BILL ANALYSIS                                                                                                                                                                                                    Ó





                             SENATE JUDICIARY COMMITTEE
                         Senator Hannah-Beth Jackson, Chair
                            2015 - 2016  Regular  Session


          SB 363 (Morrell)
          Version: February 24, 2015
          Hearing Date:  May 12, 2015
          Fiscal: No
          Urgency: No
          BCP:rm
                    

                                        SUBJECT
                                           
                           Attorney's fees:  book accounts

                                      DESCRIPTION  

          Under existing law, in any action on a contract based on a book  
          account, as defined, that does not provide for attorney's fees  
          and costs, the prevailing party on the contract is entitled to  
          reasonable attorney's fees and costs, and the court is required  
          to fix the attorney's fees in an amount that does not exceed the  
          lesser of $800 for book accounts that are maintained for  
          personal, family, or household purposes of a natural person, and  
          $1,000 for book accounts that are maintained for all other  
          purposes, or 25 percent of the principal obligation owing on the  
          contract, as applicable.

          This bill would increase these maximum attorney's fees to an  
          amount not to exceed the lesser of $960 and $1,200,  
          respectively. 

                                      BACKGROUND  

          Originally enacted in 1986 by SB 1934 (Deddeh, Chapter 884,  
          Statutes of 1986), Civil Code Section 1717.5 provides for an  
          award of attorney's fees in contract actions based on a "book  
          account" in which the underlying contract did not provide for an  
          award of attorney's fees.  Typically, "book accounts" include  
          such consumer billings as doctors' fees, lawyers' fees, and  
          grocery or restaurant charges that are not handled under formal  
          credit terms.  Book accounts do not include retail installment  
          or credit card sales.
           







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          SB 1934 was sponsored by the California Association of  
          Collectors (CAC).  CAC argued that the bill was needed because  
          the cost of collection actions to recover a delinquent debt was  
          prohibitive, particularly in small cases, in the absence of an  
          attorney's fee provision.  SB 1934 provided a statutory  
          attorney's fee award of up to $500 or 25 percent of the  
          delinquent debt, whichever is less, to the prevailing creditor.   
          The law applied equally to allow a prevailing debtor to recover  
          up to $500 in attorney's fees.
          In 1991, the $500 cap was increased to $660 by SB 182 (Lockyer,  
          Chapter 406, Statutes of 1991) primarily to reflect inflation.   
          The increase also served to allow collection agencies to recover  
          more of their collection costs.  Similarly, in 2004, AB 2347  
          (Maddox, Chapter 328, Statutes of 2004) increased the maximum  
          awardable fee to a prevailing creditor or debtor in a collection  
          action to $800 for open book accounts that are maintained by a  
          natural person for personal, family, or household purposes, and  
          to a maximum of $1,000 for all other open book accounts.  This  
          bill seeks to similarly increase the cap to reflect inflation,  
          thus, increasing the amounts to $960, and, $1,200, respectively.

                                CHANGES TO EXISTING LAW
           
           Existing law  defines the term "book account" as a detailed  
          statement which constitutes the principal record of one or more  
          transactions between a debtor and a creditor arising out of a  
          contract or some fiduciary relation, and shows the debits and  
          credits in connection therewith, and against whom and in favor  
          of whom entries are made, is entered in the regular course of  
          business as conducted by such creditor or fiduciary, and is kept  
          in a reasonably permanent form and manner and is (1) in a bound  
          book, or (2) on a sheet or sheets fastened in a book or to  
          backing but detachable therefrom, or (3) on a card or cards of a  
          permanent character, or is kept in any other reasonably  
          permanent form and manner.  (Code Civ. Proc. Sec. 337a.)

           Existing law  provides that in any action on a contract based on  
          a book account which does not provide for attorney's fees and  
          costs, the prevailing party is entitled to reasonable attorney's  
          fees, in addition to other costs.  The prevailing party on the  
          contract is the party who recovered a greater relief in the  
          action on the contract.  (Civ. Code. Sec. 1717.5).)

           Existing law  provides that reasonable attorney's fees awarded to  
          the prevailing party, as specified, shall be fixed by the court  







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          in an amount that shall not exceed the lesser of:  (1) $800 for  
          book accounts based on an obligation owed by a natural person  
          for goods, moneys, or services which were primarily for  
          personal, family, or household purposes; and $1,000 for all  
          other book accounts; or (2) 25 percent of the principal  
          obligation owing under the contract.  (Civ. Code Sec. 1717.5.)

           Existing law  states that if there is a written agreement between  
          the parties signed by the person to be charged, the above fees  
          may not be imposed unless that agreement contains a statement  
          that the prevailing party in any action between the parties is  
          entitled to the above fees.  (Civ. Code Sec. 1717.5.)

           This bill  would increase the amounts of the above reasonable  
          attorney's fees for a prevailing party from $800 to $960 (for  
          book accounts based on an obligation owed by a natural person  
          for goods, moneys, or services which were primarily for  
          personal, family, or household purposes), and, from $1,000 to  
          $1,200 (for all other book accounts).

                                        COMMENT
           
          1.   Stated need for the bill  

          According to the author, "[t]here have been substantial  
          increases in the cost of filing civil cases in California,  
          including attorney's fees and filing fees.  This bill simply  
          provides a modest increase in statutorily set attorney's fees."   
          The California Association of Collectors (CAC), sponsor, further  
          notes that "[t]he last cost of living increase on attorney fees  
          was in 2004, and since then the attorney's fees and costs  
          associated with filing a civil action has increased  
          dramatically."

          2.    Increasing statutory attorney's fees award in book account  
          collection actions  

          Under existing law, in any action on a contract based on a book  
          account which does not provide for attorney's fees and costs,  
          the prevailing party is entitled to reasonable attorney's fees  
          and costs, and, the court must fix the attorney's fees in an  
          amount not to exceed the lesser of:  (1) $800 for book accounts  
          maintained for personal, family, or household purposes of a  
          natural person, and, $1,000 for all other book accounts; or (2)  
          25 percent of the principal obligation owing on the contract.   







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          Similar to prior increases, this bill seeks to increase the  
          maximum allowable amount of attorney's fees from $800 to $960,  
          and, $1,000 to $1,200, respectively.  The author notes these  
          amounts have not been increased for 10 years, that there have  
          been substantial increases in the cost of filing cases in  
          California, and, that the proposed increased amounts are  
          slightly less than would be justified by inflation.

            a.   History of recent increase; consumer price index figures  

            Since January 1, 1987, the effective date of the statute in  
            question, a $160 increase (32 percent) to $660 in the maximum  
            award was authorized by SB 182 (Lockyer, Chapter 406, Statutes  
            of 1991) in 1991 to provide a past and prospective  
            inflationary adjustment for creditors.  (An increase to $1,250  
            was originally sought in that bill.)
              
            Inflation between January 1, 1992, the effective date of the  
            increase to $660, through the end of 2003, was approximately  
            31.1 percent, according to the Bureau of Labor Statistics  
            Consumer Price Index (CPI).  Based upon the increase in the  
            CPI, AB 2347 (Maddox, Chapter 328, Statutes of 2004) raised  
            the permissible maximum attorney's fee award to $800,  
            beginning on January 1, 2005, in a collection action for a  
            consumer debt, which was an increase of about 21.2 percent.   
            For all other non-consumer actions, such as business debts, AB  
            2347 increased the possible fee award to $1,000, which was a  
            51.5 percent increase from the 1992 cap.  

            Similarly, in the present case, according to the Bureau of  
            Labor Statistics' CPI Inflation calculator, $800 in 2005 is  
            equivalent to $961.48 in 2015, and, $1,000 is equivalent to  
            $1,201.85 today.  Thus, the proposed increases to $960 and  
            $1,200 are just barely below what inflation would support.   
            Despite those recent calculations, the author contends that  
            "[f]rom 2004 through 2014, the cumulative rate of inflation  
            has been 25.3 [percent, and the] increase in attorney's fees  
            in this bill represents a 20 percent increase."  While the  
            measure of inflation may vary depending on various factors, it  
            would appear that the amount of the increases sought by this  
            bill is supported by the change in CPI since January 1, 2005.

            b.   Reasons for proposed increase; split system  

            As noted above, the caps increased by this bill only apply if  







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            the underlying contract does not provide for attorney's fees  
            and costs.  A seller can always insert a specific attorney's  
            fees clause into a sales agreement to collect full attorney's  
            fees in a collection action, thereby giving the customer  
            notice and the opportunity to accept or reject the sales  
            terms.  Further, as the amount of attorney's fees recoverable  
            by statute gets higher, sellers may find it to their advantage  
            to not insert a specific attorney's fee clause in their  
            contracts, thereby taking the choice away from consumers.  To  
            address concerns from Consumers Union regarding the impact of  
            the increases proposed by AB 2347 on consumer debtors, this  
            Committee's analysis noted that the bill proposed a split  
            system of providing a less than inflationary adjustment for  
            consumer debt cases.  This bill would retain that split  
            system, and, as discussed above, increase the amount of  
            attorneys' fees from $800 to $960 (for consumer debt) and from  
            $1,000 to $1,200 for all other book accounts (business  
            debtors).

            Regarding the need for the increase in attorney's fees, CAC  
            notes that "[t]he last cost of living increase on attorney  
            fees was in 2004, and since then the attorney's fees and costs  
            associated with filing a civil action has increased  
            dramatically."


           Support  :  USCB, America, Inc.

           Opposition  :  None Known

                                        HISTORY
           
           Source  :  California Association of Collectors

           Related Pending Legislation  :  None Known

           Prior Legislation  :

          AB 2347 (Maddox, Chapter 328, Statutes of 2004) See Background;  
          Comment 2a, b.

          SB 182 (Lockyer, Chapter 406, Statutes of 1991) See Background;  
          Comment 2a.

          SB 1934 (Deddeh, Chapter 884, Statutes of 1986) See Background.







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