BILL NUMBER: SB 1418 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY JUNE 4, 1998
AMENDED IN SENATE MARCH 25, 1998
AMENDED IN SENATE MARCH 18, 1998
AMENDED IN SENATE FEBRUARY 25, 1998
INTRODUCED BY Senator Rosenthal
JANUARY 20, 1998
An act to amend Section 6405 of, to amend the heading of Chapter
5.5 (commencing with Section 6400) of Division 3 of, to amend,
repeal, and add Sections 6401, 6402, 6403, 6407, 6408, 6409, 6410,
6411, 6412, 6413, and 6415 of, to add and repeal Sections 6401.6
, 6402.1, and 6412.1 of, and to repeal and add Section 6400
of, the Business and Professions Code, relating to legal document
assistants.
LEGISLATIVE COUNSEL'S DIGEST
SB 1418, as amended, Rosenthal. Legal document assistants.
Existing law generally regulates unlawful detainer assistants, as
defined, and, among other things, requires an unlawful detainer
assistant, by the filing of an application, to register with the
county clerk of the county in which he or she performs acts for which
registration is required.
This bill would revise and recast these provisions to, in
addition, apply to legal document assistants, as defined. This bill
would prohibit a legal document assistant from providing service to a
client who requires assistance that exceeds "self-help service" as
defined. The bill would require the application for registration to
be made under penalty of perjury, thereby expanding the scope of the
crime of perjury and, consequently, imposing a state-mandated local
program. The bill would authorize the denial of a certificate of
registration after a hearing set by the public prosecutor
district attorney , and would provide that
a registrant an applicant whose
registration is revoked denied may
reapply after 3 years rather than one year. It
would also require certain disclosures to consumers. This bill would
repeal these changes on January 1, 2002, and at that time would
restore current law at that time
applicable exclusively to unlawful detainer assistants, with certain
changes .
Existing law provides that the failure of a person who engages in
acts of an unlawful detainer assistant to comply with certain
provisions of existing law is a misdemeanor.
Since this bill would make the current penal provisions applicable
to persons registered as legal document assistants, this bill would
impose a state-mandated local program by increasing the scope of an
existing crime. The bill would also impose a state-mandated local
program by expanding the duties of the county clerk and the
district attorney .
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement, including the creation of a State Mandates Claims Fund
to pay the costs of mandates that do not exceed $1,000,000 statewide
and other procedures for claims whose statewide costs exceed
$1,000,000.
This bill would provide that with regard to certain mandates no
reimbursement is required by this act for a specified reason.
With regard to any other mandates, this bill would provide that,
if the Commission on State Mandates determines that the bill contains
costs so mandated by the state, reimbursement for those costs shall
be made pursuant to the statutory provisions noted above.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. The heading of Chapter 5.5 (commencing with Section
6400) of Division 3 of the Business and Professions Code is amended
to read:
CHAPTER 5.5. LEGAL DOCUMENT ASSISTANTS AND UNLAWFUL DETAINER
ASSISTANTS
SEC. 2. Section 6400 of the Business and Professions Code is
repealed.
SEC. 3. Section 6400 is added to the Business and Professions
Code, to read:
6400. (a) "Unlawful detainer assistant" means any individual who
for compensation renders assistance or advice in the prosecution or
defense of an unlawful detainer claim or action, including any
bankruptcy petition that may affect the unlawful detainer claim or
action.
(b) "Unlawful detainer claim" means a proceeding, filing, or
action affecting rights or liabilities of any person that arises
under Chapter 4 (commencing with Section 1159) of Title 3 of Part 3
of the Code of Civil Procedure and that contemplates an adjudication
by a court.
(c) "Legal document assistant" means:
(1) Any person who is not exempted under Section 6401 and who
provides, or assists in providing, or offers to provide, or assists
in providing, for compensation, self-help service to the public.
(2) A corporation, partnership, association, or other entity that
employs any person not exempted under Section 6401 who, as part of
his or her responsibilities, provides self-help service or who holds
himself or herself out as someone who offers that service or has that
authority.
(d) "Self-help service" means all of the following:
(1) Providing general published factual information that has been
written or approved by an attorney, pertaining to legal procedures,
rights, or obligations to a person who is representing himself or
herself in a legal matter, to assist the person in representing
himself or herself.
(2) Making published legal documents available to a person who is
representing himself or herself in a legal matter.
(3) Completing legal documents, selected by the
a person and at the specific direction of the
who is representing himself or herself in a legal
matter, and at the specific direction of that person, in a
ministerial manner, by typing or otherwise completing the documents.
(4) Filing and serving legal documents at the specific direction
of a person who is representing himself or herself in a legal matter.
(e) "Compensation" means money, property, or anything else of
value.
(f) This section shall remain in effect only until January 1, 2002,
and as of that date is repealed, unless a later enacted statute,
that is enacted before January 1, 2002, deletes or extends that date.
SEC. 4. Section 6400 is added to the Business and Professions
Code, to read:
6400. (a) "Unlawful detainer assistant" means any individual who
for compensation renders assistance or advice in the prosecution or
defense of an unlawful detainer claim or action, including any
bankruptcy petition that may affect the unlawful detainer claim or
action.
(b) "Unlawful detainer claim" means a proceeding, filing, or
action affecting rights or liabilities of any person that arises
under Chapter 4 (commencing with Section 1159) of Title 3 of Part 3
of the Code of Civil Procedure and that contemplates an adjudication
by a court.
(c) "Compensation" means money, property, or anything else of
value.
(d) This section shall become operative January 1, 2002.
SEC. 5. Section 6401 of the Business and Professions Code is
amended to read:
6401. This chapter does not apply to any of the following:
(a) Any government employee who is acting in the course of his or
her employment.
(b) A member of the State Bar of California, or his or her
employee or agent, or an independent contractor while acting on
behalf of a member of the State Bar.
(c) Any employee of a nonprofit, tax-exempt corporation who
assists clients free of charge.
(d) A licensed real estate broker or licensed real estate
salesperson, as defined in Chapter 3 (commencing with Section 10130)
of Part 1 of Division 4, who acts pursuant to subdivision (b) of
Section 10131 on an unlawful detainer claim as defined in subdivision
(b) of Section 6400, and who is a party to the unlawful detainer
action.
(e) An immigration consultant, as defined in Chapter 19.5
(commencing with Section 22441) of Division 8.
(f) A person registered as a process server under Chapter 16
(commencing with Section 22350) of Division 8.
(g) A person who provides services relative to the
preparation of security instruments or conveyance documents in
conjunction with the provision of title or escrow service.
(h) A person who provides services that are regulated by federal
law.
(i) This section shall remain in effect only until January
1, 2002, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2002, deletes or extends
that date.
SEC. 6. Section 6401 is added to the Business and Professions
Code, to read:
6401. This chapter does not apply to any of the following:
(a) Any government employee who is acting in the course of his or
her employment.
(b) A member of the State Bar of California, or his or her
employee , paralegal, or agent, or an independent
contractor while acting on behalf of a member of the State Bar.
(c) Any employee of a nonprofit, tax-exempt corporation who
assists clients free of charge.
(d) A licensed real estate broker or licensed real estate
salesperson, as defined in Chapter 3 (commencing with Section 10130)
of Part 1 of Division 4, who acts pursuant to subdivision (b) of
Section 10131 on an unlawful detainer claim as defined in subdivision
(b) of Section 6400, and who is a party to the unlawful detainer
action.
(e) This section shall become operative January 1, 2002.
SEC. 7. Section 6401.6 is added to the Business and Professions
Code, to read:
6401.6. A legal document assistant shall not provide service to a
client who requires assistance that exceeds the definition of
self-help service in subdivision (b) of Section 6400, and shall
inform the client that the client requires the services of an
attorney.
This section shall remain in effect only until January 1, 2002, and
as of that date is repealed, unless a later enacted statute that is
enacted before January 1, 2002, deletes or extends that date.
SEC. 8. Section 6402 of the Business and Professions Code is
amended to read:
6402. A legal document assistant or unlawful detainer assistant
shall be registered pursuant to this chapter by the county clerk of
the county in which he or she resides and of each
county in which he or she performs acts for which registration is
required. No person who has been disbarred or suspended from the
practice of law pursuant to Article 6 (commencing with Section 6100)
of Chapter 4 shall, during the period of any disbarment or
suspension, register as a legal document assistant or unlawful
detainer assistant.
This section shall remain in effect only until January 1, 2002, and
as of that date is repealed, unless a later enacted statute, that is
enacted before January 1, 2002, deletes or extends that date.
SEC. 9. Section 6402 is added to the Business and Professions
Code, to read:
6402. An unlawful detainer assistant shall be registered pursuant
to this chapter by the county clerk of the county in which
he or she resides and of each county in which he or she
performs acts for which registration is required. No person who has
been disbarred or suspended from the practice of law pursuant to
Article 6 (commencing with Section 6100) of Chapter 4 shall, during
the period of any disbarment or suspension, register as an unlawful
detainer assistant. The Department of Consumer Affairs shall
develop the application that shall be completed by a person for
purposes of registration as a legal document assistant. The
application shall specify the types of proof that the applicant shall
provide to the county clerk in order to demonstrate the
qualifications and requirements of Section 6402.1.
SEC. 9.5. Section 6402.1 is added to the Business and Professions
Code, to read:
6402.1. To be eligible to apply for registration under this
chapter as a legal document assistant, the applicant shall possess at
least one of the following:
(a) A high school diploma or general equivalency diploma, and
either a minimum of two years of law-related experience under the
supervision of a licensed attorney, or a minimum of two years
experience, prior to January 1, 1999, providing self-help service.
(b) A baccalaureate degree in any field and either a minimum of
one year of law-related experience under the supervision of a
licensed attorney, or a minimum of one year of experience, prior to
January 1, 1999, providing self-help service.
(c) A certificate of completion from a paralegal program that is
institutionally accredited but not approved by the American Bar
Association, that requires successful completion of a minimum of 24
semester units, or the equivalent, in legal specialization courses.
(d) A certificate of completion from a paralegal program approved
by the American Bar Association.
(e) This section shall remain in effect only until January 1, 2002,
and as of that date is repealed, unless a later enacted statute,
that is enacted before January 1, 2002, deletes or extends that date.
This section shall become operative January 1, 2002.
SEC. 10. Section 6403 of the Business and Professions Code is
amended to read:
6403. (a) The application for registration of a natural person
shall contain all of the following statements about the applicant:
(1) Name, age, address, and telephone number.
(2) Whether he or she has been convicted of a felony, or of a
misdemeanor under Section 6126 or 6127.
(3) Whether he or she has been held liable in a civil action by
final judgment or consented to the entry of a stipulated judgment, if
the action alleged fraud, or the use of untrue or misleading
representations, or the use of an unfair, unlawful, or deceptive
business practice.
(4) Whether he or she has ever been convicted of a misdemeanor
violation of this chapter.
(5) Whether he or she has had a civil judgment entered against him
or her in an action arising out of the applicant's failure to
properly perform his or her obligation as a legal document assistant
or unlawful detainer assistant.
(6) Whether he or she has had a registration revoked pursuant to
Section 6413.
(b) The application for registration of a natural person shall be
accompanied by the display of personal identification, such as a
California driver's license, birth certificate, or other
identification acceptable to the county clerk to adequately determine
the identity of the applicant.
(c) The application for registration of a partnership or
corporation shall contain all of the following statements about the
applicant:
(1) The names, ages, addresses, and telephone numbers of the
general partners or officers.
(2) Whether the general partners or officers have ever been
convicted of a felony , or a misdemeanor under Section 6126 or
6127 .
(3) Whether the general partners or officers have ever been held
liable in a civil action by final judgment or have consented to the
entry of a stipulated judgment. If the action alleged fraud, whether
it involved the use of untrue or misleading representations, or the
use of an unfair, unlawful, or deceptive business practice.
(4) Whether the general partners or officers have ever been
convicted of a misdemeanor violation of this chapter.
(5) Whether the general partners or officers have had a civil
judgment entered against them in an action arising out of a failure
to properly perform the obligations of a legal document assistant or
unlawful detainer assistant.
(6) Whether the general partners or officers have ever had a
registration revoked pursuant to Section 6413.
(d) (1) An applicant may be denied registration or renewal of
registration if the applicant has been any of the following:
(A) Convicted of a felony , or of a misdemeanor,
or misdemeanor under Section 6126 or 6127.
(B) Held liable in a civil action by final judgment or consented
to the entry of a stipulated judgment, if the action alleged fraud,
or the use of untrue or misleading representations, or the use of an
unfair, unlawful, or deceptive business practice.
(C) Convicted of a misdemeanor violation of this chapter.
(D) Had a civil judgment entered against him or her in an action
arising out of the applicant's failure to properly perform his or her
obligation as a legal document assistant or unlawful detainer
assistant.
(E) Had his or her registration revoked pursuant to Section 6413.
(2) An investigation concerning the denial of a certificate of
registration may be commenced at any time at the option of
the county clerk if the county clerk deems it to be appropriate. A
complaint by any person who has alleged that he or she has been
injured by the actions of the applicant may be investigated by the
public prosecutor. shall be conducted by the district
attorney upon request of the county clerk. Within three business
days of the submittal of the application, the county clerk shall
request that the district attorney conduct an investigation of an
application if the applicant states that any of the subparagraphs of
paragraph (1) apply. The district attorney shall complete the
investigation within 15 calendar days of receiving the request from
the county clerk. If the district attorney determines that cause
does not exist for denial, the district attorney shall inform the
county clerk within three days of completing the investigation. The
county clerk shall grant the certificate of registration to the
applicant within three days of receiving notice from the district
attorney that cause does not exist.
(3) If the public prosecutor district
attorney determines from the investigation that cause may exist
for the denial of the certificate of registration, he or she shall
, within three business days of completing the investigation,
set the matter for hearing and give notice to the applicant.
The hearing shall occur no later than 30 calendar days from the
date the hearing is set by the district attorney. That hearing
shall be conducted in accordance with Chapter 5 (commencing with
Section 11500) of Division 3 of Title 2 of the Government Code. For
the purposes of those provisions, the public prosecutor
district attorney shall be deemed to be the
agency. The administrative law judge shall issue his or her
decision within 30 calendar days of the date of the hearing. The
administrative law judge shall direct that the applicant's
certificate of registration be granted if he or she determines that
issuance of a certificate of registration is not likely to expose
consumers to a significant risk of any of the unlawful or unfair
practices described in subparagraph (A), (B), (C), (D), or (E) of
paragraph (1). The administrative law judge shall direct that the
applicant's certificate of registration be denied if he or she
determines that issuance of a certificate of registration is likely
to expose consumers to a significant risk of any of the unlawful or
unfair practices described in subparagraph (A), (B), (C), (D), or (E)
of paragraph (1).
(4) If after the hearing and the decision becomes effective the
county clerk is notified that the administrative law judge has
directed that the applicant's certificate of registration be denied,
the county clerk shall forthwith deny the application.
(4) The administrative law judge shall inform the county clerk of
the decision within three business days of making the decision. The
county clerk shall grant the certificate of registration or deny the
registration, as appropriate, within three business days of being
informed of the decision. If the application is denied, the
applicant may file a writ of mandate with the superior court in
accordance with Chapter 5 (commencing with Section 11500) of Division
3 of Title 2 of the Government Code.
(5) Any person who has had an application denied under this
subdivision may reapply after one year from the date of denial by the
county clerk.
(e) The applications made under this section shall be made under
penalty of perjury.
(f) This section shall remain in effect only until January 1, 2002,
and as of that date is repealed, unless a later enacted statute,
that is enacted before January 1, 2002, deletes or extends that date.
SEC. 11. Section 6403 is added to the Business and Professions
Code, to read:
6403. (a) The application for registration of a natural person
shall contain all of the following statements about the applicant:
(1) Name, age, address, and telephone number.
(2) Whether he or she has been convicted of a felony, or of a
misdemeanor under Section 6126 or 6127.
(3) Whether he or she has been held liable in a civil action by
final judgment or consented to the entry of a stipulated judgment, if
the action alleged fraud, or the use of untrue or misleading
representations, or the use of an unfair, unlawful, or deceptive
business practice.
(b) The application for registration of a partnership or
corporation shall contain all of the following statements about the
applicant:
(1) The names, ages, addresses, and telephone numbers of the
general partners or officers.
(2) Whether the general partners or officers have ever been
convicted of a felony.
(3) Whether the general partners or officers have ever been held
liable in a civil action by final judgment or have consented to the
entry of a stipulated judgment. If the action alleged fraud, whether
it involved the use of untrue or misleading representations, or the
use of an unfair, unlawful, or deceptive business practice.
(c) This section shall become operative January 1, 2002.
SEC. 12. Section 6405 of the Business and Professions Code is
amended to read:
6405. (a) An application for a certificate of registration shall
be accompanied by a bond of twenty-five thousand dollars ($25,000)
executed by a corporate surety qualified to do business in this state
and conditioned upon compliance with this chapter. The total
aggregate liability on the bond shall be limited to twenty-five
thousand dollars ($25,000). The bond may be terminated pursuant to
Section 995.440 of, and Article 13 (commencing with Section 996.310)
of Chapter 2 of Title 14 of Part 2 of, the Code of Civil Procedure.
(b) The county clerk shall, upon filing of the bond, deliver the
bond forthwith to the county recorder for recording. The recording
fee specified in Section 27361 of the Government Code shall be paid
by the registrant. The fee may be paid to the county clerk, who
shall transmit it to the recorder.
(c) The fee for filing, canceling, revoking, or withdrawing the
bond is seven dollars ($7).
(d) The county recorder shall record the bond and any notice of
cancellation, revocation, or withdrawal of the bond, and shall
thereafter mail the instrument, unless specified to the contrary, to
the person named in the instrument and, if no person is named, to the
party leaving it for recording. The recording fee specified in
Section 27361 of the Government Code for notice of cancellation,
revocation, or withdrawal of the bond shall be paid to the county
clerk, who shall transmit it to the county recorder.
(e) In lieu of the bond required by subdivision (a), a registrant
may deposit twenty-five thousand dollars ($25,000) in cash with the
county clerk.
(f) If the certificate is revoked, the bond or cash deposit shall
be returned to the bonding party or depositor subject to subdivision
(g) and the right of a person to recover against the bond or cash
deposit under Section 6412.
(g) The county clerk may retain a cash deposit until the
expiration of three years from the date the registrant has ceased to
do business, or three years from the expiration or revocation date of
the registration, in order to ensure there are no outstanding claims
against the deposit. A judge of a municipal or superior court may
order the return of the deposit prior to the expiration of three
years upon evidence satisfactory to the judge that there are no
outstanding claims against the deposit.
SEC. 13. Section 6407 of the Business and Professions Code is
amended to read:
6407. (a) The county clerk shall maintain a register of legal
document assistants, and a register of unlawful detainer assistants,
assign a unique number to each legal document assistant, or unlawful
detainer assistant, and issue an identification card to each one.
Additional cards for employees of legal document assistants or
unlawful detainer assistants shall be issued upon the payment of ten
dollars ($10) for each card. Upon renewal of registration, the same
number shall be assigned, provided there is no lapse in the period of
registration.
(b) The identification card shall be a card 3 1/2 inches by 2 1/4
inches, and shall contain at the top, the title "Legal Document
Assistant" or "Unlawful Detainer Assistant," as appropriate, followed
by the registrant's name, address, registration number, date of
expiration, and county of registration. It shall also contain a
photograph of the registrant in the lower left corner.
(c) This section shall remain in effect only until January 1, 2002,
and as of that date is repealed, unless a later enacted statute,
that is enacted before January 1, 2002, deletes or extends that date.
SEC. 14. Section 6407 is added to the Business and Professions
Code, to read:
6407. (a) The county clerk shall maintain a register of unlawful
detainer assistants, assign a unique number to each unlawful detainer
assistant, and issue an identification card to each one. Additional
cards for employees of unlawful detainer assistants shall be issued
upon the payment of ten dollars ($10) for each card. Upon renewal of
registration, the same number shall be assigned, provided there is
no lapse in the period of registration.
(b) The identification card shall be a card 3 1/2 inches by 2 1/4
inches, and shall contain at the top, the title "Unlawful Detainer
Assistant" followed by the registrant's name, address, registration
number, date of expiration, and county of registration. It shall
also contain a photograph of the registrant in the lower left corner.
(c) This section shall become operative January 1, 2002.
SEC. 15. Section 6408 of the Business and Professions Code is
amended to read:
6408. The registrant's name, business address, telephone
number, registration number , and county of
registration shall appear on any solicitation or advertisement, and
on the registrant's work product, including, but not limited to,
letterhead, business cards, correspondence, documents, forms, claims,
petitions, checks, receipts, money orders, pleadings, and other
papers prepared or used by the registrant.
This section shall remain in effect only until January 1, 2002, and
as of that date is repealed, unless a later enacted statute, that is
enacted before January 1, 2002, deletes or extends that date.
SEC. 16. Section 6408 is added to the Business and Professions
Code, to read:
6408. The registrant's registration number and county of
registration shall appear on any solicitation or advertisement, and
on the registrant's work product, including, but not limited to,
letterhead, correspondence, documents, forms, claims, petitions,
checks, receipts, money orders, pleadings, and other papers relating
to unlawful detainer claims or actions.
This section shall become operative January 1, 2002.
SEC. 17. Section 6409 of the Business and Professions Code is
amended to read:
6409. No legal document assistant or unlawful detainer assistant
shall retain in his or her possession original documents of a client.
This section shall remain in effect only until January 1, 2002, and
as of that date is repealed, unless a later enacted statute, that is
enacted before January 1, 2002, deletes or extends that date.
SEC. 18. Section 6409 is added to the Business and Professions
Code, to read:
6409. No unlawful detainer assistant shall retain in his or her
possession original documents of a client.
This section shall become operative January 1, 2002.
SEC. 19. Section 6410 of the Business and Professions Code is
amended to read:
6410. (a) Every legal document assistant or unlawful detainer
assistant who enters into a contract or agreement with a client to
provide services shall, prior to providing any services, provide the
client with a written contract, the contents of which shall be
prescribed by regulations adopted by the Department of Consumer
Affairs.
(b) The written contract shall include provisions relating to the
following:
(1) The services to be performed.
(2) The costs of the services to be performed.
(3) There shall be printed on the face of the contract in 12-point
boldface type a statement that the legal document assistant or
unlawful detainer assistant is not an attorney and may not perform
the legal services that an attorney performs.
(4) The contract shall contain a statement in 12-point boldface
type that registration with the county clerk is not an endorsement by
the county clerk of the quality of the legal document assistant's or
unlawful detainer assistant's services or experience.
(5) The contract shall contain a statement in 12-point boldface
type that the consumer may obtain information regarding free or
low-cost representation through a local bar association or legal aid
foundation and that the consumer
may contact local law enforcement, a district attorney,
or a legal aid foundation if the consumer believes that he or she has
been a victim of fraud, the unauthorized practice of law, or any
other injury .
(6) The contract shall contain a statement in 12-point boldface
type that a legal document assistant or unlawful detainer assistant
is not permitted to engage in the practice of law, including
providing any kind of advice, explanation, opinion, or recommendation
to a consumer about possible legal rights, remedies, defenses,
options, selection or completion of forms, or strategies,
except as provided in subdivision (d) of Section 6400 of the Business
and Professions Code. selection of forms, or
strategies.
(c) The provisions of the written contract shall be stated both in
English and in any other language comprehended by the client
and principally used in any oral sales presentation or
negotiation leading to execution of the contract.
(d) Failure of a legal document assistant or unlawful detainer
assistant to comply with subdivisions (a), (b), and (c) shall make
the contract or agreement for services voidable at the option of the
client. Upon the voiding of the contract, the legal document
assistant or unlawful detainer assistant shall immediately return in
full any fees paid by the client.
(e) The client shall have the right to rescind the contract within
24 hours of the signing of the contract. Upon the voiding or
rescinding of the contract or agreement for services, the legal
document assistant or unlawful detainer assistant shall immediately
return to the client any fees paid by the client, except fees for
services that were actually, necessarily, and reasonably performed on
the client's behalf by the legal document assistant or unlawful
detainer assistant with the client's knowing and express written
consent. The requirements of this subdivision shall be conspicuously
set forth in the written contract.
(f) This section shall remain in effect only until January 1, 2002,
and as of that date is repealed, unless a later enacted statute,
that is enacted before January 1, 2002, deletes or extends that date.
SEC. 20. Section 6410 is added to the Business and Professions
Code, to read:
6410. (a) Every unlawful detainer assistant who enters into a
contract or agreement with a client to provide services shall, prior
to providing any services, provide the client with a written
contract, the contents of which shall be prescribed by regulations
adopted by the Department of Consumer Affairs.
(b) The written contract shall include provisions relating to the
following:
(1) The services to be performed.
(2) The costs of the services to be performed.
(3) There shall be printed on the face of the contract in 12-point
boldface type a statement that the unlawful detainer assistant is
not an attorney and may not perform the legal services that an
attorney performs.
(c) The provisions of the written contract shall be stated both in
English and, if the client is non-English speaking, in the language
of the client.
(d) Failure of an unlawful detainer assistant to comply with the
provisions of subdivisions (a), (b), and (c) shall make the contract
or agreement for services voidable at the option of the client. Upon
the voiding of the contract, the unlawful detainer assistant shall
immediately return in full any fees paid by the client.
(e) The client shall have the right to rescind the contract within
24 hours of the signing of the contract. Upon the voiding or
rescinding of the contract or agreement for services, the unlawful
detainer assistant shall immediately return to the client any fees
paid by the client, except fees for services that were actually,
necessarily, and reasonably performed on the client's behalf by the
unlawful detainer assistant. The requirements of this subdivision
shall be conspicuously set forth in the written contract in both
English and, if the client is non-English speaking, in the language
of the client.
(f) This section shall become operative January 1, 2002.
SEC. 21. Section 6411 of the Business and Professions Code is
amended to read:
6411. It is unlawful for any person engaged in the business or
acting in the capacity of a legal document assistant or unlawful
detainer assistant to do any of the following:
(a) Make false or misleading statements.
(b) Make any guarantee or promise to a client or prospective
client, unless the guarantee or promise is in writing and the legal
document assistant or unlawful detainer assistant has some basis for
making the guarantee or promise.
(c) Make any statement that the legal document assistant or
unlawful detainer assistant can or will obtain special favors or has
special influence with a court, or a state or federal agency.
(d) Provide assistance or advice which constitutes the unlawful
practice of law pursuant to Section 6125, 6126, or 6127.
(e) Nothing in this chapter shall be construed to permit the
unauthorized practice of law by a legal document assistant or
unlawful detainer assistant, including, but not limited to, any kind
of advice, explanation, opinion, or recommendation to a consumer
about possible legal rights, remedies, defenses, options,
selection or completion of forms, or strategies, except as provided
in subdivision (d) of Section 6400. selection of
forms, or strategies.
(f) This section shall remain in effect only until January 1, 2002,
and as of that date is repealed, unless a later enacted statute,
that is enacted before January 1, 2002, deletes or extends that date.
SEC. 22. Section 6411 is added to the Business and Professions
Code, to read:
6411. It is unlawful for any person engaged in the business or
acting in the capacity of an unlawful detainer assistant to do any of
the following:
(a) Make false or misleading statements to a client while
providing services to that client.
(b) Make any guarantee or promise to a client, unless the
guarantee or promise is in writing and the unlawful detainer
assistant has some basis for making the guarantee or promise.
(c) Make any statement that the unlawful detainer assistant can or
will obtain special favors or has special influence with a court, or
a state or federal agency.
(d) Provide assistance or advice which constitutes the unlawful
practice of law pursuant to Section 6125, 6126, or 6127.
(e) This section shall become operative January 1, 2002.
SEC. 23. Section 6412 of the Business and Professions Code is
amended to read:
6412. (a) Any owner or manager of residential or commercial
rental property, tenant, or other person who is awarded damages in
any action or proceeding for injuries caused by the acts of a
registrant while in the performance of his or her duties as a legal
document assistant or unlawful detainer assistant may recover damages
from the bond or cash deposit required by Section 6405.
(b) Whenever there has been a recovery against a bond or cash
deposit under subdivision (a) and the registration has not been
revoked pursuant to Section 6413, the registrant shall file a new
bond or deposit an additional amount of cash within 30 days to
reinstate the bond or cash deposit to the amount required by Section
6405. If the registrant does not file a bond, or deposit this amount
within 30 days, his or her certificate of registration shall be
revoked.
(c) This section shall remain in effect only until January 1, 2002,
and as of that date is repealed, unless a later enacted statute,
that is enacted before January 1, 2002, deletes or extends that date.
SEC. 24. Section 6412 is added to the Business and Professions
Code, to read:
6412. (a) Any owner or manager of residential or commercial
rental property, tenant, or other person who is awarded damages in
any action or proceeding for injuries caused by the acts of a
registrant while in the performance of his or her duties as an
unlawful detainer assistant may recover damages from the bond or cash
deposit required by Section 6405.
(b) Whenever there has been a recovery against a bond or cash
deposit under subdivision (a) and the registration has not been
revoked pursuant to Section 6413, the registrant shall file a new
bond or deposit an additional amount of cash within 30 days to
reinstate the bond or cash deposit to the amount required by Section
6405. If the registrant does not file a bond, or deposit this amount
within 30 days, his or her certificate of registration shall be
revoked.
(c) This section shall become operative January 1, 2002.
SEC. 25. Section 6412.1 is added to the Business and Professions
Code, to read:
6412.1. (a) Any person injured by the unlawful act of a legal
document assistant or unlawful detainer assistant shall retain all
rights and remedies cognizable under law. The penalties, relief, and
remedies provided in this chapter are not exclusive, and do not
affect any other penalties, relief, and remedies provided by law.
(b) Any person injured by a violation of this chapter by a legal
document assistant or unlawful detainer assistant may file a
complaint and seek redress in any municipal or superior court for
injunctive relief, restitution, and damages. Attorney's fees shall
be awarded to the prevailing plaintiff.
(c) This section shall remain in effect only until January 1, 2002,
and as of that date is repealed, unless a later enacted statute,
that is enacted before January 1, 2002, deletes or extends that date.
SEC. 26. Section 6413 of the Business and Professions Code is
amended to read:
6413. The county clerk shall revoke the registration of a legal
document assistant or unlawful detainer assistant upon receipt of an
official document or record stating that the registrant has been
found guilty of the unauthorized practice of law pursuant to Section
6125, 6126, or 6127, has been found guilty of a misdemeanor violation
of this chapter, or that a civil judgment has been entered against
the registrant in an action arising out of the registrant's failure
to properly perform his or her obligation as a legal document
assistant or unlawful detainer assistant. The county clerk shall be
given notice of the disposition in any court action by the city
attorney, district attorney, or plaintiff, as applicable. A
registrant whose registration is revoked pursuant to this section may
reapply for registration after three years.
This section shall remain in effect only until January 1, 2002, and
as of that date is repealed, unless a later enacted statute, that is
enacted before January 1, 2002, deletes or extends that date.
SEC. 27. Section 6413 is added to the Business and Professions
Code, to read:
6413. The county clerk shall revoke the registration of an
unlawful detainer assistant upon receipt of an official document or
record stating that the registrant has been found guilty of the
unauthorized practice of law pursuant to Section 6125, 6126, or 6127,
has been found guilty of a misdemeanor violation of this chapter, or
that a civil judgment has been entered against the registrant in an
action arising out of the registrant's failure to properly perform
his or her obligation as an unlawful detainer assistant. The county
clerk shall be given notice of the disposition in any court action by
the city attorney, district attorney, or plaintiff, as applicable.
A registrant whose registration is revoked pursuant to this section
may reapply for registration after one year.
This section shall become operative January 1, 2002.
SEC. 28. Section 6415 of the Business and Professions Code is
amended to read:
6415. A failure, by a person who engages in acts of a legal
document assistant or unlawful detainer assistant, to comply with any
of the requirements of Section 6401.6, 6402, 6408, or 6410, or
subdivision (a), (b), or (c) of Section 6411 is punishable as a
misdemeanor punishable by a fine of not less than one thousand
dollars ($1,000) or more than two thousand dollars ($2,000), as to
each client with respect to whom a violation occurs, or imprisonment
for not more than one year, or by both that fine and imprisonment.
Payment of restitution to a client shall take precedence over payment
of a fine.
This section shall remain in effect only until January 1, 2002, and
as of that date is repealed, unless a later enacted statute, that is
enacted before January 1, 2002, deletes or extends that date.
SEC. 29. Section 6415 is added to the Business and Professions
Code, to read:
6415. A failure, by a person who engages in acts of an unlawful
detainer assistant, to comply with any of the requirements of Section
6402 or 6408, or subdivision (a), (b), or (c) of Section 6411 is
punishable as a misdemeanor punishable by a fine of not less than one
thousand dollars ($1,000) or more than two thousand dollars
($2,000), as to each client with respect to whom a violation occurs,
or imprisonment for not more than one year, or by both that fine and
imprisonment. Payment of restitution to a client shall take
precedence over payment of a fine.
This section shall become operative January 1, 2002.
SEC. 30. No reimbursement is required by this act pursuant to
Section 6 of Article XIIIB of the California Constitution for certain
costs that may be incurred by a local agency or school district
because in that regard this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIIIB of the California Constitution.
However, notwithstanding Section 17610 of the Government Code, if
the Commission on State Mandates determines that this act contains
other costs mandated by the state, reimbursement to local agencies
and school districts for those costs shall be made pursuant to Part 7
(commencing with Section 17500) of Division 4 of Title 2 of the
Government Code. If the statewide cost of the claim for
reimbursement does not exceed one million dollars ($1,000,000),
reimbursement shall be made from the State Mandates Claims Fund.
Notwithstanding Section 17580 of the Government Code, unless
otherwise specified, the provisions of this act shall become
operative on the same date that the act takes effect pursuant to the
California Constitution. ____
CORRECTIONS Text -- Pages 7 and 8. ____