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 BACKGROUND Originally enacted in 1986 by SB 1934 (Deddeh, Chapter 884, Statutes of 1986), Civil Code Section 1717.5 provides for an award of attorney's fees in contract actions based on a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. SB 363 (Morrell) Page 2 of ? 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 SB 363 (Morrell) Page 3 of ? 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. SB 363 (Morrell) Page 4 of ? 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 SB 363 (Morrell) Page 5 of ? 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. SB 363 (Morrell) Page 6 of ? **************