alone bill. If a non-controversial
provision later becomes controversial, that provision will be
removed from the bill.
CHANGES TO EXISTING LAW
1.Existing law requires the California Law Revision
Commission to study and make recommendations to the Legislature
regarding issues related to trial court reunification. (Gov.
Code Sec. 70219.)
Existing law provides that where judicial districts have been
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consolidated or unified, the territory embraced within the
prior judicial district shall be separate judicial districts
for the purpose of publication. (Gov. Code Sec. 71042.5.)
This bill would redesignate the districts used for publishing
legal notice as "public notice districts;" codify simplified
"public notice district" descriptions, which are based on the
areas comprising former judicial districts; and authorize a
newspaper certified to publish notice in a particular judicial
district to publish notice in the successor public notice
district.
2.Existing law requires a hosting platform to provide the
following notice to occupants listing a residence for
short-term rental on a hosting platform:
If you are a tenant who is listing a room, home, condominium, or
apartment, please refer to your rental contract or lease, or
contact your landlord, prior to listing the property to
determine whether your lease or contract contains restrictions
that would limit your ability to list your room, home,
condominium, or apartment. Listing your room, home, condominium,
or apartment may be a violation of your lease or contract, and
could result in legal action against you by your landlord,
including possible eviction. (Bus. & Prof. Code Sec. 22592.)
This bill would add mobilehomes to the above notice.
3.Existing law provides that if a lessor retaliates against a
lessee because of the exercise by the lessee of specified
rights or because of his complaint to an appropriate agency as
to tenantability of a dwelling, and if the lessee of a
dwelling is not in default as to the payment of his rent, the
lessor may not recover possession of a dwelling in any action
or proceeding, cause the lessee to quit involuntarily,
increase the rent, or decrease any services within 180 days,
as specified. (Civ. Code Sec. 1942.5(a).)
Existing law makes it unlawful for a lessor to increase rent,
decrease services, cause a lessee to quit involuntarily, bring
an action to recover possession, or threaten to do any of
those acts, for the purpose of retaliating against the lessee
because he or she has lawfully organized or participated in a
lessees' association or an organization advocating lessees'
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rights or has lawfully and peaceably exercised any rights
under the law. (Civ. Code Sec. 1942.5(c).)
This bill would recast the second provision to clarify that it
is not conditioned or dependent upon the first provision.
4.Existing law provides that the report of the official
reporter, or official reporter pro tempore, of any court, duly
appointed and sworn, when transcribed and certified as being a
correct transcript of the testimony and proceedings in the
case, is prima facie evidence of that testimony and
proceedings. Existing law provides that the report of the
official reporter, or official reporter pro tempore, of any
court, duly appointed and sworn, when prepared as a rough
draft transcript, shall not be certified and cannot be used,
cited, distributed, or transcribed as the official certified
transcript of the proceedings. A rough draft transcript shall
not be cited or used in any way or at any time to rebut or
contradict the official certified transcript of the
proceedings as provided by the official reporter or official
reporter pro tempore. The production of a rough draft
transcript shall not be required. (Code Civ. Proc. Sec.
273(a), (b).)
Existing law further provides that a court reporter's instant
visual display of the testimony or proceedings, or both, shall
not be certified and cannot be used, cited, distributed, or
transcribed as the official certified transcript of the
proceedings. The instant visual display of the testimony or
proceedings, or both, shall not be cited or used in any way or
at any time to rebut or contradict the official certified
transcript of the proceedings as provided by the official
reporter or official reporter pro tempore. Existing law
provides a January 1, 2017 sunset for this provision.
This bill would extend the sunset of the provision, above,
relating to instant visual displays of testimony or
proceedings, to January 1, 2022.
5.Existing law defines "civil executive officers" to include,
among others, the Governor, a private secretary and an
executive secretary for the Governor; a Lieutenant Governor; a
Secretary of State; a Deputy Secretary of State; a Controller;
a Deputy Controller; a bookkeeper for the Controller; a
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Treasurer; a Deputy Treasurer; an Attorney General and all
assistant and Deputy Attorneys general; a Superintendent of
Public Instruction; one clerk for the Superintendent of Public
Instruction; an Insurance Commissioner; a deputy for the
Insurance Commissioner; 13 members of the State Board of
Agriculture; four members of the State Board of Equalization;
a clerk of the Board of Equalization; three members of the
State Board of Education; a librarian for the Supreme Court
Library and the chief deputy clerk and the deputy clerks of
the Supreme Court; the head of each department and all chiefs
of divisions, deputies and secretaries of a department; and
such other officers as fill offices created by or under the
authority of charters or laws for the government of counties
and cities.
This bill would add "persons serving on boards or commissions
created under the laws of the state or established under the
State Constitution" to the above list.
6.Existing law , provides that in any contested action or special
proceeding other than a small claims action or an action or
proceeding in which a prevailing party is not represented by
counsel, the party submitting an order or judgment for entry
shall prepare and serve, by personal delivery or by mail, a
copy of the notice of entry of judgment to all parties who
have appeared in the action or proceeding. Existing law
further requires the party to file with the court the original
notice of entry of judgment together with the proof of service
by mail. This subdivision does not apply in a proceeding for
dissolution of marriage, for nullity of marriage, or for legal
separation. (Code Civ. Proc. Sec. 664.5.)
This bill would revise the above provision to, instead, allow
for a party submitting an order or judgment for entry to
prepare and serve, by personal delivery or by mail, a copy of
the notice of entry of judgment to all parties who have
appeared in the action or proceeding and to require that the
party file with the court the original notice of entry of
judgment together with proof of service.
7.Existing law , provides that in any contested action or special
proceeding other than a small claims action or an action or
proceeding in which a prevailing party is not represented by
counsel, the party submitting an order or judgment for entry
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shall prepare and mail serve, by personal delivery or by
mail, a copy of the notice of entry of judgment to all
parties who have appeared in the action or proceeding.
Existing law further requires the party to file with the court
the original notice of entry of judgment together with the
proof of service by mail. This subdivision does not apply in
a proceeding for dissolution of marriage, for nullity of
marriage, or for legal separation. (Code Civ. Proc. Sec.
664.5.)
This bill would revise the above provision to, instead, allow
for a party submitting an order or judgment for entry to
prepare and serve, by personal delivery or by mail, a copy of
the notice of entry of judgment to all parties who have
appeared in the action or proceeding and to require that the
party file with the court the original notice of entry of
judgment together with proof of service.
8.Existing law provides that the State Controller shall
establish, supervise, and as necessary revise a uniform
accounting system, including a system of audit, to the end
that all fines, penalties, forfeitures, and fees assessed by
courts, and their collection and appropriate disbursement,
shall be properly and uniformly accounted for. The accounting
system shall apply to superior courts, together with probation
offices, central collection bureaus and any other agencies
having a role in this process. (Gov. Code Sec. 71380.)
Existing law provides that each installment or partial payment
of a fine, penalty, forfeiture or fee shall be prorated among
the state and local shares according to the uniform accounting
system established by the State Controller pursuant to Section
71380 of the Government Code. In cases subject to Section
1463.18 of the Penal Code, proration shall not occur until the
minimum amounts have been transferred to the Restitution Fund
as provided in that section. (Penal Code Sec. 1462.5.)
This bill would provide that the State Controller shall
establish, supervise, and maintain trial court revenue
distribution guidelines, including a program to audit the
accuracy of distributions as provided by law, to ensure that
all fines, penalties, forfeitures, and fees assessed by
courts, and their collection and appropriate disbursement,
shall be properly accounted for and distributed. The trial
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court revenue distribution guidelines shall apply to superior
courts, counties, including counties' probation departments,
central collection bureaus, and any other agencies or
entities having a role in this process.
This bill would provide that installment or partial payment of
a fine, penalty, forfeiture, or fee shall be prorated among
the state and local shares according to the trial court
revenue distribution guidelines established by the Controller
pursuant to Section 71380 of the Government Code. In cases
subject to Section 1463.18 of the Penal Code, proration shall
not occur until the minimum amounts have been transferred to
the Restitution Fund as provided in that section.
9.Existing law provides that if the decedent dies intestate, the
court must appoint an administrator as personal
representative. (Prob. Code Sec. 8460.)
Existing law provides that a surviving spouse or domestic
partner of a decedent is entitled to appointment as
administrator. (Prob. Code Sec. 8461.)
Existing law provides that a person is not competent to act as
a personal representative of an estate for a number of
reasons, including if the person is under the age of majority,
the person is subject to a conservatorship of the estate, or
the person is a surviving partner of the decedent and an
interested person objects to the appointment. (Prob. Code
Sec. 8402.)
This bill would clarify that the person who is not competent
to act as a personal representative of an estate is a business
partner, not a domestic partner.
COMMENT
1.Trial court unification: publication of legal notice
In 1997, the Legislature requested that the California Law
Revision Commission make recommendations "pertaining to
statutory changes that may be necessitated by court
unification." The Commission did so through its 1998
recommendation on Trial Court Unification: Revision of Codes.
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When the Commission prepared that recommendation, it addressed
the many references to a "judicial district" in the codes.
Subject to a number of exceptions, the Commission generally
concluded that a statutory reference to a "judicial district"
should be treated as a reference to the county after the courts
unified. One exception related to the use of judicial districts
to define the boundaries for publishing a legally required
notice, such as a notice of a foreclosure sale or a sale of
stored property. The Commission recommended, and the Legislature
enacted, a provision that continued the status quo, retaining
former judicial district boundaries for that purpose. However,
the Commission recognized that this provision would need to be
revisited and identified the matter as appropriate for future
study. The Legislature assigned that issue to the Commission,
along with several other projects identified in the Commission's
recommendation.
Since then, the Commission has completed work on all of the
other projects. This bill would address the final, outstanding
issue identified for study by the Commission related to trial
court unification. The Commission has conducted extensive
research on that matter and solicited input from key
stakeholders. From that work, it is clear that the statutes
requiring publication of notice in judicial districts pose
practical challenges. In particular, it has become quite
difficult for affected persons to ascertain the relevant
district boundaries.
The provisions of this bill proposed by the Commission (14 out
of the 24 sections of the bill) would address that issue by
ensuring that the notice publication requirements are clear and
the districts used for notice publication are easily
determinable, without disrupting the current legislative policy
requiring publication of notice locally. The provisions would
also preserve the existing rights of a newspaper of general
circulation that is eligible to publish notice in a judicial
district, thus conforming to existing expectations and policy,
while making the law more workable and readily understandable.
2.Clarifying responsibilities related to court-ordered debt
distribution
Changes to the Government Code proposed by the State
Controller's Office would clarify the role of the State
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Controller, Judicial Branch, and Counties related to
court-ordered debt distribution. The "uniform accounting
system" referred to in current law is now called the "Trial
Court Revenue Distribution Guidelines." The proposed amendment
to Penal Code Section 1462.5 simply and appropriately make this
change. The proposed amendment to Government Code Section 71380
would conform to the guidelines, but would not add or change any
authorities, controls, or current responsibilities of the State
Controller. The statutory language has been unclear for a
number of years, although the understanding between the State
Controller's Office and the judicial branch has been that the
State Controller's Office has authority to audit the
distributions of court ordered debt. There is also an
acknowledgement that the county probation departments, in
addition to courts and counties, sometimes conduct revenue
collections and, by extension, distributions.
3.Clarifies "partner" in the Probate Code
The bill would clarify that the person described in Probate Code
Section 8402 as not competent to act as a personal
representative of an estate is a "business partner" and not a
"domestic partner." This Probate Code Section uses the term
"partner" without qualification. The Conference of California
Bar Associations notes that "it should be clear that the statute
was never intended to apply to domestic partners [but] the
vagueness of the current language [has] resulted in unnecessary
and wasteful litigation?" Indeed, other provisions of the
Probate Code provide that a surviving "Domestic Partner of a
decedent" gets priority for appointment as a personal
representative when the decedent dies intestate. (Prob. Code
Secs. 8460 & 8461.) It is impossible to reconcile Probate Code
Sections 8460, 8461, and 8402 without "partner" in 8402 meaning
"business partner."
4.Extends sunset regarding court reporters' instant visual
display
In 2009, AB 170 (Mendoza, Ch. 87, Stats. 2009) was enacted,
recognizing that, due to advances in technology, attorneys and
judges are now able to see a court reporter's transcription in
real time on laptop computers. To clarify the impact of these
instant visual displays, that bill ensured that the instant
visual display of testimony or proceedings were treated in the
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same way as a court reporter's rough draft transcript.
Specifically, the bill provided that such visual displays cannot
be used, cited, distributed, or transcribed as the official
certified transcript, or be used to rebut or contradict the
official certified transcript of the proceedings. At the same
time, the bill placed a seven year sunset on this particular
provision to allow for the issue to be revisited in light of
future developments in technology, recognizing that at some
point in the future, technology may be able to produce an
instant transcript that is reliable and error free, thus
removing the need for such restrictions on the use of such real
time visual displays. This bill would now extend that sunset
for another 5 years, to January 1, 2022.
5.Clarifying who is an "officer" for the purposes of the
California Public Records Act
Under the California Public Records Act (CPRA) any "state
agency" is required to disclose public records unless it is
subject to some exemption. The CPRA defines a "state agency" as
any state office, officer, department, division, bureau, board,
and commission or other state body or agency. (Gov. Code Sec.
6252(f).) Elsewhere in the Government Code, members of local
boards or commissions are considered "officers." (See, e.g.,
Gov. Code 53296(h).) There is no parallel definition expressly
stating that members of state commissions are deemed an
"officer" under the Government Code.
By adding "persons serving on boards or commissions created
under the laws of the state or established under the State
Constitution" to the definition of "officer," this bill would
clarify that members of state commissions are subject to the
requirements of the CPRA.
6.Allows for personal delivery of service
Currently, Section 664.5 of the Code of Civil Procedure only
permits a party to serve a notice of entry of judgment by mail.
Other statutes requiring service under existing law allow for
service to be performed by personal service as well. For
example, under Section 415.10 of the Code of Civil Procedure, a
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service of summon may be served by personal delivery of a copy
of the summons and the complaint to the person to be served.
That section also provides that the service of summons in this
manner is deemed complete at the time of such delivery and that
the date upon which personal delivery is made shall be entered
on or affixed to the face of the copy of the summons at the time
of delivery (though service of summons without such a date shall
also be valid and effective). Section 1005 of the Code of Civil
Procedure, by way of another example, requires that all papers
opposing a motion and all reply papers be served by personal
delivery, facsimile transmission, express mail, or other
specified means that are reasonably calculated to ensure
delivery to the other party or parties not later than the close
of the next business day after the time the opposing papers or
reply papers, as applicable, are filed.
This bill would now revise Section 664.5 to also recognize that
a party may prepare and serve a notice of entry of judgment to
all parties who have appeared in the action or proceeding by way
of personal delivery, as well as by mail. The bill would further
ensure that the court receives a copy of the proof of service
(regardless of whether it was performed by mail or by personal
service) together with the original notice of entry of judgment.
7.Technical and clarifying changes to property law
This bill would make two changes in the area of property law.
First, existing law educates tenants about the potential risks
of listing their room or unit on a short-term rental website
such as Airbnb, VRBO, or FlipKey, by requiring hosting platforms
to provide a specific notice that cautions tenants to refer to
their rental contract or lease or contact their landlord prior
to listing the property to determine whether their lease or
contract contains restrictions that would limit their ability to
list their room, home, condominium, or apartment. This bill
extends the same protection to tenants of mobilehomes who choose
to list their room or unit on a short-term rental website.
Second, according to information received by the Assembly
Committee on Judiciary, some landlords are misinterpreting a
provision in existing law that protects tenants from retaliation
for exercising their rights by incorporating elements from
another provision of law concerning retaliation -- namely, the
requirement that a tenant not be in default as to the payment of
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rent -- as a condition precedent to receive protection under the
law. This bill clarifies that the existing protection from
retaliation for tenants who exercise their rights stands
independent of other protections concerning retaliation.
8. Amendments
Typically, policy committee omnibus bills have been used to
propose minor substantive changes that do not warrant the effort
and expense of a stand-alone bill. Absent further justification
and information, the author and Committee cannot confirm that
Section 21 is not more appropriate as a stand-alone bill.
Accordingly, the author offers the following amendment.
Author's amendment:
Strike Section 21 from the bill
Support : California Law Revision Commission; California
Newspaper Publishers Association; Conference of California Bar
Associations; Deposition Reporters Association; State Controller
Betty Yee; Western Manufactured Housing Communities Association
Opposition : None Known
HISTORY
Source : Assembly Judiciary Committee; California Law Revision
Commission; Conference of California Bar Associations;
Deposition Reporters Association of California; Executive
Committee of the Trusts & Estates Section of the State Bar of
California; State Controller's Office; Western manufactured
Housing Communities;
Related Pending Legislation : None Known
Prior Legislation : None Known
Prior Vote :
Assembly Floor (Ayes 78, Noes 0)
Assembly Appropriations Committee (Ayes 20, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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