BILL NUMBER: AB 758 CHAPTERED
BILL TEXT
CHAPTER 442
FILED WITH SECRETARY OF STATE SEPTEMBER 24, 1997
APPROVED BY GOVERNOR SEPTEMBER 23, 1997
PASSED THE ASSEMBLY SEPTEMBER 2, 1997
PASSED THE SENATE AUGUST 12, 1997
AMENDED IN SENATE AUGUST 4, 1997
AMENDED IN SENATE JULY 9, 1997
AMENDED IN SENATE JUNE 26, 1997
AMENDED IN SENATE JUNE 19, 1997
AMENDED IN SENATE JUNE 11, 1997
AMENDED IN ASSEMBLY APRIL 14, 1997
INTRODUCED BY Assembly Member Morrow
FEBRUARY 26, 1997
An act to amend Sections 22351, 22355, 22356.5, and 22360 of, to
add Section 22351.5 to, and to repeal and add Sections 22350 and
22352 of, the Business and Professions Code, to amend Sections
1985.3, 1985.6, and 1987.1 of the Code of Civil Procedure, to amend
Section 4406 of the Commercial Code, and to amend Sections 1158,
1560, and 1563 of the Evidence Code, relating to civil procedure.
LEGISLATIVE COUNSEL'S DIGEST
AB 758, Morrow. Civil procedure: bank notices.
(1) Existing law requires, with specified exemptions, any person
who makes more than 10 service of processes within the state during
any calendar year to register as a process server with the county
clerk of the county in which he or she resides. Under existing law,
a certificate of registration as a registered process server includes
prescribed information and may be issued to a natural person or to a
partnership or a corporation upon payment of a $100 fee to the
county clerk for registration.
This bill would instead require a person, corporation, or
partnership to file and maintain a verified certificate of
registration as a process server if the person, corporation, or
partnership serves process for compensation or in the expectation of
compensation, as specified. The bill would require the registrant to
sign the certificate of registration under penalty of perjury. The
bill would require that a completed fingerprint card be submitted to
the Department of Justice and the Federal Bureau of Investigation as
part of the initial filing and would authorize a presiding judge of
the superior court to review a criminal record and revoke the
registration. The registrant would be required to pay a $100 fee, a
fingerprint card fee, and an identification card fee to the county
clerk. The bill would impose a state-mandated local program by
imposing new or increased duties on county clerks with respect to the
registration of process servers. The bill would also create new
crimes by expanding the registration requirements and revise the
definition of a crime by expanding the crime of perjury.
(2) Existing law authorizes issuance of a subpoena for the
personal records of any consumer, as defined, and for employment
records, and requires that a witness be given notice of a motion to
quash or modify the subpoena for employment records.
This bill would provide that the notice of a motion to quash or
modify a subpoena for personal records of any consumer may be given
to a deposition officer, as defined. The bill would provide that the
notice of a motion to quash or modify the subpoena for employment
records be given at least 5 days prior to production to the witness
and the deposition officer.
(3) Existing law authorizes a court to make an order quashing a
subpoena, modifying it, or directing compliance with specified terms
or conditions.
This bill would specify that the terms and conditions may include
protective orders.
(4) Existing law, operative January 1, 1998, revises provisions
governing bank notices to customers regarding account statements.
This bill would extend that operative date to January 1, 2001.
(5) Existing law authorizes an attorney or his or her
representative to review and obtain specified patient records prior
to the filing of any action if written authorization is given by the
patient and prohibits copying by a medical provider, as specified.
This bill would prohibit copying by the medical provider's
employer.
(6) The California Constitution requires the state to reimburse
local agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement, including the creation of a State Mandates Claims Fund
to pay the costs of mandates that do not exceed $1,000,000 statewide
and other procedures for claims whose statewide costs exceed
$1,000,000.
This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 22350 of the Business and Professions Code is
repealed.
SEC. 2. Section 22350 is added to the Business and Professions
Code, to read:
22350. (a) Any natural person who makes more than 10 services of
process within this state during one calendar year, for specific
compensation or in expectation of specific compensation, where such
compensation is directly attributable to the service of process,
shall file and maintain a verified certificate of registration as a
process server with the county clerk of the county in which he or she
resides or has his or her principal place of business. Any
corporation or partnership that derives or expects to derive
compensation from service of process within this state shall also
file and maintain a verified certificate of registration as a process
server with the county clerk of the county in which the corporation
or partnership has its principal place of business.
(b) This chapter shall not apply to any of the following:
(1) Any sheriff, marshal, or government employee who is acting
within the course and scope of his or her employment.
(2) An attorney or his or her employees.
(3) Any person who is specially appointed by a court to serve its
process.
(4) A licensed private investigator or his or her employees.
SEC. 3. Section 22351 of the Business and Professions Code is
amended to read:
22351. (a) The certificate of registration of a registrant who is
a natural person shall contain the following:
(1) The name, age, address, and telephone number of the
registrant.
(2) A statement, signed by the registrant under penalty of
perjury, that the registrant has not been convicted of a felony.
(3) A statement that the registrant has been a resident of this
state for a period of one year immediately preceding the filing of
the certificate.
(4) A statement that the registrant will perform his or her duties
as a process server in compliance with the provisions of law
governing the service of process in this state.
(b) The certificate of registration of a registrant who is a
partnership or corporation shall contain the following:
(1) The names, ages, addresses, and telephone numbers of the
general partners or officers.
(2) A statement, signed by the general partners or officers under
penalty of perjury, that the general partners or officers have not
been convicted of a felony.
(3) A statement that the partnership or corporation has been
organized and existing continuously for a period of one year
immediately preceding the filing of the certificate or a responsible
managing employee, partner, or officer has been previously registered
under this chapter.
(4) A statement that the partnership or corporation will perform
its duties as a process server in compliance with the provisions of
law governing the service of process in this state.
SEC. 4. Section 22351.5 is added to the Business and Professions
Code, to read:
22351.5. (a) At the time of filing the initial certificate of
registration, the registrant shall also submit two completed
fingerprint cards, for submission to the Department of Justice and
the Federal Bureau of Investigation, in order to verify that the
registrant has not been convicted of a felony.
(b) If, after processing the completed fingerprint cards, the
clerk is advised that the registrant has been convicted of a felony,
the presiding judge of the Superior Court of the county in which the
certificate of registration is maintained is authorized to review the
criminal record and notify the registrant that the registration is
revoked.
SEC. 5. Section 22352 of the Business and Professions Code is
repealed.
SEC. 6. Section 22352 is added to the Business and Professions
Code, to read:
22352. At the time of filing the initial certificate of
registration, a registrant shall pay the following fees to the county
clerk:
(a) A fee of one hundred dollars ($100).
(b) A fee to cover the actual costs of processing the completed
fingerprint cards when submitted with the initial certificate of
registration.
(c) A fee to cover the actual cost of issuing a registered process
server identification card.
SEC. 7. Section 22355 of the Business and Professions Code is
amended to read:
22355. (a) The county clerk shall maintain a register of process
servers and assign a number and issue an identification card to each
process server. Upon renewal of a certificate of registration, the
same number shall be assigned, provided there is no lapse in the
period of registration.
(b) The identification card shall be a card 33/8 inches by 21/4
inches and shall contain at the top the title, "Registered Process
Server," followed by the registrant's name, address, registration
number, date of expiration, and county of registration. In the case
of a natural person, it shall also contain a photograph of the
registrant in the lower left corner.
SEC. 8. Section 22356.5 of the Business and Professions Code is
amended to read:
22356.5. (a) In addition to the information required by
subdivision (b) of Section 22360, any proof of service of any process
which is signed by an independent contractor of a registrant under
this chapter shall indicate that the proof of service was signed as
an independent contractor of a registered process server. The proof
of service shall indicate the county of registration and the number
assigned pursuant to Section 22355 of both the independent contractor
and the entity registered under this chapter.
(b) No registrant shall permit any individual to sign any proof of
service of any process as an independent contractor unless all of
the following conditions are met:
(1) The independent contractor is performing pursuant to a written
independent contractor agreement with the registrant.
(2) The independent contractor supplies proof of bonding under
Section 22353, if applicable.
(3) The registrant exercises minimal supervision or control over
the means of accomplishing the service of any process assigned by the
registrant. The registrant may communicate a deadline for the
service of process and request notification that such service has
been completed.
(4) The registrant imposes no restrictions on the independent
contractor's ability to perform services for others registered under
this chapter.
(5) The independent contractor supplies proof that any required
business licenses have been obtained.
(c) Persons not meeting the criteria of subdivision (b) shall be
treated as employees of the registrant while persons meeting the
criteria of subdivision (b) shall be treated as independent
contractors.
(d) This section shall not preclude an independent determination
of employment under any other provision of law.
SEC. 9. Section 22360 of the Business and Professions Code is
amended to read:
22360. Any proof of service of any process which is signed by a
registrant under this chapter shall indicate the county in which he
or she is registered and the number assigned to him or her by Section
22355.
SEC. 10. Section 1985.3 of the Code of Civil Procedure is amended
to read:
1985.3. (a) For purposes of this section, the following
definitions apply:
(1) "Personal records" means the original or any copy of books,
documents, or other writings pertaining to a consumer and which are
maintained by any "witness" which is a physician, chiropractor,
veterinarian, veterinary hospital, veterinary clinic, pharmacist,
pharmacy, hospital, state or national bank, state or federal
association (as defined in Section 5102 of the Financial Code), state
or federal credit union, trust company, anyone authorized by this
state to make or arrange loans that are secured by real property,
security brokerage firm, insurance company, title insurance company,
underwritten title company, escrow agent licensed pursuant to
Division 6 (commencing with Section 17000) of the Financial Code or
exempt from licensure pursuant to Section 17006 of the Financial
Code, attorney, accountant, institution of the Farm Credit System, as
specified in Section 2002 of Title 12 of the United States Code, or
telephone corporation which is a public utility, as defined in
Section 216 of the Public Utilities Code, or psychotherapist, as
defined in Section 1010 of the Evidence Code, or a private or public
preschool, elementary school, or secondary school.
(2) "Consumer" means any individual, partnership of five or fewer
persons, association, or trust which has transacted business with, or
has used the services of, the witness or for whom the witness has
acted as agent or fiduciary.
(3) "Subpoenaing party" means the person or persons causing a
subpoena duces tecum to be issued or served in connection with any
civil action or proceeding pursuant to this code, but shall not
include the state or local agencies described in Section 7465 of the
Government Code, or any entity provided for under Article VI of the
California Constitution in any proceeding maintained before an
adjudicative body of that entity pursuant to Chapter 4 (commencing
with Section 6000) of Division 3 of the Business and Professions
Code.
(4) "Deposition officer" means a person who meets the
qualifications specified in paragraph (3) of subdivision (d) of
Section 2020.
(b) The date specified in a subpoena duces tecum for the
production of personal records shall not be less than 15 days from
the date the subpoena is issued. Prior to the date called for in the
subpoena duces tecum for the production of personal records, the
subpoenaing party shall serve or cause to be served on the consumer
whose records are being sought a copy of the subpoena duces tecum, of
the affidavit supporting the issuance of the subpoena, and of the
notice described in subdivision (e). This service shall be made as
follows:
(1) To the consumer personally, or at his or her last known
address, or in accordance with Chapter 5 (commencing with Section
1010) of Title 14 of Part 3, or, if he or she is a party, to his or
her attorney of record. If the consumer is a minor, service shall be
made on the minor's parent, guardian, conservator, or similar
fiduciary, or if one of them cannot be located with reasonable
diligence, then service shall be made on any person having the care
or control of the minor or with whom the minor resides or by whom the
minor is employed, and on the minor if the minor is at least 12
years of age.
(2) Not less than 10 days prior to the date for production
specified in the subpoena duces tecum, plus the additional time
provided by Section 1013 if service is by mail.
(3) At least five days prior to service upon the custodian of the
records, plus the additional time provided by Section 1013 if service
is by mail.
(c) Prior to the production of the records, the subpoenaing party
shall do either of the following:
(1) Serve or cause to be served upon the witness a proof of
personal service or of service by mail attesting to compliance with
subdivision (b).
(2) Furnish the witness a written authorization to release the
records signed by the consumer or by his or her attorney of record.
The witness may presume that any attorney purporting to sign the
authorization on behalf of the consumer acted with the consent of the
consumer.
(d) A subpoena duces tecum for the production of personal records
shall be served in sufficient time to allow the witness a reasonable
time to locate and produce the records or copies thereof.
Except as to records subpoenaed for a criminal proceeding or
records subpoenaed during trial, a subpoena duces tecum served upon a
witness with records in more than one location shall be served no
less than 10 days prior to the date specified for production, unless
good cause is shown pursuant to subdivision (h).
(e) Every copy of the subpoena duces tecum and affidavit served on
a consumer or his or her attorney in accordance with subdivision (b)
shall be accompanied by a notice, in a typeface designed to call
attention to the notice, indicating that (1) records about the
consumer are being sought from the witness named on the subpoena; (2)
if the consumer objects to the witness furnishing the records to the
party seeking the records, the consumer must file papers with the
court or serve a written objection as provided in subdivision (g)
prior to the date specified for production on the subpoena; and (3)
if the party who is seeking the records will not agree in writing to
cancel or limit the subpoena, an attorney should be consulted about
the consumer's interest in protecting his or her rights of privacy.
If a notice of taking of deposition is also served, that other notice
may be set forth in a single document with the notice required by
this subdivision.
(f) A subpoena duces tecum for personal records maintained by a
telephone corporation which is a public utility, as defined in
Section 216 of the Public Utilities Code, shall not be valid or
effective unless it includes a consent to release, signed by the
consumer whose records are requested, as required by Section 2891 of
the Public Utilities Code.
(g) Any consumer whose personal records are sought by a subpoena
duces tecum and who is a party to the civil action in which this
subpoena duces tecum is served may, prior to the date for production,
bring a motion under Section 1987.1 to quash or modify the subpoena
duces tecum. Notice of the bringing of that motion shall be given to
the witness and deposition officer prior to production. The failure
to provide notice to the deposition officer shall not invalidate the
motion to quash or modify the subpoena duces tecum.
Any other consumer whose personal records are sought by a subpoena
duces tecum may, prior to the date of production, serve on the
requesting party and the witness a written objection that specifies
the specific grounds on which production of the personal records
should be prohibited.
No witness or deposition officer shall be required to produce
personal records after receipt of notice that such a motion has been
brought, except upon order of the court in which the action is
pending or by agreement of the parties, witnesses, and consumers
affected. No witness shall be required to produce personal records
after service of a written objection by a nonparty consumer, except
upon order of the court in which the action is pending or by
agreement of the parties, witnesses, and consumers affected.
The party requesting a consumer's personal records may bring a
motion under Section 1987.1 to enforce the subpoena within 20 days of
service of the written objection. The motion shall be accompanied
by a declaration showing a reasonable and good faith attempt at
informal resolution of the dispute between the party requesting the
personal records and the consumer or the consumer's attorney.
(h) Upon good cause shown and provided that the rights of
witnesses and consumers are preserved, a subpoenaing party shall be
entitled to obtain an order shortening the time for service of a
subpoena duces tecum or waiving the requirements of subdivision (b)
where due diligence by the subpoenaing party has been shown.
(i) Nothing contained in this section shall be construed to apply
to any subpoena duces tecum which does not request the records of any
particular consumer or consumers and which requires a custodian of
records to delete all information which would in any way identify any
consumer whose records are to be produced.
(j) This section shall not apply to proceedings conducted under
Division 1 (commencing with Section 50), Division 4 (commencing with
Section 3200), Division 4.5 (commencing with Section 6100), or
Division 4.7 (commencing with Section 6200) of the Labor Code.
(k) Failure to comply with this section shall be sufficient basis
for the witness to refuse to produce the personal records sought by a
subpoena duces tecum.
SEC. 11. Section 1985.6 of the Code of Civil Procedure is amended
to read:
1985.6. (a) For purposes of this section, the following
definitions apply:
(1) "Employment records" means the original or any copy of books,
documents, or other writings pertaining to the employment of any
employee maintained by the current or former employer of the
employee.
(2) "Employee" means any individual who is or has been employed by
a witness subject to a subpoena duces tecum.
(3) "Subpoenaing party" means the person or persons causing a
subpoena duces tecum to be issued or served in connection with any
civil action or proceeding, but shall not include the state or local
agencies described in Section 7465 of the Government Code, or any
entity provided for under Article VI of the California Constitution
in any proceeding maintained before an adjudicative body of that
entity pursuant to Chapter 4 (commencing with Section 6000) of
Division 3 of the Business and Professions Code.
(4) "Deposition officer" means a person who meets the
qualifications specified in paragraph (3) of subdivision (d) of
Section 2020.
(b) The date specified in a subpoena duces tecum for the
production of employment records shall not be less than 15 days from
the date the subpoena is issued. Prior to the date called for in the
subpoena duces tecum of the production of employment records, the
subpoenaing party shall serve or cause to be served on the employee
whose records are being sought a copy of: the subpoena duces tecum;
the affidavit supporting the issuance of the subpoena, if any; and
the notice described in subdivision (e). This service shall be made
as follows:
(1) To the employee personally, or at his or her last known
address, or in accordance with Chapter 5 (commencing with Section
1010) of Title 14 of Part 3, or, if he or she is a party, to his or
her attorney of record. If the employee is a minor, service shall be
made on the minor's parent, guardian, conservator, or similar
fiduciary, or if one of them cannot be located with reasonable
diligence, then service shall be made on any person having the care
or control of the minor, or with whom the minor resides, and on the
minor if the minor is at least 12 years of age.
(2) Not less than 10 days prior to the date for production
specified in the subpoena duces tecum, plus the additional time
provided by Section 1013 if service is by mail.
(3) At least five days prior to service upon the custodian of the
employment records, plus the additional time provided by Section 1013
if service is by mail.
(c) Prior to the production of the records, the subpoenaing party
shall either:
(1) Serve or cause to be served upon the witness a proof of
personal service or of service by mail attesting to compliance with
subdivision (b).
(2) Furnish the witness a written authorization to release the
records signed by the employee or by his or her attorney of record.
The witness may presume that the attorney purporting to sign the
authorization on behalf of the employee acted with the consent of the
employee.
(d) A subpoena duces tecum for the production of employment
records shall be served in sufficient time to allow the witness a
reasonable time to locate and produce the records or copies thereof.
Except as to records subpoenaed for a criminal proceeding or
records subpoenaed during trial, a subpoena duces tecum served upon a
witness with records in more than one location shall be served no
less than 10 days prior to the date specified for production, unless
good cause is shown pursuant to subdivision (g).
(e) Every copy of the subpoena duces tecum and affidavit served on
an employee or his or her attorney in accordance with subdivision
(b) shall be accompanied by a notice, in a typeface designed to call
attention to the notice, indicating that (1) employment records about
the employee are being sought from the witness named on the
subpoena; (2) the employment records may be protected by a right of
privacy; (3) if the employee objects to the witness furnishing the
records to the party seeking the records the employee shall file
papers with the court prior to the date specified for production on
the subpoena; and (4) if the subpoenaing party does not agree in
writing to cancel or limit the subpoena, an attorney should be
consulted about the employee's interest in protecting his or her
rights of privacy. If a notice of taking of deposition is also
served, that other notice may be set forth in a single document with
the notice required by this subdivision.
(f) Any employee whose employment records are sought by a subpoena
duces tecum may, prior to the date for production, bring a motion
under Section 1987.1 to quash or modify the subpoena duces tecum.
Notice of the bringing of that motion shall be given to the witness
and the deposition officer at least five days prior to production.
The failure to provide notice to the deposition officer shall not
invalidate the motion to quash or modify the subpoena duces tecum.
Any nonparty employee whose employment records are sought by a
subpoena duces tecum may, prior to the date of production, serve on
the requesting party and the witness a written objection that
specifies the specific grounds on which production of the employment
records should be prohibited.
No witness shall be required to produce employment records after
receipt of notice that such a motion has been brought, except upon
order of the court in which the action is pending or by agreement of
the parties, witnesses, and employees affected. No witness shall be
required to produce employment records after service of a written
objection by a nonparty employee, except upon order of the court in
which the action is pending or by agreement of the parties,
witnesses, and employees affected.
The party requesting an employee's employment records may bring a
motion under subdivision (c) of Section 1987 to enforce the subpoena
within 20 days of service of the written objection. The motion shall
be accompanied by a declaration showing a reasonable and good faith
attempt at informal resolution of the dispute between the party
requesting the employment records and the employee or the employee's
attorney.
(g) Upon good cause shown and provided that the rights of witness
and employees are preserved, a subpoenaing party shall be entitled to
obtain an order shortening the time for service of a subpoena duces
tecum or waiving the requirements of subdivision (b) where due
diligence by the subpoenaing party has been shown.
(h) Nothing contained in this section shall be construed to apply
to any subpoena duces tecum which does not request the records of any
particular employee or employees and which requires a custodian of
records to delete all information which would in any way identify any
employee whose records are to be produced.
(i) This section shall not apply to proceedings conducted under
Division 1 (commencing with Section 50), Division 4 (commencing with
Section 3200), Division 4.5 (commencing with Section 6100), or
Division 4.7 (commencing with Section 6200) of the Labor Code.
(j) Failure to comply with this section shall be sufficient basis
for the witness to refuse to produce the employment records sought by
subpoena duces tecum.
SEC. 12. Section 1987.1 of the Code of Civil Procedure is amended
to read:
1987.1. When a subpoena requires the attendance of a witness or
the production of books, documents or other things before a court, or
at the trial of an issue therein, or at the taking of a deposition,
the court, upon motion reasonably made by the party, the witness, or
any consumer described in Section 1985.3, or upon the court's own
motion after giving counsel notice and an opportunity to be heard,
may make an order quashing the subpoena entirely, modifying it, or
directing compliance with it upon such terms or conditions as the
court shall declare, including protective orders. In addition, the
court may make any other order as may be appropriate to protect the
parties, the witness, or the consumer from unreasonable or oppressive
demands including unreasonable violations of a witness's or consumer'
s right of privacy. Nothing herein shall require any witness or
party to move to quash, modify, or condition any subpoena duces tecum
of personal records of any consumer served under paragraph (1) of
subdivision (b) of Section 1985.3.
SEC. 13. Section 4406 of the Commercial Code, as amended by
Section 29 of Chapter 589 of the Statutes of 1993, is amended to
read:
4406. (a) A bank that sends or makes available to a customer a
statement of account showing payment of items for the account shall
either return or make available to the customer the items paid or
provide information in the statement of account sufficient to allow
the customer reasonably to identify the items paid. The statement of
account provides sufficient information if the item is described by
item number, amount, and date of payment. If the bank does not
return the items, it shall provide in the statement of account the
telephone number that the customer may call to request an item or a
legible copy thereof pursuant to subdivision (b).
(b) If the items are not returned to the customer, the person
retaining the items shall either retain the items or, if the items
are destroyed, maintain the capacity to furnish legible copies of the
items until the expiration of seven years after receipt of the
items. A customer may request an item from the bank that paid the
item, and that bank shall provide in a reasonable time either the
item or, if the item has been destroyed or is not otherwise
obtainable, a legible copy of the item. A bank shall provide, upon
request and without charge to the customer, at least two items or a
legible copy thereof with respect to each statement of account sent
to the customer.
(c) If a bank sends or makes available a statement of account or
items pursuant to subdivision (a), the customer shall exercise
reasonable promptness in examining the statement or the items to
determine whether any payment was not authorized because of an
alteration of an item or because a purported signature by or on
behalf of the customer was not authorized. If, based on the
statement or items provided, the customer should reasonably have
discovered the unauthorized payment, the customer shall promptly
notify the bank of the relevant facts.
(d) If the bank proves that the customer failed, with respect to
an item, to comply with the duties imposed on the customer by
subdivision (c), the customer is precluded from asserting any of the
following against the bank:
(1) The customer's
unauthorized signature or any alteration on the item if the bank
also proves that it suffered a loss by reason of the failure.
(2) The customer's unauthorized signature or alteration by the
same wrongdoer on any other item paid in good faith by the bank if
the payment was made before the bank received notice from the
customer of the unauthorized signature or alteration and after the
customer had been afforded a reasonable period of time, not exceeding
30 days, in which to examine the item or statement of account and
notify the bank.
(e) If subdivision (d) applies and the customer proves that the
bank failed to exercise ordinary care in paying the item and that the
failure contributed to loss, the loss is allocated between the
customer precluded and the bank asserting the preclusion according to
the extent to which the failure of the customer to comply with
subdivision (c) and the failure of the bank to exercise ordinary care
contributed to the loss. If the customer proves that the bank did
not pay the item in good faith, the preclusion under subdivision (d)
does not apply.
(f) Without regard to care or lack of care of either the customer
or the bank, a customer who does not within one year after the
statement or items are made available to the customer (subdivision
(a)) discover and report the customer's unauthorized signature on or
any alteration on the item is precluded from asserting against the
bank the unauthorized signature or alteration. If there is a
preclusion under this subdivision, the payer bank may not recover for
breach of warranty under Section 4208 with respect to the
unauthorized signature or alteration to which the preclusion applies.
(g) This section shall remain in effect only until January 1,
2001, and as of that date is repealed, unless a later enacted
statute, which is enacted before January 1, 2001, deletes or extends
that date.
SEC. 14. Section 4406 of the Commercial Code, as amended by
Section 30 of Chapter 589 of the Statutes of 1993, is amended to
read:
4406. (a) A bank that sends or makes available to a customer a
statement of account showing payment of items for the account shall
either return or make available to the customer the items paid or
provide information in the statement of account sufficient to allow
the customer to identify the items paid. If the bank does not return
the items, it shall provide in the statement of account the
telephone number that the customer may call to request an item or a
legible copy thereof pursuant to subdivision (b).
(b) If the items are not returned to the customer, the person
retaining the items shall either retain the items or, if the items
are destroyed, maintain the capacity to furnish legible copies of the
items until the expiration of seven years after receipt of the
items. A customer may request an item from the bank that paid the
item, and that bank shall provide in a reasonable time either the
item or, if the item has been destroyed or is not otherwise
obtainable, a legible copy of the item. A bank shall provide, upon
request and without charge to the customer, at least two items or a
legible copy thereof with respect to each statement of account sent
to the customer.
(c) If a bank sends or makes available a statement of account or
items pursuant to subdivision (a), the customer shall exercise
reasonable promptness in examining the statement or the items to
determine whether any payment was not authorized because of an
alteration of an item or because a purported signature by or on
behalf of the customer was not authorized. If, based on the
statement or items provided, the customer should reasonably have
discovered the unauthorized payment, the customer shall promptly
notify the bank of the relevant facts.
(d) If the bank proves that the customer failed, with respect to
an item, to comply with the duties imposed on the customer by
subdivision (c), the customer is precluded from asserting any of the
following against the bank:
(1) The customer's unauthorized signature or any alteration on the
item if the bank also proves that it suffered a loss by reason of
the failure.
(2) The customer's unauthorized signature or alteration by the
same wrongdoer on any other item paid in good faith by the bank if
the payment was made before the bank received notice from the
customer of the unauthorized signature or alteration and after the
customer had been afforded a reasonable period of time, not exceeding
30 days, in which to examine the item or statement of account and
notify the bank.
(e) If subdivision (d) applies and the customer proves that the
bank failed to exercise ordinary care in paying the item and that the
failure contributed to loss, the loss is allocated between the
customer precluded and the bank asserting the preclusion according to
the extent to which the failure of the customer to comply with
subdivision (c) and the failure of the bank to exercise ordinary care
contributed to the loss. If the customer proves that the bank did
not pay the item in good faith, the preclusion under subdivision (d)
does not apply.
(f) Without regard to care or lack of care of either the customer
or the bank, a customer who does not within one year after the
statement or items are made available to the customer (subdivision
(a)) discover and report the customer's unauthorized signature on or
any alteration on the item is precluded from asserting against the
bank the unauthorized signature or alteration. If there is a
preclusion under this subdivision, the payer bank may not recover for
breach of warranty under Section 4208 with respect to the
unauthorized signature or alteration to which the preclusion applies.
(g) This section shall become operative on January 1, 2001.
SEC. 15. Section 1158 of the Evidence Code is amended to read:
1158. Whenever, prior to the filing of any action or the
appearance of a defendant in an action, an attorney at law or his or
her representative presents a written authorization therefor signed
by an adult patient, by the guardian or conservator of his or her
person or estate, or, in the case of a minor, by a parent or guardian
of the minor, or by the personal representative or an heir of a
deceased patient, or a copy thereof, a physician and surgeon,
dentist, registered nurse, dispensing optician, registered physical
therapist, podiatrist, licensed psychologist, osteopathic physician
and surgeon, chiropractor, clinical laboratory bioanalyst, clinical
laboratory technologist, or pharmacist or pharmacy, duly licensed as
such under the laws of the state, or a licensed hospital, shall make
all of the patient's records under his, hers or its custody or
control available for inspection and copying by the attorney at law
or his, or her, representative, promptly upon the presentation of the
written authorization.
No copying may be performed by any medical provider or employer
enumerated above, or by an agent thereof, when the requesting
attorney has employed a professional photocopier or anyone identified
in Section 22451 of the Business and Professions Code as his or her
representative to obtain or review the records on his or her behalf.
The presentation of the authorization by the agent on behalf of the
attorney shall be sufficient proof that the agent is the attorney's
representative.
Failure to make the records available, during business hours,
within five days after the presentation of the written authorization,
may subject the person or entity having custody or control of the
records to liability for all reasonable expenses, including attorney'
s fees, incurred in any proceeding to enforce this section.
All reasonable costs incurred by any person or entity enumerated
above in making patient records available pursuant to this section
may be charged against the person whose written authorization
required the availability of the records.
"Reasonable cost," as used in this section, shall include, but not
be limited to, the following specific costs: ten cents ($0.10) per
page for standard reproduction of documents of a size 81/2 by 14
inches or less; twenty cents ($0.20) per page for copying of
documents from microfilm; actual costs for the reproduction of
oversize documents or the reproduction of documents requiring special
processing which are made in response to an authorization;
reasonable clerical costs incurred in locating and making the records
available to be billed at the maximum rate of sixteen dollars ($16)
per hour per person, computed on the basis of four dollars ($4) per
quarter hour or fraction thereof; actual postage charges; and actual
costs, if any, charged to the witness by a third person for the
retrieval and return of records held by that third person.
Where the records are delivered to the attorney or the attorney's
representative for inspection or photocopying at the record custodian'
s place of business, the only fee for complying with the
authorization shall not exceed fifteen dollars ($15), plus actual
costs, if any, charged to the record custodian by a third person for
retrieval and return of records held offsite by the third person.
SEC. 16. Section 1560 of the Evidence Code is amended to read:
1560. (a) As used in this article:
(1) "Business" includes every kind of business described in
Section 1270.
(2) "Record" includes every kind of record maintained by such a
business.
(b) Except as provided in Section 1564, when a subpoena duces
tecum is served upon the custodian of records or other qualified
witness of a business in an action in which the business is neither a
party nor the place where any cause of action is alleged to have
arisen, and the subpoena requires the production of all or any part
of the records of the business, it is sufficient compliance therewith
if the custodian or other qualified witness, within five days after
the receipt of the subpoena in any criminal action or within the time
agreed upon by the party who served the subpoena and the custodian
or other qualified witness, or within 15 days after the receipt of
the subpoena in any civil action or within the time agreed upon by
the party who served the subpoena and the custodian or other
qualified witness, delivers by mail or otherwise a true, legible, and
durable copy of all the records described in the subpoena to the
clerk of the court or to the judge if there be no clerk or to such
other person as described in subdivision (c) of Section 2026 of the
Code of Civil Procedure, together with the affidavit described in
Section 1561.
(c) The copy of the records shall be separately enclosed in an
inner envelope or wrapper, sealed, with the title and number of the
action, name of witness, and date of subpoena clearly inscribed
thereon; the sealed envelope or wrapper shall then be enclosed in an
outer envelope or wrapper, sealed, and directed as follows:
(1) If the subpoena directs attendance in court, to the clerk of
such court, or to the judge thereof if there be no clerk.
(2) If the subpoena directs attendance at a deposition, to the
officer before whom the deposition is to be taken, at the place
designated in the subpoena for the taking of the deposition or at the
officer's place of business.
(3) In other cases, to the officer, body, or tribunal conducting
the hearing, at a like address.
(d) Unless the parties to the proceeding otherwise agree, or
unless the sealed envelope or wrapper is returned to a witness who is
to appear personally, the copy of the records shall remain sealed
and shall be opened only at the time of trial, deposition, or other
hearing, upon the direction of the judge, officer, body, or tribunal
conducting the proceeding, in the presence of all parties who have
appeared in person or by counsel at the trial, deposition, or
hearing. Records which are original documents and which are not
introduced in evidence or required as part of the record shall be
returned to the person or entity from whom received. Records which
are copies may be destroyed.
(e) As an alternative to the procedures described in subdivisions
(b), (c), and (d), the subpoenaing party may direct the witness to
make the records available for inspection or copying by the party's
attorney or the attorney's representative at the witness' business
address under reasonable conditions during normal business hours.
Normal business hours, as used in this subdivision, means those hours
that the business of the witness is normally open for business to
the public. It shall be the responsibility of the attorney's
representative to deliver any copy of the records as directed in the
subpoena.
SEC. 17. Section 1563 of the Evidence Code is amended to read:
1563. (a) This article shall not be interpreted to require tender
or payment of more than one witness fee and one mileage fee or other
charge unless there is an agreement to the contrary.
(b) All reasonable costs incurred in a civil proceeding by any
witness which is not a party with respect to the production of all or
any part of business records the production of which is requested
pursuant to a subpoena duces tecum may be charged against the party
serving the subpoena duces tecum.
(1) "Reasonable cost," as used in this section, shall include, but
not be limited to, the following specific costs: ten cents ($0.10)
per page for standard reproduction of documents of a size 81/2 by 14
inches or less; twenty cents ($0.20) per page for copying of
documents from microfilm; actual costs for the reproduction of
oversize documents or the reproduction of documents requiring special
processing which are made in response to a subpoena; reasonable
clerical costs incurred in locating and making the records available
to be billed at the maximum rate of sixteen dollars ($16) per hour
per person, computed on the basis of four dollars ($4) per quarter
hour or fraction thereof; actual postage charges; and actual costs,
if any, charged to the witness by a third person for the retrieval
and return of records held by that third person.
(2) The requesting party shall not be required to pay those costs
or any estimate thereof prior to the time the records are available
for delivery pursuant to the subpoena, but the witness may demand
payment of costs pursuant to this section simultaneous with actual
delivery of the subpoenaed records, and until such time as payment is
made, is under no obligation to deliver the records.
(3) The witness shall submit an itemized statement for the costs
to the requesting party setting forth the reproduction and clerical
costs incurred by the witness. Upon demand by the requesting party,
the witness shall furnish a statement setting forth the actions taken
by the witness in justification of the costs.
(4) The requesting party may petition the court in which the
action is pending to recover from the witness all or a part of the
costs paid to the witness, or to reduce all or a part of the costs
charged by the witness, pursuant to this subdivision, on the grounds
that such costs were excessive. Upon the filing of the petition the
court shall issue an order to show cause and from the time the order
is served on the witness the court has jurisdiction over the witness.
The court may hear testimony on the order to show cause and if it
finds that the costs demanded and collected, or charged but not
collected, exceed the amount authorized by this subdivision, it shall
order the witness to remit to the requesting party, or reduce its
charge to the requesting party by an amount equal to, the amount of
the excess. In the event that the court finds the costs excessive
and charged in bad faith by the witness, the court shall order the
witness to remit the full amount of the costs demanded and collected,
or excuse the requesting party from any payment of costs charged but
not collected, and the court shall also order the witness to pay the
requesting party the amount of the reasonable expenses incurred in
obtaining the order including attorney's fees. If the court finds
the costs were not excessive, the court shall order the requesting
party to pay the witness the amount of the reasonable expenses
incurred in defending the petition, including attorney's fees.
(5) If a subpoena is served to compel the production of business
records and is subsequently withdrawn, or is quashed, modified or
limited on a motion made other than by the witness, the witness shall
be entitled to reimbursement pursuant to paragraph (1) for all costs
incurred in compliance with the subpoena to the time that the
requesting party has notified the witness that the subpoena has been
withdrawn or quashed, modified or limited. In the event the subpoena
is withdrawn or quashed, if those costs are not paid within 30 days
after demand therefor, the witness may file a motion in the court in
which the action is pending for an order requiring payment, and the
court shall award the payment of expenses and attorney's fees in the
manner set forth in paragraph (4).
(6) Where the records are delivered to the attorney or the
attorney's representative for inspection or photocopying at the
witness' place of business, the only fee for complying with the
subpoena shall not exceed fifteen dollars ($15), plus actual costs,
if any, charged to the witness by a third person for retrieval and
return of records held offsite by the third person. If the records
are retrieved from microfilm, the reasonable cost, as defined in
paragraph (1), shall also apply.
(c) When the personal attendance of the custodian of a record or
other qualified witness is required pursuant to Section 1564, in a
civil proceeding, he or she shall be entitled to the same witness
fees and mileage permitted in a case where the subpoena requires the
witness to attend and testify before a court in which the action or
proceeding is pending and to any additional costs incurred as
provided by subdivision (b).
SEC. 18. No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution for certain
costs that may be incurred by a local agency or school district
because in that regard this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIIIB of the California Constitution.
However, notwithstanding Section 17610 of the Government Code, if
the Commission on State Mandates determines that this act contains
other costs mandated by the state, reimbursement to local agencies
and school districts for those costs shall be made pursuant to Part 7
(commencing with Section 17500) of Division 4 of Title 2 of the
Government Code. If the statewide cost of the claim for
reimbursement does not exceed one million dollars ($1,000,000),
reimbursement shall be made from the State Mandates Claims Fund.
Notwithstanding Section 17580 of the Government Code, unless
otherwise specified, the provisions of this act shall become
operative on the same date that the act takes effect pursuant to the
California Constitution.