BILL NUMBER: SB 150 CHAPTERED
BILL TEXT
CHAPTER 527
FILED WITH SECRETARY OF STATE SEPTEMBER 29, 1997
APPROVED BY GOVERNOR SEPTEMBER 28, 1997
PASSED THE SENATE SEPTEMBER 5, 1997
PASSED THE ASSEMBLY SEPTEMBER 2, 1997
AMENDED IN ASSEMBLY JUNE 16, 1997
AMENDED IN SENATE APRIL 14, 1997
AMENDED IN SENATE MARCH 13, 1997
INTRODUCED BY Senator Kopp
JANUARY 14, 1997
An act to amend Section 10471 of the Business and Professions
Code, to amend Section 86 of the Code of Civil Procedure, to add
Section 3553 to the Labor Code, and to amend Section 1202.4 of the
Penal Code, relating to restitution, and making an appropriation
therefor.
LEGISLATIVE COUNSEL'S DIGEST
SB 150, Kopp. Restitution.
(1) Existing law establishes the Recovery Account in the Real
Estate Fund which is funded by crediting a specified percentage of
any real estate license fee collected. Under existing law, when an
aggrieved person obtains a final judgment in a court of competent
jurisdiction or an arbitration award against a defendant based upon
the defendant's fraud, misrepresentation, or deceit, made with intent
to defraud, or conversion of trust funds arising directly out of any
transaction in which the defendant, a real estate licensee,
performed acts for which his or her license was required, the
aggrieved person may file an application with the Department of Real
Estate for payment from the Recovery Account of the amount unpaid on
the judgment which represents an actual and direct loss to the
claimant in the transaction. The Recovery Account is a continuing
appropriation for these purposes.
This bill would provide that a final judgment includes a state or
federal criminal restitution order for purposes of this provision,
thereby making an appropriation from the Recovery Account.
(2) Under existing law, each municipal court has original
jurisdiction of civil cases and proceedings in, among other things,
all cases at law in which the demand, exclusive of interest, or the
value of the property in controversy amounts to $25,000 or less,
except as specified.
This bill would extend the jurisdiction of the municipal court to
include all actions to enforce restitution orders or restitution
fines that were imposed by the municipal court.
(3) Existing workers' compensation law requires every employer to
post and keep posted in a conspicuous location a notice for employees
containing information about the employer's insurance and the
employees' rights to receive care and benefits.
This bill additionally would require every employer to give any
employee who is a victim of a crime that occurred at the employee's
place of employment written notice that the employee is eligible for
workers' compensation for injuries that may have resulted from the
place of employment crime.
(4) Existing law requires the court to order a defendant to make
restitution to any victim or victims who have suffered economic loss
as a result of the defendant's conduct, in an amount established by
court order. Under existing law, the defendant has the right to a
hearing to dispute the determination of the amount of restitution,
and the court is authorized to modify the amount, on its own motion
or on the motion of the district attorney or the defendant.
This bill additionally would authorize the court to modify the
amount of the restitution order on the motion of the victim or
victims.
Appropriation: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 10471 of the Business and Professions Code is
amended to read:
10471. (a) When an aggrieved person obtains (1) a final judgment
in a court of competent jurisdiction, including, but not limited to,
a criminal restitution order issued pursuant to subdivision (f) of
Section 1202.4 of the Penal Code or Section 3663 of Title 18 of the
United States Code, or (2) an arbitration award that includes
findings of fact and conclusions of law rendered in accordance with
the rules established by the American Arbitration Association or
another recognized arbitration body, and in accordance with Sections
1281 to 1294.2, inclusive, of the Code of Civil Procedure where
applicable, and where the arbitration award has been confirmed and
reduced to judgment pursuant to Section 1287.4 of the Code of Civil
Procedure, against a defendant based upon the defendant's fraud,
misrepresentation, or deceit, made with intent to defraud, or
conversion of trust funds arising directly out of any transaction not
in violation of Section 10137 or 10138 in which the defendant, while
licensed under this part, performed acts for which that license was
required, the aggrieved person may, upon the judgment becoming final,
file an application with the Department of Real Estate for payment
from the Recovery Account, within the limitations specified in
Section 10474, of the amount unpaid on the judgment that represents
an actual and direct loss to the claimant in the transaction.
(b) The application shall be delivered in person or by certified
mail to an office of the department not later than one year after the
judgment has become final.
(c) The application shall be made on a form prescribed by the
department, verified by the claimant, and shall include the
following:
(1) The name and address of the claimant.
(2) If the claimant is represented by an attorney, the name,
business address, and telephone number of the attorney.
(3) The identification of the judgment, the amount of the claim
and an explanation of its computation.
(4) A detailed narrative statement of the facts in explanation of
the allegations of the complaint upon which the underlying judgment
is based.
(5) (A) Except as provided in subparagraph (B), a statement by the
claimant, signed under penalty of perjury, that the complaint upon
which the underlying judgment is based was prosecuted conscientiously
and in good faith. As used in this section, "conscientiously and in
good faith" means that no party potentially liable to the claimant
in the underlying transaction was intentionally and without good
cause omitted from the complaint, that no party named in the
complaint who otherwise reasonably appeared capable of responding in
damages was dismissed from the complaint intentionally and without
good cause, and that the claimant employed no other procedural means
contrary to the diligent prosecution of the complaint in order to
seek to qualify for the Recovery Account.
(B) For the purpose of an application based on a criminal
restitution order, all of the following statements by the claimant:
(i) The claimant has not intentionally and without good cause
failed to pursue any person potentially liable to the claimant in the
underlying transaction other than a defendant who is the subject of
a criminal restitution order.
(ii) The claimant has not intentionally and without good cause
failed to pursue in a civil action for damages all persons
potentially liable to the claimant in the underlying transaction who
otherwise reasonably appeared capable of responding in damages other
than a defendant who is the subject of a criminal restitution order.
(iii) The claimant employed no other procedural means contrary to
the diligent prosecution of the complaint in order to seek to qualify
for the Recovery Account.
(6) The name and address of the judgment debtor or, if not known,
the names and addresses of persons who may know the judgment debtor's
present whereabouts.
(7) The following representations and information from the
claimant:
(A) That he or she is not a spouse of the judgment debtor nor a
personal representative of the spouse.
(B) That he or she has complied with all of the requirements of
this chapter.
(C) That the judgment underlying the claim meets the requirements
of subdivision (a).
(D) A description of searches and inquiries conducted by or on
behalf of the claimant with respect to the judgment debtor's assets
liable to be sold or applied to satisfaction of the judgment, an
itemized valuation of the assets discovered, and the results of
actions by the claimant to have the assets applied to satisfaction of
the judgment.
(E) That he or she has diligently pursued collection efforts
against other judgment debtors and all other persons liable to the
claimant in the transaction that is the basis for the underlying
judgment.
(F) That the underlying judgment and debt have not been discharged
in bankruptcy, or, in the case of a bankruptcy proceeding that is
open at the time of the filing of the application, that the judgment
and debt have been declared to be nondischargeable.
(G) That the application was mailed or delivered to the department
no later than one year after the underlying judgment became final.
(d) The application form shall include detailed instructions with
respect to documentary evidence, pleadings, court rulings, the
products of discovery in the underlying litigation, and a notice to
the applicant of his or her obligation to protect the underlying
judgment from discharge in bankruptcy, to be appended to the
application.
(e) An application for payment from the Recovery Account that is
based on a criminal restitution order shall comply with all of the
requirements of this chapter. For the purpose of an application
based on a criminal restitution order, the following terms have the
following meanings:
(1) "Judgment" means the criminal restitution order.
(2) "Complaint" means the facts of the underlying transaction upon
which the criminal restitution order is based.
(3) "Judgment debtor" means any defendant who is the subject of
the criminal restitution order.
SEC. 2. Section 86 of the Code of Civil Procedure is amended to
read:
86. (a) Each municipal court has original jurisdiction of civil
cases and proceedings as follows:
(1) In all cases at law in which the demand, exclusive of
interest, or the value of the property in controversy amounts to
twenty-five thousand dollars ($25,000) or less, except cases that
involve the legality of any tax, impost, assessment, toll, or
municipal fine, except the courts have jurisdiction in actions to
enforce payment of delinquent unsecured personal property taxes if
the legality of the tax is not contested by the defendant.
(2) In actions for dissolution of partnership where the total
assets of the partnership do not exceed twenty-five thousand dollars
($25,000); in actions of interpleader where the amount of money or
the value of the property involved does not exceed twenty-five
thousand dollars ($25,000).
(3) In actions to cancel or rescind a contract when the relief is
sought in connection with an action to recover money not exceeding
twenty-five thousand dollars ($25,000) or property of a value not
exceeding twenty-five thousand dollars ($25,000), paid or delivered
under, or in consideration of, the contract; in actions to revise a
contract where the relief is sought in an action upon the contract if
the court otherwise has jurisdiction of the action.
(4) In all proceedings in forcible entry or forcible or unlawful
detainer where the whole amount of damages claimed is twenty-five
thousand dollars ($25,000) or less.
(5) In all actions to enforce and foreclose liens on personal
property where the amount of the liens is twenty-five thousand
dollars ($25,000) or less.
(6) In all actions to enforce and foreclose liens of mechanics,
materialmen, artisans, laborers, and of all other persons to whom
liens are given under the provisions of Chapter 2 (commencing with
Section 3109) of Title 15 of Part 4 of Division 3 of the Civil Code,
or to enforce and foreclose an assessment lien on a common interest
development as defined in Section 1351 of the Civil Code, where the
amount of the liens is twenty-five thousand dollars ($25,000) or
less. However, where an action to enforce the lien is pending in a
municipal court, and affects property that is also affected by a
similar action pending in a superior court, or where the total amount
of the liens sought to be foreclosed against the same property by
action or actions in a municipal court aggregates an amount in excess
of twenty-five thousand dollars ($25,000), the municipal court in
which the action or actions are pending, upon motion of any
interested party, shall order the action or actions pending therein
transferred to the proper superior court. Upon making the order, the
same proceedings shall be taken as are provided by Section 399 with
respect to the change of place of trial.
(7) In actions for declaratory relief when brought pursuant to
either of the following:
(A) By way of cross-complaint as to a right of indemnity with
respect to the relief demanded in the complaint or a cross-complaint
in an action or proceeding otherwise within the jurisdiction of the
municipal court.
(B) To conduct a trial after a nonbinding fee arbitration between
an attorney and client, pursuant to Article 13 (commencing with
Section 6200) of Chapter 4 of Division 3 of the Business and
Professions Code, where the amount in controversy is twenty-five
thousand dollars ($25,000) or less.
(8) To issue temporary restraining orders and preliminary
injunctions, to take accounts, and to appoint receivers where
necessary to preserve the property or rights of any party to an
action of which the court has jurisdiction; to appoint a receiver and
to make any order or perform any act, pursuant to Title 9
(commencing with Section 680.010) of Part 2 (enforcement of
judgments); to determine title to personal property seized in an
action pending in the court.
(9) In all actions under Article 3 (commencing with Section
708.210) of Chapter 6 of Division 2 of Title 9 of Part 2 for the
recovery of an interest in personal property or to enforce the
liability of the debtor of a judgment debtor where the interest
claimed adversely is of a value not exceeding twenty-five thousand
dollars ($25,000) or the debt denied does not exceed twenty-five
thousand dollars ($25,000).
(10) In all arbitration-related petitions filed pursuant to either
of the following:
(A) Article 2 (commencing with Section 1292) of Chapter 5 of Title
9 of Part 3, except for uninsured motorist arbitration proceedings
in accordance with Section 11580.2 of the Insurance Code, if the
petition is filed before the arbitration award becomes final and the
matter to be resolved by arbitration is within the jurisdiction of
the municipal court under paragraphs (1) to (9), inclusive, or the
petition if filed after the arbitration award becomes final and the
amount of the award and all other rulings, pronouncements, and
decisions made in the award are within the jurisdiction of the
municipal court under paragraphs (1) to (9), inclusive.
(B) To confirm, correct, or vacate a fee arbitration award between
an attorney and client that is binding or has become binding,
pursuant to Article 13 (commencing with Section 6200) of Chapter 4 of
Division 3 of the Business and Professions Code, where the
arbitration award is twenty-five thousand dollars ($25,000) or less.
(11) In all actions to enforce restitution orders or restitution
fines that were imposed by the municipal court.
(b) Each municipal court has jurisdiction of cases in equity as
follows:
(1) In all cases to try title to personal property when the amount
involved is not more than twenty-five thousand dollars ($25,000).
(2) In all cases when equity is pleaded as a defensive matter in
any case otherwise properly pending in a municipal court.
(3) To vacate a judgment or order of the municipal court obtained
through extrinsic fraud, mistake, inadvertence, or excusable neglect.
(c) In any action that is otherwise within its jurisdiction, the
court may impose liability whether the theory upon which liability is
sought to be imposed involves legal or equitable principles.
(d) Changes in the jurisdictional ceilings made by amendments to
this section at the 1977-78 Regular Session or the 1985-86 Regular
Session of the Legislature shall not constitute a basis for the
transfer to another court of any case pending at the time these
changes become operative.
SEC. 3. Section 3553 is added to the Labor Code, to read:
3553. Every employer subject to the compensation provisions of
this code shall give any employee who is a victim of a crime that
occurred at the employee's place of employment written notice that
the employee is eligible for workers' compensation for injuries,
including psychiatric injuries, that may have resulted from the place
of employment crime. The employer shall provide this notice, either
personally or by first-class mail, within one working day of the
place of employment crime, or within one working day of the date the
employer reasonably should have known of the crime.
SEC. 4. Section 1202.4 of the Penal Code is amended to read:
1202.4. (a) (1) It is the intent of the Legislature that a victim
of crime who incurs any economic loss as a result of the commission
of a crime shall receive restitution directly from any defendant
convicted of that crime.
(2) Upon a person being convicted of any crime in the State of
California, the court shall order the defendant to pay a fine in the
form of a penalty assessment in accordance with Section 1464.
(3) The court, in addition to any other penalty provided or
imposed under the law, shall order the defendant to pay both of the
following:
(A) A restitution fine in accordance with subdivision (b).
(B) Restitution to the victim or victims, if any, in accordance
with subdivision (f), which shall be enforceable as if the order were
a civil judgment pursuant to Section 1214.
(b) In every case where a person is convicted of a crime, the
court shall impose a separate and additional restitution fine, unless
it finds compelling and extraordinary reasons for not doing so, and
states those reasons on the record.
(1) The restitution fine shall be set at the discretion of the
court and commensurate with the seriousness of the offense, but shall
not be less than two hundred dollars ($200), and not more than ten
thousand dollars ($10,000), if the person is convicted of a felony,
and shall not be less than one hundred dollars ($100), and not more
than one thousand dollars ($1,000), if the person is convicted of a
misdemeanor.
(2) In setting a felony restitution fine, the court may determine
the amount of the fine as the product of two hundred dollars ($200)
multiplied by the number of years of imprisonment the defendant is
ordered to serve, multiplied by the number of felony counts of which
the defendant is convicted.
(c) The court shall impose the restitution fine unless it finds
compelling and extraordinary reasons for not doing so, and states
those reasons on the record. A defendant's inability to pay shall
not be considered a compelling and extraordinary reason not to impose
a restitution fine. Inability to pay may be considered only in
increasing the amount of the restitution fine in excess of the
two-hundred-dollar ($200) or one-hundred-dollar ($100) minimum.
(d) In setting the amount of the fine pursuant to subdivision (b)
in excess of the two-hundred-dollar ($200) or one-hundred-dollar
($100) minimum, the court shall consider any relevant factors
including, but not limited to, the defendant's inability to pay, the
seriousness and gravity of the offense and the circumstances of its
commission, any economic gain derived by the defendant as a result of
the crime, the extent to which any other person suffered any losses
as a result of the crime, and the number of victims involved in the
crime. Those losses may include pecuniary losses to the victim or
his or her dependents as well as intangible losses, such as
psychological harm caused by the crime. Consideration of a defendant'
s inability to pay may include his or her future earning capacity. A
defendant shall bear the burden of demonstrating his or her
inability to pay. Express findings by the court as to the factors
bearing on the amount of the fine shall not be required. A separate
hearing for the fine shall not be required.
(e) The restitution fine shall not be subject to penalty
assessments as provided in Section 1464, and shall be deposited in
the Restitution Fund in the State Treasury.
(f) In every case in which a victim has suffered economic loss as
a result of the defendant's conduct, the court shall require that the
defendant make restitution to the victim or victims in an amount
established by court order, based on the amount of loss claimed by
the victim or victims or any other showing to the court. If the
amount of loss cannot be ascertained at the time of sentencing, the
restitution order shall include a provision that the amount shall be
determined at the direction of the court. The court shall order full
restitution unless it finds compelling and extraordinary reasons for
not doing so, and states them on the record.
(1) The defendant has the right to a hearing before a judge to
dispute the determination of the amount of restitution. The court
may modify the amount, on its own motion or on the motion of the
district attorney, the victim or victims, or the defendant. If a
motion is made for modification of a restitution order, the victim
shall be notified of that motion at least 10 days prior to the
proceeding held to decide the motion.
(2) Determination of the amount of restitution ordered pursuant to
this subdivision shall not be affected by the indemnification or
subrogation rights of any third party. Restitution payments made
pursuant to this subdivision shall be made to the Restitution Fund to
the extent that the victim, as defined in subdivision (k), has
received assistance pursuant to Article 1 (commencing with Section
13959) of Chapter 5 of Part 4 of Division 3 of Title 2 of the
Government Code.
(3) To the extent possible, the restitution order shall be
prepared by the sentencing court, shall identify each victim and each
loss to which it pertains, and shall be of a dollar amount that is
sufficient to fully reimburse the victim or victims for every
determined economic loss incurred as the result of the defendant's
criminal conduct, including, but not limited to, all of the
following:
(A) Full or partial payment for the value of stolen or damaged
property. The value of stolen or damaged property shall be the
replacement cost of like property, or the actual cost of repairing
the property when repair is possible.
(B) Medical expenses.
(C) Wages or profits lost due to injury incurred by the victim,
and if the victim is a minor, wages or profits lost by the minor's
parent, parents, guardian, or guardians, while caring for the injured
minor.
(D) Wages or profits lost by the victim, and if the victim is a
minor, wages or profits lost by the minor's parent, parents,
guardian, or guardians, due to time spent as a witness or in
assisting the police or prosecution.
(E) Noneconomic losses, including, but not limited to,
psychological harm, for felony violations of Section 288.
(F) Interest, at the rate of 10 percent per annum, that accrues as
of the date of sentencing or loss, as determined by the court.
(G) Actual and reasonable attorney's fees and other costs of
collection accrued by a private entity on behalf of the victim.
(g) The court shall order full restitution unless it finds
compelling and extraordinary reasons for not doing so, and states
those reasons on the record. A defendant's inability to pay shall
not be considered a compelling and extraordinary reason not to impose
a restitution order, nor shall inability to pay be a consideration
in determining the amount of a restitution order.
(h) The district attorney may request an order of examination
pursuant to the procedures specified in Article 2 (commencing with
Section 708.110) of Chapter 6 of Division 2 of Title 9 of Part 2 of
the Code of Civil Procedure, in order to determine the defendant's
financial assets for purposes of collecting on the restitution order.
(i) A restitution order imposed pursuant to subdivision (f) shall
be enforceable as if the order were a civil judgment, pursuant to
Section 1214.
(j) The making of a restitution order pursuant to subdivision (f)
shall not affect the right of a victim to recovery from the
Restitution Fund as otherwise provided by law, except to the extent
that restitution is actually collected pursuant to the order.
Restitution collected pursuant to this subdivision shall be credited
to any other judgments for the same losses obtained against the
defendant arising out of the crime for which the defendant was
convicted.
(k) For purposes of this section, "victim" shall include the
immediate surviving family of the actual victim. "Victim" shall also
include any corporation, business trust, estate, trust, partnership,
association, joint venture, government, governmental subdivision,
agency, or instrumentality, or any other legal or commercial entity
when that entity is a direct victim of a crime.
(l) At its discretion, the board of supervisors of any county may
impose a fee to cover the actual administrative cost of collecting
the restitution fine, not to exceed 10 percent of the amount ordered
to be paid, to be added to the restitution fine and included in the
order of the court, the proceeds of which shall be deposited in the
general fund of the county.
(m) In every case in which the defendant is granted probation, the
court shall make the payment of restitution fines and orders imposed
pursuant to this section a condition of probation. Any portion of a
restitution order that remains unsatisfied after a defendant is no
longer on probation shall continue to be enforceable by a victim
pursuant to Section 1214 until the obligation is satisfied.
(n) If the court finds and states on the record compelling and
extraordinary reasons why a restitution fine or full restitution
order should not be required, the court shall order, as a condition
of probation, that the defendant perform specified community service,
unless it finds and states on the record compelling and
extraordinary reasons not to require community service in addition to
the finding that restitution should not be required. Upon revocation
of probation, the court shall impose restitution pursuant to this
section.
(o) The provisions of Section 13966.01 of the Government Code
shall apply to restitution imposed pursuant to this section.