BILL NUMBER: AB 1094 CHAPTERED
BILL TEXT
CHAPTER 932
FILED WITH SECRETARY OF STATE SEPTEMBER 28, 1998
APPROVED BY GOVERNOR SEPTEMBER 28, 1998
PASSED THE ASSEMBLY AUGUST 29, 1998
PASSED THE SENATE AUGUST 26, 1998
AMENDED IN SENATE AUGUST 24, 1998
AMENDED IN SENATE AUGUST 20, 1998
AMENDED IN SENATE AUGUST 10, 1998
AMENDED IN SENATE JULY 28, 1998
AMENDED IN SENATE JULY 2, 1998
AMENDED IN SENATE JUNE 17, 1998
AMENDED IN SENATE MAY 19, 1998
AMENDED IN SENATE MAY 11, 1998
AMENDED IN ASSEMBLY JANUARY 20, 1998
AMENDED IN ASSEMBLY JANUARY 8, 1998
INTRODUCED BY Committee on Judiciary (Escutia (Chair), Morrow (Vice
Chair), Alby, Aroner, Baugh, Figueroa, Keeley, Kuehl, Ortiz,
Pacheco, Shelley, and Villaraigosa)
FEBRUARY 27, 1997
An act to amend Sections 6301.1, 8030.2, 8030.4, 8030.6, 8030.8,
and 22350 of the Business and Professions Code, to amend Sections
1793.23, 2924c, 2924j, and 2924.3 of the Civil Code, to amend
Sections 77, 200, 484.70, 484.350, 569, 701.040, 1005, 1985.3,
1985.6, 2024, 2025, and 2031 of, and to repeal Section 87 of, the
Code of Civil Procedure, to amend Sections 8603, 9501, 9502, and 9504
of the Commercial Code, to amend Sections 8023, 8040, and 8201 of
the Elections Code, to amend Sections 400 and 4251 of the Family
Code, to amend Sections 21290, 68152, 68511.3, 75050, and 76219 of
the Government Code, to amend Sections 33502 and 115800.1 of the
Health and Safety Code, to amend Sections 1368 and 11165.8 of the
Penal Code, and to amend Section 5 of Chapter 1125 of the Statutes of
1990, relating to civil actions and proceedings, and making an
appropriation therefor.
LEGISLATIVE COUNSEL'S DIGEST
AB 1094, Committee on Judiciary. Civil actions.
Existing law makes provision for the membership of the board of
law library trustees in San Diego County, one of whom is designated
as an attorney who is a member of the "San Diego Bar Association."
This bill would change that reference to the San Diego County Bar
Association.
Existing law provides for the creation of a Court Reporters Board
of California in the Department of Consumer Affairs and establishes a
Transcript Reimbursement Fund, administered by the board, to be
funded by a transfer of moneys from the Court Reporter Fund for the
purpose of reimbursing the costs of shorthand reporting services
provided to indigent and low-income civil litigants. The fund is
continuously appropriated for that purpose. These funding and
reimbursement provisions are set to become inoperative on July 1,
1999, and repealed effective January 1, 2000.
This bill would extend those termination dates to July 1, 2001,
and January 1, 2002, respectively. Because of the extension of the
existence of the Transcript Reimbursement Fund and its purposes, the
bill would make an appropriation.
Existing law exempts specified persons from the requirement to
register as a process server.
This bill would also exempt a registered professional photocopier
from registering as a process server, if his or her service of
process is limited to subpoenas for the production of records, which
subpoenas specify that the records be copied by that registered
professional photocopier.
Existing law governs the procedure for a trustee's sale of real
property.
This bill would require the proceeds of a trustee's sale of real
property to be paid within 30 days after the conclusion of the period
for notice to creditors if there is no dispute as to the priority of
written claims submitted to the trustee, and would specify the
action required of a trustee, if he or she fails to determine the
priority of written claims within 90 days following the 30-day notice
period.
Existing law provides for the appellate department of the superior
court, as specified.
This bill would provide that the Chief Justice may designate any
municipal court judge as a member of the appellate department of the
superior court in specified circumstances.
Under existing law, when authorized by local superior court rules,
a municipal court district pursuant to duly adopted court rules may
use the same juror pool as that summoned for use in the superior
court, with the exception of Alameda County. In Los Angeles County,
the municipal courts are required to use the same jury pool as that
summoned for use in the superior court.
This bill would delete the exception regarding Alameda County.
Existing law provides that a party to a civil action may move for
summary adjudication as to one or more civil causes of action upon
various grounds, including that there is no merit to a claim for
damages, as specified in the section governing exemplary damages.
This bill would delete reference to the section governing
exemplary damages, extending the authorization to any claim for
damages.
Existing law provides for a claim of exemption from attachment to
be filed and served on the plaintiff not less than 5 days before the
hearing on the application for attachment.
This bill would change that time requirement to 5 court days.
Existing law authorizes the investment for interest of funds in
the hands of a receiver only upon order of the court with the consent
of all the parties.
This bill would instead authorize the investment of funds in the
hands of a receiver in interest bearing accounts with specified
financial institutions without an order of the court or the consent
of the parties.
Existing law provides for the times for serving all moving and
supporting papers prior to a civil hearing.
This bill would require the moving and supporting papers to be a
copy of the papers filed with the court.
Existing law revises the rights and remedies of the parties under
a security agreement operative January 1, 1999.
This bill would change the operative date to January 1, 2002.
Existing law requires a candidate for the office of judge of the
superior or municipal court to file a declaration of intention to
become a candidate. Existing law requires all candidates for a
judicial office to file a declaration of candidacy.
This bill would provide that no candidate for a judicial office
shall be required to state his or her residential address on a
declaration of intention to become a candidate or a declaration of
candidacy.
Existing law requires notice of a motion to produce personal
records of a consumer who is a party to a civil action to be given to
the witness and deposition officer prior to production.
This bill would require that notice to be given at least 5 days
prior to production.
Existing law prohibits a witness from being required to produce
employment records, as specified, except upon court order or
agreement of the parties, witnesses, and employees affected.
This bill would extend this provision to the production of
employment records by a deposition officer, and make related changes.
Existing law specifies certain time limits governing discovery in
civil actions and proceedings.
This bill would provide that when the last day to perform or
complete any act governed by those time limits falls on a Saturday,
Sunday, or holiday, as specified, the time limit is extended until
the next day not a Saturday, Sunday, or holiday.
Under existing law, the party to whom an inspection demand is
directed shall serve the response upon the other parties within 20
days after service of the inspection demand, except as specified.
This bill would extend the time limit for service of the response
from 20 to 30 days.
Existing law provides that where a corporation is a party in a
municipal court, it may appear through a director, officer, or
employee, whether or not the person is an attorney.
This bill would repeal that provision.
Under existing law, all actions filed by the district attorney or
by any other party for an order to establish, modify, or enforce
child or spousal support, including actions to establish paternity,
are referred to a child support commissioner in the superior court.
This bill would delete the reference to actions filed by any
party, other than the district attorney, for an order to establish,
modify, or enforce child support, or to establish paternity, and
would provide that all actions or proceedings filed by a party other
than the district attorney to modify or enforce a support order
established by the district attorney be referred to a child support
commissioner, as specified.
Under existing law, upon legal separation or dissolution of a
marriage, the court shall make whatever orders are necessary or
appropriate to ensure that each party receives his or her full
community property share in any retirement plan, pursuant to
provisions of the Family Code.
This bill would revise the cross-reference to the Family Code, as
specified.
Existing law specifies the time when various court records may be
destroyed.
This bill would revise time for the destruction of applications in
forma pauperis, as specified.
Existing law provides a framework for the expenditure of moneys
from the Robbins Courthouse Construction Fund or borrowed against the
fund for courtroom construction in Los Angeles County, and requires
that construction be within specified statistical areas, judicial
districts and communities, before further construction may begin.
This bill would make technical, nonsubstantive changes.
Existing law requires the Judicial Council to collect information
from the courts regarding injuries from in-line skating on public
property.
This bill would create a state-mandated local program by requiring
the appropriate local public agency to maintain a record of injuries
from in-line skating on public property, all claims, all lawsuits,
and the results thereof, and to file specified records with the
Judicial Council, which shall submit a report thereon to the
Legislature, as specified.
Under existing law, an inmate sentenced to imprisonment in a state
prison or confined in a county jail who files a civil action or
notice of appeal of a civil action in forma pauperis shall, in
addition to the form required for filing in forma pauperis, also file
a statement of account for any sums due to the inmate for the
6-month period immediately preceding the civil action or notice of
appeal, and this copy shall be certified by the appropriate official
of the Department of Corrections.
This bill would additionally provide that a county jail could
certify the inmate's statement of account.
Existing law provides for the rights of nonmembers in retirement
plans upon legal separation or dissolution of marriage, as specified.
This bill would revise the cross-reference to the Family Code, as
specified.
Existing law provides that a judge, during the pendency of an
action and prior to judgment, may address the issue of a defendant's
mental competence by stating any doubt in the record and inquiring of
the attorney for the defendant, as specified. Existing law also
provides that if the attorney for the defendant informs the court
that he or she believes the defendant is or may be mentally
incompetent, the court shall order a competency hearing, as
specified, and if found to be mentally incompetent, the jury shall be
discharged.
This bill would make technical, nonsubstantive changes.
Existing law, to the Child Abuse and Neglect Reporting Act,
imposes upon health practitioners the responsibility to report
observed or suspected child abuse to a child protective agency.
"Health practitioner" for purposes of that act means a physician or
surgeon, psychiatrist, psychologist, licensed nurse, or any other
person currently licensed pursuant to provisions of law regulating
healing arts.
This bill would add to that definition, a clinical social worker.
This bill would incorporate additional changes to Sections 77 and
200 of the Code of Civil Procedure, Section 400 of the Family Code,
and Section 68152 of the Government Code made by SB 2139, to be
operative if both this bill and SB 2139 are enacted and become
effective on or before January 1, 1999, and this bill is enacted
last.
This bill would also incorporate additional changes to Section
2025 of the Code of Civil Procedure made by SB 2145 and AB 2150, to
be operative if this bill and one or both of the other bills are
enacted and become effective on or before January 1, 1999, and this
bill is enacted last.
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, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
Appropriation: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 6301.1 of the Business and Professions Code is
amended to read:
6301.1. Notwithstanding Section 6301, in San Diego County the
board of law library trustees shall be constituted, as follows:
(a) Two judges of the superior court, to be elected by and from
judges in the San Diego County Judicial District. Each superior
court judge so elected shall serve a three-year term.
(b) Two judges from the municipal courts of the county. The
courts may, by joint agreement, determine the pattern of
representation on the board. Each municipal court judge so elected
shall serve a three-year term.
(c) The board of supervisors shall appoint three attorneys
resident in the county to the board of law library trustees, to serve
overlapping three-year terms. In order to stagger the three
appointments, the board of supervisors shall, in January of 1997,
appoint one attorney to a one-year term, one attorney to a two-year
term, and one attorney to a three-year term; and as each term
expires, the new appointee shall thereafter serve three-year terms.
At least one attorney appointed pursuant to this subdivision shall be
a member of the San Diego County Bar Association.
(d) In the event a trustee cannot serve a full term, the
appointing authority for that individual shall appoint another
qualified person to complete that term. Interim appointments may be
made by the board of law library trustees in accordance with Section
6305.
SEC. 2. Section 22350 of the Business and Professions Code is
amended 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.
(5) A professional photocopier registered under Section 22450
whose only service of process relates to subpoenas for the production
of records, which subpoenas specify that the records be copied by
that registered professional photocopier.
SEC. 3. Section 8030.2 of the Business and Professions Code is
amended to read:
8030.2. (a) To provide shorthand reporting services to low-income
litigants in civil cases, who are unable to otherwise afford those
services, funds generated by fees received by the board pursuant to
subdivision (c) of Section 8031 in excess of funds needed to support
the board's operating budget for the fiscal year in which a transfer
described below is made shall be used by the board for the purpose of
establishing and maintaining a Transcript Reimbursement Fund. The
Transcript Reimbursement Fund shall be established by a transfer of
funds from the Court Reporters' Fund and shall be maintained in an
amount no less than three hundred thousand dollars ($300,000) for
each fiscal year.
(b) All moneys held in the Court Reporters' Fund on the effective
date of this section in excess of the board's operating budget for
the 1996-97 fiscal year shall be used as provided in subdivision (a).
(c) Refunds and unexpended funds that are anticipated to remain in
the Transcript Reimbursement Fund at the end of the fiscal year
shall be considered by the board in establishing the fee assessment
pursuant to Section 8031 so that the assessment shall maintain the
Transcript Reimbursement Fund at the appropriate level in the
following fiscal year.
(d) The Transcript Reimbursement Fund is hereby created in the
State Treasury. Notwithstanding Section 13340 of the Government
Code, moneys in the Transcript Reimbursement Fund are continuously
appropriated for the purposes of this chapter.
(e) Applicants who have been reimbursed pursuant to this chapter
for services provided to litigants and who are awarded court costs or
attorneys' fees by judgment or by settlement agreement, shall refund
the full amount of that reimbursement to the fund within 90 days of
receipt of the award or settlement.
(f) Subject to the limitations of this chapter, the board shall
maintain the fund at a level that is sufficient to pay all qualified
claims. To accomplish this objective, the board shall utilize all
refunds, unexpended funds, fees, and any other moneys received by the
board.
(g) Notwithstanding Section 16346 of the Government Code, all
unencumbered funds remaining in the Transcript Reimbursement Fund as
of June 29, 2001, shall be transferred to the Court Reporters' Fund.
This section shall become inoperative on July 1, 2001, and, as of
January 1, 2002, is repealed, unless a later enacted statute, that
becomes operative on or before January 1, 2002, deletes or extends
the dates on which it becomes inoperative and is repealed.
SEC. 4. Section 8030.4 of the Business and Professions Code is
amended to read:
8030.4. As used in this chapter:
(a) "Qualified legal services project" means a nonprofit project
incorporated and operated exclusively in California that provides as
its primary purpose and function legal services without charge to
indigent persons, has a board of directors or advisory board composed
of both attorneys and consumers of legal services, and provides for
community participation in legal services programming. Legal
services projects funded either in whole or in part by the Legal
Services Corporation or with Older Americans Act funds are presumed
to be qualified legal services projects for the purposes of this
chapter.
(b) "Qualified support center" means an incorporated nonprofit
legal services center, having an office or offices in California,
which office or offices provide legal services or technical
assistance without charge to qualified legal services projects and
their clients on a multicounty basis in California. Support centers
funded either in whole or in part by the Legal Services Corporation
or with Older Americans Act funds are presumed to be qualified legal
services projects for the purposes of this chapter.
(c) "Other qualified project" means a nonprofit organization
formed for charitable or other public purposes, not receiving funds
from the Legal Services Corporation or pursuant to the Older
Americans Act, which organization or association provides free legal
services to indigent persons.
(d) "Pro bono attorney" means any attorney, law firm, or legal
corporation, licensed to practice law in this state, which undertakes
without charge to the party the representation of an indigent
person, referred by a qualified legal services project, qualified
support center, or other qualified project, in a case not considered
to be fee generating as defined in this chapter.
(e) "Applicant" means a qualified legal services project,
qualified support center, other qualified project, or pro bono
attorney applying to receive funds from the Transcript Reimbursement
Fund established by this chapter. The term "applicant" shall not
include persons appearing pro se to represent themselves at any stage
of the case.
(f) "Indigent person" means either a person whose income is 125
percent or less of the current poverty threshold established by the
Office of Management and Budget of the United States, a disabled
person whose income after meeting medical and other
disability-related special expenses is 125 percent or less of that
current poverty threshold, or a person who receives or is eligible to
receive supplemental security income.
(g) "Fee-generating case" means any case or matter which, if
undertaken on behalf of an eligible client by an attorney in private
practice, reasonably may be expected to result in payment of a fee
for legal services from an award to a client, from public funds, or
from an opposing party. A reasonable expectation as to payment of a
legal fee exists wherever a client enters into a contingent fee
agreement with his or her lawyer. If there is no contingent fee
agreement, a case is not considered fee generating if adequate
representation is deemed to be unavailable because of the occurrence
of any of the following circumstances:
(1) Where the applicant has determined that referral is not
possible because of any of the following:
(A) The case has been rejected by the local lawyer referral
service, or if there is no such service, by two private attorneys who
have experience in the subject matter of the case.
(B) Neither the referral service nor any lawyer will consider the
case without payment of a consultation fee.
(C) The case is of the type that private attorneys in the area
ordinarily do not accept, or do not accept without prepayment of a
fee.
(D) Emergency circumstances compel immediate action before
referral can be made, but the client is advised that, if appropriate
and consistent with professional responsibility, referral will be
attempted at a later time.
(2) Where recovery of damages is not the principal object of the
case and a request for damages is merely ancillary to an action for
equitable or other nonpecuniary relief; or inclusion of a
counterclaim requesting damages is necessary for effective defense or
because of applicable rules governing joinder of counterclaims.
(3) Where a court appoints an applicant or an employee of an
applicant pursuant to a statute or a court rule or practice of equal
applicability to all attorneys in the jurisdiction.
(4) In any case involving the rights of a claimant under a public
supported benefit program for which entitlement to benefit is based
on need.
(h) "Legal Services Corporation" means the Legal Services
Corporation established under the Legal Services Corporation Act of
1974, Public Law 93-355, as amended.
(i) "Supplemental security income recipient" means an individual
receiving or eligible to receive payments under Title XVI of the
Social Security Act, Public Law 92-603, as amended, or payment under
Chapter 3 (commencing with Section 12000) of Part 3 of Division 9 of
the Welfare and Institutions Code.
(j) "Lawyer referral service" means a lawyer referral program
authorized by the State Bar of California pursuant to the rules of
professional conduct.
(k) "Older Americans Act" means the Older Americans Act of 1965,
Public Law 89-73, as amended.
(l) "Rules of professional conduct" means those rules adopted by
the State Bar pursuant to Sections 6076 and 6077.
(m) "Certified shorthand reporter" means a shorthand reporter
certified pursuant to Article 3 (commencing with Section 8020)
performing shorthand reporting services pursuant to Section 8017.
(n) "Case" means a single legal proceeding from its inception,
through all levels of hearing, trial, and appeal, until its ultimate
conclusion and disposition.
This section shall become inoperative on July 1, 2001, and, as of
January 1, 2002, is repealed, unless a later enacted statute, that
becomes operative on or before January 1, 2002, deletes or extends
the dates on which it becomes inoperative and is repealed.
SEC. 5. Section 8030.6 of the Business and Professions Code is
amended to read:
8030.6. The board shall disburse funds from the Transcript
Reimbursement Fund for the costs, exclusive of per diem charges, of
preparing either an original transcript and one copy thereof, or
where appropriate, a copy of the transcript, of court or deposition
proceedings, or both, incurred as a contractual obligation between
the shorthand reporter and the applicant, for litigation conducted in
California. If no deposition transcript is ordered, the board may
reimburse the applicant or the certified shorthand reporter
designated in the application for per diem costs. The rate of per
diem for depositions shall not exceed seventy-five dollars ($75) for
a half day, or one hundred twenty-five dollars ($125) for a full day.
In the event that a transcript is ordered within one year of the
date of the deposition, but subsequent to the per diem having been
reimbursed by the Transcript Reimbursement Fund, the amount of the
per diem shall be deducted from the amount of transcript.
Reimbursement may be obtained through the following procedures:
(a) The applicant or certified shorthand reporter shall promptly
submit to the board the certified shorthand reporter's invoice for
transcripts together with the appropriate documentation as is
required by this chapter.
(b) Except as provided in subdivision (c), the board shall
promptly determine if the applicant or the certified shorthand
reporter is entitled to reimbursement under this chapter and shall
make payment as follows:
(1) Regular customary charges for preparation of original
deposition transcripts and one copy thereof, or a copy of the
transcripts.
(2) Regular customary charges for expedited deposition transcripts
up to a maximum of two thousand five hundred dollars ($2,500) per
case.
(3) Regular customary charges for the preparation of original
transcripts and one copy thereof, or a copy of transcripts of court
proceedings.
(4) Regular customary charges for expedited or daily charges for
preparation of original transcripts and one copy thereof or a copy of
transcripts of court proceedings.
(5) The charges may not include notary or handling fees. The
charges may include actual shipping costs and exhibits, except that
the cost of exhibits may not exceed thirty-five cents ($0.35) each or
a total of thirty-five dollars ($35) per transcript.
(c) The maximum amount reimbursable by the fund under subdivision
(b) may not exceed twenty thousand dollars ($20,000) per case per
year.
(d) If entitled, and funds are available, the board shall
forthwith disburse the appropriate sum to the applicant or the
certified shorthand reporter when documentation as provided in
subdivision (d) of Section 8030.8 accompanies the application. A
notice shall be sent to the recipient requiring the recipient to file
a notice with the court in which the action is pending stating the
sum of reimbursement paid pursuant to this section. The notice filed
with the court shall also state that if the sum is subsequently
included in any award of costs made in the action, that the sum is to
be ordered refunded by the applicant to the Transcript Reimbursement
Fund whenever the sum is actually recovered as costs. The court may
not consider whether payment has been made from the Transcript
Reimbursement Fund in determining the appropriateness of any award of
costs to the parties. The board shall also forthwith notify the
applicant that the reimbursed sum has been paid to the certified
shorthand reporter and shall likewise notify the applicant of the
duty to refund any of the sum actually recovered as costs in the
action.
(e) If not entitled, the board shall forthwith return a copy of
the invoice to the applicant and the designated certified shorthand
reporter together with a notice stating the grounds for denial.
(f) The board shall complete its actions under this subdivision
within 30 days of receipt of the invoice and all required
documentation, including a completed application.
(g) Applications for reimbursements from the fund shall be filled
on a first-come basis.
(h) Applications for reimbursement that cannot be paid from the
fund due to insufficiency of the fund for that fiscal year shall be
held over until the next fiscal year to be paid out of the renewed
fund.
This section shall become inoperative on July 1, 2001, and, as of
January 1, 2002, is repealed, unless a later enacted statute, that
becomes operative on or before January 1, 2002, deletes or extends
the dates on which it becomes inoperative and is repealed.
SEC. 6. Section 8030.8 of the Business and Professions Code is
amended to read:
8030.8. (a) For purposes of this chapter, documentation
accompanying an invoice is sufficient to establish entitlement for
reimbursement from the Transcript Reimbursement Fund if it is filed
with the executive officer on an application form prescribed by the
board that is complete in all respects, and that establishes all of
the following:
(1) The case name and number and that the litigant or litigants
requesting the reimbursement are indigent persons.
(2) The applicant is qualified under the provisions of this
chapter.
(3) The case is not a fee-generating case, as defined in Section
8030.4.
(4) The invoice or other documentation shall evidence that the
certified shorthand reporter to be reimbursed was, at the time the
services were rendered, a duly licensed certified shorthand reporter.
(5) The invoice shall be accompanied by a statement, signed by the
applicant, stating that the charges are for transcripts actually
provided as indicated on the invoice.
(6) The applicant has acknowledged, in writing, that as a
condition of entitlement for reimbursement that the applicant agrees
to refund the entire amount disbursed from the Transcript
Reimbursement Fund from any costs or attorneys' fees awarded to the
applicant by the court or provided for in any settlement agreement in
the case.
(7) The certified shorthand reporter's invoice for transcripts
shall include separate itemizations of charges claimed, as follows:
(A) Total charges and rates for customary services in preparation
of an original transcript and one copy or a copy of the transcript of
depositions.
(B) Total charges and rates for expedited deposition transcripts.
(C) Total charges and rates in connection with transcription of
court proceedings.
(b) For an applicant claiming to be eligible pursuant to
subdivision (a), (b), or (c) of Section 8030.4, a letter from the
director of the project or center, certifying that the project or
center meets the standards set forth in one of those subdivisions and
that the litigant or litigants are indigent persons, is sufficient
documentation to establish eligibility.
(c) For an applicant claiming to be eligible pursuant to
subdivision (d) of Section 8030.4, a letter certifying that the
applicant meets the requirements of that subdivision, that the case
is not a fee-generating case, as defined in subdivision (g) of
Section 8030.4, and that the litigant or litigants are indigent
persons, together with a letter from the director of a project or
center defined in subdivision (a), (b), or (c) of Section 8030.4
certifying that the litigant or litigants had been referred by that
project or center to the applicant, is sufficient documentation to
establish eligibility.
(d) The applicant may receive reimbursement directly from the
board when the applicant has previously paid the certified shorthand
reporter for transcripts as provided in Section 8030.6. To receive
payment directly, the applicant shall submit, in addition to all
other required documentation, an itemized statement signed by the
certified shorthand reporter performing the services that describes
payment for transcripts in accordance with the requirements of
Section 8030.6.
(e) The board may prescribe appropriate forms to be used by
applicants and certified reporters to facilitate these requirements.
(f) This chapter does not restrict the contractual obligation or
payment for services, including, but not limited to, billing the
applicant directly, during the pendency of the claim.
This section shall become inoperative on July 1, 2001, and, as of
January 1, 2002, is repealed, unless a later enacted statute, that
becomes operative on or before January 1, 2002, deletes or extends
the dates on which it becomes inoperative and is repealed.
SEC. 7. Section 1793.23 of the Civil Code is amended to read:
1793.23. (a) The Legislature finds and declares all of the
following:
(1) That the expansion of state warranty laws covering new and
used cars has given important and valuable protection to consumers.
(2) That, in states without this valuable warranty protection,
used and irrepairable motor vehicles are being resold in the
marketplace without notice to the subsequent purchaser.
(3) That other states have addressed this problem by requiring
notices on the title of these vehicles or other notice procedures to
warn consumers that the motor vehicles were repurchased by a dealer
or manufacturer because the vehicle could not be repaired in a
reasonable length of time or a reasonable number of repair attempts
or the dealer or manufacturer was not willing to repair the vehicle.
(4) That these notices serve the interests of consumers who have a
right to information relevant to their buying decisions.
(5) That the disappearance of these notices upon the transfer of
title from another state to this state encourages the transport of
"lemons" to this state for sale to the drivers of this state.
(b) This section and Section 1793.24 shall be known, and may be
cited as, the Automotive Consumer Notification Act.
(c) Any manufacturer who reacquires or assists a dealer or
lienholder to reacquire a motor vehicle registered in this state, any
other state, or a federally administered district shall, prior to
any sale, lease, or transfer of the vehicle in this state, or prior
to exporting the vehicle to another state for sale, lease, or
transfer if the vehicle was registered in this state and reacquired
pursuant to paragraph (2) of subdivision (d) of Section 1793.2, cause
the vehicle to be retitled in the name of the manufacturer, request
the Department of Motor Vehicles to inscribe the ownership
certificate with the notation "Lemon Law Buyback," and affix a decal
to the vehicle in accordance with Section 11713.12 of the Vehicle
Code if the manufacturer knew or should have known that the vehicle
is required by law to be replaced, accepted for restitution due to
the failure of the manufacturer to conform the vehicle to applicable
warranties pursuant to paragraph (2) of subdivision (d) of Section
1793.2, or accepted for restitution by the manufacturer due to the
failure of the manufacturer to conform the vehicle to warranties
required by any other applicable law of the state, any other state,
or federal law.
(d) Any manufacturer who reacquires or assists a dealer or
lienholder to reacquire a motor vehicle in response to a request by
the buyer or lessee that the vehicle be either replaced or accepted
for restitution because the vehicle did not conform to express
warranties shall, prior to the sale, lease, or other transfer of the
vehicle, execute and deliver to the subsequent transferee a notice
and obtain the transferee's written acknowledgment of a notice, as
prescribed by Section 1793.24.
(e) Any person, including any dealer, who acquires a motor vehicle
for resale and knows or should have known that the vehicle was
reacquired by the vehicle's manufacturer in response to a request by
the last retail owner or lessee of the vehicle that it be replaced or
accepted for restitution because the vehicle did not conform to
express warranties shall, prior to the sale, lease, or other
transfer, execute and deliver to the subsequent transferee a notice
and obtain the transferee's written acknowledgment of a notice, as
prescribed by Section 1793.24.
(f) Any person, including any manufacturer or dealer, who sells,
leases, or transfers ownership of a motor vehicle when the vehicle's
ownership certificate is inscribed with the notation "Lemon Law
Buyback" shall, prior to the sale, lease, or ownership transfer of
the vehicle, provide the transferee with a disclosure statement
signed by the transferee that states:
"THIS VEHICLE WAS REPURCHASED BY ITS MANUFACTURER DUE TO A DEFECT IN
THE VEHICLE PURSUANT TO CONSUMER WARRANTY LAWS. THE TITLE TO THIS
VEHICLE HAS BEEN PERMANENTLY BRANDED WITH THE NOTATION "LEMON LAW
BUYBACK'."
(g) The disclosure requirements in subdivisions (d), (e), and (f)
are cumulative with all other consumer notice requirements and do not
relieve any person, including any dealer or manufacturer, from
complying with any other applicable law, including any requirement of
subdivision (f) of Section 1793.22.
(h) For purposes of this section, "dealer" means any person
engaged in the business of selling, offering for sale, or negotiating
the retail sale of, a used motor vehicle or selling motor vehicles
as a broker or agent for another, including the officers, agents, and
employees of the person and any combination or association of
dealers.
SEC. 8. Section 2924c of the Civil Code is amended to read:
2924c. (a) (1) Whenever all or a portion of the principal sum of
any obligation secured by deed of trust or mortgage on real property
or an estate for years therein hereafter executed has, prior to the
maturity date fixed in that obligation, become due or been declared
due by reason of default in payment of interest or of any installment
of principal, or by reason of failure of trustor or mortgagor to
pay, in accordance with the terms of that obligation or of the deed
of trust or mortgage, taxes, assessments, premiums for insurance, or
advances made by beneficiary or mortgagee in accordance with the
terms of that obligation or of the deed of trust or mortgage, the
trustor or mortgagor or his or her successor in interest in the
mortgaged or trust property or any part thereof, or any beneficiary
under a subordinate deed of trust or any other person having a
subordinate lien or encumbrance of record thereon, at any time within
the period specified in subdivision (e), if the power of sale
therein is to be exercised, or, otherwise at any time prior to entry
of the decree of foreclosure, may pay to the beneficiary or the
mortgagee or their successors in interest, respectively, the entire
amount due, at the time payment is tendered, with respect to (A) all
amounts of principal, interest, taxes, assessments, insurance
premiums, or advances actually known by the beneficiary to be, and
that are, in default and shown in the notice of default, under the
terms of the deed of trust or mortgage and the obligation secured
thereby, (B) all amounts in default on recurring
obligations not shown in the notice of
default, and (C) all reasonable costs and expenses, subject to
subdivision (c), which are actually incurred in enforcing the terms
of the obligation, deed of trust, or mortgage, and trustee's or
attorney's fees, subject to subdivision (d), other than the portion
of principal as would not then be due had no default occurred, and
thereby cure the default theretofore existing, and thereupon, all
proceedings theretofore had or instituted shall be dismissed or
discontinued and the obligation and deed of trust or mortgage shall
be reinstated and shall be and remain in force and effect, the same
as if the acceleration had not occurred. This section does not apply
to bonds or other evidences of indebtedness authorized or permitted
to be issued by the Commissioner of Corporations or made by a public
utility subject to the Public Utilities Code. For the purposes of
this subdivision, the term "recurring obligation" means all amounts
of principal and interest on the loan, or rents, subject to the deed
of trust or mortgage in default due after the notice of default is
recorded; all amounts of principal and interest or rents advanced on
senior liens or leaseholds which are advanced after the recordation
of the notice of default; and payments of taxes, assessments, and
hazard insurance advanced after recordation of the notice of default.
Where the beneficiary or mortgagee has made no advances on defaults
which would constitute recurring obligations, the beneficiary or
mortgagee may require the trustor or mortgagor to provide reliable
written evidence that the amounts have been paid prior to
reinstatement.
(2) If the trustor, mortgagor, or other person authorized to cure
the default pursuant to this subdivision does cure the default, the
beneficiary or mortgagee or the agent for the beneficiary or
mortgagee shall, within 21 days following the reinstatement, execute
and deliver to the trustee a notice of rescission which rescinds the
declaration of default and demand for sale and advises the trustee of
the date of reinstatement. The trustee shall cause the notice of
rescission to be recorded within 30 days of receipt of the notice of
rescission and of all allowable fees and costs.
No charge, except for the recording fee, shall be made against the
trustor or mortgagor for the execution and recordation of the notice
which rescinds the declaration of default and demand for sale.
(b) (1) The notice, of any default described in this section,
recorded pursuant to Section 2924, and mailed to any person pursuant
to Section 2924b, shall begin with the following statement, printed
or typed thereon:
"IMPORTANT NOTICE (14-point boldface type if printed or in
capital letters if typed)
IF YOUR PROPERTY IS IN FORECLOSURE BECAUSE YOU ARE BEHIND IN YOUR
PAYMENTS, IT MAY BE SOLD WITHOUT ANY COURT ACTION, (14-point boldface
type if printed or in capital letters if typed) and you may have the
legal right to bring your account in good standing by paying all of
your past due payments plus permitted costs and expenses within the
time permitted by law for reinstatement of your account, which is
normally five business days prior to the date set for the sale of
your property. No sale date may be set until three months from the
date this notice of default may be recorded (which date of
recordation appears on this notice).
This amount is ___________________ as of ______________________
(Date)
and will increase until your account becomes current.
While your property is in foreclosure, you still must pay other
obligations (such as insurance and taxes) required by your note and
deed of trust or mortgage. If you fail to make future payments on
the loan, pay taxes on the property, provide insurance on the
property, or pay other obligations as required in the note and deed
of trust or mortgage, the beneficiary or mortgagee may insist that
you do so in order to reinstate your account in good standing. In
addition, the beneficiary or mortgagee may require as a condition to
reinstatement that you provide reliable written evidence that you
paid all senior liens, property taxes, and hazard insurance premiums.
Upon your written request, the beneficiary or mortgagee will give
you a written itemization of the entire amount you must pay. You may
not have to pay the entire unpaid portion of your account, even
though full payment was demanded, but you must pay all amounts in
default at the time payment is made. However, you and your
beneficiary or mortgagee may mutually agree in writing prior to the
time the notice of sale is posted (which may not be earlier than the
end of the three-month period stated above) to, among other things,
1) provide additional time in which to cure the default by transfer
of the property or otherwise; or (2) establish a schedule of payments
in order to cure your default; or both (1) and (2).
Following the expiration of the time period referred to in the
first paragraph of this notice, unless the obligation being
foreclosed upon or a separate written agreement between you and your
creditor permits a longer period, you have only the legal right to
stop the sale of your property by paying the entire amount demanded
by your creditor.
To find out the amount you must pay, or to arrange for payment to
stop the foreclosure, or if your property is in foreclosure for any
other reason, contact:
______________________________________
(Name of beneficiary or mortgagee)
______________________________________
(Mailing address)
______________________________________
(Telephone)
If you have any questions, you should contact a lawyer or the
governmental agency which may have insured your loan.
Notwithstanding the fact that your property is in foreclosure, you
may offer your property for sale, provided the sale is concluded
prior to the conclusion of the foreclosure.
Remember, YOU MAY LOSE LEGAL RIGHTS IF YOU DO NOT TAKE PROMPT
ACTION. (14-point boldface type if printed or in capital letters if
typed)"
Unless otherwise specified, the notice, if printed, shall appear
in at least 12-point boldface type.
If the obligation secured by the deed of trust or mortgage is a
contract or agreement described in paragraph (1) or (4) of
subdivision (a) of Section 1632, the notice required herein shall be
in Spanish if the trustor requested a Spanish language translation of
the contract or agreement pursuant to Section 1632. If the
obligation secured by the deed of trust or mortgage is contained in a
home improvement contract, as defined in Sections 7151.2 and 7159 of
the Business and Professions Code, which is subject to Title 2
(commencing with Section 1801), the seller shall specify on the
contract whether or not the contract was principally negotiated in
Spanish and if the contract was principally negotiated in Spanish,
the notice required herein shall be in Spanish. No assignee of the
contract or person authorized to record the notice of default shall
incur any obligation or liability for failing to mail a notice in
Spanish unless Spanish is specified in the contract or the assignee
or person has actual knowledge that the secured obligation was
principally negotiated in Spanish. Unless specified in writing to
the contrary, a copy of the notice required by subdivision (c) of
Section 2924b shall be in English.
(2) Any failure to comply with the provisions of this subdivision
shall not affect the validity of a sale in favor of a bona fide
purchaser or the rights of an encumbrancer for value and without
notice.
(c) Costs and expenses which may be charged pursuant to Sections
2924 to 2924i, inclusive, shall be limited to the costs incurred for
recording, mailing, including certified and express mail charges,
publishing, and posting notices required by Sections 2924 to 2924i,
inclusive, postponement pursuant to Section 2924g not to exceed fifty
dollars ($50) per postponement and a fee for a trustee's sale
guarantee or, in the event of judicial foreclosure, a litigation
guarantee. For purposes of this subdivision, a trustee or
beneficiary may purchase a trustee's sale guarantee at a rate meeting
the standards contained in Sections 12401.1 and 12401.3 of the
Insurance Code.
(d) Trustee's or attorney's fees which may be charged pursuant to
subdivision (a), or until the notice of sale is deposited in the mail
to the trustor as provided in Section 2924b, if the sale is by power
of sale contained in the deed of trust or mortgage, or, otherwise at
any time prior to the decree of foreclosure, are hereby authorized
to be in an amount which does not exceed two hundred forty dollars
($240) with respect to any portion of the unpaid principal sum
secured which is fifty thousand dollars ($50,000) or less, plus
one-half of 1 percent of the unpaid principal sum secured exceeding
fifty thousand dollars ($50,000) up to and including one hundred
fifty thousand dollars ($150,000), plus one-quarter of 1 percent of
any portion of the unpaid principal sum secured exceeding one hundred
fifty thousand dollars ($150,000) up to and including five hundred
thousand dollars ($500,000), plus one-eighth of 1 percent of any
portion of the unpaid principal sum secured exceeding five hundred
thousand dollars ($500,000). Any charge for trustee's or attorney's
fees authorized by this subdivision shall be conclusively presumed to
be lawful and valid where the charge does not exceed the amounts
authorized herein. For purposes of this subdivision, the unpaid
principal sum secured shall be determined as of the date the notice
of default is recorded.
(e) Reinstatement of a monetary default under the terms of an
obligation secured by a deed of trust, or mortgage may be made at any
time within the period commencing with the date of recordation of
the notice of default until five business days prior to the date of
sale set forth in the initial recorded notice of sale.
In the event the sale does not take place on the date set forth in
the initial recorded notice of sale or a subsequent recorded notice
of sale is required to be given, the right of reinstatement shall be
revived as of the date of recordation of the subsequent notice of
sale, and shall continue from that date until five business days
prior to the date of sale set forth in the subsequently recorded
notice of sale.
In the event the date of sale is postponed on the date of sale set
forth in either an initial or any subsequent notice of sale, or is
postponed on the date declared for sale at an immediately preceding
postponement of sale, and, the postponement is for a period which
exceeds five business days from the date set forth in the notice of
sale, or declared at the time of postponement, then the right of
reinstatement is revived as of the date of postponement and shall
continue from that date until five business days prior to the date of
sale declared at the time of the postponement.
Nothing contained herein shall give rise to a right of
reinstatement during the period of five business days prior to the
date of sale, whether the date of sale is noticed in a notice of sale
or declared at a postponement of sale.
Pursuant to the terms of this subdivision, no beneficiary,
trustee, mortgagee, or their agents or successors shall be liable in
any manner to a trustor, mortgagor, their agents or successors for
the failure to allow a reinstatement of the obligation secured by a
deed of trust or mortgage during the period of five business days
prior to the sale of the security property, and no such right of
reinstatement during this period is created by this section. Any
right of reinstatement created by this section is terminated five
business days prior to the date of sale set forth in the initial date
of sale, and is revived only as prescribed herein and only as of the
date set forth herein.
As used in this subdivision, the term "business day" has the same
meaning as specified in Section 9.
SEC. 9. Section 2924j of the Civil Code is amended to read:
2924j. (a) Unless an interpleader action has been filed, within
30 days of the execution of the trustee's deed resulting from a sale
in which there are proceeds remaining after payment of the amounts
required by paragraphs (1) and (2) of subdivision (a) of Section
2924k, the trustee shall send written notice to all persons with
recorded interests in the real property as of the date immediately
prior to the trustee's sale who would be entitled to notice pursuant
to subdivisions (b) and (c) of Section 2924b. The notice shall be
sent by first-class mail in the manner provided in paragraph (1) of
subdivision (c) of Section 2924b and inform each entitled person of
each of the following:
(1) That there has been a trustee's sale of the described real
property.
(2) That the noticed person may have a claim to all or a portion
of the sale proceeds remaining after payment of the amounts required
by paragraphs (1) and (2) of subdivision (a) of Section 2924k.
(3) The noticed person may contact the trustee at the address
provided in the notice to pursue any potential claim.
(4) That before the trustee can act, the noticed person shall
submit a written claim to the trustee, executed under penalty of
perjury, stating the following:
(A) The amount of the claim to the date of trustee's sale.
(B) An itemized statement of the principal, interest, and other
charges.
(C) That claims must be received by the trustee at the address
stated in the notice no later than 30 days after the date the trustee
sends notice to the potential claimant.
(b) The trustee shall exercise due diligence to determine the
priority of the written claims received by the trustee to the trustee'
s sale surplus proceeds from those persons to whom notice was sent
pursuant to subdivision (a). In the event there is no dispute as to
the priority of the written claims submitted to the trustee, proceeds
shall be paid within 30 days after the conclusion of the notice
period. If the trustee has failed to determine the priority of
written claims within 90 days following the 30-day notice period,
then within 10 days thereafter the trustee shall deposit the funds
with the clerk of the court pursuant to subdivision (c) or file an
interpleader action pursuant to subdivision (e). Nothing in this
section shall preclude any person from pursuing other remedies or
claims as to surplus proceeds.
(c) If, after due diligence, the trustee is unable to determine
the priority of the written claims received by the trustee to the
trustee's sale surplus of multiple persons or if the trustee
determines there is a conflict between potential claimants, the
trustee may file a declaration of the unresolved claims and deposit
with the clerk of the superior or municipal court, as applicable, of
the county in which the sale occurred, that portion of the sales
proceeds that cannot be distributed, less any fees charged by the
clerk pursuant to this subdivision. The declaration shall specify
the date of the trustee's sale, a description of the property, the
names and addresses of all persons sent notice pursuant to
subdivision (a), a statement that the trustee exercised due diligence
pursuant to subdivision (b), that the trustee provided written
notice as required by subdivisions (a) and (d) and the amount of the
sales proceeds deposited by the trustee with the superior or
municipal court. Further, the trustee shall submit a copy of the
trustee's sales guarantee and any information relevant to the
identity, location, and priority of the potential claimants with the
superior or municipal court and shall file proof of service of the
notice required by subdivision (d) on all persons described in
subdivision (a).
The clerk shall deposit the amount with the county treasurer
subject to order of the superior or municipal court upon the
application of any interested party. The clerk may charge a
reasonable fee for the performance of activities pursuant to this
subdivision equal to the fee for filing an interpleader action
pursuant to Article 2 (commencing with Section 26820) of Division 2
of Title 3 of the Government Code. Upon deposit of that portion of
the sale proceeds that cannot be distributed by due diligence, the
trustee shall be discharged of further responsibility for the
disbursement of sale proceeds. A deposit with the clerk of the
superior or municipal court pursuant to this subdivision may be
either for the total proceeds of the trustee's sale, less any fees
charged by the clerk, if a conflict or conflicts exist with respect
to the total proceeds, or that portion that cannot be distributed
after due diligence, less any fees charged by the clerk.
(d) Before the trustee deposits the funds with the clerk of the
court pursuant to subdivision (c), the trustee shall send written
notice by first-class mail, postage prepaid, to all persons described
in subdivision (a) informing them that the trustee intends to
deposit the funds with the clerk of the superior or municipal court,
as applicable, and that a claim for the funds must be filed with the
court within 30 days from the date of the notice, providing the
address of the court in which the funds were deposited, and a phone
number for obtaining further information.
Within 90 days after deposit with the clerk, the court shall
consider all claims filed at least 15 days before the date on which
the hearing is scheduled by the court, the clerk shall serve written
notice of the hearing by first-class mail on all claimants identified
in the trustees' declaration at the addresses specified therein.
The court shall distribute the deposited funds to any and all
claimants entitled thereto.
(e) Nothing in this section restricts the ability of a trustee to
file an interpleader action in order to resolve a dispute about the
proceeds of a trustee's sale. Once an interpleader action has been
filed, thereafter the provisions of this section shall not apply.
(f) "Due diligence," for the purposes of this section means that
the trustee researched the written claims submitted or other evidence
of conflicts and determined that a conflict of priorities exists
between two or more claimants which the trustee is unable to resolve.
SEC. 10. Section 2924.3 of the Civil Code is amended to read:
2924.3. (a) Except as provided in subdivisions (b) and (c), a
person who has undertaken as an agent of a mortgagee, beneficiary, or
owner of a promissory note secured directly or collaterally by a
mortgage or deed of trust on real property or an estate for years
therein, to make collections of payments from an obligor under the
note, shall mail the following notices, postage prepaid, to each
mortgagee, beneficiary or owner for whom the agent has agreed to make
collections from the obligor under the note:
(1) A copy of the notice of default filed in the office of the
county recorder pursuant to Section 2924 on account of a breach of
obligation under the promissory note on which the agent has agreed to
make collections of payments, within 15 days after recordation.
(2) Notice that a notice of default has been recorded pursuant to
Section 2924 on account of a breach of an obligation secured by a
mortgage or deed of trust against the same property or estate for
years therein having priority over the mortgage or deed of trust
securing the obligation described in paragraph (1), within 15 days
after recordation or within three business days after the agent
receives the information, whichever is later.
(3) Notice of the time and place scheduled for the sale of the
real property or estate for years therein pursuant to Section 2924f
under a power of sale in a mortgage or deed of trust securing an
obligation described in paragraphs (1) or (2), not less than 15 days
before the scheduled date of the sale or not later than the next
business day after the agent receives the information, whichever is
later.
(b) An agent who has undertaken to make collections on behalf of
mortgagees, beneficiaries or owners of promissory notes secured by
mortgages or deeds of trust on real property or an estate for years
therein shall not be required to comply with the provisions of
subdivision (a) with respect to a mortgagee, beneficiary or owner who
is entitled to receive notice pursuant to subdivision (c) of Section
2924b or for whom a request for notice has been recorded pursuant to
subdivision (b) of Section 2924b if the agent reasonably believes
that the address of the mortgagee, beneficiary, or owner described in
Section 2924b is the current business or residence address of that
person.
(c) An agent who has undertaken to make collections on behalf of
mortgagees, beneficiaries or owners of promissory notes secured by
mortgages or deeds of trust on real property or an estate for years
therein shall not be required to comply with the provisions of
paragraph (1) or (2) of subdivision (a) if the agent knows or
reasonably believes that the default has already been cured by or on
behalf of the obligor.
(d) Any failure to comply with the provisions of this section
shall not affect the validity of a sale in favor of a bona fide
purchaser or the rights of an encumbrancer for value and without
notice.
SEC. 11. Section 77 of the Code of Civil Procedure is amended to
read:
77. (a) In every county and city and county, there is an
appellate department of the superior court consisting of three judges
or, when the Chairperson of the Judicial Council finds it necessary,
four judges.
(1) In a county with three or fewer judges of the superior court,
the appellate department shall consist of those judges, one of whom
shall be designated as presiding judge by the Chairperson of the
Judicial Council, and an additional judge or judges as designated by
the Chairperson of the Judicial Council. Each additional judge shall
be a judge of the superior court of another county or a judge
retired from the superior court or court of higher jurisdiction in
this state.
(2) In a county with four or more judges of the superior court,
the appellate department shall consist of judges of that court
designated by the Chairperson of the Judicial Council, who shall also
designate one of the judges as the presiding judge of the
department.
(b) In an appellate department with four judges, no more than
three judges shall participate in a hearing or decision. The
presiding judge of the department shall designate the three judges
who shall participate.
(c) In addition to their other duties, the judges designated as
members of the appellate department of the superior court shall serve
for the period specified in the order of designation. Whenever a
judge is designated to serve in the appellate department of the
superior court of a county other than the county in which the judge
was elected or appointed as a superior court judge, or if he or she
is retired, in a county other than the county in which he or she
resides, he or she shall receive from the county to which he or she
is designated his or her expenses for travel, board, and lodging. If
the judge is out of his or her county overnight or longer, by reason
of the designation, the judge shall be paid a per diem allowance in
lieu of expenses for board and lodging in the same amounts as are
payable for those purposes to justices of the Supreme Court under the
rules of the State Board of Control. In addition, a retired judge
shall receive from the state and the county to which he or she is
designated, for the time so served, amounts equal to that which he or
she would have received from each if he or she had been assigned to
the superior court of the county.
(d) The concurrence of two judges of the appellate department of
the superior court shall be necessary to render the decision in every
case in, and to transact any other business except business that may
be done at chambers by the presiding judge of, that department. The
presiding judge shall convene the appellate department when
necessary. He or she shall also supervise its business and transact
any business that may be done at chambers.
(e) Every appellate department under this section shall have
jurisdiction on appeal from the municipal courts within the county or
city and county in all cases in which an appeal may be taken to the
superior court as is now or may hereafter be provided by law, except
those appeals that require a retrial in the superior court. The
powers of each appellate department shall be the same as are now or
may hereafter be provided by law or rule of the Judicial Council
relating to appeals to the superior courts.
(f) The Judicial Council may promulgate rules, not inconsistent
with law, governing the practice and procedure and the disposition of
the business of such appellate departments, or of each class
thereof.
(g) Notwithstanding any other provision of law, the chief justice
may designate any municipal court judge as a member of the appellate
department of the superior court if the municipal court is
participating in a trial court coordination plan approved by the
Judicial Council and the designated municipal court judge has been
assigned to the superior court of the county by the chief justice.
SEC. 11.5. Section 77 of the Code of Civil Procedure is amended to
read:
77. (a) In every county and city and county, there is an
appellate division of the superior court consisting of three judges
or, when the Chief Justice finds it necessary, four judges.
The Chief Justice shall assign judges to the appellate division
for specified terms pursuant to rules, not inconsistent with statute,
adopted by the Judicial Council to promote the independence and
quality of each appellate division. Each judge assigned to the
appellate division of a superior court shall be a judge of that
court, a judge of the superior court of another county, or a judge
retired from the superior court or a court of higher jurisdiction in
this state.
The Chief Justice shall designate one of the judges of each
appellate division as the presiding judge of the division.
(b) In each appellate division, no more than three judges shall
participate in a hearing or decision. The presiding judge of the
division shall designate the three judges who shall participate.
(c) In addition to their other duties, the judges designated as
members of the appellate division of the superior court shall serve
for the period specified in the order of designation. Whenever a
judge is designated to serve in
the appellate division of the superior court of a county
other than the county in which that judge was elected or appointed
as a superior court judge, or if the judge is retired, in a county
other than the county in which the judge resides, the judge shall
receive from the county to which the judge is designated expenses for
travel, board, and lodging. If the judge is out of the judge's
county overnight or longer, by reason of the designation, that judge
shall be paid a per diem allowance in lieu of expenses for board and
lodging in the same amounts as are payable for those purposes to
justices of the Supreme Court under the rules of the State Board of
Control. In addition, a retired judge shall receive from the state
and the county to which the judge is designated, for the time so
served, amounts equal to that which the judge would have received
from each if the judge had been assigned to the superior court of the
county.
(d) The concurrence of two judges of the appellate division of the
superior court shall be necessary to render the decision in every
case in, and to transact any other business except business that may
be done at chambers by the presiding judge of, the division. The
presiding judge shall convene the appellate division when necessary.
The presiding judge shall also supervise its business and transact
any business that may be done at chambers.
(e) The appellate division of the superior court has jurisdiction
on appeal from the following courts, in all cases in which an appeal
may be taken to the superior court or the appellate division of the
superior court as provided by law, except where the appeal is a
retrial in the superior court:
(1) The municipal courts within the county.
(2) The superior court in a county in which there is no municipal
court.
(f) The powers of each appellate division shall be the same as are
now or may hereafter be provided by law or rule of the Judicial
Council relating to appeals to the appellate division of the superior
courts.
(g) The Judicial Council shall promulgate rules, not inconsistent
with law, to promote the independence of, and govern the practice and
procedure and the disposition of the business of the appellate
division.
(h) Notwithstanding any other provision of law, the Chief Justice
may designate any municipal court judge as a member of the appellate
department of the superior court if the municipal court is
participating in a trial court coordination plan approved by the
Judicial Council and the designated municipal court judge has been
assigned to the superior court of the county by the Chief Justice.
(i) A reference in any other statute to the appellate department
of the superior court means the appellate division of the superior
court.
SEC. 12. Section 87 of the Code of Civil Procedure is repealed.
SEC. 13. Section 200 of the Code of Civil Procedure is amended to
read:
200. When authorized by local superior court rules, a municipal
court district pursuant to duly adopted court rule may use the same
juror pool as that summoned for use in the superior court. Persons
so selected for jury service in those municipal courts need not be
residents of the judicial district. In Los Angeles County, the
municipal courts shall use the same jury pool as that summoned for
use in the superior court.
SEC. 13.5. Section 200 of the Code of Civil Procedure is amended
to read:
200. When authorized by local superior court rules, a municipal
court district pursuant to duly adopted court rule may use the same
juror pool as that summoned for use in the superior court. Persons
so selected for jury service in those municipal courts need not be
residents of the judicial district. In Los Angeles County, the
municipal courts shall use the same jury pool as that summoned for
use in the superior court.
SEC. 14. Section 484.070 of the Code of Civil Procedure is amended
to read:
484.070. (a) If the defendant claims that the personal property
described in the plaintiff's application, or a portion of such
property, is exempt from attachment, the defendant shall claim the
exemption as provided in this section. If the defendant fails to
make the claim or makes the claim but fails to prove that the
personal property is exempt, the defendant may not later claim the
exemption except as provided in Section 482.100.
(b) If the defendant desires to claim at the hearing that real or
personal property not described in the plaintiff's application or
real property described in the plaintiff's application is exempt from
attachment, in whole or in part, the defendant shall claim the
exemption as provided in this section. Failure to make the claim
does not preclude the defendant from later claiming the exemption.
If the claim is made as provided in this section but the defendant
fails to prove that the property is exempt from attachment, the
defendant may not later claim that the property, or a portion
thereof, is exempt except as provided in Section 482.100.
(c) The claim of exemption shall:
(1) Describe the property claimed to be exempt.
(2) Specify the statute section supporting the claim.
(d) The claim of exemption shall be accompanied by an affidavit
supporting any factual issues raised by the claim and points and
authorities supporting any legal issues raised.
(e) The claim of exemption, together with any supporting affidavit
and points and authorities, shall be filed and served on the
plaintiff not less than five court days before the date set for the
hearing.
(f) If the plaintiff desires to oppose the claim of exemption, the
plaintiff shall file and serve on the defendant, not less than two
days before the date set for the hearing, a notice of opposition to
the claim of exemption, accompanied by an affidavit supporting any
factual issues raised and points and authorities supporting any legal
issues raised. If the plaintiff does not file and serve a notice of
opposition as provided in this subdivision, no writ of attachment
shall be issued as to the property claimed to be exempt. If all of
the property described in the plaintiff's application is claimed to
be exempt and the plaintiff does not file and serve a notice of
opposition as provided in this subdivision, no hearing shall be held
and no right to attach order or writ of attachment shall be issued
and any temporary protective order issued pursuant to Chapter 6
(commencing with Section 486.010) immediately expires.
(g) If the plaintiff files and serves a notice of opposition to
the claim as provided in this section, the defendant has the burden
of proving that the property is exempt from attachment.
SEC. 15. Section 484.350 of the Code of Civil Procedure is amended
to read:
484.350. (a) If the defendant claims that the property described
in the plaintiff's application, or a portion of such property, is
exempt from attachment, the defendant may claim the exemption as
provided in this section. If the defendant fails to make a claim
with respect to personal property, or makes a claim with respect to
real or personal property but fails to prove that the property is
exempt, the defendant may not later claim the exemption except as
provided in Section 482.100.
(b) The claim of exemption shall:
(1) Describe the property claimed to be exempt.
(2) Specify the statute section supporting the claim.
(c) The claim of exemption shall be accompanied by an affidavit
supporting any factual issues raised by the claim and points and
authorities supporting any legal issues raised.
(d) The claim of exemption, together with any supporting affidavit
and points and authorities, shall be filed and served on the
plaintiff not less than five court days before the date set for the
hearing.
SEC. 16. Section 569 of the Code of Civil Procedure is amended to
read:
569. Funds in the hands of a receiver may be deposited in one or
more interest bearing accounts in the name and for the benefit of the
receivership estate with one or more financial institutions,
provided that all of the following conditions are satisfied:
(a) The deposits are fully guaranteed or insured under federal
law.
(b) The financial institution in which the funds are deposited is
not a party to the action in which the receiver was appointed.
(c) The receiver does not own 1 percent or more in value of the
outstanding stock of the financial institution, is not an officer,
director, or employee of the financial institution, and is not a
sibling, whether by the whole or half-blood, spouse, aunt, uncle,
nephew, niece, ancestor, or lineal descendant of an owner, officer,
employee, or director.
SEC. 17. Section 701.040 of the Code of Civil Procedure, as
amended by Section 5 of Chapter 591 of the Statutes of 1995, is
amended to read:
701.040. (a) Except as otherwise ordered by the court upon a
determination that the judgment creditor's lien has priority over the
security interest, if property levied upon is subject to a security
interest that attached prior to levy, the property or obligation is
subject to enforcement of the security interest without regard to the
levy unless the property is in the custody of the levying officer;
but, if the execution lien has priority over the security interest,
the secured party is liable to the judgment creditor for any proceeds
received by the secured party from the property to the extent of the
execution lien.
(b) After the security interest is satisfied, the secured party
shall deliver any excess property, and pay any excess payments or
proceeds of property, remaining in the possession of the secured
party to the levying officer for the purposes of the levy, as
provided in Sections 9502 and 9504 of the Commercial Code, unless
otherwise ordered by the court or directed by the levying officer.
(c) This section shall be repealed on January 1, 2002.
SEC. 18. Section 1005 of the Code of Civil Procedure is amended to
read:
1005. (a) Written notice shall be given, as prescribed in
subdivision (b), for the following motions:
(1) Notice of Application and Hearing for Writ of Attachment under
Section 484.040.
(2) Notice of Application and Hearing for Claim and Delivery under
Section 512.030.
(3) Notice of Hearing for Claim of Exemption under Section
706.105.
(4) Motion to Quash Summons pursuant to subdivision (b) of Section
418.10.
(5) Motion for Determination of Good Faith Settlement pursuant to
Section 877.6.
(6) Hearing for Discovery of Peace Officer Personnel Records
pursuant to Section 1043 of the Evidence Code.
(7) Notice of Hearing of Third-Party Claim pursuant to Section
720.320.
(8) Motion for an Order to Attend Deposition more than 150 miles
from deponent's residence pursuant to paragraph (3) of subdivision
(e) of Section 2025.
(9) Notice of Hearing of Application for Relief pursuant to
Section 946.6 of the Government Code.
(10) Motion to Set Aside Default or Default Judgment and for Leave
to Defend Actions pursuant to Section 473.5.
(11) Motion to Expunge Notice of Pendency of Action pursuant to
Section 405.30.
(12) Motion to Set Aside Default and for Leave to Amend pursuant
to Section 585.5.
(13) Any other proceeding under this code in which notice is
required and no other time or method is prescribed by law or by court
or judge.
(b) Unless otherwise ordered or specifically provided by law, all
moving and supporting papers shall be served and filed at least 15
calendar days before the time appointed for the hearing. The moving
and supporting papers served shall be a copy of the papers filed or
to be filed with the court. However, if the notice is served by
mail, the required 15-day period of notice before the time appointed
for the hearing shall be increased by five days if the place of
mailing and the place of address are within the State of California,
10 days if either the place of mailing or the place of address is
outside the State of California but within the United States, and 20
days if either the place of mailing or the place of address is
outside the United States, and if the notice is served by facsimile
transmission, express mail, or another method of delivery providing
for overnight delivery, the required 15-day period of notice before
the time appointed for the hearing shall be increased by two court
days. Section 1013, which extends the time within which a right may
be exercised or an act may be done, does not apply to a notice of
motion, papers opposing a motion, or reply papers governed by this
section. All papers opposing a motion so noticed shall be filed with
the court and a copy served on each party at least five court days,
and all reply papers at least two court days before the time
appointed for the hearing. Notwithstanding any other provision of
this section, all papers opposing a motion and all reply papers shall
be served by personal delivery, facsimile transmission, express
mail, or other means consistent with the provisions of Sections 1010,
1011, 1012, and 1013, and 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.
The court, or a judge thereof, may prescribe a shorter time.
SEC. 19. 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 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 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. 20. 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 or deposition officer 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. 21. Section 2024 of the Code of Civil Procedure is amended to
read:
2024. (a) Except as otherwise provided in this section, any party
shall be entitled as a matter of right to complete discovery
proceedings on or before the 30th day, and to have motions concerning
discovery heard on or before the 15th day, before the date initially
set for the trial of the action. As used in this section, discovery
is considered completed on the day a response is due or on the day a
deposition begins. Except as provided in subdivision (e), a
continuance or postponement of the trial date does not operate to
reopen discovery proceedings.
(b) The time limit on completing discovery in an action to be
arbitrated under Chapter 2.5 (commencing with Section 1141.10) of
Title 3 of Part 3 is subject to Judicial Council Rule. After an
award in a case ordered to judicial arbitration, completion of
discovery is limited by Section 1141.24.
(c) This section does not apply to (1) summary proceedings for
obtaining possession of real property governed by Chapter 4
(commencing with Section 1159) of Title 3 of Part 3, in which
discovery shall be completed on or before the fifth day before the
date set for trial except as provided in subdivisions (e) and (f), or
(2) eminent domain proceedings governed by Title 7 (commencing with
Section 1230.010) of Part 3.
(d) Any party shall be entitled as a matter of right to complete
discovery proceedings pertaining to a witness identified under
Section 2034 on or before the 15th day, and to have motions
concerning that discovery heard on or before the 10th day, before the
date initially set for the trial of the action.
(e) On motion of any party, the court may grant leave to complete
discovery proceedings, or to have a motion concerning discovery
heard, closer to the initial trial date, or to reopen discovery after
a new trial date has been set. This motion shall be accompanied by
a declaration stating facts showing a reasonable and good faith
attempt at an informal resolution of each issue presented by the
motion.
In exercising its discretion to grant or deny this motion, the
court shall take into consideration any matter relevant to the leave
requested, including, but not limited to, the following:
(1) The necessity and the reasons for the discovery.
(2) The diligence or lack of diligence of the party seeking the
discovery or the hearing of a discovery motion, and the reasons that
the discovery was not completed or that the discovery motion was not
heard earlier.
(3) Any likelihood that permitting the discovery or hearing the
discovery motion will prevent the case from going to trial on the
date set, or otherwise interfere with the trial calendar, or result
in prejudice to any other party.
(4) The length of time that has elapsed between any date
previously set, and the date presently set, for the trial of the
action.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to extend or to reopen discovery, unless it finds
that the one subject to the sanction acted with substantial
justification or that other circumstances make the imposition of the
sanction unjust.
(f) Parties to the action may, with the consent of any party
affected by it, enter into an agreement to extend the time for the
completion of discovery proceedings or for the hearing of motions
concerning discovery, or to reopen discovery after a new date for
trial of the action has been set. This agreement may be informal,
but it shall be confirmed in a writing that specifies the extended
date. In no event shall this agreement require a court to grant a
continuance or postponement of the trial of the action.
(g) When the last day to perform or complete any act provided for
in this article falls on a Saturday, Sunday, or holiday as specified
in Section 10, the time limit is extended until the next day not a
Saturday, Sunday, or holiday.
SEC. 22. Section 2025 of the Code of Civil Procedure is amended to
read:
2025. (a) Any party may obtain discovery within the scope
delimited by Section 2017, and subject to the restrictions set forth
in Section 2019, by taking in California the oral deposition of any
person, including any party to the action. The person deposed may be
a natural person, an organization such as a public or private
corporation, a partnership, an association, or a governmental agency.
(b) Subject to subdivisions (f) and (t), an oral deposition may be
taken as follows:
(1) The defendant may serve a deposition notice without leave of
court at any time after that defendant has been served or has
appeared in the action, whichever occurs first.
(2) The plaintiff may serve a deposition notice without leave of
court on any date that is 20 days after the service of the summons
on, or appearance by, any defendant. However, on motion with or
without notice, the court, for good cause shown, may grant to a
plaintiff leave to serve a deposition notice on an earlier date.
(c) A party desiring to take the oral deposition of any person
shall give notice in writing in the manner set forth in subdivision
(d). However, where under subdivision (d) of Section 2020 only the
production by a nonparty of business records for copying is desired,
a copy of the deposition subpoena shall serve as the notice of
deposition. The notice of deposition shall be given to every other
party who has appeared in the action. The deposition notice, or the
accompanying proof of service, shall list all the parties or
attorneys for parties on whom it is served.
Where, as defined in subdivision (a) of Section 1985.3, the party
giving notice of the deposition is a subpoenaing party, and the
deponent is a witness commanded by a deposition subpoena to produce
personal records of a consumer, the subpoenaing party shall serve on
that consumer (1) a notice of the deposition, (2) the notice of
privacy rights specified in subdivision (e) of Section 1985.3 and in
Section 1985.6, and (3) a copy of the deposition subpoena.
(d) The deposition notice shall state all of the following:
(1) The address where the deposition will be taken.
(2) The date of the deposition, selected under subdivision (f),
and the time it will commence.
(3) The name of each deponent, and the address and telephone
number, if known, of any deponent who is not a party to the action.
If the name of the deponent is not known, the deposition notice shall
set forth instead a general description sufficient to identify the
person or particular class to which the person belongs.
(4) The specification with reasonable particularity of any
materials or category of materials to be produced by the deponent.
(5) Any intention to record the testimony by audiotape or
videotape, in addition to recording the testimony by the stenographic
method as required by paragraph (1) of subdivision (l).
(6) Any intention to reserve the right to use at trial a videotape
deposition of a treating or consulting physician or of any expert
witness under paragraph (4) of subdivision (u). In this event, the
operator of the videotape camera shall be a person who is authorized
to administer an oath, and shall not be financially interested in the
action or be a relative or employee of any attorney of any of the
parties.
If the deponent named is not a natural person, the deposition
notice shall describe with reasonable particularity the matters on
which examination is requested. In that event, the deponent shall
designate and produce at the deposition those of its officers,
directors, managing agents, employees, or agents who are most
qualified to testify on its behalf as to those matters to the extent
of any information known or reasonably available to the deponent. A
deposition subpoena shall advise a nonparty deponent of its duty to
make this designation, and shall describe with reasonable
particularity the matters on which examination is requested.
If the attendance of the deponent is to be compelled by service of
a deposition subpoena under Section 2020, an identical copy of that
subpoena shall be served with the deposition notice.
(e) (1) The deposition of a natural person, whether or not a party
to the action, shall be taken at a place that is, at the option of
the party giving notice of the deposition, either within 75 miles of
the deponent's residence, or within the county where the action is
pending and within 150 miles of the deponent's residence, unless the
court orders otherwise under paragraph (3).
(2) The deposition of an organization that is a party to the
action shall be taken at a place that is, at the option of the party
giving notice of the deposition, either within 75 miles of the
organization's principal executive or business office in California,
or within the county where the action is pending and within 150 miles
of that office. The deposition of any other organization shall be
taken within 75 miles of the organization's principal executive or
business office in California, unless the organization consents to a
more distant place. If the organization has not designated a
principal executive or business office in California, the deposition
shall be taken at a place that is, at the option of the party giving
notice of the deposition, either within the county where the action
is pending, or within 75 miles of any executive or business office in
California of the organization.
(3) A party desiring to take the deposition of a natural person
who is a party to the action or an officer, director, managing agent,
or employee of a party may make a motion for an order that the
deponent attend for deposition at a place that is more distant than
that permitted under paragraph (1). This motion shall be accompanied
by a declaration stating facts showing a reasonable and good faith
attempt at an informal resolution of any issue presented by the
motion.
In exercising its discretion to grant or deny this motion, the
court shall take into consideration any factor tending to show
whether the interests of justice will be served by requiring the
deponent's attendance at that more distant place, including, but not
limited to, the following:
(A) Whether the moving party selected the forum.
(B) Whether the deponent will be present to testify at the trial
of the action.
(C) The convenience of the deponent.
(D) The feasibility of conducting the deposition by written
questions under Section 2028, or of using a discovery method other
than a deposition.
(E) The number of depositions sought to be taken at a place more
distant than that permitted under paragraph (1).
(F) The expense to the parties of requiring the deposition to be
taken within the distance permitted under paragraph (1).
(G) The whereabouts of the deponent at the time for which the
deposition is scheduled.
The order may be conditioned on the advancement by the moving
party of the reasonable expenses and costs to the deponent for travel
to the place of deposition.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to increase travel limits for party deponent, unless
it finds that the one subject to the sanction acted with substantial
justification or that other circumstances make the imposition of the
sanction unjust.
(f) An oral deposition shall be scheduled for a date at least 10
days after service of the deposition notice. If, as defined in
subdivision (a) of Section 1985.3, the party giving notice of the
deposition is a subpoenaing party, and the deponent is a witness
commanded by a deposition subpoena to produce personal records of a
consumer, the deposition shall be scheduled for a date at least 20
days after issuance of that subpoena. However, in unlawful detainer
actions, an oral deposition shall be scheduled for a date at least
five days after service of the deposition notice, but not later than
five days before trial.
On motion or ex parte application of any party or deponent, for
good cause shown, the court may shorten or extend the time for
scheduling a deposition, or may stay its taking until the
determination of a motion for a protective order under subdivision
(i).
(g) Any party served with a deposition notice that does not comply
with subdivisions (b) to (f), inclusive, waives any error or
irregularity unless that party promptly serves a written objection
specifying that error or irregularity at least three calendar days
prior to the date for which the deposition is scheduled, on the party
seeking to take the deposition and any other attorney or party on
whom the deposition notice was served. If an objection is made three
calendar days before the deposition date, the objecting party shall
make personal service of that objection pursuant to Section 1011 on
the party who gave notice of the deposition. Any deposition taken
after the service of a written objection shall not be used against
the objecting party under subdivision (u) if the party did not attend
the deposition and if the court determines that the objection was a
valid one.
In addition to serving this written objection, a party may also
move for an order staying the taking of the deposition and quashing
the deposition notice. This motion shall be accompanied by a
declaration stating facts showing a reasonable and good faith attempt
at an informal resolution of any issue presented by the motion. The
taking of the deposition is stayed pending the determination of this
motion.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to quash a deposition notice, unless it finds that
the one subject to the sanction acted with substantial justification
or that other circumstances make the imposition of the sanction
unjust.
(h) (1) The service of a deposition notice under subdivision (c)
is effective to require any deponent who is a party to the action or
an officer, director, managing agent, or employee of a party to
attend and to testify, as well as to produce any document or tangible
thing for inspection and copying.
(2) The attendance and testimony of any other deponent, as well as
the production by the deponent of any document or tangible thing for
inspection and copying, requires the service on the deponent of a
deposition subpoena under Section 2020.
(i) Before, during, or after a deposition, any party, any
deponent, or any other affected natural person or organization may
promptly move for a protective order. The motion shall be
accompanied by a declaration stating facts showing a reasonable and
good faith attempt at an informal resolution of each issue presented
by the motion.
The court, for good cause shown, may make any order that justice
requires to protect any party, deponent, or other natural person or
organization from unwarranted annoyance, embarrassment, or
oppression, or undue burden and expense. This protective order may
include, but is not limited to, one or more of the following
directions:
(1) That the deposition not be taken at all.
(2) That the deposition be taken at a different time.
(3) That a videotape deposition of a treating or consulting
physician or of any expert witness, intended for possible use at
trial under paragraph (4) of subdivision (u), be postponed until the
moving party has had an adequate opportunity to prepare, by discovery
deposition of the deponent, or other means, for cross-examination.
(4) That the deposition be taken at a place other than that
specified in the deposition notice, if it is within a distance
permitted by subdivision (e).
(5) That the deposition be taken only on certain specified terms
and conditions.
(6) That the deponent's testimony be taken by written, instead of
oral, examination.
(7) That the method of discovery be interrogatories to a party
instead of an oral deposition.
(8) That the testimony be recorded in a manner different from that
specified in the deposition notice.
(9) That certain matters not be inquired into.
(10) That the scope of the examination be limited to certain
matters.
(11) That all or certain of the writings or tangible things
designated in the deposition notice not be produced, inspected, or
copied.
(12) That designated persons, other than the parties to the action
and their officers and counsel, be excluded from attending the
deposition.
(13) That a trade secret or other confidential research,
development, or commercial information not be disclosed or be
disclosed only to specified persons or only in a specified way.
(14) That the parties simultaneously file specified documents
enclosed in sealed envelopes to be opened as directed by the court.
(15) That the deposition be sealed and thereafter opened only on
order of the court.
If the motion for a protective order is denied in whole or in
part, the court may order that the deponent provide or permit the
discovery against which protection was sought on those terms and
conditions that are just.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion for a protective order, unless it finds that the one
subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.
(j) (1) If the party giving notice of a deposition fails to attend
or proceed with it, the court shall impose a monetary sanction under
Section 2023 against that party, or the attorney for that party, or
both, and in favor of any party attending in person or by attorney,
unless it finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the
imposition of the sanction unjust.
(2) If a deponent does not appear for a deposition because the
party giving notice of the deposition failed to serve a required
deposition subpoena, the court shall impose a monetary sanction under
Section 2023 against that party, or the attorney for that party, or
both, in favor of any other party who, in person or by attorney,
attended at the time and place specified in the deposition notice in
the expectation that the deponent's testimony would be taken, unless
the court finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the
imposition of the sanction unjust.
If a deponent on whom a deposition subpoena has been served fails
to attend a deposition or refuses to be sworn as a witness, the court
may impose on the deponent the sanctions described in subdivision
(h) of Section 2020.
(3) If, after service of a deposition notice, a party to the
action or an officer, director, managing agent, or employee of a
party, or a person designated by an organization that is a party
under subdivision (d), without having served a valid objection under
subdivision (g), fails to appear for examination, or to proceed with
it, or to produce for inspection any document or tangible thing
described in the deposition notice, the party giving the notice may
move for an order compelling the deponent's attendance and testimony,
and the production for inspection of any document or tangible thing
described in the deposition notice. This motion (A) shall set forth
specific facts showing good cause justifying the production for
inspection of any document or tangible thing described in the
deposition notice, and (B) shall be accompanied by a declaration
stating facts showing a reasonable and good faith attempt at an
informal resolution of each issue presented by it or, when the
deponent fails to attend the deposition and produce the documents or
things described in the deposition notice, by a declaration stating
that the petitioner has contacted the deponent to inquire about the
nonappearance. If this motion is granted, the court shall also
impose a monetary sanction under Section 2023 against the deponent or
the party with whom the deponent is affiliated, unless it finds that
the one subject to the sanction acted with substantial justification
or that other circumstances make the imposition of the sanction
unjust. On motion of any other party who, in person or by attorney,
attended at the time and place specified in the deposition notice in
the expectation that the deponent's testimony would be taken, the
court shall also impose a monetary sanction under Section 2023,
unless it finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the
imposition of the sanction unjust.
If that party or party-affiliated deponent then fails to obey an
order compelling attendance, testimony, and production, the court may
make those orders that are just, including the imposition of an
issue sanction, an evidence sanction, or a terminating sanction under
Section 2023 against that party deponent or against the party with
whom the deponent is affiliated. In lieu of or in addition to this
sanction, the court may impose a monetary sanction under Section 2023
against that deponent or against the party with whom that party
deponent is affiliated, and in favor of any party who, in person or
by attorney, attended in the expectation that the deponent's
testimony would be taken pursuant to that order.
(k) Except as provided in paragraph (3) of subdivision (d) of
Section 2020, the deposition shall be conducted under the supervision
of an officer who is authorized to administer an oath. This officer
shall not be financially interested in the action and shall not be a
relative or employee of any attorney of any of the parties, or of
any of the parties. Any objection to the qualifications of the
deposition officer is waived unless made before the deposition begins
or as soon thereafter as the ground for that objection becomes known
or could be discovered by reasonable diligence.
(l) (1) The deposition officer shall put the deponent under oath.
Unless the parties agree or the court orders otherwise, the
testimony, as well as any stated objections, shall be taken
stenographically. The party noticing the deposition may also record
the testimony by audiotape or videotape if the notice of deposition
stated an intention also to record the testimony by either of those
methods, or if all the parties agree that the testimony may also be
recorded by either of those methods. Any other party, at that party'
s expense, may make a simultaneous audiotape or videotape record of
the deposition, provided that other party promptly, and in no event
less than three calendar days before the date for which the
deposition is scheduled, serves a written notice of this intention to
audiotape or videotape the deposition testimony on the party or
attorney who noticed the deposition, on all other parties or
attorneys on whom the deposition notice was served under subdivision
(c), and on any deponent whose attendance is being compelled by a
deposition subpoena under Section 2020. If this notice is given
three calendar days before the deposition date, it shall be made by
personal service under Section 1011. Examination and
cross-examination of the deponent shall proceed as permitted at trial
under the provisions of the Evidence Code.
(2) If the deposition is being recorded by means of audiotape or
videotape, the following procedure shall be observed:
(A) The area used for recording the deponent's oral testimony
shall be suitably large, adequately lighted, and reasonably quiet.
(B) The operator of the recording equipment shall be competent to
set up, operate, and monitor the equipment in the manner prescribed
in this subdivision. The operator may be an employee of the attorney
taking the deposition unless the operator
is also the deposition officer. However, if a
videotape of deposition testimony is to be used under paragraph (4)
of subdivision (u), the operator of the recording equipment shall be
a person who is authorized to administer an oath, and shall not be
financially interested in the action or be a relative or employee of
any attorney of any of the parties, unless all parties attending the
deposition agree on the record to waive these qualifications and
restrictions.
(C) The operator shall not distort the appearance or the demeanor
of participants in the deposition by the use of camera or sound
recording techniques.
(D) The deposition shall begin with an oral or written statement
on camera or on the audiotape that includes the operator's name and
business address, the name and business address of the operator's
employer, the date, time, and place of the deposition, the caption of
the case, the name of the deponent, a specification of the party on
whose behalf the deposition is being taken, and any stipulations by
the parties.
(E) Counsel for the parties shall identify themselves on camera or
on the audiotape.
(F) The oath shall be administered to the deponent on camera or on
the audiotape.
(G) If the length of a deposition requires the use of more than
one unit of tape, the end of each unit and the beginning of each
succeeding unit shall be announced on camera or on the audiotape.
(H) At the conclusion of a deposition, a statement shall be made
on camera or on the audiotape that the deposition is ended and shall
set forth any stipulations made by counsel concerning the custody of
the audiotape or videotape recording and the exhibits, or concerning
other pertinent matters.
(I) A party intending to offer an audiotaped or videotaped
recording of a deposition in evidence under subdivision (u) shall
notify the court and all parties in writing of that intent and of the
parts of the deposition to be offered within sufficient time for
objections to be made and ruled on by the judge to whom the case is
assigned for trial or hearing, and for any editing of the tape.
Objections to all or part of the deposition shall be made in writing.
The court may permit further designations of testimony and
objections as justice may require. With respect to those portions of
an audiotaped or videotaped deposition that are not designated by
any party or that are ruled to be objectionable, the court may order
that the party offering the recording of the deposition at the trial
or hearing suppress those portions, or that an edited version of the
deposition tape be prepared for use at the trial or hearing. The
original audiotape or videotape of the deposition shall be preserved
unaltered. If no stenographic record of the deposition testimony has
previously been made, the party offering a videotape or an audiotape
recording of that testimony under subdivision (u) shall accompany
that offer with a stenographic transcript prepared from that
recording.
(3) In lieu of participating in the oral examination, parties may
transmit written questions in a sealed envelope to the party taking
the deposition for delivery to the deposition officer, who shall
unseal the envelope and propound them to the deponent after the oral
examination has been completed.
(m) (1) The protection of information from discovery on the ground
that it is privileged or that it is protected work product under
Section 2018 is waived unless a specific objection to its disclosure
is timely made during the deposition.
(2) Errors and irregularities of any kind occurring at the oral
examination that might be cured if promptly presented are waived
unless a specific objection to them is timely made during the
deposition. These errors and irregularities include, but are not
limited to, those relating to the manner of taking the deposition, to
the oath or affirmation administered, to the conduct of a party,
attorney, deponent, or deposition officer, or to the form of any
question or answer. Unless the objecting party demands that the
taking of the deposition be suspended to permit a motion for a
protective order under subdivision (n), the deposition shall proceed
subject to the objection.
(3) Objections to the competency of the deponent, or to the
relevancy, materiality, or admissibility at trial of the testimony or
of the materials produced are unnecessary and are not waived by
failure to make them before or during the deposition.
(4) If a deponent fails to answer any question or to produce any
document or tangible thing under the deponent's control that is
specified in the deposition notice or a deposition subpoena, the
party seeking that answer or production may adjourn the deposition or
complete the examination on other matters without waiving the right
at a later time to move for an order compelling that answer or
production under subdivision (o).
(n) On demand of any party or the deponent, the deposition officer
shall suspend the taking of testimony to enable that party or
deponent to move for a protective order on the ground that the
examination is being conducted in bad faith or in a manner that
unreasonably annoys, embarrasses, or oppresses that deponent or
party. This motion shall be accompanied by a declaration stating
facts showing a reasonable and good faith attempt at an informal
resolution of each issue presented by the motion. The court, for
good cause shown, may terminate the examination or may limit the
scope and manner of taking the deposition as provided in subdivision
(i). If the order terminates the examination, the deposition shall
not thereafter be resumed, except on order of the court.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion for this protective order, unless it finds that the
one subject to the sanction acted with substantial justification or
that other circumstances make the imposition of the sanction unjust.
(o) If a deponent fails to answer any question or to produce any
document or tangible thing under the deponent's control that is
specified in the deposition notice or a deposition subpoena, the
party seeking discovery may move the court for an order compelling
that answer or production. This motion shall be made no later than
60 days after the completion of the record of the deposition, and
shall be accompanied by a declaration stating facts showing a
reasonable and good faith attempt at an informal resolution of each
issue presented by the motion. Notice of this motion shall be given
to all parties, and to the deponent either orally at the examination,
or by subsequent service in writing. If the notice of the motion is
given orally, the deposition officer shall direct the deponent to
attend a session of the court at the time specified in the notice.
Not less than five days prior to the hearing on this motion, the
moving party shall lodge with the court a certified copy of any parts
of the stenographic transcript of the deposition that are relevant
to the motion. If a deposition is recorded by audiotape or
videotape, the moving party is required to lodge a certified copy of
a transcript of any parts of the deposition that are relevant to the
motion. If the court determines that the answer or production sought
is subject to discovery, it shall order that the answer be given or
the production be made on the resumption of the deposition.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to compel answer or production, unless it finds that
the one subject to the sanction acted with substantial justification
or that other circumstances make the imposition of the sanction
unjust.
If a deponent fails to obey an order entered under this
subdivision, the failure may be considered a contempt of court. In
addition, if the disobedient deponent is a party to the action or an
officer, director, managing agent, or employee of a party, the court
may make those orders that are just against the disobedient party, or
against the party with whom the disobedient deponent is affiliated,
including the imposition of an issue sanction, an evidence sanction,
or a terminating sanction under Section 2023. In lieu of or in
addition to this sanction, the court may impose a monetary sanction
under Section 2023 against that party deponent or against any party
with whom the deponent is affiliated.
(p) Unless the parties agree otherwise, the testimony at any
deposition recorded by stenographic means shall be transcribed. The
party noticing the deposition shall bear the cost of that
transcription, unless the court, on motion and for good cause shown,
orders that the cost be borne or shared by another party. Any other
party, at that party's expense, may obtain a copy of the transcript.
If the deposition officer receives a request from a party for an
original or a copy of the deposition transcript, or any portion
thereof, and the document will be available to that party prior to
the time the original or copy would be available to any other party,
the deposition officer shall immediately notify all other parties
attending the deposition of the request, and shall, upon request by
any party other than the party making the original request, make that
copy of the full or partial deposition transcript available to all
parties at the same time. Stenographic notes of depositions shall be
retained by the reporter for a period of not less than eight years
from the date of the deposition, where no transcript is produced, and
not less than one year from the date on which the transcript is
produced. Those notes may be either on paper or electronic media, as
long as it allows for satisfactory production of a transcript at any
time during the periods specified. At the request of any other
party to the action, including a party who did not attend the taking
of the deposition testimony, any party who records or causes the
recording of that testimony by means of audiotape or videotape shall
promptly (1) permit that other party to hear the audiotape or to view
the videotape, and (2) furnish a copy of the audiotape or videotape
to that other party on receipt of payment of the reasonable cost of
making that copy of the tape.
If the testimony at the deposition is recorded both
stenographically, and by audiotape or videotape, the stenographic
transcript is the official record of that testimony for the purpose
of the trial and any subsequent hearing or appeal.
(q) (1) If the deposition testimony is stenographically recorded,
the deposition officer shall send written notice to the deponent and
to all parties attending the deposition when the original transcript
of the testimony for each session of the deposition is available for
reading, correcting, and signing, unless the deponent and the
attending parties agree on the record that the reading, correcting,
and signing of the transcript of the testimony will be waived or that
the reading, correcting, and signing of a transcript of the
testimony will take place after the entire deposition has been
concluded or at some other specific time. For 30 days following each
such notice, unless the attending parties and the deponent agree on
the record or otherwise in writing to a longer or shorter time
period, the deponent may change the form or the substance of the
answer to a question, and may either approve the transcript of the
deposition by signing it, or refuse to approve the transcript by not
signing it.
Alternatively, within this same period, the deponent may change
the form or the substance of the answer to any question and may
approve or refuse to approve the transcript by means of a letter to
the deposition officer signed by the deponent which is mailed by
certified or registered mail with return receipt requested. A copy
of that letter shall be sent by first-class mail to all parties
attending the deposition. For good cause shown, the court may
shorten the 30-day period for making changes, approving, or refusing
to approve the transcript.
The deposition officer shall indicate on the original of the
transcript, if the deponent has not already done so at the office of
the deposition officer, any action taken by the deponent and indicate
on the original of the transcript, the deponent's approval of, or
failure or refusal to approve, the transcript. The deposition
officer shall also notify in writing the parties attending the
deposition of any changes which the deponent timely made in person.
If the deponent fails or refuses to approve the transcript within the
allotted period, the deposition shall be given the same effect as
though it had been approved, subject to any changes timely made by
the deponent. However, on a seasonable motion to suppress the
deposition, accompanied by a declaration stating facts showing a
reasonable and good faith attempt at an informal resolution of each
issue presented by the motion, the court may determine that the
reasons given for the failure or refusal to approve the transcript
require rejection of the deposition in whole or in part.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to suppress a deposition, unless it finds that the
one subject to the sanction acted with substantial justification or
that other circumstances make the imposition of the sanction unjust.
(2) If there is no stenographic transcription of the deposition,
the deposition officer shall send written notice to the deponent and
to all parties attending the deposition that the recording is
available for review, unless the deponent and all these parties agree
on the record to waive the hearing or viewing of an audiotape or
videotape recording of the testimony. For 30 days following this
notice the deponent, either in person or by signed letter to the
deposition officer, may change the substance of the answer to any
question.
The deposition officer shall set forth in a writing to accompany
the recording any changes made by the deponent, as well as either the
deponent's signature identifying the deposition as his or her own,
or a statement of the deponent's failure to supply the signature, or
to contact the officer within the allotted period. When a deponent
fails to contact the officer within the allotted period, or expressly
refuses by a signature to identify the deposition as his or her own,
the deposition shall be given the same effect as though signed.
However, on a seasonable motion to suppress the deposition,
accompanied by a declaration stating facts showing a reasonable and
good faith attempt at an informal resolution of each issue presented
by the motion, the court may determine that the reasons given for the
refusal to sign require rejection of the deposition in whole or in
part.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to suppress a deposition, unless it finds that the
one subject to the sanction acted with substantial justification or
that other circumstances make the imposition of the sanction unjust.
(r) (1) The deposition officer shall certify on the transcript of
the deposition, or in a writing accompanying an audiotaped or
videotaped deposition as described in paragraph (2) of subdivision
(q), that the deponent was duly sworn and that the transcript or
recording is a true record of the testimony given and of any changes
made by the deponent.
(2) When prepared as a rough draft transcript, the transcript of
the deposition may not be certified and may not be used, cited, or
transcribed as the certified transcript of the deposition
proceedings. The rough draft transcript may not be cited or used in
any way or at any time to rebut or contradict the certified
transcript of deposition proceedings as provided by the deposition
officer.
(s) (1) The certified transcript of a deposition shall not be
filed with the court. Instead, the deposition officer shall securely
seal that transcript in an envelope or package endorsed with the
title of the action and marked: "Deposition of (here insert name of
deponent)," and shall promptly transmit it to the attorney for the
party who noticed the deposition. This attorney shall store it under
conditions that will protect it against loss, destruction, or
tampering.
The attorney to whom the transcript of a deposition is transmitted
shall retain custody of it until six months after final disposition
of the action. At that time, the transcript may be destroyed, unless
the court, on motion of any party and for good cause shown, orders
that the transcript be preserved for a longer period.
(2) An audiotape or videotape record of deposition testimony,
including a certified tape made by an operator qualified under
subparagraph (B) of paragraph (2) of subdivision (l), shall not be
filed with the court. Instead, the operator shall retain custody of
that record and shall store it under conditions that will protect it
against loss, destruction, or tampering, and preserve as far as
practicable the quality of the tape and the integrity of the
testimony and images it contains.
At the request of any party to the action, including a party who
did not attend the taking of the deposition testimony, or at the
request of the deponent, that operator shall promptly (A) permit the
one making the request to hear or to view the tape on receipt of
payment of a reasonable charge for providing the facilities for
hearing or viewing the tape, and (B) furnish a copy of the audiotape
or the videotape recording to the one making the request on receipt
of payment of the reasonable cost of making that copy of the tape.
The attorney or operator who has custody of an audiotape or
videotape record of deposition testimony shall retain custody of it
until six months after final disposition of the action. At that
time, the audiotape or videotape may be destroyed or erased, unless
the court, on motion of any party and for good cause shown, orders
that the tape be preserved for a longer period.
(t) Once any party has taken the deposition of any natural person,
including that of a party to the action, neither the party who gave,
nor any other party who has been served with a deposition notice
pursuant to subdivision (c) may take a subsequent deposition of that
deponent. However, for good cause shown, the court may grant leave
to take a subsequent deposition, and the parties, with the consent of
any deponent who is not a party, may stipulate that a subsequent
deposition be taken. This subdivision does not preclude taking one
subsequent deposition of a natural person who has previously been
examined (1) as a result of that person's designation to testify on
behalf of an organization under subdivision (d), or (2) for the
limited purpose of discovering pursuant to Section 485.230 the
identity, location, and value of property in which the deponent has
an interest. This subdivision does not authorize the taking of more
than one deposition for the limited purpose of Section 485.230.
(u) At the trial or any other hearing in the action, any part or
all of a deposition may be used against any party who was present or
represented at the taking of the deposition, or who had due notice of
the deposition and did not serve a valid objection under subdivision
(g), so far as admissible under the rules of evidence applied as
though the deponent were then present and testifying as a witness, in
accordance with the following provisions:
(1) Any party may use a deposition for the purpose of
contradicting or impeaching the testimony of the deponent as a
witness, or for any other purpose permitted by the Evidence Code.
(2) An adverse party may use for any purpose, a deposition of a
party to the action, or of anyone who at the time of taking the
deposition was an officer, director, managing agent, employee, agent,
or designee under subdivision (d) of a party. It is not ground for
objection to the use of a deposition of a party under this paragraph
by an adverse party that the deponent is available to testify, has
testified, or will testify at the trial or other hearing.
(3) Any party may use for any purpose the deposition of any person
or organization, including that of any party to the action, if the
court finds any of the following:
(A) The deponent resides more than 150 miles from the place of the
trial or other hearing.
(B) The deponent, without the procurement or wrongdoing of the
proponent of the deposition for the purpose of preventing testimony
in open court, is (i) exempted or precluded on the ground of
privilege from testifying concerning the matter to which the deponent'
s testimony is relevant, (ii) disqualified from testifying, (iii)
dead or unable to attend or testify because of existing physical or
mental illness or infirmity, (iv) absent from the trial or other
hearing and the court is unable to compel the deponent's attendance
by its process, or (v) absent from the trial or other hearing and the
proponent of the deposition has exercised reasonable diligence but
has been unable to procure the deponent's attendance by the court's
process.
(C) Exceptional circumstances exist that make it desirable to
allow the use of any deposition in the interests of justice and with
due regard to the importance of presenting the testimony of witnesses
orally in open court.
(4) Any party may use a videotape deposition of a treating or
consulting physician or of any expert witness even though the
deponent is available to testify if the deposition notice under
subdivision (d) reserved the right to use the deposition at trial,
and if that party has complied with subparagraph (I) of paragraph (2)
of subdivision (l).
(5) Subject to the requirements of this section, a party may offer
in evidence all or any part of a deposition, and if the party
introduces only part of the deposition, any other party may introduce
any other parts that are relevant to the parts introduced.
(6) Substitution of parties does not affect the right to use
depositions previously taken.
(7) When an action has been brought in any court of the United
States or of any state, and another action involving the same subject
matter is subsequently brought between the same parties or their
representatives or successors in interest, all depositions lawfully
taken and duly filed in the initial action may be used in the
subsequent action as if originally taken in that subsequent action.
A deposition previously taken may also be used as permitted by the
Evidence Code.
SEC. 22.1. Section 2025 of the Code of Civil Procedure is amended
to read:
2025. (a) Any party may obtain discovery within the scope
delimited by Section 2017, and subject to the restrictions set forth
in Section 2019, by taking in California the oral deposition of any
person, including any party to the action. The person deposed may be
a natural person, an organization such as a public or private
corporation, a partnership, an association, or a governmental agency.
(b) Subject to subdivisions (f) and (t), an oral deposition may be
taken as follows:
(1) The defendant may serve a deposition notice without leave of
court at any time after that defendant has been served or has
appeared in the action, whichever occurs first.
(2) The plaintiff may serve a deposition notice without leave of
court on any date that is 20 days after the service of the summons
on, or appearance by, any defendant. However, on motion with or
without notice, the court, for good cause shown, may grant to a
plaintiff leave to serve a deposition notice on an earlier date.
(c) A party desiring to take the oral deposition of any person
shall give notice in writing in the manner set forth in subdivision
(d). However, where under subdivision (d) of Section 2020 only the
production by a nonparty of business records for copying is desired,
a copy of the deposition subpoena shall serve as the notice of
deposition. The notice of deposition shall be given to every other
party who has appeared in the action. The deposition notice, or the
accompanying proof of service, shall list all the parties or
attorneys for parties on whom it is served.
Where, as defined in subdivision (a) of Section 1985.3, the party
giving notice of the deposition is a subpoenaing party, and the
deponent is a witness commanded by a deposition subpoena to produce
personal records of a consumer, the subpoenaing party shall serve on
that consumer (1) a notice of the deposition, (2) the notice of
privacy rights specified in subdivision (e) of Section 1985.3 and in
Section 1985.6, and (3) a copy of the deposition subpoena.
(d) The deposition notice shall state all of the following:
(1) The address where the deposition will be taken.
(2) The date of the deposition, selected under subdivision (f),
and the time it will commence.
(3) The name of each deponent, and the address and telephone
number, if known, of any deponent who is not a party to the action.
If the name of the deponent is not known, the deposition notice shall
set forth instead a general description sufficient to identify the
person or particular class to which the person belongs.
(4) The specification with reasonable particularity of any
materials or category of materials to be produced by the deponent.
(5) Any intention to record the testimony by audiotape or
videotape, in addition to recording the testimony by the stenographic
method as required by paragraph (1) of subdivision (l), and any
intention to record the testimony by stenographic method, through the
instant visual display of the testimony. In the latter event, a
copy of the deposition notice shall also be given to the deposition
officer. Any offer to provide the instant visual display of the
testimony, or to provide rough draft transcripts to any party which
is accepted prior to, or offered at, the deposition shall also be
made by the deposition officer at the deposition to all parties in
attendance.
(6) Any intention to reserve the right to use at trial a videotape
deposition of a treating or consulting physician or of any expert
witness under paragraph (4) of subdivision (u). In this event, the
operator of the videotape camera shall be a person who is authorized
to administer an oath, and shall not be financially interested in the
action or be a relative or employee of any attorney of any of the
parties.
If the deponent named is not a natural person, the deposition
notice shall describe with reasonable particularity the matters on
which examination is
requested. In that event, the deponent shall designate and produce
at the deposition those of its officers, directors, managing agents,
employees, or agents who are most qualified to testify on its behalf
as to those matters to the extent of any information known or
reasonably available to the deponent. A deposition subpoena shall
advise a nonparty deponent of its duty to make this designation, and
shall describe with reasonable particularity the matters on which
examination is requested.
If the attendance of the deponent is to be compelled by service of
a deposition subpoena under Section 2020, an identical copy of that
subpoena shall be served with the deposition notice.
(e) (1) The deposition of a natural person, whether or not a party
to the action, shall be taken at a place that is, at the option of
the party giving notice of the deposition, either within 75 miles of
the deponent's residence, or within the county where the action is
pending and within 150 miles of the deponent's residence, unless the
court orders otherwise under paragraph (3).
(2) The deposition of an organization that is a party to the
action shall be taken at a place that is, at the option of the party
giving notice of the deposition, either within 75 miles of the
organization's principal executive or business office in California,
or within the county where the action is pending and within 150 miles
of that office. The deposition of any other organization shall be
taken within 75 miles of the organization's principal executive or
business office in California, unless the organization consents to a
more distant place. If the organization has not designated a
principal executive or business office in California, the deposition
shall be taken at a place that is, at the option of the party giving
notice of the deposition, either within the county where the action
is pending, or within 75 miles of any executive or business office in
California of the organization.
(3) A party desiring to take the deposition of a natural person
who is a party to the action or an officer, director, managing agent,
or employee of a party may make a motion for an order that the
deponent attend for deposition at a place that is more distant than
that permitted under paragraph (1). This motion shall be accompanied
by a declaration stating facts showing a reasonable and good faith
attempt at an informal resolution of any issue presented by the
motion.
In exercising its discretion to grant or deny this motion, the
court shall take into consideration any factor tending to show
whether the interests of justice will be served by requiring the
deponent's attendance at that more distant place, including, but not
limited to, the following:
(A) Whether the moving party selected the forum.
(B) Whether the deponent will be present to testify at the trial
of the action.
(C) The convenience of the deponent.
(D) The feasibility of conducting the deposition by written
questions under Section 2028, or of using a discovery method other
than a deposition.
(E) The number of depositions sought to be taken at a place more
distant than that permitted under paragraph (1).
(F) The expense to the parties of requiring the deposition to be
taken within the distance permitted under paragraph (1).
(G) The whereabouts of the deponent at the time for which the
deposition is scheduled.
The order may be conditioned on the advancement by the moving
party of the reasonable expenses and costs to the deponent for travel
to the place of deposition.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to increase travel limits for party deponent, unless
it finds that the one subject to the sanction acted with substantial
justification or that other circumstances make the imposition of the
sanction unjust.
(f) An oral deposition shall be scheduled for a date at least 10
days after service of the deposition notice. If, as defined in
subdivision (a) of Section 1985.3, the party giving notice of the
deposition is a subpoenaing party, and the deponent is a witness
commanded by a deposition subpoena to produce personal records of a
consumer, the deposition shall be scheduled for a date at least 20
days after issuance of that subpoena. However, in unlawful detainer
actions, an oral deposition shall be scheduled for a date at least
five days after service of the deposition notice, but not later than
five days before trial.
On motion or ex parte application of any party or deponent, for
good cause shown, the court may shorten or extend the time for
scheduling a deposition, or may stay its taking until the
determination of a motion for a protective order under subdivision
(i).
(g) Any party served with a deposition notice that does not comply
with subdivisions (b) to (f), inclusive, waives any error or
irregularity unless that party promptly serves a written objection
specifying that error or irregularity at least three calendar days
prior to the date for which the deposition is scheduled, on the party
seeking to take the deposition and any other attorney or party on
whom the deposition notice was served. If an objection is made three
calendar days before the deposition date, the objecting party shall
make personal service of that objection pursuant to Section 1011 on
the party who gave notice of the deposition. Any deposition taken
after the service of a written objection shall not be used against
the objecting party under subdivision (u) if the party did not attend
the deposition and if the court determines that the objection was a
valid one.
In addition to serving this written objection, a party may also
move for an order staying the taking of the deposition and quashing
the deposition notice. This motion shall be accompanied by a
declaration stating facts showing a reasonable and good faith attempt
at an informal resolution of any issue presented by the motion. The
taking of the deposition is stayed pending the determination of this
motion.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to quash a deposition notice, unless it finds that
the one subject to the sanction acted with substantial justification
or that other circumstances make the imposition of the sanction
unjust.
(h) (1) The service of a deposition notice under subdivision (c)
is effective to require any deponent who is a party to the action or
an officer, director, managing agent, or employee of a party to
attend and to testify, as well as to produce any document or tangible
thing for inspection and copying.
(2) The attendance and testimony of any other deponent, as well as
the production by the deponent of any document or tangible thing for
inspection and copying, requires the service on the deponent of a
deposition subpoena under Section 2020.
(i) Before, during, or after a deposition, any party, any
deponent, or any other affected natural person or organization may
promptly move for a protective order. The motion shall be
accompanied by a declaration stating facts showing a reasonable and
good faith attempt at an informal resolution of each issue presented
by the motion.
The court, for good cause shown, may make any order that justice
requires to protect any party, deponent, or other natural person or
organization from unwarranted annoyance, embarrassment, or
oppression, or undue burden and expense. This protective order may
include, but is not limited to, one or more of the following
directions:
(1) That the deposition not be taken at all.
(2) That the deposition be taken at a different time.
(3) That a videotape deposition of a treating or consulting
physician or of any expert witness, intended for possible use at
trial under paragraph (4) of subdivision (u), be postponed until the
moving party has had an adequate opportunity to prepare, by discovery
deposition of the deponent, or other means, for cross-examination.
(4) That the deposition be taken at a place other than that
specified in the deposition notice, if it is within a distance
permitted by subdivision (e).
(5) That the deposition be taken only on certain specified terms
and conditions.
(6) That the deponent's testimony be taken by written, instead of
oral, examination.
(7) That the method of discovery be interrogatories to a party
instead of an oral deposition.
(8) That the testimony be recorded in a manner different from that
specified in the deposition notice.
(9) That certain matters not be inquired into.
(10) That the scope of the examination be limited to certain
matters.
(11) That all or certain of the writings or tangible things
designated in the deposition notice not be produced, inspected, or
copied.
(12) That designated persons, other than the parties to the action
and their officers and counsel, be excluded from attending the
deposition.
(13) That a trade secret or other confidential research,
development, or commercial information not be disclosed or be
disclosed only to specified persons or only in a specified way.
(14) That the parties simultaneously file specified documents
enclosed in sealed envelopes to be opened as directed by the court.
(15) That the deposition be sealed and thereafter opened only on
order of the court.
If the motion for a protective order is denied in whole or in
part, the court may order that the deponent provide or permit the
discovery against which protection was sought on those terms and
conditions that are just.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion for a protective order, unless it finds that the one
subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.
(j) (1) If the party giving notice of a deposition fails to attend
or proceed with it, the court shall impose a monetary sanction under
Section 2023 against that party, or the attorney for that party, or
both, and in favor of any party attending in person or by attorney,
unless it finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the
imposition of the sanction unjust.
(2) If a deponent does not appear for a deposition because the
party giving notice of the deposition failed to serve a required
deposition subpoena, the court shall impose a monetary sanction under
Section 2023 against that party, or the attorney for that party, or
both, in favor of any other party who, in person or by attorney,
attended at the time and place specified in the deposition notice in
the expectation that the deponent's testimony would be taken, unless
the court finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the
imposition of the sanction unjust.
If a deponent on whom a deposition subpoena has been served fails
to attend a deposition or refuses to be sworn as a witness, the court
may impose on the deponent the sanctions described in subdivision
(h) of Section 2020.
(3) If, after service of a deposition notice, a party to the
action or an officer, director, managing agent, or employee of a
party, or a person designated by an organization that is a party
under subdivision (d), without having served a valid objection under
subdivision (g), fails to appear for examination, or to proceed with
it, or to produce for inspection any document or tangible thing
described in the deposition notice, the party giving the notice may
move for an order compelling the deponent's attendance and testimony,
and the production for inspection of any document or tangible thing
described in the deposition notice. This motion (A) shall set forth
specific facts showing good cause justifying the production for
inspection of any document or tangible thing described in the
deposition notice, and (B) shall be accompanied by a declaration
stating facts showing a reasonable and good faith attempt at an
informal resolution of each issue presented by it or, when the
deponent fails to attend the deposition and produce the documents or
things described in the deposition notice, by a declaration stating
that the petitioner has contacted the deponent to inquire about the
nonappearance. If this motion is granted, the court shall also
impose a monetary sanction under Section 2023 against the deponent or
the party with whom the deponent is affiliated, unless it finds that
the one subject to the sanction acted with substantial justification
or that other circumstances make the imposition of the sanction
unjust. On motion of any other party who, in person or by attorney,
attended at the time and place specified in the deposition notice in
the expectation that the deponent's testimony would be taken, the
court shall also impose a monetary sanction under Section 2023,
unless it finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the
imposition of the sanction unjust.
If that party or party-affiliated deponent then fails to obey an
order compelling attendance, testimony, and production, the court may
make those orders that are just, including the imposition of an
issue sanction, an evidence sanction, or a terminating sanction under
Section 2023 against that party deponent or against the party with
whom the deponent is affiliated. In lieu of or in addition to this
sanction, the court may impose a monetary sanction under Section 2023
against that deponent or against the party with whom that party
deponent is affiliated, and in favor of any party who, in person or
by attorney, attended in the expectation that the deponent's
testimony would be taken pursuant to that order.
(k) Except as provided in paragraph (3) of subdivision (d) of
Section 2020, the deposition shall be conducted under the supervision
of an officer who is authorized to administer an oath. This officer
shall not be financially interested in the action and shall not be a
relative or employee of any attorney of any of the parties, or of
any of the parties. Any objection to the qualifications of the
deposition officer is waived unless made before the deposition begins
or as soon thereafter as the ground for that objection becomes known
or could be discovered by reasonable diligence.
(l) (1) The deposition officer shall put the deponent under oath.
Unless the parties agree or the court orders otherwise, the
testimony, as well as any stated objections, shall be taken
stenographically. The party noticing the deposition may also record
the testimony by audiotape or videotape if the notice of deposition
stated an intention also to record the testimony by either of those
methods, or if all the parties agree that the testimony may also be
recorded by either of those methods. Any other party, at that party'
s expense, may make a simultaneous audiotape or videotape record of
the deposition, provided that other party promptly, and in no event
less than three calendar days before the date for which the
deposition is scheduled, serves a written notice of this intention to
audiotape or videotape the deposition testimony on the party or
attorney who noticed the deposition, on all other parties or
attorneys on whom the deposition notice was served under subdivision
(c), and on any deponent whose attendance is being compelled by a
deposition subpoena under Section 2020. If this notice is given
three calendar days before the deposition date, it shall be made by
personal service under Section 1011. Examination and
cross-examination of the deponent shall proceed as permitted at trial
under the provisions of the Evidence Code.
(2) If the deposition is being recorded by means of audiotape or
videotape, the following procedure shall be observed:
(A) The area used for recording the deponent's oral testimony
shall be suitably large, adequately lighted, and reasonably quiet.
(B) The operator of the recording equipment shall be competent to
set up, operate, and monitor the equipment in the manner prescribed
in this subdivision. The operator may be an employee of the attorney
taking the deposition unless the operator is also the deposition
officer. However, if a videotape of deposition testimony is to be
used under paragraph (4) of subdivision (u), the operator of the
recording equipment shall be a person who is authorized to administer
an oath, and shall not be financially interested in the action or be
a relative or employee of any attorney of any of the parties, unless
all parties attending the deposition agree on the record to waive
these qualifications and restrictions.
(C) The operator shall not distort the appearance or the demeanor
of participants in the deposition by the use of camera or sound
recording techniques.
(D) The deposition shall begin with an oral or written statement
on camera or on the audiotape that includes the operator's name and
business address, the name and business address of the operator's
employer, the date, time, and place of the deposition, the caption of
the case, the name of the deponent, a specification of the party on
whose behalf the deposition is being taken, and any stipulations by
the parties.
(E) Counsel for the parties shall identify themselves on camera or
on the audiotape.
(F) The oath shall be administered to the deponent on camera or on
the audiotape.
(G) If the length of a deposition requires the use of more than
one unit of tape, the end of each unit and the beginning of each
succeeding unit shall be announced on camera or on the audiotape.
(H) At the conclusion of a deposition, a statement shall be made
on camera or on the audiotape that the deposition is ended and shall
set forth any stipulations made by counsel concerning the custody of
the audiotape or videotape recording and the exhibits, or concerning
other pertinent matters.
(I) A party intending to offer an audiotaped or videotaped
recording of a deposition in evidence under subdivision (u) shall
notify the court and all parties in writing of that intent and of the
parts of the deposition to be offered within sufficient time for
objections to be made and ruled on by the judge to whom the case is
assigned for trial or hearing, and for any editing of the tape.
Objections to all or part of the deposition shall be made in writing.
The court may permit further designations of testimony and
objections as justice may require. With respect to those portions of
an audiotaped or videotaped deposition that are not designated by
any party or that are ruled to be objectionable, the court may order
that the party offering the recording of the deposition at the trial
or hearing suppress those portions, or that an edited version of the
deposition tape be prepared for use at the trial or hearing. The
original audiotape or videotape of the deposition shall be preserved
unaltered. If no stenographic record of the deposition testimony has
previously been made, the party offering a videotape or an audiotape
recording of that testimony under subdivision (u) shall accompany
that offer with a stenographic transcript prepared from that
recording.
(3) In lieu of participating in the oral examination, parties may
transmit written questions in a sealed envelope to the party taking
the deposition for delivery to the deposition officer, who shall
unseal the envelope and propound them to the deponent after the oral
examination has been completed.
(m) (1) The protection of information from discovery on the ground
that it is privileged or that it is protected work product under
Section 2018 is waived unless a specific objection to its disclosure
is timely made during the deposition.
(2) Errors and irregularities of any kind occurring at the oral
examination that might be cured if promptly presented are waived
unless a specific objection to them is timely made during the
deposition. These errors and irregularities include, but are not
limited to, those relating to the manner of taking the deposition, to
the oath or affirmation administered, to the conduct of a party,
attorney, deponent, or deposition officer, or to the form of any
question or answer. Unless the objecting party demands that the
taking of the deposition be suspended to permit a motion for a
protective order under subdivision (n), the deposition shall proceed
subject to the objection.
(3) Objections to the competency of the deponent, or to the
relevancy, materiality, or admissibility at trial of the testimony or
of the materials produced are unnecessary and are not waived by
failure to make them before or during the deposition.
(4) If a deponent fails to answer any question or to produce any
document or tangible thing under the deponent's control that is
specified in the deposition notice or a deposition subpoena, the
party seeking that answer or production may adjourn the deposition or
complete the examination on other matters without waiving the right
at a later time to move for an order compelling that answer or
production under subdivision (o).
(n) The deposition officer shall not suspend the taking of
testimony without stipulation of the party conducting the deposition
and the deponent unless any party attending the deposition or the
deponent demands the taking of testimony be suspended to enable that
party or deponent to move for a protective order on the ground that
the examination is being conducted in bad faith or in a manner that
unreasonably annoys, embarrasses, or oppresses that deponent or
party. This motion shall be accompanied by a declaration stating
facts showing a reasonable and good faith attempt at an informal
resolution of each issue presented by the motion. The court, for
good cause shown, may terminate the examination or may limit the
scope and manner of taking the deposition as provided in subdivision
(i). If the order terminates the examination, the deposition shall
not thereafter be resumed, except on order of the court.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion for this protective order, unless it finds that the
one subject to the sanction acted with substantial justification or
that other circumstances make the imposition of the sanction unjust.
(o) If a deponent fails to answer any question or to produce any
document or tangible thing under the deponent's control that is
specified in the deposition notice or a deposition subpoena, the
party seeking discovery may move the court for an order compelling
that answer or production. This motion shall be made no later than
60 days after the completion of the record of the deposition, and
shall be accompanied by a declaration stating facts showing a
reasonable and good faith attempt at an informal resolution of each
issue presented by the motion. Notice of this motion shall be given
to all parties, and to the deponent either orally at the examination,
or by subsequent service in writing. If the notice of the motion is
given orally, the deposition officer shall direct the deponent to
attend a session of the court at the time specified in the notice.
Not less than five days prior to the hearing on this motion, the
moving party shall lodge with the court a certified copy of any parts
of the stenographic transcript of the deposition that are relevant
to the motion. If a deposition is recorded by audiotape or
videotape, the moving party is required to lodge a certified copy of
a transcript of any parts of the deposition that are relevant to the
motion. If the court determines that the answer or production sought
is subject to discovery, it shall order that the answer be given or
the production be made on the resumption of the deposition.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to compel answer or production, unless it finds that
the one subject to the sanction acted with substantial justification
or that other circumstances make the imposition of the sanction
unjust.
If a deponent fails to obey an order entered under this
subdivision, the failure may be considered a contempt of court. In
addition, if the disobedient deponent is a party to the action or an
officer, director, managing agent, or employee of a party, the court
may make those orders that are just against the disobedient party, or
against the party with whom the disobedient deponent is affiliated,
including the imposition of an issue sanction, an evidence sanction,
or a terminating sanction under Section 2023. In lieu of or in
addition to this sanction, the court may impose a monetary sanction
under Section 2023 against that party deponent or against any party
with whom the deponent is affiliated.
(p) Unless the parties agree otherwise, the testimony at any
deposition recorded by stenographic means shall be transcribed. The
party noticing the deposition shall bear the cost of that
transcription, unless the court, on motion and for good cause shown,
orders that the cost be borne or shared by another party. Any other
party, at that party's expense, may obtain a copy of the transcript.
If the deposition officer receives a request from a party for an
original or a copy of the deposition transcript, or any portion
thereof, and the document will be available to that party prior to
the time the original or copy would be available to any other party,
the deposition officer shall immediately notify all other parties
attending the deposition of the request, and shall, upon request by
any party other than the party making the original request, make that
copy of the full or partial deposition transcript available to all
parties at the same time. Stenographic notes of depositions shall be
retained by the reporter for a period of not less than eight years
from the date of the deposition, where no transcript is produced, and
not less than one year from the date on which the transcript is
produced. Those notes may be either on paper or electronic media, as
long as it allows for satisfactory production of a transcript at any
time during the periods specified. At the request of any other
party to the action, including a party who did not attend the taking
of the deposition testimony, any party who records or causes the
recording of that testimony by means of audiotape or videotape shall
promptly (1) permit that other party to hear the audiotape or to view
the videotape, and (2) furnish a copy
of the audiotape or videotape to that other party on
receipt of payment of the reasonable cost of making that copy of the
tape.
If the testimony at the deposition is recorded both
stenographically, and by audiotape or videotape, the stenographic
transcript is the official record of that testimony for the purpose
of the trial and any subsequent hearing or appeal.
(q) (1) If the deposition testimony is stenographically recorded,
the deposition officer shall send written notice to the deponent and
to all parties attending the deposition when the original transcript
of the testimony for each session of the deposition is available for
reading, correcting, and signing, unless the deponent and the
attending parties agree on the record that the reading, correcting,
and signing of the transcript of the testimony will be waived or that
the reading, correcting, and signing of a transcript of the
testimony will take place after the entire deposition has been
concluded or at some other specific time. For 30 days following each
such notice, unless the attending parties and the deponent agree on
the record or otherwise in writing to a longer or shorter time
period, the deponent may change the form or the substance of the
answer to a question, and may either approve the transcript of the
deposition by signing it, or refuse to approve the transcript by not
signing it.
Alternatively, within this same period, the deponent may change
the form or the substance of the answer to any question and may
approve or refuse to approve the transcript by means of a letter to
the deposition officer signed by the deponent which is mailed by
certified or registered mail with return receipt requested. A copy
of that letter shall be sent by first-class mail to all parties
attending the deposition. For good cause shown, the court may
shorten the 30-day period for making changes, approving, or refusing
to approve the transcript.
The deposition officer shall indicate on the original of the
transcript, if the deponent has not already done so at the office of
the deposition officer, any action taken by the deponent and indicate
on the original of the transcript, the deponent's approval of, or
failure or refusal to approve, the transcript. The deposition
officer shall also notify in writing the parties attending the
deposition of any changes which the deponent timely made in person.
If the deponent fails or refuses to approve the transcript within the
allotted period, the deposition shall be given the same effect as
though it had been approved, subject to any changes timely made by
the deponent. However, on a seasonable motion to suppress the
deposition, accompanied by a declaration stating facts showing a
reasonable and good faith attempt at an informal resolution of each
issue presented by the motion, the court may determine that the
reasons given for the failure or refusal to approve the transcript
require rejection of the deposition in whole or in part.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to suppress a deposition, unless it finds that the
one subject to the sanction acted with substantial justification or
that other circumstances make the imposition of the sanction unjust.
(2) If there is no stenographic transcription of the deposition,
the deposition officer shall send written notice to the deponent and
to all parties attending the deposition that the recording is
available for review, unless the deponent and all these parties agree
on the record to waive the hearing or viewing of an audiotape or
videotape recording of the testimony. For 30 days following this
notice the deponent, either in person or by signed letter to the
deposition officer, may change the substance of the answer to any
question.
The deposition officer shall set forth in a writing to accompany
the recording any changes made by the deponent, as well as either the
deponent's signature identifying the deposition as his or her own,
or a statement of the deponent's failure to supply the signature, or
to contact the officer within the allotted period. When a deponent
fails to contact the officer within the allotted period, or expressly
refuses by a signature to identify the deposition as his or her own,
the deposition shall be given the same effect as though signed.
However, on a seasonable motion to suppress the deposition,
accompanied by a declaration stating facts showing a reasonable and
good faith attempt at an informal resolution of each issue presented
by the motion, the court may determine that the reasons given for the
refusal to sign require rejection of the deposition in whole or in
part.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to suppress a deposition, unless it finds that the
one subject to the sanction acted with substantial justification or
that other circumstances make the imposition of the sanction unjust.
(r) (1) The deposition officer shall certify on the transcript of
the deposition, or in a writing accompanying an audiotaped or
videotaped deposition as described in paragraph (2) of subdivision
(q), that the deponent was duly sworn and that the transcript or
recording is a true record of the testimony given.
(2) When prepared as a rough draft transcript, the transcript of
the deposition may not be certified and may not be used, cited, or
transcribed as the certified transcript of the deposition
proceedings. The rough draft transcript may not be cited or used in
any way or at any time to rebut or contradict the certified
transcript of deposition proceedings as provided by the deposition
officer.
(s) (1) The certified transcript of a deposition shall not be
filed with the court. Instead, the deposition officer shall securely
seal that transcript in an envelope or package endorsed with the
title of the action and marked: "Deposition of (here insert name of
deponent)," and shall promptly transmit it to the attorney for the
party who noticed the deposition. This attorney shall store it under
conditions that will protect it against loss, destruction, or
tampering.
The attorney to whom the transcript of a deposition is transmitted
shall retain custody of it until six months after final disposition
of the action. At that time, the transcript may be destroyed, unless
the court, on motion of any party and for good cause shown, orders
that the transcript be preserved for a longer period.
(2) An audiotape or videotape record of deposition testimony,
including a certified tape made by an operator qualified under
subparagraph (B) of paragraph (2) of subdivision (l), shall not be
filed with the court. Instead, the operator shall retain custody of
that record and shall store it under conditions that will protect it
against loss, destruction, or tampering, and preserve as far as
practicable the quality of the tape and the integrity of the
testimony and images it contains.
At the request of any party to the action, including a party who
did not attend the taking of the deposition testimony, or at the
request of the deponent, that operator shall promptly (A) permit the
one making the request to hear or to view the tape on receipt of
payment of a reasonable charge for providing the facilities for
hearing or viewing the tape, and (B) furnish a copy of the audiotape
or the videotape recording to the one making the request on receipt
of payment of the reasonable cost of making that copy of the tape.
The attorney or operator who has custody of an audiotape or
videotape record of deposition testimony shall retain custody of it
until six months after final disposition of the action. At that
time, the audiotape or videotape may be destroyed or erased, unless
the court, on motion of any party and for good cause shown, orders
that the tape be preserved for a longer period.
(t) Once any party has taken the deposition of any natural person,
including that of a party to the action, neither the party who gave,
nor any other party who has been served with a deposition notice
pursuant to subdivision (c) may take a subsequent deposition of that
deponent. However, for good cause shown, the court may grant leave
to take a subsequent deposition, and the parties, with the consent of
any deponent who is not a party, may stipulate that a subsequent
deposition be taken. This subdivision does not preclude taking one
subsequent deposition of a natural person who has previously been
examined (1) as a result of that person's designation to testify on
behalf of an organization under subdivision (d), or (2) for the
limited purpose of discovering pursuant to Section 485.230 the
identity, location, and value of property in which the deponent has
an interest. This subdivision does not authorize the taking of more
than one deposition for the limited purpose of Section 485.230.
(u) At the trial or any other hearing in the action, any part or
all of a deposition may be used against any party who was present or
represented at the taking of the deposition, or who had due notice of
the deposition and did not serve a valid objection under subdivision
(g), so far as admissible under the rules of evidence applied as
though the deponent were then present and testifying as a witness, in
accordance with the following provisions:
(1) Any party may use a deposition for the purpose of
contradicting or impeaching the testimony of the deponent as a
witness, or for any other purpose permitted by the Evidence Code.
(2) An adverse party may use for any purpose, a deposition of a
party to the action, or of anyone who at the time of taking the
deposition was an officer, director, managing agent, employee, agent,
or designee under subdivision (d) of a party. It is not ground for
objection to the use of a deposition of a party under this paragraph
by an adverse party that the deponent is available to testify, has
testified, or will testify at the trial or other hearing.
(3) Any party may use for any purpose the deposition of any person
or organization, including that of any party to the action, if the
court finds any of the following:
(A) The deponent resides more than 150 miles from the place of the
trial or other hearing.
(B) The deponent, without the procurement or wrongdoing of the
proponent of the deposition for the purpose of preventing testimony
in open court, is (i) exempted or precluded on the ground of
privilege from testifying concerning the matter to which the deponent'
s testimony is relevant, (ii) disqualified from testifying, (iii)
dead or unable to attend or testify because of existing physical or
mental illness or infirmity, (iv) absent from the trial or other
hearing and the court is unable to compel the deponent's attendance
by its process, or (v) absent from the trial or other hearing and the
proponent of the deposition has exercised reasonable diligence but
has been unable to procure the deponent's attendance by the court's
process.
(C) Exceptional circumstances exist that make it desirable to
allow the use of any deposition in the interests of justice and with
due regard to the importance of presenting the testimony of witnesses
orally in open court.
(4) Any party may use a videotape deposition of a treating or
consulting physician or of any expert witness even though the
deponent is available to testify if the deposition notice under
subdivision (d) reserved the right to use the deposition at trial,
and if that party has complied with subparagraph (I) of paragraph (2)
of subdivision (l).
(5) Subject to the requirements of this section, a party may offer
in evidence all or any part of a deposition, and if the party
introduces only part of the deposition, any other party may introduce
any other parts that are relevant to the parts introduced.
(6) Substitution of parties does not affect the right to use
depositions previously taken.
(7) When an action has been brought in any court of the United
States or of any state, and another action involving the same subject
matter is subsequently brought between the same parties or their
representatives or successors in interest, all depositions lawfully
taken and duly filed in the initial action may be used in the
subsequent action as if originally taken in that subsequent action.
A deposition previously taken may also be used as permitted by the
Evidence Code.
SEC. 22.2. Section 2025 of the Code of Civil Procedure is amended
to read:
2025. (a) Any party may obtain discovery within the scope
delimited by Section 2017, and subject to the restrictions set forth
in Section 2019, by taking in California the oral deposition of any
person, including any party to the action. The person deposed may be
a natural person, an organization such as a public or private
corporation, a partnership, an association, or a governmental agency.
(b) Subject to subdivisions (f) and (t), an oral deposition may be
taken as follows:
(1) The defendant may serve a deposition notice without leave of
court at any time after that defendant has been served or has
appeared in the action, whichever occurs first.
(2) The plaintiff may serve a deposition notice without leave of
court on any date that is 20 days after the service of the summons
on, or appearance by, any defendant. However, on motion with or
without notice, the court, for good cause shown, may grant to a
plaintiff leave to serve a deposition notice on an earlier date.
(c) A party desiring to take the oral deposition of any person
shall give notice in writing in the manner set forth in subdivision
(d). However, where under subdivision (d) of Section 2020 only the
production by a nonparty of business records for copying is desired,
a copy of the deposition subpoena shall serve as the notice of
deposition. The notice of deposition shall be given to every other
party who has appeared in the action. The deposition notice, or the
accompanying proof of service, shall list all the parties or
attorneys for parties on whom it is served.
Where, as defined in subdivision (a) of Section 1985.3, the party
giving notice of the deposition is a subpoenaing party, and the
deponent is a witness commanded by a deposition subpoena to produce
personal records of a consumer, the subpoenaing party shall serve on
that consumer (1) a notice of the deposition, (2) the notice of
privacy rights specified in subdivision (e) of Section 1985.3 and in
Section 1985.6, and (3) a copy of the deposition subpoena.
(d) The deposition notice shall state all of the following:
(1) The address where the deposition will be taken.
(2) The date of the deposition, selected under subdivision (f),
and the time it will commence.
(3) The name of each deponent, and the address and telephone
number, if known, of any deponent who is not a party to the action.
If the name of the deponent is not known, the deposition notice shall
set forth instead a general description sufficient to identify the
person or particular class to which the person belongs.
(4) The specification with reasonable particularity of any
materials or category of materials to be produced by the deponent.
(5) Any intention to record the testimony by audiotape or
videotape, in addition to recording the testimony by the stenographic
method as required by paragraph (1) of subdivision (l) and any
intention to record the testimony by stenographic method, through the
instant visual display of the testimony. In the latter event, a
copy of the deposition notice shall also be given to the deposition
officer. Any offer to provide the instant visual display of the
testimony or to provide rough draft transcripts to any party which is
accepted prior to, or offered at, the deposition shall also be made
by the deposition officer at the deposition to all parties in
attendance.
(6) Any intention to reserve the right to use at trial a videotape
deposition of a treating or consulting physician or of any expert
witness under paragraph (4) of subdivision (u). In this event, the
operator of the videotape camera shall be a person who is authorized
to administer an oath, and shall not be financially interested in the
action or be a relative or employee of any attorney of any of the
parties.
If the deponent named is not a natural person, the deposition
notice shall describe with reasonable particularity the matters on
which examination is requested. In that event, the deponent shall
designate and produce at the deposition those of its officers,
directors, managing agents, employees, or agents who are most
qualified to testify on its behalf as to those matters to the extent
of any information known or reasonably available to the deponent. A
deposition subpoena shall advise a nonparty deponent of its duty to
make this designation, and shall describe with reasonable
particularity the matters on which examination is requested.
If the attendance of the deponent is to be compelled by service of
a deposition subpoena under Section 2020, an identical copy of that
subpoena shall be served with the deposition notice.
(e) (1) The deposition of a natural person, whether or not a party
to the action, shall be taken at a place that is, at the option of
the party giving notice of the deposition, either within 75 miles of
the deponent's residence, or within the county where the action is
pending and within 150 miles of the deponent's residence, unless the
court orders otherwise under paragraph (3).
(2) The deposition of an organization that is a party to the
action shall be taken at a place that is, at the option of the party
giving notice of the deposition, either within 75 miles of the
organization's principal executive or business office in California,
or within the county where the action is pending and within 150 miles
of that office. The deposition of any other organization shall be
taken within 75 miles of the organization's principal executive or
business office in California, unless the organization consents to a
more distant place. If the organization has not designated a
principal executive or business office in California, the deposition
shall be taken at a place that is, at the option of the party giving
notice of the deposition, either within the county where the action
is pending, or within 75 miles of any executive or business office in
California of the organization.
(3) A party desiring to take the deposition of a natural person
who is a party to the action or an officer, director, managing agent,
or employee of a party may make a motion for an order that the
deponent attend for deposition at a place that is more distant than
that permitted under paragraph (1). This motion shall be accompanied
by a declaration stating facts showing a reasonable and good faith
attempt at an informal resolution of any issue presented by the
motion.
In exercising its discretion to grant or deny this motion, the
court shall take into consideration any factor tending to show
whether the interests of justice will be served by requiring the
deponent's attendance at that more distant place, including, but not
limited to, the following:
(A) Whether the moving party selected the forum.
(B) Whether the deponent will be present to testify at the trial
of the action.
(C) The convenience of the deponent.
(D) The feasibility of conducting the deposition by written
questions under Section 2028, or of using a discovery method other
than a deposition.
(E) The number of depositions sought to be taken at a place more
distant than that permitted under paragraph (1).
(F) The expense to the parties of requiring the deposition to be
taken within the distance permitted under paragraph (1).
(G) The whereabouts of the deponent at the time for which the
deposition is scheduled.
The order may be conditioned on the advancement by the moving
party of the reasonable expenses and costs to the deponent for travel
to the place of deposition.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to increase travel limits for party deponent, unless
it finds that the one subject to the sanction acted with substantial
justification or that other circumstances make the imposition of the
sanction unjust.
(f) An oral deposition shall be scheduled for a date at least 10
days after service of the deposition notice. If, as defined in
subdivision (a) of Section 1985.3, the party giving notice of the
deposition is a subpoenaing party, and the deponent is a witness
commanded by a deposition subpoena to produce personal records of a
consumer, the deposition shall be scheduled for a date at least 20
days after issuance of that subpoena. However, in unlawful detainer
actions, an oral deposition shall be scheduled for a date at least
five days after service of the deposition notice, but not later than
five days before trial.
On motion or ex parte application of any party or deponent, for
good cause shown, the court may shorten or extend the time for
scheduling a deposition, or may stay its taking until the
determination of a motion for a protective order under subdivision
(i).
(g) Any party served with a deposition notice that does not comply
with subdivisions (b) to (f), inclusive, waives any error or
irregularity unless that party promptly serves a written objection
specifying that error or irregularity at least three calendar days
prior to the date for which the deposition is scheduled, on the party
seeking to take the deposition and any other attorney or party on
whom the deposition notice was served. If an objection is made three
calendar days before the deposition date, the objecting party shall
make personal service of that objection pursuant to Section 1011 on
the party who gave notice of the deposition. Any deposition taken
after the service of a written objection shall not be used against
the objecting party under subdivision (u) if the party did not attend
the deposition and if the court determines that the objection was a
valid one.
In addition to serving this written objection, a party may also
move for an order staying the taking of the deposition and quashing
the deposition notice. This motion shall be accompanied by a
declaration stating facts showing a reasonable and good faith attempt
at an informal resolution of any issue presented by the motion. The
taking of the deposition is stayed pending the determination of this
motion.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to quash a deposition notice, unless it finds that
the one subject to the sanction acted with substantial justification
or that other circumstances make the imposition of the sanction
unjust.
(h) (1) The service of a deposition notice under subdivision (c)
is effective to require any deponent who is a party to the action or
an officer, director, managing agent, or employee of a party to
attend and to testify, as well as to produce any document or tangible
thing for inspection and copying.
(2) The attendance and testimony of any other deponent, as well as
the production by the deponent of any document or tangible thing for
inspection and copying, requires the service on the deponent of a
deposition subpoena under Section 2020.
(i) Before, during, or after a deposition, any party, any
deponent, or any other affected natural person or organization may
promptly move for a protective order. The motion shall be
accompanied by a declaration stating facts showing a reasonable and
good faith attempt at an informal resolution of each issue presented
by the motion.
The court, for good cause shown, may make any order that justice
requires to protect any party, deponent, or other natural person or
organization from unwarranted annoyance, embarrassment, or
oppression, or undue burden and expense. This protective order may
include, but is not limited to, one or more of the following
directions:
(1) That the deposition not be taken at all.
(2) That the deposition be taken at a different time.
(3) That a videotape deposition of a treating or consulting
physician or of any expert witness, intended for possible use at
trial under paragraph (4) of subdivision (u), be postponed until the
moving party has had an adequate opportunity to prepare, by discovery
deposition of the deponent, or other means, for cross-examination.
(4) That the deposition be taken at a place other than that
specified in the deposition notice, if it is within a distance
permitted by subdivision (e).
(5) That the deposition be taken only on certain specified terms
and conditions.
(6) That the deponent's testimony be taken by written, instead of
oral, examination.
(7) That the method of discovery be interrogatories to a party
instead of an oral deposition.
(8) That the testimony be recorded in a manner different from that
specified in the deposition notice.
(9) That certain matters not be inquired into.
(10) That the scope of the examination be limited to certain
matters.
(11) That all or certain of the writings or tangible things
designated in the deposition notice not be produced, inspected, or
copied.
(12) That designated persons, other than the parties to the action
and their officers and counsel, be excluded from attending the
deposition.
(13) That a trade secret or other confidential research,
development, or commercial information not be disclosed or be
disclosed only to specified persons or only in a specified way.
(14) That the parties simultaneously file specified documents
enclosed in sealed envelopes to be opened as directed by the court.
(15) That the deposition be sealed and thereafter opened only on
order of the court.
If the motion for a protective order is denied in whole or in
part, the court may order that the deponent provide or permit the
discovery against which protection was sought on those terms and
conditions that are just.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion for a protective order, unless it finds that the one
subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.
(j) (1) If the party giving notice of a deposition fails to attend
or proceed with it, the court shall impose a monetary sanction under
Section 2023 against that party, or the attorney for that party, or
both, and in favor of any party
attending in person or by attorney, unless it finds that the one
subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.
(2) If a deponent does not appear for a deposition because the
party giving notice of the deposition failed to serve a required
deposition subpoena, the court shall impose a monetary sanction under
Section 2023 against that party, or the attorney for that party, or
both, in favor of any other party who, in person or by attorney,
attended at the time and place specified in the deposition notice in
the expectation that the deponent's testimony would be taken, unless
the court finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the
imposition of the sanction unjust.
If a deponent on whom a deposition subpoena has been served fails
to attend a deposition or refuses to be sworn as a witness, the court
may impose on the deponent the sanctions described in subdivision
(h) of Section 2020.
(3) If, after service of a deposition notice, a party to the
action or an officer, director, managing agent, or employee of a
party, or a person designated by an organization that is a party
under subdivision (d), without having served a valid objection under
subdivision (g), fails to appear for examination, or to proceed with
it, or to produce for inspection any document or tangible thing
described in the deposition notice, the party giving the notice may
move for an order compelling the deponent's attendance and testimony,
and the production for inspection of any document or tangible thing
described in the deposition notice. This motion (A) shall set forth
specific facts showing good cause justifying the production for
inspection of any document or tangible thing described in the
deposition notice, and (B) shall be accompanied by a declaration
stating facts showing a reasonable and good faith attempt at an
informal resolution of each issue presented by it or, when the
deponent fails to attend the deposition and produce the documents or
things described in the deposition notice, by a declaration stating
that the petitioner has contacted the deponent to inquire about the
nonappearance. If this motion is granted, the court shall also
impose a monetary sanction under Section 2023 against the deponent or
the party with whom the deponent is affiliated, unless it finds that
the one subject to the sanction acted with substantial justification
or that other circumstances make the imposition of the sanction
unjust. On motion of any other party who, in person or by attorney,
attended at the time and place specified in the deposition notice in
the expectation that the deponent's testimony would be taken, the
court shall also impose a monetary sanction under Section 2023,
unless it finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the
imposition of the sanction unjust.
If that party or party-affiliated deponent then fails to obey an
order compelling attendance, testimony, and production, the court may
make those orders that are just, including the imposition of an
issue sanction, an evidence sanction, or a terminating sanction under
Section 2023 against that party deponent or against the party with
whom the deponent is affiliated. In lieu of or in addition to this
sanction, the court may impose a monetary sanction under Section 2023
against that deponent or against the party with whom that party
deponent is affiliated, and in favor of any party who, in person or
by attorney, attended in the expectation that the deponent's
testimony would be taken pursuant to that order.
(k) Except as provided in paragraph (3) of subdivision (d) of
Section 2020, the deposition shall be conducted under the supervision
of an officer who is authorized to administer an oath. This officer
shall not be financially interested in the action and shall not be a
relative or employee of any attorney of any of the parties, or of
any of the parties. Any objection to the qualifications of the
deposition officer is waived unless made before the deposition begins
or as soon thereafter as the ground for that objection becomes known
or could be discovered by reasonable diligence.
(l) (1) The deposition officer shall put the deponent under oath.
Unless the parties agree or the court orders otherwise, the
testimony, as well as any stated objections, shall be taken
stenographically. The party noticing the deposition may also record
the testimony by audiotape or videotape if the notice of deposition
stated an intention also to record the testimony by either of those
methods, or if all the parties agree that the testimony may also be
recorded by either of those methods. Any other party, at that party'
s expense, may make a simultaneous audiotape or videotape record of
the deposition, provided that other party promptly, and in no event
less than three calendar days before the date for which the
deposition is scheduled, serves a written notice of this intention to
audiotape or videotape the deposition testimony on the party or
attorney who noticed the deposition, on all other parties or
attorneys on whom the deposition notice was served under subdivision
(c), and on any deponent whose attendance is being compelled by a
deposition subpoena under Section 2020. If this notice is given
three calendar days before the deposition date, it shall be made by
personal service under Section 1011. Examination and
cross-examination of the deponent shall proceed as permitted at trial
under the provisions of the Evidence Code.
(2) If the deposition is being recorded by means of audiotape or
videotape, the following procedure shall be observed:
(A) The area used for recording the deponent's oral testimony
shall be suitably large, adequately lighted, and reasonably quiet.
(B) The operator of the recording equipment shall be competent to
set up, operate, and monitor the equipment in the manner prescribed
in this subdivision. The operator may be an employee of the attorney
taking the deposition unless the operator is also the deposition
officer. However, if a videotape of deposition testimony is to be
used under paragraph (4) of subdivision (u), the operator of the
recording equipment shall be a person who is authorized to administer
an oath, and shall not be financially interested in the action or be
a relative or employee of any attorney of any of the parties, unless
all parties attending the deposition agree on the record to waive
these qualifications and restrictions.
(C) The operator shall not distort the appearance or the demeanor
of participants in the deposition by the use of camera or sound
recording techniques.
(D) The deposition shall begin with an oral or written statement
on camera or on the audiotape that includes the operator's name and
business address, the name and business address of the operator's
employer, the date, time, and place of the deposition, the caption of
the case, the name of the deponent, a specification of the party on
whose behalf the deposition is being taken, and any stipulations by
the parties.
(E) Counsel for the parties shall identify themselves on camera or
on the audiotape.
(F) The oath shall be administered to the deponent on camera or on
the audiotape.
(G) If the length of a deposition requires the use of more than
one unit of tape, the end of each unit and the beginning of each
succeeding unit shall be announced on camera or on the audiotape.
(H) At the conclusion of a deposition, a statement shall be made
on camera or on the audiotape that the deposition is ended and shall
set forth any stipulations made by counsel concerning the custody of
the audiotape or videotape recording and the exhibits, or concerning
other pertinent matters.
(I) A party intending to offer an audiotaped or videotaped
recording of a deposition in evidence under subdivision (u) shall
notify the court and all parties in writing of that intent and of the
parts of the deposition to be offered within sufficient time for
objections to be made and ruled on by the judge to whom the case is
assigned for trial or hearing, and for any editing of the tape.
Objections to all or part of the deposition shall be made in writing.
The court may permit further designations of testimony and
objections as justice may require. With respect to those portions of
an audiotaped or videotaped deposition that are not designated by
any party or that are ruled to be objectionable, the court may order
that the party offering the recording of the deposition at the trial
or hearing suppress those portions, or that an edited version of the
deposition tape be prepared for use at the trial or hearing. The
original audiotape or videotape of the deposition shall be preserved
unaltered. If no stenographic record of the deposition testimony has
previously been made, the party offering a videotape or an audiotape
recording of that testimony under subdivision (u) shall accompany
that offer with a stenographic transcript prepared from that
recording.
(3) In lieu of participating in the oral examination, parties may
transmit written questions in a sealed envelope to the party taking
the deposition for delivery to the deposition officer, who shall
unseal the envelope and propound them to the deponent after the oral
examination has been completed.
(m) (1) The protection of information from discovery on the ground
that it is privileged or that it is protected work product under
Section 2018 is waived unless a specific objection to its disclosure
is timely made during the deposition.
(2) Errors and irregularities of any kind occurring at the oral
examination that might be cured if promptly presented are waived
unless a specific objection to them is timely made during the
deposition. These errors and irregularities include, but are not
limited to, those relating to the manner of taking the deposition, to
the oath or affirmation administered, to the conduct of a party,
attorney, deponent, or deposition officer, or to the form of any
question or answer. Unless the objecting party demands that the
taking of the deposition be suspended to permit a motion for a
protective order under subdivision (n), the deposition shall proceed
subject to the objection.
(3) Objections to the competency of the deponent, or to the
relevancy, materiality, or admissibility at trial of the testimony or
of the materials produced are unnecessary and are not waived by
failure to make them before or during the deposition.
(4) If a deponent fails to answer any question or to produce any
document or tangible thing under the deponent's control that is
specified in the deposition notice or a deposition subpoena, the
party seeking that answer or production may adjourn the deposition or
complete the examination on other matters without waiving the right
at a later time to move for an order compelling that answer or
production under subdivision (o).
(n) On demand of any party or the deponent, the deposition officer
shall suspend the taking of testimony to enable that party or
deponent to move for a protective order on the ground that the
examination is being conducted in bad faith or in a manner that
unreasonably annoys, embarrasses, or oppresses that deponent or
party. This motion shall be accompanied by a declaration stating
facts showing a reasonable and good faith attempt at an informal
resolution of each issue presented by the motion. The court, for
good cause shown, may terminate the examination or may limit the
scope and manner of taking the deposition as provided in subdivision
(i). If the order terminates the examination, the deposition shall
not thereafter be resumed, except on order of the court.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion for this protective order, unless it finds that the
one subject to the sanction acted with substantial justification or
that other circumstances make the imposition of the sanction unjust.
(o) If a deponent fails to answer any question or to produce any
document or tangible thing under the deponent's control that is
specified in the deposition notice or a deposition subpoena, the
party seeking discovery may move the court for an order compelling
that answer or production. This motion shall be made no later than
60 days after the completion of the record of the deposition, and
shall be accompanied by a declaration stating facts showing a
reasonable and good faith attempt at an informal resolution of each
issue presented by the motion. Notice of this motion shall be given
to all parties, and to the deponent either orally at the examination,
or by subsequent service in writing. If the notice of the motion is
given orally, the deposition officer shall direct the deponent to
attend a session of the court at the time specified in the notice.
Not less than five days prior to the hearing on this motion, the
moving party shall lodge with the court a certified copy of any parts
of the stenographic transcript of the deposition that are relevant
to the motion. If a deposition is recorded by audiotape or
videotape, the moving party is required to lodge a certified copy of
a transcript of any parts of the deposition that are relevant to the
motion. If the court determines that the answer or production sought
is subject to discovery, it shall order that the answer be given or
the production be made on the resumption of the deposition.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to compel answer or production, unless it finds that
the one subject to the sanction acted with substantial justification
or that other circumstances make the imposition of the sanction
unjust.
If a deponent fails to obey an order entered under this
subdivision, the failure may be considered a contempt of court. In
addition, if the disobedient deponent is a party to the action or an
officer, director, managing agent, or employee of a party, the court
may make those orders that are just against the disobedient party, or
against the party with whom the disobedient deponent is affiliated,
including the imposition of an issue sanction, an evidence sanction,
or a terminating sanction under Section 2023. In lieu of or in
addition to this sanction, the court may impose a monetary sanction
under Section 2023 against that party deponent or against any party
with whom the deponent is affiliated.
(p) Unless the parties agree otherwise, the testimony at any
deposition recorded by stenographic means shall be transcribed. The
party noticing the deposition shall bear the cost of that
transcription, unless the court, on motion and for good cause shown,
orders that the cost be borne or shared by another party. Any other
party, at that party's expense, may obtain a copy of the transcript.
If the deposition officer receives a request from a party for an
original or a copy of the deposition transcript, or any portion
thereof, and the document will be available to that party prior to
the time the original or copy would be available to any other party,
the deposition officer shall immediately notify all other parties
attending the deposition of the request, and shall, upon request by
any party other than the party making the original request, make that
copy of the full or partial deposition transcript available to all
parties at the same time. Stenographic notes of depositions shall be
retained by the reporter for a period of not less than eight years
from the date of the deposition, where no transcript is produced, and
not less than one year from the date on which the transcript is
produced. Those notes may be either on paper or electronic media, as
long as it allows for satisfactory production of a transcript at any
time during the periods specified. At the request of any other
party to the action, including a party who did not attend the taking
of the deposition testimony, any party who records or causes the
recording of that testimony by means of audiotape or videotape shall
promptly (1) permit that other party to hear the audiotape or to view
the videotape, and (2) furnish a copy of the audiotape or videotape
to that other party on receipt of payment of the reasonable cost of
making that copy of the tape.
If the testimony at the deposition is recorded both
stenographically, and by audiotape or videotape, the stenographic
transcript is the official record of that testimony for the purpose
of the trial and any subsequent hearing or appeal.
(q) (1) If the deposition testimony is stenographically recorded,
the deposition officer shall send written notice to the deponent and
to all parties attending the deposition when the original transcript
of the testimony for each session of the deposition is available for
reading, correcting, and signing, unless the deponent and the
attending parties agree on the record that the reading, correcting,
and signing of the transcript of the testimony will be waived or that
the reading, correcting, and signing of a transcript of the
testimony will take place after the entire deposition has been
concluded or at some other specific time. For 30 days following each
such notice, unless the attending parties and the deponent agree on
the record or otherwise in writing to a longer or shorter time
period, the deponent may change the form or the substance of the
answer to a question, and may either approve the transcript of the
deposition by signing it, or refuse to approve the transcript by not
signing it.
Alternatively, within this same period, the deponent may change
the form or the substance of the answer to any question and may
approve or refuse to approve the transcript by means of a letter to
the deposition officer signed by the deponent which is mailed by
certified or registered mail with return receipt requested. A copy
of that letter shall be sent by first-class mail to all parties
attending the deposition. For good cause shown, the court may
shorten the 30-day period for making changes, approving, or refusing
to approve the transcript.
The deposition officer shall indicate on the original of the
transcript, if the deponent has not already done so at the office of
the deposition officer, any action taken by the deponent and indicate
on the original of the transcript, the deponent's approval of, or
failure or refusal to approve, the transcript. The deposition
officer shall also notify in writing the parties attending the
deposition of any changes which the deponent timely made in person.
If the deponent fails or refuses to approve the transcript within the
allotted period, the deposition shall be given the same effect as
though it had been approved, subject to any changes timely made by
the deponent. However, on a seasonable motion to suppress the
deposition, accompanied by a declaration stating facts showing a
reasonable and good faith attempt at an informal resolution of each
issue presented by the motion, the court may determine that the
reasons given for the failure or refusal to approve the transcript
require rejection of the deposition in whole or in part.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to suppress a deposition, unless it finds that the
one subject to the sanction acted with substantial justification or
that other circumstances make the imposition of the sanction unjust.
(2) If there is no stenographic transcription of the deposition,
the deposition officer shall send written notice to the deponent and
to all parties attending the deposition that the recording is
available for review, unless the deponent and all these parties agree
on the record to waive the hearing or viewing of an audiotape or
videotape recording of the testimony. For 30 days following this
notice the deponent, either in person or by signed letter to the
deposition officer, may change the substance of the answer to any
question.
The deposition officer shall set forth in a writing to accompany
the recording any changes made by the deponent, as well as either the
deponent's signature identifying the deposition as his or her own,
or a statement of the deponent's failure to supply the signature, or
to contact the officer within the allotted period. When a deponent
fails to contact the officer within the allotted period, or expressly
refuses by a signature to identify the deposition as his or her own,
the deposition shall be given the same effect as though signed.
However, on a seasonable motion to suppress the deposition,
accompanied by a declaration stating facts showing a reasonable and
good faith attempt at an informal resolution of each issue presented
by the motion, the court may determine that the reasons given for the
refusal to sign require rejection of the deposition in whole or in
part.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to suppress a deposition, unless it finds that the
one subject to the sanction acted with substantial justification or
that other circumstances make the imposition of the sanction unjust.
(r) (1) The deposition officer shall certify on the transcript of
the deposition, or in a writing accompanying an audiotaped or
videotaped deposition as described in paragraph (2) of subdivision
(q), that the deponent was duly sworn and that the transcript or
recording is a true record of the testimony given and of any changes
made by the deponent.
(2) When prepared as a rough draft transcript, the transcript of
the deposition may not be certified and may not be used, cited, or
transcribed as the certified transcript of the deposition
proceedings. The rough draft transcript may not be cited or used in
any way or at any time to rebut or contradict the certified
transcript of deposition proceedings as provided by the deposition
officer.
(s) (1) The certified transcript of a deposition shall not be
filed with the court. Instead, the deposition officer shall securely
seal that transcript in an envelope or package endorsed with the
title of the action and marked: "Deposition of (here insert name of
deponent)," and shall promptly transmit it to the attorney for the
party who noticed the deposition. This attorney shall store it under
conditions that will protect it against loss, destruction, or
tampering.
The attorney to whom the transcript of a deposition is transmitted
shall retain custody of it until six months after final disposition
of the action. At that time, the transcript may be destroyed, unless
the court, on motion of any party and for good cause shown, orders
that the transcript be preserved for a longer period.
(2) An audiotape or videotape record of deposition testimony,
including a certified tape made by an operator qualified under
subparagraph (B) of paragraph (2) of subdivision (l), shall not be
filed with the court. Instead, the operator shall retain custody of
that record and shall store it under conditions that will protect it
against loss, destruction, or tampering, and preserve as far as
practicable the quality of the tape and the integrity of the
testimony and images it contains.
At the request of any party to the action, including a party who
did not attend the taking of the deposition testimony, or at the
request of the deponent, that operator shall promptly (A) permit the
one making the request to hear or to view the tape on receipt of
payment of a reasonable charge for providing the facilities for
hearing or viewing the tape, and (B) furnish a copy of the audiotape
or the videotape recording to the one making the request on receipt
of payment of the reasonable cost of making that copy of the tape.
The attorney or operator who has custody of an audiotape or
videotape record of deposition testimony shall retain custody of it
until six months after final disposition of the action. At that
time, the audiotape or videotape may be destroyed or erased, unless
the court, on motion of any party and for good cause shown, orders
that the tape be preserved for a longer period.
(t) Once any party has taken the deposition of any natural person,
including that of a party to the action, neither the party who gave,
nor any other party who has been served with a deposition notice
pursuant to subdivision (c) may take a subsequent deposition of that
deponent. However, for good cause shown, the court may grant leave
to take a subsequent deposition, and the parties, with the consent of
any deponent who is not a party, may stipulate that a subsequent
deposition be taken. This subdivision does not preclude taking one
subsequent deposition of a natural person who has previously been
examined (1) as a result of that person's designation to testify on
behalf of an organization under subdivision (d), or (2) for the
limited purpose of discovering pursuant to Section 485.230 the
identity, location, and value of property in which the deponent has
an interest. This subdivision does not authorize the taking of more
than one deposition for the limited purpose of Section 485.230.
(u) At the trial or any other hearing in the action, any part or
all of a deposition may be used against any party who was present or
represented at the taking of the deposition, or who had due notice of
the deposition and did not serve a valid objection under subdivision
(g), so far as admissible under the rules of evidence applied as
though the deponent were then present and testifying as a witness, in
accordance with the following provisions:
(1) Any party may use a deposition for the purpose of
contradicting or impeaching the testimony of the deponent as a
witness, or for any other purpose permitted by the Evidence Code.
(2) An adverse party may use for any purpose, a deposition of a
party to the action, or of anyone who at the time of taking the
deposition was an officer, director, managing agent, employee, agent,
or designee under subdivision (d) of a party. It is not ground for
objection to the use of a deposition of a party under this paragraph
by an adverse party that the deponent is available to testify, has
testified, or will testify at the trial or other hearing.
(3) Any party may use for any purpose the deposition of any person
or organization, including that of any party to the action, if the
court finds any of the following:
(A) The deponent resides more than 150 miles from the
place of the trial or other hearing.
(B) The deponent, without the procurement or wrongdoing of the
proponent of the deposition for the purpose of preventing testimony
in open court, is (i) exempted or precluded on the ground of
privilege from testifying concerning the matter to which the deponent'
s testimony is relevant, (ii) disqualified from testifying, (iii)
dead or unable to attend or testify because of existing physical or
mental illness or infirmity, (iv) absent from the trial or other
hearing and the court is unable to compel the deponent's attendance
by its process, or (v) absent from the trial or other hearing and the
proponent of the deposition has exercised reasonable diligence but
has been unable to procure the deponent's attendance by the court's
process.
(C) Exceptional circumstances exist that make it desirable to
allow the use of any deposition in the interests of justice and with
due regard to the importance of presenting the testimony of witnesses
orally in open court.
(4) Any party may use a videotape deposition of a treating or
consulting physician or of any expert witness even though the
deponent is available to testify if the deposition notice under
subdivision (d) reserved the right to use the deposition at trial,
and if that party has complied with subparagraph (I) of paragraph (2)
of subdivision (l).
(5) Subject to the requirements of this section, a party may offer
in evidence all or any part of a deposition, and if the party
introduces only part of the deposition, any other party may introduce
any other parts that are relevant to the parts introduced.
(6) Substitution of parties does not affect the right to use
depositions previously taken.
(7) When an action has been brought in any court of the United
States or of any state, and another action involving the same subject
matter is subsequently brought between the same parties or their
representatives or successors in interest, all depositions lawfully
taken and duly filed in the initial action may be used in the
subsequent action as if originally taken in that subsequent action.
A deposition previously taken may also be used as permitted by the
Evidence Code.
SEC. 22.3. Section 2025 of the Code of Civil Procedure is amended
to read:
2025. (a) Any party may obtain discovery within the scope
delimited by Section 2017, and subject to the restrictions set forth
in Section 2019, by taking in California the oral deposition of any
person, including any party to the action. The person deposed may be
a natural person, an organization such as a public or private
corporation, a partnership, an association, or a governmental agency.
(b) Subject to subdivisions (f) and (t), an oral deposition may be
taken as follows:
(1) The defendant may serve a deposition notice without leave of
court at any time after that defendant has been served or has
appeared in the action, whichever occurs first.
(2) The plaintiff may serve a deposition notice without leave of
court on any date that is 20 days after the service of the summons
on, or appearance by, any defendant. However, on motion with or
without notice, the court, for good cause shown, may grant to a
plaintiff leave to serve a deposition notice on an earlier date.
(c) A party desiring to take the oral deposition of any person
shall give notice in writing in the manner set forth in subdivision
(d). However, where under subdivision (d) of Section 2020 only the
production by a nonparty of business records for copying is desired,
a copy of the deposition subpoena shall serve as the notice of
deposition. The notice of deposition shall be given to every other
party who has appeared in the action. The deposition notice, or the
accompanying proof of service, shall list all the parties or
attorneys for parties on whom it is served.
Where, as defined in subdivision (a) of Section 1985.3, the party
giving notice of the deposition is a subpoenaing party, and the
deponent is a witness commanded by a deposition subpoena to produce
personal records of a consumer, the subpoenaing party shall serve on
that consumer (1) a notice of the deposition, (2) the notice of
privacy rights specified in subdivision (e) of Section 1985.3 and in
Section 1985.6, and (3) a copy of the deposition subpoena.
(d) The deposition notice shall state all of the following:
(1) The address where the deposition will be taken.
(2) The date of the deposition, selected under subdivision (f),
and the time it will commence.
(3) The name of each deponent, and the address and telephone
number, if known, of any deponent who is not a party to the action.
If the name of the deponent is not known, the deposition notice shall
set forth instead a general description sufficient to identify the
person or particular class to which the person belongs.
(4) The specification with reasonable particularity of any
materials or category of materials to be produced by the deponent.
(5) Any intention to record the testimony by audiotape or
videotape, in addition to recording the testimony by the stenographic
method as required by paragraph (1) of subdivision (l), and any
intention to record the testimony by stenographic method, through the
instant visual display of the testimony. In the latter event, a
copy of the deposition notice shall also be given to the deposition
officer. Any offer to provide the instant visual display of the
testimony or to provide rough draft transcripts to any party which is
accepted prior to or offered at the deposition shall also be made by
the deposition officer at the deposition to all parties in
attendance.
(6) Any intention to reserve the right to use at trial a videotape
deposition of a treating or consulting physician or of any expert
witness under paragraph (4) of subdivision (u). In this event, the
operator of the videotape camera shall be a person who is authorized
to administer an oath, and shall not be financially interested in the
action or be a relative or employee of any attorney of any of the
parties.
If the deponent named is not a natural person, the deposition
notice shall describe with reasonable particularity the matters on
which examination is requested. In that event, the deponent shall
designate and produce at the deposition those of its officers,
directors, managing agents, employees, or agents who are most
qualified to testify on its behalf as to those matters to the extent
of any information known or reasonably available to the deponent. A
deposition subpoena shall advise a nonparty deponent of its duty to
make this designation, and shall describe with reasonable
particularity the matters on which examination is requested.
If the attendance of the deponent is to be compelled by service of
a deposition subpoena under Section 2020, an identical copy of that
subpoena shall be served with the deposition notice.
(e) (1) The deposition of a natural person, whether or not a party
to the action, shall be taken at a place that is, at the option of
the party giving notice of the deposition, either within 75 miles of
the deponent's residence, or within the county where the action is
pending and within 150 miles of the deponent's residence, unless the
court orders otherwise under paragraph (3).
(2) The deposition of an organization that is a party to the
action shall be taken at a place that is, at the option of the party
giving notice of the deposition, either within 75 miles of the
organization's principal executive or business office in California,
or within the county where the action is pending and within 150 miles
of that office. The deposition of any other organization shall be
taken within 75 miles of the organization's principal executive or
business office in California, unless the organization consents to a
more distant place. If the organization has not designated a
principal executive or business office in California, the deposition
shall be taken at a place that is, at the option of the party giving
notice of the deposition, either within the county where the action
is pending, or within 75 miles of any executive or business office in
California of the organization.
(3) A party desiring to take the deposition of a natural person
who is a party to the action or an officer, director, managing agent,
or employee of a party may make a motion for an order that the
deponent attend for deposition at a place that is more distant than
that permitted under paragraph (1). This motion shall be accompanied
by a declaration stating facts showing a reasonable and good faith
attempt at an informal resolution of any issue presented by the
motion.
In exercising its discretion to grant or deny this motion, the
court shall take into consideration any factor tending to show
whether the interests of justice will be served by requiring the
deponent's attendance at that more distant place, including, but not
limited to, the following:
(A) Whether the moving party selected the forum.
(B) Whether the deponent will be present to testify at the trial
of the action.
(C) The convenience of the deponent.
(D) The feasibility of conducting the deposition by written
questions under Section 2028, or of using a discovery method other
than a deposition.
(E) The number of depositions sought to be taken at a place more
distant than that permitted under paragraph (1).
(F) The expense to the parties of requiring the deposition to be
taken within the distance permitted under paragraph (1).
(G) The whereabouts of the deponent at the time for which the
deposition is scheduled.
The order may be conditioned on the advancement by the moving
party of the reasonable expenses and costs to the deponent for travel
to the place of deposition.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to increase travel limits for party deponent, unless
it finds that the one subject to the sanction acted with substantial
justification or that other circumstances make the imposition of the
sanction unjust.
(f) An oral deposition shall be scheduled for a date at least 10
days after service of the deposition notice. If, as defined in
subdivision (a) of Section 1985.3, the party giving notice of the
deposition is a subpoenaing party, and the deponent is a witness
commanded by a deposition subpoena to produce personal records of a
consumer, the deposition shall be scheduled for a date at least 20
days after issuance of that subpoena. However, in unlawful detainer
actions, an oral deposition shall be scheduled for a date at least
five days after service of the deposition notice, but not later than
five days before trial.
On motion or ex parte application of any party or deponent, for
good cause shown, the court may shorten or extend the time for
scheduling a deposition, or may stay its taking until the
determination of a motion for a protective order under subdivision
(i).
(g) Any party served with a deposition notice that does not comply
with subdivisions (b) to (f), inclusive, waives any error or
irregularity unless that party promptly serves a written objection
specifying that error or irregularity at least three calendar days
prior to the date for which the deposition is scheduled, on the party
seeking to take the deposition and any other attorney or party on
whom the deposition notice was served. If an objection is made three
calendar days before the deposition date, the objecting party shall
make personal service of that objection pursuant to Section 1011 on
the party who gave notice of the deposition. Any deposition taken
after the service of a written objection shall not be used against
the objecting party under subdivision (u) if the party did not attend
the deposition and if the court determines that the objection was a
valid one.
In addition to serving this written objection, a party may also
move for an order staying the taking of the deposition and quashing
the deposition notice. This motion shall be accompanied by a
declaration stating facts showing a reasonable and good faith attempt
at an informal resolution of any issue presented by the motion. The
taking of the deposition is stayed pending the determination of this
motion.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to quash a deposition notice, unless it finds that
the one subject to the sanction acted with substantial justification
or that other circumstances make the imposition of the sanction
unjust.
(h) (1) The service of a deposition notice under subdivision (c)
is effective to require any deponent who is a party to the action or
an officer, director, managing agent, or employee of a party to
attend and to testify, as well as to produce any document or tangible
thing for inspection and copying.
(2) The attendance and testimony of any other deponent, as well as
the production by the deponent of any document or tangible thing for
inspection and copying, requires the service on the deponent of a
deposition subpoena under Section 2020.
(i) Before, during, or after a deposition, any party, any
deponent, or any other affected natural person or organization may
promptly move for a protective order. The motion shall be
accompanied by a declaration stating facts showing a reasonable and
good faith attempt at an informal resolution of each issue presented
by the motion.
The court, for good cause shown, may make any order that justice
requires to protect any party, deponent, or other natural person or
organization from unwarranted annoyance, embarrassment, or
oppression, or undue burden and expense. This protective order may
include, but is not limited to, one or more of the following
directions:
(1) That the deposition not be taken at all.
(2) That the deposition be taken at a different time.
(3) That a videotape deposition of a treating or consulting
physician or of any expert witness, intended for possible use at
trial under paragraph (4) of subdivision (u), be postponed until the
moving party has had an adequate opportunity to prepare, by discovery
deposition of the deponent, or other means, for cross-examination.
(4) That the deposition be taken at a place other than that
specified in the deposition notice, if it is within a distance
permitted by subdivision (e).
(5) That the deposition be taken only on certain specified terms
and conditions.
(6) That the deponent's testimony be taken by written, instead of
oral, examination.
(7) That the method of discovery be interrogatories to a party
instead of an oral deposition.
(8) That the testimony be recorded in a manner different from that
specified in the deposition notice.
(9) That certain matters not be inquired into.
(10) That the scope of the examination be limited to certain
matters.
(11) That all or certain of the writings or tangible things
designated in the deposition notice not be produced, inspected, or
copied.
(12) That designated persons, other than the parties to the action
and their officers and counsel, be excluded from attending the
deposition.
(13) That a trade secret or other confidential research,
development, or commercial information not be disclosed or be
disclosed only to specified persons or only in a specified way.
(14) That the parties simultaneously file specified documents
enclosed in sealed envelopes to be opened as directed by the court.
(15) That the deposition be sealed and thereafter opened only on
order of the court.
If the motion for a protective order is denied in whole or in
part, the court may order that the deponent provide or permit the
discovery against which protection was sought on those terms and
conditions that are just.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion for a protective order, unless it finds that the one
subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.
(j) (1) If the party giving notice of a deposition fails to attend
or proceed with it, the court shall impose a monetary sanction under
Section 2023 against that party, or the attorney for that party, or
both, and in favor of any party attending in person or by attorney,
unless it finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the
imposition of the sanction unjust.
(2) If a deponent does not appear for a deposition because the
party giving notice of the deposition failed to serve a required
deposition subpoena, the court shall impose a monetary sanction under
Section 2023 against that party, or the attorney for that party, or
both, in favor of any other party who, in person or by attorney,
attended at the time and place specified in the deposition notice in
the expectation that the deponent's testimony would be taken, unless
the court finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the
imposition of the sanction unjust.
If a deponent on whom a deposition subpoena has been served fails
to attend a deposition or refuses to be sworn as a witness, the court
may impose on the deponent the sanctions described in subdivision
(h) of Section 2020.
(3) If, after service of a deposition notice, a party to the
action or an officer, director, managing agent, or employee of a
party, or a person designated by an organization that is a party
under subdivision (d), without having served a valid objection under
subdivision (g), fails to appear for examination, or to proceed with
it, or to produce for inspection any document or tangible thing
described in the deposition notice, the party giving the notice may
move for an order compelling the deponent's attendance and testimony,
and the production for inspection of any document or tangible thing
described in the deposition notice. This motion (A) shall set forth
specific facts showing good cause justifying the production for
inspection of any document or tangible thing described in the
deposition notice, and (B) shall be accompanied by a declaration
stating facts showing a reasonable and good faith attempt at an
informal resolution of each issue presented by it or, when the
deponent fails to attend the deposition and produce the documents or
things described in the deposition notice, by a declaration stating
that the petitioner has contacted the deponent to inquire about the
nonappearance. If this motion is granted, the court shall also
impose a monetary sanction under Section 2023 against the deponent or
the party with whom the deponent is affiliated, unless it finds that
the one subject to the sanction acted with substantial justification
or that other circumstances make the imposition of the sanction
unjust. On motion of any other party who, in person or by attorney,
attended at the time and place specified in the deposition notice in
the expectation that the deponent's testimony would be taken, the
court shall also impose a monetary sanction under Section 2023,
unless it finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the
imposition of the sanction unjust.
If that party or party-affiliated deponent then fails to obey an
order compelling attendance, testimony, and production, the court may
make those orders that are just, including the imposition of an
issue sanction, an evidence sanction, or a terminating sanction under
Section 2023 against that party deponent or against the party with
whom the deponent is affiliated. In lieu of or in addition to this
sanction, the court may impose a monetary sanction under Section 2023
against that deponent or against the party with whom that party
deponent is affiliated, and in favor of any party who, in person or
by attorney, attended in the expectation that the deponent's
testimony would be taken pursuant to that order.
(k) Except as provided in paragraph (3) of subdivision (d) of
Section 2020, the deposition shall be conducted under the supervision
of an officer who is authorized to administer an oath. This officer
shall not be financially interested in the action and shall not be a
relative or employee of any attorney of any of the parties, or of
any of the parties. Any objection to the qualifications of the
deposition officer is waived unless made before the deposition begins
or as soon thereafter as the ground for that objection becomes known
or could be discovered by reasonable diligence.
(l) (1) The deposition officer shall put the deponent under oath.
Unless the parties agree or the court orders otherwise, the
testimony, as well as any stated objections, shall be taken
stenographically. The party noticing the deposition may also record
the testimony by audiotape or videotape if the notice of deposition
stated an intention also to record the testimony by either of those
methods, or if all the parties agree that the testimony may also be
recorded by either of those methods. Any other party, at that party'
s expense, may make a simultaneous audiotape or videotape record of
the deposition, provided that other party promptly, and in no event
less than three calendar days before the date for which the
deposition is scheduled, serves a written notice of this intention to
audiotape or videotape the deposition testimony on the party or
attorney who noticed the deposition, on all other parties or
attorneys on whom the deposition notice was served under subdivision
(c), and on any deponent whose attendance is being compelled by a
deposition subpoena under Section 2020. If this notice is given
three calendar days before the deposition date, it shall be made by
personal service under Section 1011. Examination and
cross-examination of the deponent shall proceed as permitted at trial
under the provisions of the Evidence Code.
(2) If the deposition is being recorded by means of audiotape or
videotape, the following procedure shall be observed:
(A) The area used for recording the deponent's oral testimony
shall be suitably large, adequately lighted, and reasonably quiet.
(B) The operator of the recording equipment shall be competent to
set up, operate, and monitor the equipment in the manner prescribed
in this subdivision. The operator may be an employee of the attorney
taking the deposition unless the operator is also the deposition
officer. However, if a videotape of deposition testimony is to be
used under paragraph (4) of subdivision (u), the operator of the
recording equipment shall be a person who is authorized to administer
an oath, and shall not be financially interested in the action or be
a relative or employee of any attorney of any of the parties, unless
all parties attending the deposition agree on the record to waive
these qualifications and restrictions.
(C) The operator shall not distort the appearance or the demeanor
of participants in the deposition by the use of camera or sound
recording techniques.
(D) The deposition shall begin with an oral or written statement
on camera or on the audiotape that includes the operator's name and
business address, the name and business address of the operator's
employer, the date, time, and place of the deposition, the caption of
the case, the name of the deponent, a specification of the party on
whose behalf the deposition is being taken, and any stipulations by
the parties.
(E) Counsel for the parties shall identify themselves on camera or
on the audiotape.
(F) The oath shall be administered to the deponent on camera or on
the audiotape.
(G) If the length of a deposition requires the use of more than
one unit of tape, the end of each unit and the beginning of each
succeeding unit shall be announced on camera or on the audiotape.
(H) At the conclusion of a deposition, a statement shall be made
on camera or on the audiotape that the deposition is ended and shall
set forth any stipulations made by counsel concerning the custody of
the audiotape or videotape recording and the exhibits, or concerning
other pertinent matters.
(I) A party intending to offer an audiotaped or videotaped
recording of a deposition in evidence under subdivision (u) shall
notify the court and all parties in writing of that intent and of the
parts of the deposition to be offered within sufficient time for
objections to be made and ruled on by the judge to whom the case is
assigned for trial or hearing, and for any editing of the tape.
Objections to all or part of the deposition shall be made in writing.
The court may permit further designations of testimony and
objections as justice may require. With respect to those portions of
an audiotaped or videotaped deposition that are not designated by
any party or that are ruled to be objectionable, the court may order
that the party offering the recording of the deposition at the trial
or hearing suppress those portions, or that an edited version of the
deposition tape be prepared for use at the trial or hearing. The
original audiotape or videotape of the deposition shall be preserved
unaltered. If no stenographic record of the deposition testimony has
previously been made, the party offering a videotape or an audiotape
recording of that testimony under subdivision (u) shall accompany
that offer with a stenographic transcript prepared from that
recording.
(3) In lieu of participating in the oral examination, parties may
transmit written questions in a sealed envelope to the party taking
the deposition for delivery to the deposition officer, who shall
unseal the envelope and propound them to the deponent after the oral
examination has been completed.
(m) (1) The protection of information from discovery on the ground
that it is privileged or that it is protected work product under
Section 2018 is waived unless a specific objection to its disclosure
is timely made during the deposition.
(2) Errors and irregularities of any kind occurring at the oral
examination that might be cured if promptly presented are waived
unless a specific objection to them is timely made during the
deposition. These errors and irregularities include, but are not
limited to, those relating to the manner of taking the deposition, to
the oath or affirmation administered, to the conduct of a party,
attorney, deponent, or deposition officer, or to the form of any
question or answer. Unless the objecting party demands that the
taking of the deposition be suspended to
permit a motion for a protective order under
subdivision (n), the deposition shall proceed subject to the
objection.
(3) Objections to the competency of the deponent, or to the
relevancy, materiality, or admissibility at trial of the testimony or
of the materials produced are unnecessary and are not waived by
failure to make them before or during the deposition.
(4) If a deponent fails to answer any question or to produce any
document or tangible thing under the deponent's control that is
specified in the deposition notice or a deposition subpoena, the
party seeking that answer or production may adjourn the deposition or
complete the examination on other matters without waiving the right
at a later time to move for an order compelling that answer or
production under subdivision (o).
(n) The deposition officer shall not suspend the taking of
testimony without stipulation of the party conducting the deposition
and the deponent unless any party attending the deposition or the
deponent demands the taking of testimony be suspended to enable that
party or deponent to move for a protective order on the ground that
the examination is being conducted in bad faith or in a manner that
unreasonably annoys, embarrasses, or oppresses that deponent or
party. This motion shall be accompanied by a declaration stating
facts showing a reasonable and good faith attempt at an informal
resolution of each issue presented by the motion. The court, for
good cause shown, may terminate the examination or may limit the
scope and manner of taking the deposition as provided in subdivision
(i). If the order terminates the examination, the deposition shall
not thereafter be resumed, except on order of the court.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion for this protective order, unless it finds that the
one subject to the sanction acted with substantial justification or
that other circumstances make the imposition of the sanction unjust.
(o) If a deponent fails to answer any question or to produce any
document or tangible thing under the deponent's control that is
specified in the deposition notice or a deposition subpoena, the
party seeking discovery may move the court for an order compelling
that answer or production. This motion shall be made no later than
60 days after the completion of the record of the deposition, and
shall be accompanied by a declaration stating facts showing a
reasonable and good faith attempt at an informal resolution of each
issue presented by the motion. Notice of this motion shall be given
to all parties, and to the deponent either orally at the examination,
or by subsequent service in writing. If the notice of the motion is
given orally, the deposition officer shall direct the deponent to
attend a session of the court at the time specified in the notice.
Not less than five days prior to the hearing on this motion, the
moving party shall lodge with the court a certified copy of any parts
of the stenographic transcript of the deposition that are relevant
to the motion. If a deposition is recorded by audiotape or
videotape, the moving party is required to lodge a certified copy of
a transcript of any parts of the deposition that are relevant to the
motion. If the court determines that the answer or production sought
is subject to discovery, it shall order that the answer be given or
the production be made on the resumption of the deposition.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to compel answer or production, unless it finds that
the one subject to the sanction acted with substantial justification
or that other circumstances make the imposition of the sanction
unjust.
If a deponent fails to obey an order entered under this
subdivision, the failure may be considered a contempt of court. In
addition, if the disobedient deponent is a party to the action or an
officer, director, managing agent, or employee of a party, the court
may make those orders that are just against the disobedient party, or
against the party with whom the disobedient deponent is affiliated,
including the imposition of an issue sanction, an evidence sanction,
or a terminating sanction under Section 2023. In lieu of or in
addition to this sanction, the court may impose a monetary sanction
under Section 2023 against that party deponent or against any party
with whom the deponent is affiliated.
(p) Unless the parties agree otherwise, the testimony at any
deposition recorded by stenographic means shall be transcribed. The
party noticing the deposition shall bear the cost of that
transcription, unless the court, on motion and for good cause shown,
orders that the cost be borne or shared by another party. Any other
party, at that party's expense, may obtain a copy of the transcript.
If the deposition officer receives a request from a party for an
original or a copy of the deposition transcript, or any portion
thereof, and the document will be available to that party prior to
the time the original or copy would be available to any other party,
the deposition officer shall immediately notify all other parties
attending the deposition of the request, and shall, upon request by
any party other than the party making the original request, make that
copy of the full or partial deposition transcript available to all
parties at the same time. Stenographic notes of depositions shall be
retained by the reporter for a period of not less than eight years
from the date of the deposition, where no transcript is produced, and
not less than one year from the date on which the transcript is
produced. Those notes may be either on paper or electronic media, as
long as it allows for satisfactory production of a transcript at any
time during the periods specified. At the request of any other
party to the action, including a party who did not attend the taking
of the deposition testimony, any party who records or causes the
recording of that testimony by means of audiotape or videotape shall
promptly (1) permit that other party to hear the audiotape or to view
the videotape, and (2) furnish a copy of the audiotape or videotape
to that other party on receipt of payment of the reasonable cost of
making that copy of the tape.
If the testimony at the deposition is recorded both
stenographically, and by audiotape or videotape, the stenographic
transcript is the official record of that testimony for the purpose
of the trial and any subsequent hearing or appeal.
(q) (1) If the deposition testimony is stenographically recorded,
the deposition officer shall send written notice to the deponent and
to all parties attending the deposition when the original transcript
of the testimony for each session of the deposition is available for
reading, correcting, and signing, unless the deponent and the
attending parties agree on the record that the reading, correcting,
and signing of the transcript of the testimony will be waived or that
the reading, correcting, and signing of a transcript of the
testimony will take place after the entire deposition has been
concluded or at some other specific time. For 30 days following each
such notice, unless the attending parties and the deponent agree on
the record or otherwise in writing to a longer or shorter time
period, the deponent may change the form or the substance of the
answer to a question, and may either approve the transcript of the
deposition by signing it, or refuse to approve the transcript by not
signing it.
Alternatively, within this same period, the deponent may change
the form or the substance of the answer to any question and may
approve or refuse to approve the transcript by means of a letter to
the deposition officer signed by the deponent which is mailed by
certified or registered mail with return receipt requested. A copy
of that letter shall be sent by first-class mail to all parties
attending the deposition. For good cause shown, the court may
shorten the 30-day period for making changes, approving, or refusing
to approve the transcript.
The deposition officer shall indicate on the original of the
transcript, if the deponent has not already done so at the office of
the deposition officer, any action taken by the deponent and indicate
on the original of the transcript, the deponent's approval of, or
failure or refusal to approve, the transcript. The deposition
officer shall also notify in writing the parties attending the
deposition of any changes which the deponent timely made in person.
If the deponent fails or refuses to approve the transcript within the
allotted period, the deposition shall be given the same effect as
though it had been approved, subject to any changes timely made by
the deponent. However, on a seasonable motion to suppress the
deposition, accompanied by a declaration stating facts showing a
reasonable and good faith attempt at an informal resolution of each
issue presented by the motion, the court may determine that the
reasons given for the failure or refusal to approve the transcript
require rejection of the deposition in whole or in part.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to suppress a deposition, unless it finds that the
one subject to the sanction acted with substantial justification or
that other circumstances make the imposition of the sanction unjust.
(2) If there is no stenographic transcription of the deposition,
the deposition officer shall send written notice to the deponent and
to all parties attending the deposition that the recording is
available for review, unless the deponent and all these parties agree
on the record to waive the hearing or viewing of an audiotape or
videotape recording of the testimony. For 30 days following this
notice the deponent, either in person or by signed letter to the
deposition officer, may change the substance of the answer to any
question.
The deposition officer shall set forth in a writing to accompany
the recording any changes made by the deponent, as well as either the
deponent's signature identifying the deposition as his or her own,
or a statement of the deponent's failure to supply the signature, or
to contact the officer within the allotted period. When a deponent
fails to contact the officer within the allotted period, or expressly
refuses by a signature to identify the deposition as his or her own,
the deposition shall be given the same effect as though signed.
However, on a seasonable motion to suppress the deposition,
accompanied by a declaration stating facts showing a reasonable and
good faith attempt at an informal resolution of each issue presented
by the motion, the court may determine that the reasons given for the
refusal to sign require rejection of the deposition in whole or in
part.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to suppress a deposition, unless it finds that the
one subject to the sanction acted with substantial justification or
that other circumstances make the imposition of the sanction unjust.
(r) (1) The deposition officer shall certify on the transcript of
the deposition, or in a writing accompanying an audiotaped or
videotaped deposition as described in paragraph (2) of subdivision
(q), that the deponent was duly sworn and that the transcript or
recording is a true record of the testimony given.
(2) When prepared as a rough draft transcript, the transcript of
the deposition may not be certified and may not be used, cited, or
transcribed as the certified transcript of the deposition
proceedings. The rough draft transcript may not be cited or used in
any way or at any time to rebut or contradict the certified
transcript of deposition proceedings as provided by the deposition
officer.
(s) (1) The certified transcript of a deposition shall not be
filed with the court. Instead, the deposition officer shall securely
seal that transcript in an envelope or package endorsed with the
title of the action and marked: "Deposition of (here insert name of
deponent)," and shall promptly transmit it to the attorney for the
party who noticed the deposition. This attorney shall store it under
conditions that will protect it against loss, destruction, or
tampering.
The attorney to whom the transcript of a deposition is transmitted
shall retain custody of it until six months after final disposition
of the action. At that time, the transcript may be destroyed, unless
the court, on motion of any party and for good cause shown, orders
that the transcript be preserved for a longer period.
(2) An audiotape or videotape record of deposition testimony,
including a certified tape made by an operator qualified under
subparagraph (B) of paragraph (2) of subdivision (l), shall not be
filed with the court. Instead, the operator shall retain custody of
that record and shall store it under conditions that will protect it
against loss, destruction, or tampering, and preserve as far as
practicable the quality of the tape and the integrity of the
testimony and images it contains.
At the request of any party to the action, including a party who
did not attend the taking of the deposition testimony, or at the
request of the deponent, that operator shall promptly (A) permit the
one making the request to hear or to view the tape on receipt of
payment of a reasonable charge for providing the facilities for
hearing or viewing the tape, and (B) furnish a copy of the audiotape
or the videotape recording to the one making the request on receipt
of payment of the reasonable cost of making that copy of the tape.
The attorney or operator who has custody of an audiotape or
videotape record of deposition testimony shall retain custody of it
until six months after final disposition of the action. At that
time, the audiotape or videotape may be destroyed or erased, unless
the court, on motion of any party and for good cause shown, orders
that the tape be preserved for a longer period.
(t) Once any party has taken the deposition of any natural person,
including that of a party to the action, neither the party who gave,
nor any other party who has been served with a deposition notice
pursuant to subdivision (c) may take a subsequent deposition of that
deponent. However, for good cause shown, the court may grant leave
to take a subsequent deposition, and the parties, with the consent of
any deponent who is not a party, may stipulate that a subsequent
deposition be taken. This subdivision does not preclude taking one
subsequent deposition of a natural person who has previously been
examined (1) as a result of that person's designation to testify on
behalf of an organization under subdivision (d), or (2) for the
limited purpose of discovering pursuant to Section 485.230 the
identity, location, and value of property in which the deponent has
an interest. This subdivision does not authorize the taking of more
than one deposition for the limited purpose of Section 485.230.
(u) At the trial or any other hearing in the action, any part or
all of a deposition may be used against any party who was present or
represented at the taking of the deposition, or who had due notice of
the deposition and did not serve a valid objection under subdivision
(g), so far as admissible under the rules of evidence applied as
though the deponent were then present and testifying as a witness, in
accordance with the following provisions:
(1) Any party may use a deposition for the purpose of
contradicting or impeaching the testimony of the deponent as a
witness, or for any other purpose permitted by the Evidence Code.
(2) An adverse party may use for any purpose, a deposition of a
party to the action, or of anyone who at the time of taking the
deposition was an officer, director, managing agent, employee, agent,
or designee under subdivision (d) of a party. It is not ground for
objection to the use of a deposition of a party under this paragraph
by an adverse party that the deponent is available to testify, has
testified, or will testify at the trial or other hearing.
(3) Any party may use for any purpose the deposition of any person
or organization, including that of any party to the action, if the
court finds any of the following:
(A) The deponent resides more than 150 miles from the place of the
trial or other hearing.
(B) The deponent, without the procurement or wrongdoing of the
proponent of the deposition for the purpose of preventing testimony
in open court, is (i) exempted or precluded on the ground of
privilege from testifying concerning the matter to which the deponent'
s testimony is relevant, (ii) disqualified from testifying, (iii)
dead or unable to attend or testify because of existing physical or
mental illness or infirmity, (iv) absent from the trial or other
hearing and the court is unable to compel the deponent's attendance
by its process, or (v) absent from the trial or other hearing and the
proponent of the deposition has exercised reasonable diligence but
has been unable to procure the deponent's attendance by the court's
process.
(C) Exceptional circumstances exist that make it desirable to
allow the use of any deposition in the interests of justice and with
due regard to the importance of presenting the testimony of witnesses
orally in open court.
(4) Any party may use a videotape deposition of a treating or
consulting physician or of any expert witness even though the
deponent is available to testify if the deposition notice under
subdivision (d) reserved the right to use the deposition at trial,
and if that party has complied with subparagraph (I) of paragraph (2)
of subdivision (l).
(5) Subject to the requirements of this section, a party may offer
in evidence all or any part of a deposition, and if the party
introduces only part of the deposition, any other party may introduce
any other parts that are relevant to the parts introduced.
(6) Substitution of parties does not affect the right to use
depositions previously taken.
(7) When an action has been brought in any court of the United
States or of any state, and another action involving the same subject
matter is subsequently brought between the same parties or their
representatives or successors in interest, all depositions lawfully
taken and duly filed in the initial action may be used in the
subsequent action as if originally taken in that subsequent action.
A deposition previously taken may also be used as permitted by the
Evidence Code.
SEC. 23. Section 2031 of the Code of Civil Procedure is amended to
read:
2031. (a) Any party may obtain discovery within the scope
delimited by Section 2017, and subject to the restrictions set forth
in Section 2019, by inspecting documents, tangible things, and land
or other property that are in the possession, custody, or control of
any other party to the action.
(1) A party may demand that any other party produce and permit the
party making the demand, or someone acting on that party's behalf,
to inspect and to copy a document that is in the possession, custody,
or control of the party on whom the demand is made.
(2) A party may demand that any other party produce and permit the
party making the demand, or someone acting on that party's behalf,
to inspect and to photograph, test, or sample any tangible things
that are in the possession, custody, or control of the party on whom
the demand is made.
(3) A party may demand that any other party allow the party making
the demand, or someone acting on that party's behalf, to enter on
any land or other property that is in the possession, custody, or
control of the party on whom the demand is made, and to inspect and
to measure, survey, photograph, test, or sample the land or other
property, or any designated object or operation on it.
(b) A defendant may make a demand for inspection without leave of
court at any time. A plaintiff may make a demand for inspection
without leave of court at any time that is 10 days after the service
of the summons on, or in unlawful detainer actions within five days
after service of the summons on or appearance by, the party to whom
the demand is directed, whichever occurs first. However, on motion
with or without notice, the court, for good cause shown, may grant
leave to a plaintiff to make an inspection demand at an earlier time.
(c) A party demanding an inspection shall number each set of
demands consecutively. In the first paragraph immediately below the
title of the case, there shall appear the identity of the demanding
party, the set number, and the identity of the responding party.
Each demand in a set shall be separately set forth, identified by
number or letter, and shall do all of the following:
(1) Designate the documents, tangible things, or land or other
property to be inspected either by specifically describing each
individual item or by reasonably particularizing each category of
item.
(2) Specify a reasonable time for the inspection that is at least
30 days after service of the demand, or in unlawful detainer actions
at least five days after service of the demand, unless the court for
good cause shown has granted leave to specify an earlier date.
(3) Specify a reasonable place for making the inspection, copying,
and performing any related activity.
(4) Specify any related activity that is being demanded in
addition to an inspection and copying, as well as the manner in which
that related activity will be performed, and whether that activity
will permanently alter or destroy the item involved.
(d) The party demanding an inspection shall serve a copy of the
inspection demand on the party to whom it is directed and on all
other parties who have appeared in the action.
(e) When an inspection of documents, tangible things or places has
been demanded, the party to whom the demand has been directed, and
any other party or affected person or organization, may promptly move
for a protective order. This motion shall be accompanied by a
declaration stating facts showing a reasonable and good faith attempt
at an informal resolution of each issue presented by the motion.
The court, for good cause shown, may make any order that justice
requires to protect any party or other natural person or organization
from unwarranted annoyance, embarrassment, or oppression, or undue
burden and expense. This protective order may include, but is not
limited to, one or more of the following directions:
(1) That all or some of the items or categories of items in the
inspection demand need not be produced or made available at all.
(2) That the time specified in subdivision (h) to respond to the
set of inspection demands, or to a particular item or category in the
set, be extended.
(3) That the place of production be other than that specified in
the inspection demand.
(4) That the inspection be made only on specified terms and
conditions.
(5) That a trade secret or other confidential research,
development, or commercial information not be disclosed, or be
disclosed only to specified persons or only in a specified way.
(6) That the items produced be sealed and thereafter opened only
on order of the court.
If the motion for a protective order is denied in whole or in
part, the court may order that the party to whom the demand was
directed provide or permit the discovery against which protection was
sought on terms and conditions that are just.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion for a protective order, unless it finds that the one
subject to the sanction acted with substantial justification or that
other circumstances make the imposition of the sanction unjust.
(f) The party to whom an inspection demand has been directed shall
respond separately to each item or category of item by a statement
that the party will comply with the particular demand for inspection
and any related activities, a representation that the party lacks the
ability to comply with the demand for inspection of a particular
item or category of item, or an objection to the particular demand.
In the first paragraph of the response immediately below the title
of the case, there shall appear the identity of the responding
party, the set number, and the identity of the demanding party. Each
statement of compliance, each representation, and each objection in
the response shall bear the same number and be in the same sequence
as the corresponding item or category in the demand, but the text of
that item or category need not be repeated.
(1) A statement that the party to whom an inspection demand has
been directed will comply with the particular demand shall state that
the production, inspection, and related activity demanded will be
allowed either in whole or in part, and that all documents or things
in the demanded category that are in the possession, custody, or
control of that party and to which no objection is being made will be
included in the production.
Any documents demanded shall either be produced as they are kept
in the usual course of business, or be organized and labeled to
correspond with the categories in the demand. If necessary, the
responding party at the reasonable expense of the demanding party
shall, through detection devices, translate any data compilations
included in the demand into reasonably usable form.
(2) A representation of inability to comply with the particular
demand for inspection shall affirm that a diligent search and a
reasonable inquiry has been made in an effort to comply with that
demand. This statement shall also specify whether the inability to
comply is because the particular item or category has never existed,
has been destroyed, has been lost, misplaced, or stolen, or has never
been, or is no longer, in the possession, custody, or control of the
responding party. The statement shall set forth the name and
address of any natural person or organization known or believed by
that party to have possession, custody, or control of that item or
category of item.
(3) If only part of an item or category of item in an inspection
demand is objectionable, the response shall contain a statement of
compliance, or a representation of inability to comply with respect
to the remainder of that item or category. If the responding party
objects to the demand for inspection of an item or category of item,
the response shall (A)
identify with particularity any document, tangible thing, or land
falling within any category of item in the demand to which an
objection is being made, and (B) set forth clearly the extent of, and
the specific ground for, the objection. If an objection is based on
a claim of privilege, the particular privilege invoked shall be
stated. If an objection is based on a claim that the information
sought is protected work product under Section 2018, that claim shall
be expressly asserted.
(g) The party to whom the demand for inspection is directed shall
sign the response under oath unless the response contains only
objections. If that party is a public or private corporation or a
partnership or association or governmental agency, one of its
officers or agents shall sign the response under oath on behalf of
that party. If the officer or agent signing the response on behalf
of that party is an attorney acting in that capacity for a party,
that party waives any lawyer-client privilege and any protection for
work product under Section 2018 during any subsequent discovery from
that attorney concerning the identity of the sources of the
information contained in the response. The attorney for the
responding party shall sign any responses that contain an objection.
(h) Within 30 days after service of an inspection demand, or in
unlawful detainer actions within five days of an inspection demand,
the party to whom the demand is directed shall serve the original of
the response to it on the party making the demand, and a copy of the
response on all other parties who have appeared in the action, unless
on motion of the party making the demand the court has shortened the
time for response, or unless on motion of the party to whom the
demand has been directed, the court has extended the time for
response. In unlawful detainer actions, the party to whom the demand
is directed shall have at least five days from the date of service
of the demand to respond unless on motion of the party making the
demand the court has shortened the time for the response.
(i) The party demanding an inspection and the responding party may
agree to extend the time for service of a response to a set of
inspection demands, or to particular items or categories of items in
a set, to a date beyond that provided in subdivision (h). This
agreement may be informal, but it shall be confirmed in a writing
that specifies the extended date for service of a response. Unless
this agreement expressly states otherwise, it is effective to
preserve to the responding party the right to respond to any item or
category of item in the demand to which the agreement applies in any
manner specified in subdivision (f).
(j) The inspection demand and the response to it shall not be
filed with the court. The party demanding an inspection shall retain
both the original of the inspection demand, with the original proof
of service affixed to it, and the original of the sworn response
until six months after final disposition of the action. At that
time, both originals may be destroyed, unless the court, on motion of
any party and for good cause shown, orders that the originals be
preserved for a longer period.
(k) If a party to whom an inspection demand has been directed
fails to serve a timely response to it, that party waives any
objection to the demand, including one based on privilege or on the
protection for work product under Section 2018. However, the court,
on motion, may relieve that party from this waiver on its
determination that (1) the party has subsequently served a response
that is in substantial compliance with subdivision (f), and (2) the
party's failure to serve a timely response was the result of mistake,
inadvertence, or excusable neglect.
The party making the demand may move for an order compelling
response to the inspection demand. The court shall impose a monetary
sanction under Section 2023 against any party, person, or attorney
who unsuccessfully makes or opposes a motion to compel a response to
an inspection demand, unless it finds that the one subject to the
sanction acted with substantial justification or that other
circumstances make the imposition of the sanction unjust. If a party
then fails to obey the order compelling a response, the court may
make those orders that are just, including the imposition of an issue
sanction, an evidence sanction, or a terminating sanction under
Section 2023. In lieu of or in addition to that sanction, the court
may impose a monetary sanction under Section 2023.
(l) If the party demanding an inspection, on receipt of a response
to an inspection demand, deems that (1) a statement of compliance
with the demand is incomplete, (2) a representation of inability to
comply is inadequate, incomplete, or evasive, or (3) an objection in
the response is without merit or too general, that party may move for
an order compelling further response to the demand. This motion (A)
shall set forth specific facts showing good cause justifying the
discovery sought by the inspection demand, and (B) shall be
accompanied by a declaration stating facts showing a reasonable and
good faith attempt at an informal resolution of any issue presented
by it.
Unless notice of this motion is given within 45 days of the
service of the response, or any supplemental response, or on or
before any specific later date to which the demanding party and the
responding party have agreed in writing, the demanding party waives
any right to compel a further response to the inspection demand.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to compel further response to an inspection demand,
unless it finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the
imposition of the sanction unjust.
If a party fails to obey an order compelling further response, the
court may make those orders that are just, including the imposition
of an issue sanction, an evidence sanction, or a terminating sanction
under Section 2023. In lieu of or in addition to that sanction, the
court may impose a monetary sanction under Section 2023.
(m) If a party filing a response to a demand for inspection under
subdivision (f) thereafter fails to permit the inspection in
accordance with that party's statement of compliance, the party
demanding the inspection may move for an order compelling compliance.
The court shall impose a monetary sanction under Section 2023
against any party, person, or attorney who unsuccessfully makes or
opposes a motion to compel compliance with an inspection demand,
unless it finds that the one subject to the sanction acted with
substantial justification or that other circumstances make the
imposition of the sanction unjust.
If a party then fails to obey an order compelling inspection, the
court may make those orders that are just, including the imposition
of an issue sanction, an evidence sanction, or a terminating sanction
under Section 2023. In lieu of or in addition to that sanction, the
court may impose a monetary sanction under Section 2023.
SEC. 24. Section 8603 of the Commercial Code is amended to read:
8603. (a) This division does not affect an action or proceeding
commenced before this division becomes operative.
(b) If a security interest in a security is perfected at the date
this division becomes operative, and the action by which the security
interest was perfected would suffice to perfect a security interest
under this division, no further action is required to continue
perfection. If a security interest in a security is perfected at the
date this division takes effect but the action by which the security
interest was perfected would not suffice to perfect a security
interest under this division, the security interest remains perfected
for a period of four months after the operative date and continues
perfected thereafter if appropriate action to perfect under this
division is taken within that period. If a security interest is
perfected at the date this division becomes operative and the
security interest can be perfected by filing under Division 9
(commencing with Section 9109), a financing statement signed by the
secured party instead of the debtor may be filed within that period
to continue perfection or thereafter to perfect and that financing
statement shall contain a statement that it is being filed pursuant
to this section.
SEC. 25. Section 9501 of the Commercial Code, as amended by
Section 16 of Chapter 124 of the Statutes of 1996, is amended to
read:
9501. (1) When a debtor is in default under a security agreement,
a secured party has the rights and remedies provided in this chapter
and, except as limited by subdivision (3), those provided in the
security agreement. The secured party may reduce his or her claim to
judgment, foreclose, or otherwise enforce the security interest by
any available judicial procedure. If the collateral is documents the
secured party may proceed either as to the documents or as to the
goods covered thereby. A secured party in possession has the rights,
remedies, and duties provided in Section 9207. The rights and
remedies referred to in this subdivision are cumulative.
(2) After default, the debtor has the rights and remedies provided
in this chapter, those provided in the security agreement, and those
provided in Section 9207.
(3) To the extent that they give rights to the debtor and impose
duties on the secured party, the rules stated in the subdivisions
referred to below may not be waived or varied except as provided with
respect to compulsory disposition of collateral (subdivision (3) of
Section 9504 and Section 9505) and with respect to redemption of
collateral (Section 9506), but the parties may by agreement determine
the standards by which the fulfillment of these rights and duties is
to be measured if those standards are not manifestly unreasonable:
(a) Subdivision (2) of Section 9502 and subdivision (2) of Section
9504, insofar as they require accounting for surplus proceeds of
collateral and deal with the debtor's liability for any deficiency;
(b) Subdivision (3) of Section 9504 and subdivision (1) of Section
9505 that deal with disposition of collateral;
(c) Subdivision (2) of Section 9505 that deals with acceptance of
collateral as discharge of obligation;
(d) Section 9506 that deals with redemption of collateral; and
(e) Subdivision (1) of Section 9507 that deals with the secured
party's liability for failure to comply with this chapter.
(4) If an obligation secured by a security interest in personal
property or fixtures (Section 9313(1)(a)) is also secured by an
interest in real property or an estate therein:
(a) The secured party may do any of the following:
(i) Proceed, in any sequence, (1) in accordance with the secured
party's rights and remedies in respect of real property as to the
real property security, and (2) in accordance with this chapter as to
the personal property or fixtures.
(ii) Proceed in any sequence, as to both some or all of the real
property and some or all of the personal property or fixtures in
accordance with the secured party's rights and remedies in respect of
the real property, by including the portion of the personal property
or fixtures selected by the secured party in the judicial or
nonjudicial foreclosure of the real property in accordance with the
procedures applicable to real property. In proceeding under this
subparagraph, (A) no provision of this chapter other than this
subparagraph, subparagraph (iii) of paragraph (d), and paragraphs (g)
and (h) shall apply to any aspect of the foreclosure; (B) a power of
sale under the deed of trust or mortgage shall be exercisable with
respect to both the real property and the personal property or
fixtures being sold; and (C) the sale may be conducted by the
mortgagee under the mortgage or by the trustee under the deed of
trust. The secured party shall not be deemed to have elected
irrevocably to proceed as to both real property and personal property
or fixtures as provided in this subparagraph with respect to any
particular property, unless and until that particular property
actually has been disposed of pursuant to a unified sale (judicial or
nonjudicial) conducted in accordance with the procedures applicable
to real property, and then only as to the property so sold.
(iii) Proceed, in any sequence, as to part of the personal
property or fixtures as provided in subparagraph (i), and as to other
of the personal property or fixtures as provided in subparagraph
(ii).
(b) (i) Except as otherwise provided in paragraph (c), provisions
and limitations of any law respecting real property and obligations
secured by an interest in real property or an estate therein,
including, but not limited to, Section 726 of the Code of Civil
Procedure, provisions regarding acceleration or reinstatement of
obligations secured by an interest in real property or an estate
therein, prohibitions against deficiency judgments, limitations on
deficiency judgments based on the value of the collateral,
limitations on the right to proceed as to collateral, and
requirements that a creditor resort either first or at all to its
security, do not in any way apply to either (1) any personal property
or fixtures other than personal property or fixtures as to which the
secured party has proceeded or is proceeding under subparagraph (ii)
of paragraph (a), or (2) the obligation.
(ii) Pursuant to, but without limiting subparagraph (i), in the
event that an obligation secured by personal property or fixtures
would otherwise become unenforceable by reason of Section 726 of the
Code of Civil Procedure or any requirement that a creditor resort
first to its security, then, notwithstanding that section or any
similar requirement, the obligation shall nevertheless remain
enforceable to the full extent necessary to permit a secured party to
proceed against personal property or fixtures securing the
obligation in accordance with the secured party's rights and remedies
as permitted under this chapter.
(c) (i) Paragraph (b) does not limit the application of Section
580b of the Code of Civil Procedure.
(ii) If the secured party commences an action, as defined in
Section 22 of the Code of Civil Procedure, and the action seeks a
monetary judgment on the debt, paragraph (b) does not prevent the
debtor's assertion of any right to require the inclusion in the
action of any interest in real property or an estate therein securing
the debt. If a monetary judgment on the debt is entered in the
action, paragraph (b) does not prevent the debtor's assertion of the
subsequent unenforceability of the encumbrance on any interest in
real property or an estate therein securing the debt and not included
in the action.
(iii) Nothing in paragraph (b) shall be construed to excuse
compliance with Section 2924c of the Civil Code as a prerequisite to
the sale of real property, but that section has no application to the
right of a secured party to proceed as to personal property or
fixtures except, and then only to the extent that, the secured party
is proceeding as to personal property or fixtures in a unified sale
as provided in subparagraph (ii) of paragraph (a).
(iv) Paragraph (b) does not deprive the debtor of the protection
of Section 580d of the Code of Civil Procedure against a deficiency
judgment following a sale of the real property collateral pursuant to
a power of sale in a deed of trust or mortgage.
(v) Paragraph (b) shall not affect, nor shall it determine the
applicability or inapplicability of, any law respecting real property
or obligations secured in whole or in part by real property with
respect to a loan or a credit sale made to any individual primarily
for personal, family, or household purposes.
(vi) Paragraph (b) does not deprive the debtor of the protection
of Section 580a of the Code of Civil Procedure following a sale of
real property collateral.
(vii) If the secured party violates any statute or rule of law
that requires a creditor who holds an obligation secured by an
interest in real property or an estate therein to resort first to its
security before resorting to any property of the debtor that does
not secure the obligation, paragraph (b) does not prevent the debtor'
s assertion of any right to require correction of the violation, any
right of the secured party to correct the violation, or the debtor's
assertion of the subsequent unenforceability of the encumbrance on
any interest in real property or an estate therein securing the
obligation, or the debtor's assertion of the subsequent
unenforceability of the obligation except to the extent that the
obligation is preserved by subparagraph (ii) of paragraph (b).
(d) If the secured party realizes proceeds from the disposition of
collateral that is personal property or fixtures, the following
provisions shall apply:
(i) The disposition of the collateral, the realization of the
proceeds, the application of the proceeds, or any one or more of the
foregoing shall not operate to cure any nonmonetary default.
(ii) The disposition of the collateral, the realization of the
proceeds, the application of the proceeds, or any one or more of the
foregoing shall not operate to cure any monetary default (although
the application of the proceeds shall, to the extent of those
proceeds, satisfy the secured obligation) so as to affect in any way
the secured party's rights and remedies under this chapter with
respect to any remaining personal property or fixtures collateral.
(iii) All proceeds so realized shall be applied by the secured
party to the secured obligation in accordance with the agreement of
the parties and applicable law.
(e) An action by the secured party utilizing any available
judicial procedure, as provided in subdivision (1), shall in no way
be affected by omission of a prayer for a monetary judgment on the
debt. Notwithstanding Section 726 of the Code of Civil Procedure,
any prohibition against splitting causes of action or any other
statute or rule of law, a judicial action that neither seeks nor
results in a monetary judgment on the debt shall not preclude a
subsequent action seeking a monetary judgment on the debt or any
other relief.
(f) As used in this subdivision, "monetary judgment on the debt"
means a judgment for the recovery from the debtor of all or part of
the principal amount of the secured obligation, including, for
purposes of this subdivision, contractual interest thereon.
"Monetary judgment on the debt" does not include a judgment that
provides only for other relief (whether or not that other relief is
secured by the collateral), such as one or more forms of nonmonetary
relief, and monetary relief ancillary to any of the foregoing, such
as attorneys' fees and costs incurred in seeking the relief.
(g) If a secured party fails to comply with the procedures
applicable to real property in proceeding as to both real and
personal property under subparagraph (ii) of paragraph (a), a
purchaser for value of any interest in the real property at judicial
or nonjudicial foreclosure proceedings conducted pursuant to
subparagraph (ii) of paragraph (a) takes that interest free from any
claim or interest of another person, or any defect in title, based
upon that noncompliance, unless:
(i) The purchaser is the secured party and the failure to comply
with this chapter occurred other than in good faith; or
(ii) The purchaser is other than the secured party and at the time
of sale of the real property at that foreclosure the purchaser had
knowledge of the failure to comply with this chapter and that the
noncompliance occurred other than in good faith.
Even if the purchaser at the foreclosure sale does not take his or
her interest free of claims, interests, or title defects based upon
that noncompliance with this chapter, a subsequent purchaser for
value who acquires an interest in that real property from the
purchaser at that foreclosure takes that interest free from any claim
or interest of another person, or any defect in title, based upon
that noncompliance, unless at the time of acquiring the interest the
subsequent purchaser has knowledge of the failure to comply with this
chapter and that the noncompliance occurred other than in good
faith.
(h) If a secured party proceeds by way of a unified sale under
subparagraph (ii) of paragraph (a), then, for purposes of applying
Section 580a or subdivision (b) of Section 726 of the Code of Civil
Procedure to any such unified sale, the personal property or fixtures
included in the unified sale shall be deemed to be included in the
"real property or other interest sold," as that term is used in
Section 580a or subdivision (b) of Section 726 of the Code of Civil
Procedure.
(5) When a secured party has reduced his or her claim to judgment,
the lien of any levy that may be made upon his or her collateral by
virtue of any execution based upon the judgment shall relate back to
the date of the perfection of the security interest in the
collateral. A judicial sale, pursuant to that execution, is a
foreclosure of the security interest by judicial procedure within the
meaning of this section, and the secured party may purchase at the
sale and thereafter hold the collateral free of any other
requirements of this division.
(6) This section shall be repealed on January 1, 2002.
SEC. 26. Section 9502 of the Commercial Code, as amended by
Section 7 of Chapter 591 of the Statutes of 1995, is amended to read:
9502. (1) When so agreed and in any event on default the secured
party is entitled to notify an account debtor or the obligor on an
instrument to make payment to him or her whether or not the assignor
was theretofore making collections on the collateral, and also to
take control of any proceeds to which he or she is entitled under
Section 9306.
(2) (a) A secured party who by agreement is entitled to charge
back uncollected collateral or otherwise to full or limited recourse
against the debtor and who undertakes to collect from the account
debtors or obligors must proceed in a commercially reasonable manner
and may deduct his or her reasonable expenses of realization from the
collections.
(b) If the security agreement secures an indebtedness, the secured
party must account to the debtor for any surplus.
(c) If the security agreement secures an indebtedness, the debtor
is liable for any deficiency unless otherwise agreed, but only (i) if
the secured party in collection pursuant to this section has
proceeded in a commercially reasonable manner, or (ii) as provided in
paragraph (d).
(d) If the secured party in collecting pursuant to this section
has not proceeded in a commercially reasonable manner, the debtor is
liable, subject to paragraph (e), for any deficiency only if the
balance of the indebtedness immediately before the collection exceeds
the amount that the secured party establishes would have been
realized had the secured party in collecting pursuant to this section
proceeded in a commercially reasonable manner, and the liability is
limited to the excess.
(e) Notwithstanding paragraph (d), if the secured party in
collecting pursuant to this section has not proceeded in a
commercially reasonable manner, and if the transaction was entered
into by the debtor primarily for personal, family, or household
purposes or if the amount of the indebtedness immediately before the
collection was one hundred thousand dollars ($100,000) or less, then
the debtor is not liable for any deficiency.
(f) Upon entry of a final judgment that the debtor is not liable
for a deficiency by reason of either paragraph (d) or paragraph (e),
the secured party may neither obtain a deficiency judgment nor retain
a security interest in any other collateral of the debtor that
secured the indebtedness for which the debtor is no longer liable.
(g) To the extent, subsequent to a collection that does not
satisfy the conditions set forth in clause (i) of paragraph (c), or
subsequent to a disposition that does not satisfy any one or more of
the conditions set forth in clause (i) of paragraph (b) of
subdivision (2) of Section 9504, the secured party collects pursuant
to this section on other collateral securing the same indebtedness,
the debtor may, to the extent he or she is no longer liable for a
deficiency judgment by reason of paragraph (d) or paragraph (e), or
by reason of paragraph (c) or paragraph (d) of subdivision (2) of
Section 9504, recover the proceeds realized from those subsequent
collections, as well as any damages to which the debtor may be
entitled if the subsequent collection is itself noncomplying or
otherwise wrongful. Except for secured transactions entered by the
debtor primarily for personal, family, or household purposes, neither
the subsequent collections nor the exercise of any other remedy by
the secured party subsequent to a noncomplying collection or
disposition shall be deemed tortious or otherwise wrongful based, in
whole or in part, on the fact that it occurred subsequent to a
noncomplying collection or disposition.
(h) If the underlying transaction was a sale of accounts or
chattel paper, the debtor is entitled to any surplus or is liable for
any deficiency only if the security agreement so provides. The
provisions of subdivision (b) of Section 701.040 of the Code of Civil
Procedure relating to the payment of proceeds apply only if the
security agreement provides that the debtor is entitled to any
surplus.
(i) Nothing herein shall deprive the debtor of any right to
recover damages from the secured party under subdivision (1) of
Section 9507 or to offset any such damages against any claim by the
secured party for a deficiency, or of any right or remedy to which
the debtor may be entitled under any other law. However, except in
the case of any secured party that has willfully failed to proceed in
a commercially reasonable manner in collection pursuant to this
section, or in the case of a debtor who entered the secured
transaction primarily for personal, family, or household purposes,
any damages recoverable by the debtor shall be reduced by the amount
of any deficiency that would have resulted had the secured party in
collecting pursuant to this section proceeded in conformity with the
condition set forth in clause (i) of paragraph (c) regardless whether
or not the debtor is liable for the deficiency under paragraph (c)
or (d).
(3) This section shall be repealed on January 1, 2002.
SEC. 27.
Section 9504 of the Commercial Code, as amended by Section 8 of
Chapter 591 of the Statutes of 1995, is amended to read:
9504. (1) A secured party after default may sell, lease or
otherwise dispose of any or all of the collateral in its then
condition or following any commercially reasonable preparation or
processing. Any sale of goods is subject to the division on sales
(Division 2). The proceeds of disposition shall be applied in the
order following to:
(a) The reasonable expenses of retaking, holding, preparing for
sale or lease, selling, leasing and the like and, to the extent
provided for in the agreement and not prohibited by law, the
reasonable attorneys' fees and legal expenses incurred by the secured
party;
(b) The satisfaction of indebtedness secured by the security
interest under which the disposition is made;
(c) The satisfaction of indebtedness secured by any subordinate
security interest in the collateral if written notification of demand
therefor is received before distribution of the proceeds is
completed and to the satisfaction of any subordinate attachment lien
or execution lien pursuant to subdivision (b) of Section 701.040 of
the Code of Civil Procedure if notice of the levy of attachment or
execution is received before distribution of the proceeds is
completed. If requested by the secured party, the holder of a
subordinate security interest must seasonably furnish reasonable
proof of his or her interest, and unless he or she does so, the
secured party need not comply with his or her demand.
(2) (a) If the security interest secures an indebtedness, the
secured party must account to the debtor for any surplus except as
provided in Section 701.040 of the Code of Civil Procedure.
(b) If the security interest secures an indebtedness, the debtor
is liable for any deficiency unless otherwise agreed or otherwise
provided in the Retail Installment Sales Act, and in particular
Section 1812.5 of the Civil Code or any other statute, but only (i)
if the debtor was given notice, if and as required by subdivision
(3), of the disposition of the collateral in accordance with
subdivision (3), and the disposition of the collateral by the secured
party pursuant to this section was conducted in good faith and in a
commercially reasonable manner, or (ii) except for secured
transactions entered by a debtor primarily for personal, family, or
household purposes, as provided in paragraph (c).
(c) If the secured party has provided notice to the debtor
pursuant to subdivision (3), if so required, but has not proceeded in
a commercially reasonable manner in the disposition of the
collateral, the debtor is liable, subject to paragraphs (b) and (d),
for any deficiency only if the balance of the indebtedness
immediately before the disposition exceeds the amount that the
secured party establishes would have been realized had the
disposition of the collateral by the secured party pursuant to this
section been conducted in conformity with the conditions set forth in
clause (i) of paragraph (b), and the liability is limited to the
excess. This paragraph does not apply to secured transactions
entered by a debtor primarily for personal, family, or household
purposes.
(d) Notwithstanding paragraph (c), if any one or more of the
conditions set forth in clause (i) of paragraph (b) are not proved by
the secured party to be satisfied with respect to the disposition,
then the debtor is not liable for any deficiency if either:
(i) All of the collateral immediately before the disposition was
consumer goods and the amount of the indebtedness immediately before
the disposition was one hundred thousand dollars ($100,000) or less.
(ii) The amount of the indebtedness immediately before the
disposition was fifty thousand dollars ($50,000) or less.
(e) Upon entry of a final judgment that the debtor is not liable
for a deficiency by reason of either paragraph (c) or paragraph (d),
the secured party may neither obtain a deficiency judgment nor retain
a security interest in any other collateral of the debtor that
secured the indebtedness for which the debtor is no longer liable.
(f) To the extent, subsequent to a disposition that does not
satisfy any one or more of the conditions set forth in clause (i) of
paragraph (b), or subsequent to a collection that does not satisfy
the condition set forth in clause (i) of paragraph (c) of subdivision
(2) of Section 9502, the secured party disposes pursuant to this
section of other collateral securing the same indebtedness, the
debtor may, to the extent he or she is no longer liable for a
deficiency judgment by reason of paragraph (c) or paragraph (d), or
by reason of paragraph (d) or paragraph (e) of subdivision (2) of
Section 9502, recover the proceeds realized from the subsequent
dispositions, as well as any damages to which the debtor may be
entitled if the subsequent disposition is itself noncomplying or
otherwise wrongful. Except for secured transactions entered by a
debtor primarily for personal, family, or household purposes, neither
the subsequent dispositions nor the exercise of any other remedy by
the secured party subsequent to a noncomplying disposition or
collection shall be deemed tortious or otherwise wrongful based, in
whole or in part, on the fact that it occurred subsequent to a
noncomplying disposition or collection.
(g) If the underlying transaction was a sale of accounts or
chattel paper, the debtor is entitled to any surplus or is liable for
any deficiency only if the security agreement so provides. The
provisions of subdivision (b) of Section 701.040 of the Code of Civil
Procedure relating to the payment of proceeds and the liability of
the secured party apply only if the security agreement provides that
the debtor is entitled to any surplus.
(h) Nothing herein shall deprive the debtor of any right to
recover damages from the secured party under subdivision (1) of
Section 9507 or to offset any such damages against any claim by the
secured party for a deficiency, or of any right or remedy to which
the debtor may be entitled under any other law; provided, however,
that, except in the case of any secured party that has willfully
failed to conduct the disposition of collateral in good faith and in
a commercially reasonable manner or in the case of a debtor who
entered the secured transaction primarily for personal, family, or
household purposes, any damages recoverable by the debtor shall be
reduced by the amount of any deficiency that would have resulted had
the disposition of the collateral by the secured party been conducted
in conformity with the conditions set forth in clause (i) of
paragraph (b) regardless of whether or not the debtor is liable for
the deficiency under paragraph (b) or (c).
(3) A sale or lease of collateral may be as a unit or in parcels,
at wholesale or retail and at any time and place and on any terms,
provided the secured party acts in good faith and in a commercially
reasonable manner. Unless collateral is perishable or threatens to
decline speedily in value or is of a type customarily sold on a
recognized market, the secured party must give to the debtor, if he
or she has not signed after default a statement renouncing or
modifying his or her right to notification of sale, and to any other
person who has a security interest in the collateral and who has
filed with the secured party a written request for notice giving his
or her address (before that secured party sends his or her
notification to the debtor or before debtor's renunciation of his or
her rights), a notice in writing of the time and place of any public
sale or of the time on or after which any private sale or other
intended disposition is to be made. Such notice must be delivered
personally or be deposited in the United States mail postage prepaid
addressed to the debtor at his or her address as set forth in the
financing statement or as set forth in the security agreement or at
such other address as may have been furnished to the secured party in
writing for this purpose, or, if no address has been so set forth or
furnished, at his or her last known address, and to any other
secured party at the address set forth in his or her request for
notice, at least five days before the date fixed for any public sale
or before the day on or after which any private sale or other
disposition is to be made. Notice of the time and place of a public
sale shall also be given at least five days before the date of sale
by publication once in a newspaper of general circulation published
in the county in which the sale is to be held or in case no newspaper
of general circulation is published in the county in which the sale
is to be held, in a newspaper of general circulation published in the
county in this state that (1) is contiguous to the county in which
the sale is to be held and (2) has, by comparison with all similarly
contiguous counties, the highest population based upon total county
population as determined by the most recent federal decennial census
published by the Bureau of the Census. Any public sale shall be held
in the county or place specified in the security agreement, or if no
county or place is specified in the security agreement, in the
county in which the collateral or any part thereof is located or in
the county in which the debtor has his or her residence or chief
place of business, or in the county in which the secured party has
his or her residence or a place of business if the debtor does not
have a residence or chief place of business within this state. If
the collateral is located outside of this state or has been removed
from this state, a public sale may be held in the locality in which
the collateral is located. Any public sale may be postponed from
time to time by public announcement at the time and place last
scheduled for the sale. The secured party may buy at any public sale
and if the collateral is customarily sold in a recognized market or
is the subject of widely or regularly distributed standard price
quotations he or she may buy at private sale. Any sale of which
notice is delivered or mailed and published as herein provided and
that is held as herein provided is a public sale.
(4) When collateral is disposed of by a secured party after
default, the disposition transfers to a purchaser for value all of
the debtor's rights therein, discharges the security interest under
which it is made and any security interest or lien subordinate
thereto. The purchaser takes free of all such rights and interest
even though the secured party fails to comply with the requirements
of this chapter or of any judicial proceedings.
(a) In the case of a public sale, if the purchaser has no
knowledge of any defects in the sale and if he or she does not buy in
collusion with the secured party, other bidders or the person
conducting the sale; or
(b) In any other case, if the purchaser acts in good faith.
(5) A person who is liable to a secured party under a guaranty,
indorsement, repurchase agreement or the like and who receives a
transfer of collateral from the secured party or is subrogated to his
or her rights has thereafter the rights and duties of the secured
party. Such a transfer of collateral is not a sale or disposition of
the collateral under this division.
(6) This section shall be repealed on January 1, 2002.
SEC. 28. Section 8023 of the Elections Code is amended to read:
8023. (a) Except in the case of a judicial office filled in
accordance with subdivision (d) of Section 16 of Article VI of the
Constitution, every candidate for a judicial office, not more than 14
nor less than five days prior to the first day on which his or her
nomination papers may be circulated and signed or may be presented
for filing, shall file in the office of the elections official in
which his or her nomination papers are required to be filed or left
for examination, a written and signed declaration in duplicate of his
or her intention to become a candidate for that office on a form to
be supplied by the elections officials. A candidate for a
numerically designated judicial office shall state in his or her
declaration for which office he or she intends to become a candidate.
This section shall apply to all judicial offices whether
numerically designated or not.
(b) No person may be a candidate nor have his or her name printed
upon any ballot as a candidate for judicial office unless he or she
has filed the declaration of intention provided for in this section.
If the incumbent of a judicial office fails to file a declaration of
intention by the end of the period specified in subdivision (a),
persons other than the incumbent may file declarations of intention
no later than the first day for filing nomination papers.
(c) No candidate for a judicial office shall be required to state
his or her residential address on the declaration of intention
provided for in this section. However, in cases where the candidate
does not state his or her residential address on the declaration of
intention, the elections official shall verify that the address is
within the appropriate political subdivision and add the notation
"verified" to the residential address line of the form.
SEC. 29. Section 8040 of the Elections Code is amended to read:
8040. (a) The declaration of candidacy by a candidate shall be
substantially as follows:
DECLARATION OF CANDIDACY
I hereby declare myself a ____ Party candidate for nomination
to
the office of ____ District Number ____ to be voted for at the
primary election to be held ____, 19__, and declare the following
to be true:
My name is
____________________________________________________.
I want my name and occupational designation to appear on the
ballot as follows ________.
Addresses:
Residence
____________________________________________________
____________________________________________________
Business
_____________________________________________________
_____________________________________________________
Mailing
_____________________________________________________
_____________________________________________________
Telephone numbers: Day _________ Evening ___________
I meet the statutory and constitutional qualifications for
this
office (including, but not limited to, citizenship, residency,
and
party affiliation, if required).
I am at present an incumbent of the following public office
(if any) ____.
If nominated, I will accept the nomination and not withdraw.
________________________________________
Signature of candidate
State of California )
County of _________ ) ss.
)
Subscribed and sworn to before me this ____ day of ____, 19__.
_________________________________________
Notary Public (or other official)
Examined and certified by me this ________ day of _______,
19__.
_________________________________________
Registrar of Voters--County Clerk
WARNING: Every person acting on behalf of a candidate is guilty of
a misdemeanor who deliberately fails to file at the proper time and
in the proper place any declaration of candidacy in his or her
possession which is entitled to be filed under the provisions of the
Elections Code Section 18202.
(b) No candidate for a judicial office shall be required to state
his or her residential address on the declaration of candidacy.
However, in cases where the candidate does not state his or her
residential address on the declaration of candidacy, the elections
official shall verify whether his or her address is within the
appropriate political subdivision and add the notation "verified"
where appropriate.
SEC. 30. Section 8201 of the Elections Code is amended to read:
8201. (a) A declaration of candidacy for election or a nomination
by the Governor, made pursuant to subdivision (d) of Section 16 of
Article VI of the California Constitution, shall be filed with the
officer charged with the duty of certifying nominations for
publication in the official ballot.
(b) No candidate described in subdivision (a) shall be required to
state his or her residential address on the declaration of
candidacy. However, in cases where the candidate does not state his
or her residential address on the declaration of candidacy, the
elections official shall verify whether his or her address is within
the appropriate political subdivision and add the notation "verified"
where appropriate.
SEC. 31. Section 400 of the Family Code is amended to read:
400. Marriage may be solemnized by any of the following who is of
the age of 18 years or older:
(a) A priest, minister, or rabbi of any religious denomination.
(b) A judge or retired judge, commissioner of civil marriages or
retired commissioner of civil marriages, commissioner or retired
commissioner, or assistant commissioner of a court of record or
justice court in this state.
(c) A judge or magistrate who has resigned from office.
(d) Any of the following judges or magistrates of the United
States:
(1) A justice or retired justice of the United States Supreme
Court.
(2) A judge or retired judge of a court of appeals, a district
court, or a court created by an act of Congress the judges of which
are entitled to hold office during good behavior.
(3) A judge or retired judge of a bankruptcy court or a tax court.
(4) A United States magistrate or retired magistrate.
(e) A legislator or constitutional officer of this state or a
member of Congress who represents a district within this state, while
that person holds office.
SEC. 31.5. Section 400 of the Family Code is amended to read:
400. Marriage may be solemnized by any of the following who is of
the age of 18 years or older:
(a) A priest, minister, or rabbi of any religious denomination.
(b) A judge or retired judge, commissioner of civil marriages or
retired commissioner of civil marriages, commissioner or retired
commissioner, or assistant commissioner of a court of record in this
state.
(c) A judge or magistrate who has resigned from office.
(d) Any of the following judges or magistrates of the United
States:
(1) A justice or retired justice of the United States Supreme
Court.
(2) A judge or retired judge of a court of appeals, a district
court, or a court created by an act of Congress the judges of which
are entitled to hold office during good behavior.
(3) A judge or retired judge of a bankruptcy court or a tax court.
(4) A United States magistrate or retired magistrate.
(e) A legislator or constitutional officer of this state or a
member of Congress who represents a district within this state, while
that person holds office.
SEC. 32. Section 4251 of the Family Code is amended to read:
4251. (a) Commencing July 1, 1997, each superior court shall
provide sufficient commissioners to hear Title IV-D child support
cases filed by the district attorney. The number of child support
commissioners required in each county shall be determined by the
Judicial Council as prescribed by paragraph (3) of subdivision (b) of
Section 4252. All actions or proceedings filed by the district
attorney in a support action or proceeding in which enforcement
services are being provided pursuant to Section 11475.1 of the
Welfare and Institutions Code, for an order to establish, modify, or
enforce child or spousal support, including actions to establish
paternity, shall be referred for hearing to a child support
commissioner unless a child support commissioner is not available due
to exceptional circumstances, as prescribed by the Judicial Council
pursuant to paragraph (7) of subdivision (b) of Section 4252. All
actions or proceedings filed by a party other than the district
attorney to modify or enforce a support order established by the
district attorney or for which enforcement services are being
provided pursuant to Section 11475.1 of the Welfare and Institutions
Code shall be referred for hearing to a child support commissioner
unless a child support commissioner is not available due to
exceptional circumstances, as prescribed by the Judicial Council
pursuant to paragraph (7) of subdivision (b) of Section 4252.
(b) The commissioner shall act as a temporary judge unless an
objection is made by the district attorney or any other party. The
Judicial Council shall develop a notice which shall be included on
all forms and pleadings used to initiate a child support action or
proceeding that advises the parties of their right to review by a
superior court judge and how to exercise that right. The parties
shall also be advised by the court prior to the commencement of the
hearing that the matter is being heard by a commissioner who shall
act as a temporary judge unless any party objects to the commissioner
acting as a temporary judge. While acting as a temporary judge, the
commissioner shall receive no compensation other than compensation
as a commissioner.
(c) If any party objects to the commissioner acting as a temporary
judge, the commissioner may hear the matter and make findings of
fact and a recommended order. Within 10 court days, a judge shall
ratify the recommended order unless either party objects to the
recommended order, or where a recommended order is in error. In both
cases, the judge shall issue a temporary order and schedule a
hearing de novo within 10 court days. Any party may waive his or her
right to the review hearing at any time.
(d) The commissioner shall, where appropriate, do any of the
following:
(1) Review and determine ex parte applications for orders and
writs.
(2) Take testimony.
(3) Establish a record, evaluate evidence, and make
recommendations or decisions.
(4) Enter judgments or orders based upon voluntary acknowledgments
of support liability and parentage and stipulated agreements
respecting the amount of child support to be paid.
(5) Enter default orders and judgments pursuant to Section 4253.
(6) In actions in which paternity is at issue, order the mother,
child, and alleged father to submit to genetic tests.
(e) The commissioner shall, upon application of any party, join
issues concerning custody, visitation, and protective orders in the
action filed by the district attorney, subject to Section 11350.1 of
the Welfare and Institutions Code. After joinder, the commissioner
shall:
(1) Refer the parents for mediation of disputed custody or
visitation issues pursuant to Section 3170 of the Family Code.
(2) Accept stipulated agreements concerning custody, visitation,
and protective orders and enter orders pursuant to the agreements.
(3) Refer contested issues of custody, visitation, and protective
orders to a judge or to another commissioner for hearing. A child
support commissioner may hear contested custody, visitation, and
restraining order issues only if the court has adopted procedures to
segregate the costs of hearing Title IV-D child support issues from
the costs of hearing other issues pursuant to applicable federal
requirements.
(f) The district attorney shall be served notice by the moving
party of any proceeding under this section in which support is at
issue. Any order for support that is entered without the district
attorney having received proper notice shall be voidable upon the
motion of the district attorney.
SEC. 33. Section 21290 of the Government Code is amended to read:
21290. (a) Upon the legal separation or dissolution of marriage
of a member, the court shall include in the judgment or a court order
the date on which the parties separated.
(b) If the community property is divided in accordance with
paragraph (3) of subdivision (a) of Section 2610 of the Family Code,
the court shall order that the accumulated contributions and service
credit attributable to periods of service during the marriage be
divided into two separate and distinct accounts in the name of the
member and the nonmember, respectively. Any service credit or
accumulated contributions that are not explicitly awarded by the
judgment or court order shall be deemed the exclusive property of the
member.
(c) The court shall address the rights of the nonmember to the
following:
(1) The right to a retirement allowance, and the consequent right
to elect an optional settlement and designate a beneficiary.
(2) The right to a refund of accumulated contributions.
(3) The right to redeposit accumulated contributions that are
eligible for redeposit by the member under Sections 20750 and 20752.
(4) The right to purchase service credit that is eligible for
purchase by the member under Article 4 (commencing with Section
20990) and Article 5 (commencing with Section 21020) of Chapter 11.
(5) The right to designate a beneficiary to receive his or her
accumulated contributions payable where death occurs prior to
retirement.
(6) The right to designate a beneficiary for any unpaid allowance
payable at the time of the nonmember's death.
(7) The right to elect coverage in the Second Tier for that member
service that is subject to the Second Tier, provided that the
election is made within one year of the establishment of the
nonmember account or prior to the nonmember's retirement, whichever
occurs first. Immediately upon establishment of a nonmember account,
the board shall provide, by certified mail, the necessary form and
information so that the election may be made.
(d) In the capacity of nonmember, he or she shall not be entitled
to any disability or industrial disability retirement allowance, any
basic death benefit, any special death benefit, any monthly allowance
for survivors of a member or retired person, any insurance benefit,
or retired member lump-sum death benefit. No survivor continuance
allowance shall be payable to a survivor of a nonmember.
SEC. 34. Section 68152 of the Government Code is amended to read:
68152. The trial court clerk may destroy court records under
Section 68153 after notice of destruction and if there is no request
and order for transfer of the records, except the comprehensive
historical and sample superior court records preserved for research
under the California Rules of Court, when the following times have
expired after final disposition of the case in the categories
listed:
(a) Adoption: retain permanently.
(b) Change of name: retain permanently.
(c) Other civil actions and proceedings, as follows:
(1) Except as otherwise specified: 10 years.
(2) Where a party appears by a guardian ad litem: 10 years after
termination of the court's jurisdiction.
(3) Domestic violence: same period as duration of the restraining
or other orders and any renewals, then retain the restraining or
other orders as a judgment; 60 days after expiration of the temporary
protective or temporary restraining order.
(4) Eminent domain: retain permanently.
(5) Family law, except as otherwise specified: 30 years.
(6) Harassment: same period as duration of the injunction and any
renewals, then retain the injunction as a judgment; 60 days after
expiration of the temporary restraining order.
(7) Mental health (Lanterman Developmental Disabilities Services
Act and Lanterman-Petris-Short Act): 30 years.
(8) Paternity: retain permanently.
(9) Petition, except as otherwise specified: 10 years.
(10) Real property other than unlawful detainer: retain
permanently if the action affects title or an interest in real
property.
(11) Small claims: 10 years.
(12) Unlawful detainer: one year if judgment is for possession of
the premises; 10 years if judgment is for money.
(d) Notwithstanding subdivision (c), any civil or small claims
case in the trial court:
(1) Involuntarily dismissed by the court for delay in prosecution
or failure to comply with state or local rules: one year.
(2) Voluntarily dismissed by a party without entry of judgment:
one year.
Notation of the dismissal shall be made on the civil index of
cases or on a separate dismissal index.
(e) Criminal.
(1) Capital felony (murder with special circumstances where the
prosecution seeks the death penalty): retain permanently. If the
charge is disposed of by acquittal or a sentence less than death, the
case shall be reclassified.
(2) Felony, except as otherwise specified: 75 years.
(3) Felony, except capital felony, with court records from the
initial complaint through the preliminary hearing or plea and for
which the case file does not include final sentencing or other final
disposition of the case because the case was bound over to the
superior court: five years.
(4) Misdemeanor, except as otherwise specified: five years.
(5) Misdemeanor alleging a violation of the Vehicle Code, except
as otherwise specified: three years.
(6) Misdemeanor alleging a violation of Section 23103, 23152, or
23153 of the Vehicle Code: seven years.
(7) Misdemeanor alleging a violation of Section 14601, 14601.1,
20002, 23104, or 23109 of the Vehicle Code: five years.
(8) Misdemeanor alleging a marijuana violation under subdivision
(b), (c), (d), or (e) of Section 11357 of the Health and Safety Code,
or subdivision (b) of Section 11360 of the Health and Safety Code in
accordance with the procedure set forth in Section 11361.5 of the
Health and Safety Code: records shall be destroyed two years from
the date of conviction or from the date of arrest if no conviction.
(9) Misdemeanor, infraction, or civil action alleging a violation
of the regulation and licensing of dogs under Sections 30951 to
30956, inclusive, of the Food and Agricultural Code or violation of
any other local ordinance: three years.
(10) Infraction, except as otherwise specified: three years.
(11) Parking infractions, including alleged violations under the
stopping, standing, and parking provisions set forth in Chapter 9
(commencing with Section 22500) of Division 11 of the Vehicle Code:
two years.
(f) Habeas corpus: same period as period for retention of the
records in the underlying case category.
(g) Juvenile.
(1) Dependent (Section 300 of the Welfare and Institutions Code):
upon reaching age 28 or on written request shall be released to the
juvenile five years after jurisdiction over the person has terminated
under subdivision (a) of Section 826 of the Welfare and Institutions
Code. Sealed records shall be destroyed upon court order five years
after the records have been sealed pursuant to subdivision (c) of
Section 389 of the Welfare and Institutions Code.
(2) Ward (Section 601 of the Welfare and Institutions Code): upon
reaching age 21 or on written request shall be released to the
juvenile five years after jurisdiction over the person has terminated
under subdivision (a) of Section 826 of the Welfare and Institutions
Code. Sealed records shall be destroyed upon court order five years
after the records have been sealed under subdivision (d) of Section
781 of the Welfare and Institutions Code.
(3) Ward (Section 602 of the Welfare and Institutions Code): upon
reaching age 38 under subdivision (a) of Section 826 of the Welfare
and Institutions Code. Sealed records shall be destroyed upon court
order when the subject of the record reaches the age of 38 under
subdivision (d) of Section 781 of the Welfare and Institutions Code.
(4) Traffic and some nontraffic misdemeanors and infractions
(Section 601 of the Welfare and Institutions Code): upon reaching
age 21 or five years after jurisdiction over the person has
terminated under subdivision (c) of Section 826 of the Welfare and
Institutions Code. May be microfilmed or photocopied.
(5) Marijuana misdemeanor under subdivision (e) of Section 11357
of the Health and Safety Code in accordance with procedures specified
in subdivision (a) of Section 11361.5 of the Health and Safety Code:
upon reaching age 18 the records shall be destroyed.
(h) Probate.
(1) Conservatorship: 10 years after decree of termination.
(2) Guardianship: 10 years after the age of 18.
(3) Probate, including probated wills, except as otherwise
specified: retain permanently.
(i) Court records of the appellate department of the trial court:
five years.
(j) Other records.
(1) Applications in forma pauperis: any time after the disposition
of the underlying case.
(2) Arrest warrant: same period as period for retention of the
records in the underlying case category.
(3) Bench warrant: same period as period for retention of the
records in the underlying case category.
(4) Bond: three years after exoneration and release.
(5) Coroner's inquest report: same period as period for retention
of the records in the underlying case category; if no case, then
permanent.
(6) Court orders not associated with an underlying case, such as
orders for destruction of court records for telephone taps, or to
destroy drugs, and other miscellaneous court orders: three years.
(7) Court reporter notes: 10 years after the notes have been
taken in criminal and juvenile proceedings and five years after the
notes have been taken in all other proceedings, except notes
reporting proceedings in capital felony cases (murder with special
circumstances where the prosecution seeks the death penalty and the
sentence is death), including notes reporting the preliminary
hearing, which shall be retained permanently, unless the Supreme
Court on request of the court clerk authorizes the destruction.
(8) Electronic recordings made as the official record of the oral
proceedings under the California Rules of Court: any time after
final disposition of the case in infraction and misdemeanor
proceedings, 10 years in all other criminal proceedings, and five
years in all other proceedings.
(9) Electronic recordings not made as the official record of the
oral proceedings under the California Rules of Court: any time
either before or after final disposition of the case.
(10) Index, except as otherwise specified: retain permanently.
(11) Index for cases alleging traffic violations: same period as
period for retention of the records in the underlying case category.
(12) Judgments within the jurisdiction of the superior court:
retain permanently.
(13) Judgments within the jurisdiction of the municipal and
justice court: same period as period for retention of the records in
the underlying case category.
(14) Minutes: same period as period for retention of the records
in the underlying case category.
(15) Naturalization index: retain permanently.
(16) Ninety-day evaluation (under Section 1203.03 of the Penal
Code): same period as period for retention of the records in the
underlying case category, or period for completion or termination of
probation, whichever is longer.
(17) Register of actions or docket: same period as period for
retention of the records in the underlying case category, but in no
event less than 10 years for civil and small claims cases.
(18) Search warrant: 10 years, except search warrants issued in
connection with a capital felony case defined in paragraph (7), which
shall be retained permanently.
(k) Retention of any of the court records under this section shall
be extended as follows:
(1) By order of the court on its own motion, or on application of
a party or any interested member of the public for good cause shown
and on such terms as are just. No fee shall be charged for making
the application.
(2) Upon application and order for renewal of the judgment to the
extended time for enforcing the judgment.
SEC. 34.5. Section 68152 of the Government Code is amended to
read:
68152. The trial court clerk may destroy court records under
Section 68153 after notice of destruction and if there is no request
and order for transfer of the records, except the comprehensive
historical and sample superior court records preserved for research
under the California Rules of Court, when the following times have
expired after final disposition of the case in the categories listed:
(a) Adoption: retain permanently.
(b) Change of name: retain permanently.
(c) Other civil actions and proceedings, as follows:
(1) Except as otherwise specified: 10 years.
(2) Where a party appears by a guardian ad litem: 10 years after
termination of the court's jurisdiction.
(3) Domestic violence: same period as duration of the restraining
or other orders and any renewals, then retain the restraining or
other orders as a judgment; 60 days after expiration of the temporary
protective or temporary restraining order.
(4) Eminent domain: retain permanently.
(5) Family law, except as otherwise specified: 30 years.
(6) Harassment: same period as duration of the injunction and any
renewals, then retain the injunction as a judgment; 60 days after
expiration of the temporary restraining order.
(7) Mental health (Lanterman Developmental Disabilities Services
Act and Lanterman-Petris-Short Act): 30 years.
(8) Paternity: retain permanently.
(9) Petition, except as otherwise specified: 10 years.
(10) Real property other than unlawful detainer: retain
permanently if the action affects title or an interest in real
property.
(11) Small claims: 10 years.
(12) Unlawful detainer: one year if judgment is for possession of
the premises; 10 years if judgment is for money.
(d) Notwithstanding subdivision (c), any civil or small claims
case in the trial court:
(1) Involuntarily dismissed by the court for delay in prosecution
or failure to comply with state or local rules: one year.
(2) Voluntarily dismissed by a party without entry of judgment:
one year.
Notation of the dismissal shall be made on the civil index of
cases or on a separate dismissal index.
(e) Criminal.
(1) Capital felony (murder with special circumstances where the
prosecution seeks the death penalty): retain permanently. If the
charge is disposed of by acquittal or a sentence less than death, the
case shall be reclassified.
(2) Felony, except as otherwise specified: 75 years.
(3) Felony, except capital felony, with court records from the
initial complaint through the preliminary hearing or plea and for
which the case file does not include final sentencing or other final
disposition of the case because the case was bound over to the
superior court: five years.
(4) Misdemeanor, except as otherwise specified: five years.
(5) Misdemeanor alleging a violation of the Vehicle Code, except
as otherwise specified: three years.
(6) Misdemeanor alleging a violation of Section 23103, 23152, or
23153 of the Vehicle Code: seven years.
(7) Misdemeanor alleging a violation of Section 14601, 14601.1,
20002, 23104, or 23109 of the Vehicle Code: five years.
(8) Misdemeanor alleging a marijuana violation under subdivision
(b), (c), (d), or (e) of Section 11357 of the Health and Safety Code,
or subdivision (b) of Section 11360 of the Health and Safety Code in
accordance with the procedure set forth in Section 11361.5 of the
Health and Safety Code: records shall be destroyed two years from
the date of conviction or from the date of arrest if no conviction.
(9) Misdemeanor, infraction, or civil action alleging a violation
of the regulation and licensing of dogs under Sections 30951 to
30956, inclusive, of the Food and Agricultural Code or violation of
any other local ordinance: three years.
(10) Infraction, except as otherwise specified: three years.
(11) Parking infractions, including alleged violations under the
stopping, standing, and parking provisions set forth in Chapter 9
(commencing with Section 22500) of Division 11 of the Vehicle Code:
two years.
(f) Habeas corpus: same period as period for retention of the
records in the underlying case category.
(g) Juvenile.
(1) Dependent (Section 300 of the Welfare and Institutions Code):
upon reaching age 28 or on written request shall be released to the
juvenile five years after jurisdiction over the person has terminated
under subdivision (a) of Section 826 of the Welfare and Institutions
Code. Sealed records shall be destroyed upon court order five years
after the records have been sealed pursuant to subdivision (c) of
Section 389 of the Welfare and Institutions Code.
(2) Ward (Section 601 of the Welfare and Institutions Code): upon
reaching age 21 or on written request shall be released to the
juvenile five years after jurisdiction over the person has terminated
under subdivision (a) of Section 826 of the Welfare and Institutions
Code. Sealed records shall be destroyed upon court order five years
after the records have been sealed under subdivision (d) of Section
781 of the Welfare and Institutions Code.
(3) Ward (Section 602 of the Welfare and Institutions Code): upon
reaching age 38 under subdivision (a) of Section 826 of the Welfare
and Institutions Code. Sealed records shall be destroyed upon court
order when the subject of the record reaches the age of 38 under
subdivision (d) of Section 781 of the Welfare and Institutions Code.
(4) Traffic and some nontraffic misdemeanors and infractions
(Section 601 of the Welfare and Institutions Code): upon reaching
age 21 or five years after jurisdiction over the person has
terminated under subdivision (c) of Section 826 of the Welfare and
Institutions Code. May be microfilmed or photocopied.
(5) Marijuana misdemeanor under subdivision (e) of Section 11357
of the Health and Safety Code in accordance with procedures specified
in subdivision (a) of Section 11361.5 of the Health and Safety Code:
upon reaching age 18 the records shall be destroyed.
(h) Probate.
(1) Conservatorship: 10 years after decree of termination.
(2) Guardianship: 10 years after the age of 18.
(3) Probate, including probated wills, except as otherwise
specified: retain permanently.
(i) Court records of the appellate division of the superior court:
five years.
(j) Other records.
(1) Applications in forma pauperis: any time after the
disposition of the underlying case.
(2) Arrest warrant: same period as period for retention of the
records in the underlying case category.
(3) Bench warrant: same period as period for retention of the
records in the underlying case category.
(4) Bond: three years after exoneration and release.
(5) Coroner's inquest report: same period as period for retention
of the records in the underlying case category; if no case, then
permanent.
(6) Court orders not associated with an underlying case, such as
orders for destruction of court records for telephone taps, or to
destroy drugs, and other miscellaneous court orders: three years.
(7) Court reporter notes: 10 years after the notes have been
taken in criminal and juvenile proceedings and five years after the
notes have been taken in all other proceedings, except notes
reporting proceedings in capital felony cases (murder with special
circumstances where the prosecution seeks the death penalty and the
sentence is death), including notes reporting the preliminary
hearing, which shall be retained permanently, unless the Supreme
Court on request of the court clerk authorizes the destruction.
(8) Electronic recordings made as the official record of the oral
proceedings under the California Rules of Court: any time after
final disposition of the case in infraction and misdemeanor
proceedings, 10 years in all other criminal proceedings, and five
years in all other proceedings.
(9) Electronic recordings not made as the official record of the
oral proceedings under the California Rules of Court: any time
either before or after final disposition of the case.
(10) Index, except as otherwise specified: retain permanently.
(11) Index for cases alleging traffic violations: same period as
period for retention of the records in the underlying case category.
(12) Judgments within the jurisdiction of the superior court other
than in a limited civil case: retain permanently.
(13) Judgments within the jurisdiction of the municipal court or
of the superior court in a limited civil case: same period as period
for retention of the records in the underlying case category.
(14) Minutes: same period as period for retention of the records
in the underlying case category.
(15) Naturalization index: retain permanently.
(16) Ninety-day evaluation (under Section 1203.03 of the Penal
Code): same period as period for retention of the records in the
underlying case category, or period for completion or termination of
probation, whichever is longer.
(17) Register of actions or docket: same period as period for
retention of the records in the underlying case category, but in no
event less than 10 years for civil and small claims cases.
(18) Search warrant: 10 years, except search warrants issued in
connection with a capital felony case defined in paragraph (7), which
shall be retained permanently.
(k) Retention of any of the court records under this section shall
be extended as follows:
(1) By order of the court on its own motion, or on application of
a party or any interested member of the public for good cause shown
and on such terms as are just. No fee shall be charged for making
the application.
(2) Upon application and order for renewal of the judgment to the
extended time for enforcing the judgment.
SEC. 35. Section 68511.3 of the Government Code is amended to
read:
68511.3. (a) The Judicial Council shall formulate and adopt
uniform forms and rules of court for litigants proceeding in forma
pauperis. These rules shall provide for all of the following:
(1) Standard procedures for considering and determining
applications for permission to proceed in forma pauperis, including,
in the event of a denial of such permission, a written statement
detailing the reasons for denial and an evidentiary hearing where
there is a substantial evidentiary conflict.
(2) Standard procedures to toll relevant time limitations when a
pleading or other paper accompanied by such an application is timely
lodged with the court and delay is caused due to the processing of
the application to proceed in forma pauperis.
(3) Proceeding in forma pauperis at every stage of the proceedings
at both the appellate and trial levels of the court system.
(4) The confidentiality of the financial information provided to
the court by these litigants.
(5) That the court may authorize the clerk of the court, county
financial officer, or other appropriate county officer to make
reasonable efforts to verify the litigant's financial condition
without compromising the confidentiality of the application.
(6) That permission to proceed in forma pauperis be granted to all
of the following:
(A) Litigants who are receiving benefits pursuant to the
Supplemental Security Income (SSI) and State Supplemental Payments
(SSP) programs (Sections 12200 to 12205, inclusive, of the Welfare
and Institutions Code), the California Work Opportunity and
Responsibility to Kids Act (CalWORKs) program (Chapter 2 (commencing
with Section 11200) of Part 3 of Division 9 of the Welfare and
Institutions Code), the Food Stamp program (7 U.S.C. Sec. 2011 et
seq.), or Section 17000 of the Welfare and Institutions Code.
(B) Litigants whose monthly income is 125 percent or less of the
current monthly poverty line annually established by the Secretary of
Health and Human Services pursuant to the Omnibus Budget
Reconciliation Act of 1981, as amended.
(C) Other persons when in the court's discretion, this permission
is appropriate because the litigant is unable to proceed without
using money which is necessary for the use of the litigant or the
litigant's family to provide for the common necessaries of life.
(b) (1) Litigants who apply for permission to proceed in forma
pauperis pursuant to subparagraph (A) of paragraph (6) of subdivision
(a) shall declare under penalty of perjury that they are receiving
such benefits and may voluntarily provide the court with their social
security number to permit the court to verify the applicant's
receipt of public assistance. The court may require any applicant,
except a defendant in an unlawful detainer action, who chooses not to
disclose his or her social security number for verification purposes
to attach to the application documentation of benefits to support
the claim and all other financial information on a form promulgated
by the Judicial Council for this purpose.
(2) Litigants who apply for permission to proceed in forma
pauperis pursuant to subparagraph (B) or (C) of paragraph (6) of
subdivision (a) shall file a financial statement under oath on a form
promulgated by, and pursuant to rules adopted by, the Judicial
Council.
(c) The forms and rules adopted by the Judicial Council shall
provide for the disclosure of the following information about the
litigant:
(1) Current street address.
(2) Date of birth.
(3) Occupation and employer.
(4) Monthly income and expenses.
(5) Address and value of any real property owned directly or
beneficially.
(6) Personal property with a value that exceeds five hundred
dollars ($500).
The information furnished by the litigant shall be used by the
court in determining his or her ability to pay all or a portion of
the fees and costs.
(d) At any time after the court has granted a litigant permission
to proceed in forma pauperis and prior to final disposition of the
case, the clerk of the court, county financial officer, or other
appropriate county officer may notify the court of any changed
financial circumstances which may enable the litigant to pay all or a
portion of the fees and costs which had been waived. The court may
authorize the clerk of the court, county financial officer, or other
appropriate county officer to require the litigant to appear before
and be examined by the person authorized to ascertain the validity of
their indigent status. However, no litigant shall be required to
appear more than once in any four-month period. A litigant
proceeding in forma pauperis shall notify the court within five days
of any settlement or monetary consideration received in settlement of
this litigation and of any other change in financial circumstances
that affects the litigant's ability to pay court fees and costs.
After the litigant either (1) appears before and is examined by the
person authorized to ascertain the validity of his or her indigent
status or (2) notifies the court of a change in financial
circumstances, the court may then order the litigant to pay to the
county such sum and in such manner as the court believes is
compatible with the litigant's financial ability.
In any action or proceeding in which the litigant whose fees and
costs have been waived would have been entitled to recover those fees
and costs from another party to the action or proceeding had they
been paid, the court may assess the amount of the waived fees and
costs against the other party and order the other party to pay that
sum to the county or to the clerk and serving and levying officers
respectively, or the court may order the amount of the waived fees
and costs added to the judgment and so identified by the clerk.
Execution may be issued on any order provided for in this
subdivision in the same manner as on a judgment in a civil action.
When an amount equal to the sum due and payable to the clerk has been
collected upon the judgment, these amounts shall be remitted to the
clerk within 30 days. Thereafter, when an amount equal to the sum
due to the serving and levying officers has been collected upon the
judgment, these amounts shall be due and payable to those officers
and shall be remitted within 30 days. If the remittance is not
received by the clerk within 30 days or there is a filing of a
partial satisfaction of judgment in an amount at least equal to the
fees and costs payable to the clerk or a satisfaction of judgment has
been filed, notwithstanding any other provision of law, the court
may issue an abstract of judgment, writ of execution, or both for
recovery of those sums, plus the fees for issuance and execution and
an additional fee for administering this section. The county board
of supervisors shall establish a fee, not to exceed actual costs of
administering this subdivision and in no case exceeding twenty-five
dollars ($25), which shall be added to the writ of execution.
(e) Notwithstanding subdivision (a), a person who is sentenced to
imprisonment in a state prison or confined in a county jail and,
during the period of imprisonment or confinement, files a civil
action or notice of appeal of a civil action in forma pauperis shall
be required to pay the full amount of the filing fee to the extent
provided in this subdivision.
(1) In addition to the form required by this section for filing
in forma pauperis, an inmate shall file a copy of a statement of
account for any sums due to the inmate for the six-month period
immediately preceding the filing of the civil action or notice of
appeal of a civil action. This copy shall be certified by the
appropriate official of the Department of Corrections or a county
jail.
(2) Upon filing the civil action or notice of appeal of a civil
action, the court shall assess, and when funds exist, collect, as a
partial payment of any required court fees, an initial partial filing
fee of 20 percent of the greater of one of the following:
(A) The average monthly deposits to the inmate's account.
(B) The average monthly balance in the inmate's account for the
six-month period immediately preceding the filing of the civil action
or notice of appeal.
(3) After payment of the initial partial filing fee, the inmate
shall be required to make monthly payments of 20 percent of the
preceding month's income credited to the inmate's account. The
Department of Corrections shall forward payments from this account to
the clerk of the court each time the amount in the account exceeds
ten dollars ($10) until the filing fees are paid.
(4) In no event shall the filing fee collected pursuant to this
subdivision exceed the amount of fees permitted by law for the
commencement of a civil action or an appeal of a civil action.
(5) In no event shall an inmate be prohibited from bringing a
civil action or appeal of a civil action solely because the inmate
has no assets and no means to pay the initial partial filing fee.
SEC. 36. Section 75050 of the Government Code is amended to read:
75050. (a) Upon the legal separation or dissolution of marriage
of a member, the court shall include in the judgment or a court order
the date on which the parties separated.
(b) If the court orders the division of the community property
interest in the system pursuant to paragraph (3) of subdivision (a)
of Section 2610 of the Family Code, the accumulated contributions and
service credit attributable to periods of service during the
marriage shall be divided into two separate and distinct accounts in
the name of the member and nonmember, respectively. Any service
credit or accumulated contributions which are not explicitly awarded
by the judgment or court order shall be deemed the exclusive property
of the member.
(c) Upon receipt of the court order separating the account of the
member and the nonmember pursuant to this section, the board shall
determine the rights of the nonmember, taking into consideration the
court order and the account of the member. These rights may include
the following:
(1) The right to a retirement allowance.
(2) The right to a refund of accumulated retirement contributions.
(3) The right to redeposit accumulated contributions which are
eligible for redeposit by the member under Section 75028.5.
(4) The right to purchase service credit which is eligible for
purchase by the member under Sections 75029 to 75030.5.
(5) The right to designate a beneficiary to receive his or her
accumulated contributions payable where death occurs prior to
retirement.
(6) The right to designate a beneficiary for any unpaid allowance
payable at the time of the nonmember's death.
(d) In the capacity of nonmember, the nonmember shall not be
entitled to any disability retirement allowance.
SEC. 37. Section 76219 of the Government Code is amended to read:
76219. (a) The Courthouse Construction Fund established in Los
Angeles County pursuant to Section 76100 shall be known as the
Robbins Courthouse Construction Fund.
(b) All courtroom construction in the County of Los Angeles which
utilizes moneys from the Robbins Courthouse Construction Fund or
moneys borrowed and owed against the Robbins Courthouse Construction
Fund shall be within the boundaries of the San Fernando Valley
Statistical Area and the Los Cerritos Municipal Court District, until
the time that the County of Los Angeles has spent a total of at
least forty-three million dollars ($43,000,000) on courthouse
construction within the San Fernando Valley Statistical Area and at
least eight million dollars ($8,000,000) within the Los Cerritos
Municipal Court District for the Bellflower Courthouse.
(c) All courtroom construction in the County of Los Angeles which
utilizes moneys from the Robbins Courthouse Construction Fund or
moneys borrowed against the Robbins Courthouse Construction Fund
shall be within the boundaries of the San Fernando Valley Statistical
Area, within the boundaries of the Los Cerritos Municipal Court
District, within the boundaries of the East Los Angeles Municipal
Court District, within the Downey Municipal Court District, within
the community of Hollywood, or within the West Los Angeles Branch of
the Los Angeles Municipal Court District, until the time that the
County of Los Angeles has fulfilled the requirements of subdivision
(b) and has additionally spent at least sixteen million five hundred
thousand dollars ($16,500,000) on courthouse construction within the
East Los Angeles Municipal Court District, has spent at least ten
million dollars ($10,000,000) on courthouse construction within the
Downey Municipal Court District, has commenced construction on a
courthouse with at least six courtrooms in the West San Fernando
Valley, has commenced construction on a courthouse with at least two
courtrooms in the community of Hollywood, and has commenced
construction on a courthouse for the West Los Angeles Branch of the
Los Angeles Municipal Court District.
(d) All courtroom construction in the County of Los Angeles which
utilizes moneys from the Robbins Courthouse Construction Fund or
moneys borrowed against the Robbins Courthouse Construction Fund
shall be within the boundaries of the San Fernando Valley Statistical
Area, within the boundaries of the Los Cerritos Municipal Court
District, within the boundaries of the East Los Angeles Municipal
Court District, within the Downey Municipal Court District, within
the community of Hollywood, within the West Los Angeles Branch of the
Los Angeles Municipal Court District, within the Pasadena Judicial
District, within the Southeast Municipal Court District, within the
South Bay Judicial District, within the Santa Monica Judicial
District, within the Antelope Valley Judicial District, or within the
Long Beach Judicial District until the time that the County of Los
Angeles has fulfilled the requirements of subdivisions (b) and (c),
and has commenced construction of new facilities or the expansion of
existing facilities for the municipal courts in the Pasadena Judicial
District, the north and south branches of the Southeast Municipal
Court District, and the South Bay Judicial District, has commenced
construction on a courthouse for the superior court with at least 18
courtrooms in the North Hollywood Redevelopment Project Area of the
City of Los Angeles or immediately adjacent thereto, and has
commenced construction of new facilities for the superior and
municipal courts in the Santa Monica Judicial District, the Antelope
Valley Judicial District, and the Long Beach Judicial District.
(e) For purposes of this section, the San Fernando Valley
Statistical Area includes all land within the San Fernando Valley
Statistical Area (as defined in subdivision (e) of Section 11093) as
well as the City of San Fernando, the City of Hidden Hills, and the
unincorporated areas of Los Angeles County located west of the City
of Los Angeles, east and south of the Ventura County line, and north
of a line extended westerly from the southern boundary of the San
Fernando Valley Statistical Area (as defined in subdivision (c) of
Section 11093).
(f) The moneys of the Robbins Courthouse Construction Fund
together with any interest earned thereon shall be payable only for
courtroom construction and land acquisition as authorized in
subdivision (b) and, after the requirement of subdivision (b) has
been met, shall be payable only for courtroom construction and land
acquisition as authorized in subdivision (c) and, after the
requirements of subdivisions (b) and (c) have been met, shall be
payable only for courtroom construction and land acquisition as
authorized in subdivision (d).
(g) Deposits into the fund shall continue through and including
either (1) the 25th year after the initial calendar year in which the
surcharge is seleected or (2) whatever period of time is necessary
to repay any borrowings made by the county to pay for construction
provided for in this section, whichever time is longer.
(h) The resolution adopted by the Board of Supervisors of the
County of Los Angeles on September 2, 1980, stating that the
provisions of Chapter 578 of the Statutes of 1980 are necessary to
the establishment of adequate courtroom facilities in the County of
Los Angeles shall be deemed a resolution stating that the provisions
of this section are necessary to the establishment of adequate
courtroom facilities in the county, and shall satisfy the
requirements of this section.
SEC. 38. Section 33502 of the Health and Safety Code is amended to
read:
33502. The judgment shall determine the validity or invalidity,
respectively, of the matters specified in Section 33501. The
judgment shall be subject to being reopened under Section 473 or
Section 473.5 of the Code of Civil Procedure or otherwise only within
90 days after the entry of the judgment and petitioner and any
person who has appeared in the special proceeding shall have the
right to move for a new trial under proper circumstances and upon
appropriate grounds and to appeal from the judgment.
SEC. 39. Section 115800.1 of the Health and Safety Code is amended
to read:
115800.1. (a) In-line skating by an adult shall be deemed a
hazardous recreational activity within the meaning of Section 831.7
of the Government Code if all of the following conditions are met:
(1) The local public agency has, by legislative action, designated
specific public property as a recreational area, boardwalk, or park
in which in-line skating is permitted.
(2) The designated area, boardwalk, or park is adequately posted
with notices advising the public that in-line skating in the
designated area by adults is deemed to be a hazardous recreational
activity and that the public entity may not be liable for injuries
incurred by persons participating in the hazardous recreational
activity in the designated area, boardwalk, or park.
(b) Nothing in Section 831.7 of the Government Code or this
section shall be deemed to limit the duty of a public entity to
maintain public property or premises in a safe manner.
(c) The appropriate local public agency shall maintain a record of
all known or reported injuries incurred by an in-line skater on
designated public property and other public property. The local
public agency shall also maintain a record of all claims, paid and
not paid, including any lawsuits and their results, arising from
those incidents that were filed against the public agency. Beginning
in 1999, copies of these records shall be filed annually, no later
than January 30 each year, with the Judicial Council, which shall
submit a report to the Legislature on or before March 31, 2000, on
the incidences of injuries incurred, claims asserted, and the results
of any lawsuit filed, by persons injured while in-line skating on
designated public property and other public property.
(d) This section shall remain in effect only until January 1,
2001, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2001, deletes or extends
that date.
SEC. 40. Section 1368 of the Penal Code is amended to read:
1368. (a) If, during the pendency of an action and prior to
judgment, a doubt arises in the mind of the judge as to the mental
competence of the defendant, he or she shall state that doubt in the
record and inquire of the attorney for the defendant whether, in the
opinion of the attorney, the defendant is mentally competent. If the
defendant is not represented by counsel, the court shall appoint
counsel. At the request of the defendant or his or her counsel or
upon its own motion, the court shall recess the proceedings for as
long as may be reasonably necessary to permit counsel to confer with
the defendant and to form an opinion as to the mental competence of
the defendant at that point in time.
(b) If counsel informs the court that he or she believes the
defendant is or may be mentally incompetent, the court shall order
that the question of the defendant's mental competence is to be
determined in a hearing which is held pursuant to Sections 1368.1 and
1369. If counsel informs the court that he or she believes the
defendant is mentally competent, the court may nevertheless order a
hearing. Any hearing shall be held in the superior court.
(c) Except as provided in Section 1368.1, when an order for a
hearing into the present mental competence of the defendant has been
issued, all proceedings in the criminal prosecution shall be
suspended until the question of the present mental competence of the
defendant has been determined.
If a jury has been impaneled and sworn to try the defendant, the
jury shall be discharged only if it appears to the court that undue
hardship to the jurors would result if the jury is retained on call.
If the defendant is declared mentally incompetent, the jury shall
be discharged.
SEC. 41. Section 11165.8 of the Penal Code is amended to read:
11165.8. As used in this article, "health practitioner" means any
of the following:
(a) A physician and surgeon, psychiatrist, psychologist, dentist,
resident, intern, podiatrist, chiropractor, licensed nurse, dental
hygienist, optometrist, marriage, family and child counselor,
clinical social worker, or any other person who is currently licensed
under Division 2 (commencing with Section 500) of the Business and
Professions Code.
(b) Any emergency medical technician I or II, paramedic, or other
person certified pursuant to Division 2.5 (commencing with Section
1797) of the Health and Safety Code.
(c) A psychological assistant registered pursuant to Section 2913
of the Business and Professions Code.
(d) A marriage, family and child counselor trainee, as defined in
subdivision (c) of Section 4980.03 of the Business and Professions
Code.
(e) An unlicensed marriage, family and child counselor intern
registered under Section 4980.44 of the Business and Professions
Code.
(f) A state or county public health employee who treats a minor
for venereal disease or any other condition.
(g) A coroner.
(h) A medical examiner, or any other person who performs
autopsies.
SEC. 42. Section 5 of Chapter 1125 of the Statutes of 1990, as
amended by Section 9 of Chapter 591 of the Statutes of 1995, is
amended to read:
Sec. 5. Sections 1.5, 2.5, 3.5, and 4.5 of this act shall become
operative on January 1, 2002.
SEC. 43. Section 11.5 of this bill incorporates amendments to
Section 77 of the Code of Civil Procedure proposed by both this bill
and SB 2139. It shall only become operative if (1) both bills are
enacted and become effective on or before January 1, 1999, (2) each
bill amends Section 77 of the Code of Civil Procedure, and (3) this
bill is enacted after SB 2139, in which case Section 77 of the Code
of Civil Procedure as amended by SB 2139, shall remain operative only
until the operative date of this bill, at which time Section 11.5 of
this bill shall become operative, and Section 11 of this bill shall
not become operative.
SEC. 44. Section 13.5 of this bill incorporates amendments to
Section 200 of the Code of Civil Procedure proposed by both this bill
and SB 2139. It shall only become operative if (1) both bills are
enacted and become effective on or before January 1, 1999, (2) each
bill amends Section 200 of the Code of Civil Procedure, and (3) this
bill is enacted after SB 2139, in which case Section 200 of the Code
of Civil Procedure as amended by SB 2139, shall remain operative only
until the operative date of this bill, at which time Section 13.5 of
this bill shall become operative, and Section 13 of this bill shall
not become operative.
SEC. 45. (a) Section 22.1 of this bill incorporates amendments to
Section 2025 of the Code of Civil Procedure proposed by both this
bill and SB 2145. It shall only become operative if (1) both bills
are enacted and become effective on or before January 1, 1999, (2)
each bill amends Section 2025 of the Code of Civil Procedure, and (3)
AB 2150 is not enacted or as enacted does not amend that section,
and (4) this bill is enacted after SB 2145, in which case Sections
22, 22.2, and 22.3 of this bill shall not become operative.
(b) Section 22.2 of this bill incorporates amendments to Section
2025 of the Code of Civil Procedure proposed by both this bill and AB
2150. It shall only become operative if (1) both bills are enacted
and become effective on or before January 1, 1999, (2) each bill
amends Section 2025 of the Code of Civil Procedure, (3) SB 2145 is
not enacted or as enacted does not amend that section, and (4) this
bill is enacted after AB 2150 in which case Sections 22, 22.1, and
22.3 of this bill shall not become operative.
(c) Section 22.3 of this bill incorporates amendments to Section
2025 of the Code of Civil Procedure proposed by this bill, SB 2145,
and AB 2150. It shall only become operative if (1) all three bills
are enacted and become effective on or before January 1, 1999, (2)
all three bills amend Section 2025 of the Code of Civil Procedure,
and (3) this bill is enacted after SB 2145 and AB 2150, in which case
Sections 22, 22.1, and 22.2 of this bill shall not become operative.
SEC. 46. Section 31.5 of this bill incorporates amendments to
Section 400 of the Family Code proposed by both this bill and SB
2139. It shall only become operative if (1) both bills are enacted
and become effective on or before January 1, 1999, (2) each bill
amends Section 400 of the Family Code, and (3) this bill is enacted
after SB 2139, in which case Section 400 of the Family Code as
amended by SB 2139, shall remain operative only until the operative
date of this bill, at which time Section 31.5 of this bill shall
become operative, and Section 31 of this bill shall not become
operative.
SEC. 47. Section 34.5 of this bill incorporates amendments to
Section 68152 of the Government Code proposed by both this bill and
SB 2139. It shall only become operative if (1) both bills are
enacted and become effective on or before January 1, 1999, (2) each
bill amends Section 68152 of the Government Code, and (3) this bill
is enacted after SB 2139, in which case Section 68152 of the
Government Code as amended by SB 2139, shall remain operative only
until the operative date of this bill, at which time Section 34.5 of
this bill shall become operative, and Section 34 of this bill shall
not become operative.
SEC. 48. Notwithstanding Section 17610 of the Government Code, if
the Commission on State Mandates determines that this act contains
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.