BILL NUMBER: AB 1742 AMENDED
BILL TEXT
AMENDED IN SENATE AUGUST 16, 2005
AMENDED IN SENATE JUNE 28, 2005
AMENDED IN SENATE JUNE 15, 2005
AMENDED IN ASSEMBLY APRIL 18, 2005
INTRODUCED BY Committee on Judiciary (Jones (Chair), Evans, Laird,
Levine, Lieber, and Montanez)
MARCH 2, 2005
An act to amend Sections 467.1, 6322.1, 6324, 6325, and
6326 of, to add Sections 470.5 and 470.6 to, to repeal Sections 470.3
and 6323 of, and to repeal and add Sections 6321 and 6322 of, the
Business and Professions Code, to amend Sections 43.55 and 2924j of
the Civil Code, to amend Sections 116.330, 116.340, 116.390, 116.745,
116.760, 116.780, 116.820, 116.860, 128.7, 177.5, 209, 396b,
403.060, 411.20, 415.21, 425.10, 425.115, 491.150, 683.150, 704.750,
708.160, 724.100, 998, 1134, 1161.2, 1174.25, 1174.3, and 1218 of, to
add Sections 116.232 and 411.21 to, to repeal Section 116.910 of,
and to repeal and add Sections 116.230, 116.725, and 573 of, the Code
of Civil Procedure, to amend Section 1852 of the Family Code, to
amend Section 31622 of the Food and Agricultural Code, to amend
Sections 811.9, 905, 910.4, 24353, 26820, 26831, 26837, 26840.3,
26837, 26840.3, 26857, 27293, 54985, 68084, 68085, 68086, 68090.8,
68101, 68511.3, 68926.1, 69953.5, 70375, 70402, 71386, 77009, 77200,
77205, and 77209 of, to amend the headings of Chapter 6 (commencing
with Section 71002) and Chapter 8 (commencing with Section 72004) of
Title 8 of, to amend and renumber Sections 26820.4, 26823, 26824,
26826, 26826.1, 26826.3, 26826.4, 26827.5, 26827.6, 26827.7, 26832.1,
26833.5, 26835.1, 26838, 26857.5, 26862, 76236, and 76238 of, to
amend, renumber, and repeal Sections 26827, 72055, and 72056 of, to
add Sections 905.7, 68084.1, 68085.1, 68085.2, 68085.3, 68085.4,
68086.1, and 77207.5 to, to add Chapter 5.8 (commencing with Section
70600) to Title 8 of, and to repeal Sections 24350.5, 26820.6,
26820.7, 26822.3, 26826.2, 26827.1, 26827.4, 26828, 26829, 26830,
26832, 26833.1, 26834, 26836.1, 26837.1, 26840.4, 26841, 26850.1,
26851.1, 26852.1, 26853.1, 26855.4, 26856, 26859, 26863, 68087,
68087.1, 68090.7, 69926.5, 70373, 70373.5, 72054, 72056.01, 72056.1,
72059, 72060, 72061, and 72073 of, the Government Code, to amend
Sections 100430, 103470, and 103730 of the Health and Safety Code, to
amend Sections 98.2 and 123.6 of the Labor Code, to amend Sections
1835, 2343, 7660, and 13201 of the Probate Code, and to amend
Sections 14607.6, 16020, 16058.1, and 40230 of the
Section 43.55 of the Civil Code, to amend Sections 116.330,
116.340, 116.780, 128.7, 396b, 415.21, 425.115, and 998 of, and
to repeal and add Section 116.725 of, the Code of Civil Procedure, to
amend Sections 811.9, 905, and 910.4 of, and to add Section 905.7
to, the Government Code, to amend Section 123.6 of the Labor Code,
and to amend Section 16020 and 16058.1 of the Vehicle Code,
relating to courts.
LEGISLATIVE COUNSEL'S DIGEST
AB 1742, as amended, Committee on Judiciary Courts.
(1) Existing law establishes various court fees to be collected
for services provided in conjunction with the operation of the
courts, as specified.
This bill would enact the Uniform Civil Fees and Standard Fee
Schedule Act of 2005, which would, as of January 1, 2006, establish a
uniform schedule of filing fees and other civil fees for the
superior courts. Among other things, the bill would generally
increase the filing fees for civil actions and proceedings,
including, but not limited to, those fees related to small claims
court, motions, appeals, judgments, the filing of the first paper in
a civil action or proceeding in the superior court, in a limited
civil case, and in complex cases, and in family law and probate
matters, and fees for various certifications, recordings, filings,
and the authentication of documents. The bill also would authorize
the court to charge a reasonable fee for videoconferencing, providing
services or products, if approved by the Judicial Council, and
handling funds held in trust for noncourt parties or entities. The
bill would provide that none of these civil fees may be changed
before January 1, 2008, except as specified.
The bill would require the Judicial Council to establish a Task
Force on Civil Fees to make recommendations on the effectiveness of
the uniform fee structure and other fee related issues on or before
February 1, 2007. The bill would revise and increase other duties of
the Judicial Council, including duties relating to the adoption of a
schedule for the allocation of funds to trial courts for the
development and implementation of automated systems.
The bill would further revise and recast provisions relating to
the distribution of the above-described fees, affecting, among other
things, dispute resolution programs, court reporter services, small
claims advisory services, and law library funds, and would make
specified findings and declarations with regard to the
above-described provisions.
The bill would shift various duties relating to the administration
of court fees and would make additional technical and conforming
changes.
(2) Existing law authorizes certain surcharges to be added to
specified court-related fees, including, among others, a state
surcharge of 10%, until July 1, 2007, and an additional surcharge of
$20 to ensure and maintain adequate funding for court security, and
provides for these amounts to be transmitted to the Trial Court Trust
Fund.
This bill would repeal these provisions.
(3) Existing law requires, for the purposes of funding trial court
operations, each board of supervisors to establish in the county
treasury a Trial Court Operations Fund, into which all funds
appropriated in the Budget Act and allocated and reallocated to each
court in the county by the Judicial Council shall be deposited.
This bill would authorize the Judicial Council to establish bank
accounts for the superior courts and to require the courts to deposit
moneys for trial court operations, and any other moneys under the
control of the courts, into those accounts, as specified. The bill
would further provide that money, excluding restitution to victims,
that has been deposited with a superior court, or that a superior
court is holding in trust for the lawful owner, in a court bank
account or in a court trust account in a county treasury, that
remains unclaimed for 3 years, is the property of the superior court
if not claimed after specified notice and if no verified complaint is
filed and served.
(4)
(1) Under existing law, no liability or cause of action
arises against a peace officer making an arrest pursuant to a
warrant of arrest regular upon its face, if the peace officer acts
without malice and in reasonable belief that the person arrested is
the one referred to in the warrant.
This bill would provide that the term "warrant of arrest regular
upon its face" includes both a paper arrest warrant issued pursuant
to a judicial order and a judicial order entered into an automated
warrant system by authorized law enforcement or court personnel, as
specified.
(5)
(2) Existing law governs procedures in the small claims
court. These provisions set forth various time periods for
scheduling cases for hearing and specifies methods for service of the
claim and order on a defendant. These provisions state that they may
not be construed to prevent a court from correcting a clerical error
in a judgment or setting aside and vacating a judgment on the ground
of an incorrect or erroneous legal basis for the decision.
This bill would provide that, when a claim is filed, the case
shall be scheduled for hearing no earlier than 20 days and not more
than 70 days from the date of the order, thereby eliminating the
various time periods. The bill would require that proof of service of
the claim and order be filed at least 5 days before the hearing. The
bill would authorize a party to make only one motion to correct a
clerical error or set aside and vacate a judgment and provide that a
party may have 30 days after the clerk mails notice of entry of
judgment to the parties to make that motion.
(6)
(3) Existing law requires, until January 1, 2006, that
all pleadings filed with a court be signed, except as specified, and
that the filing of any paper with a court certifies that specified
conditions have been satisfied. Existing law also specifies
sanctions for violation of these requirements.
This bill would delete the repeal date of January 1, 2006,
contained in these provisions and thereby extend indefinitely the
operation of these provisions.
(7)
(4) Existing law requires a person to be granted access
to a staffed gated community for a reasonable time period for the
purpose of performing lawful service of process, as specified.
This bill would also authorize access to a staffed gated community
for the purpose of serving a subpoena.
(8)
(5) Existing law also governs offers by a party to
compromise a dispute that is to be resolved by arbitration.
This bill would require a written offer to compromise to include a
statement of the offer and a provision that allows the
accepting party to indicate acceptance of the offer by signing a
statement that the offer is accepted, as specified. The bill would
also require that any acceptance of the offer, whether made on the
document containing the offer or on a separate document of
acceptance, to be in writing and signed by the accepting party or his
or her counsel, as specified.
(9)
(6) Existing law sets forth the procedure for filing a
claim against a statewide public entity, as specified.
This bill would specify that these procedures also apply to claims
against a judicial branch entity. The bill would also provide
that for a 2-year period ending on January 1, 2008, a failure to
timely present a tort claim against a judicial branch entity shall be
presumed to constitute excusable neglect for purposes of relieving
the claimant of specified claim presentation requirements.
(10)
(7 ) Existing law authorizes a court in a
proceeding for dissolution of marriage or legal separation and prior
to the determination of a motion for a change of venue, to consider
and make all necessary and proper orders in connection with motions
for allowance of temporary spousal support, support of children, and
counsel fees and costs.
This bill would revise that provision to additionally apply to
proceedings under the Uniform Parentage Act and to authorize the
court to consider and determine motions to determine custody of and
visitation with children in any of the proceedings to which the
provision applies prior to determining the motion for a change of
venue.
(11) The bill would impose a state-mandated local program by
requiring new duties of local officers.
(12) 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.
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.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: yes no .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 43.55 of the Civil Code is amended
to read:
43.55. (a) There shall be no liability on
the part of, and no cause of action shall arise against, any peace
officer who makes an arrest pursuant to a warrant of arrest regular
upon its face if the peace officer in making the arrest acts without
malice and in the reasonable belief that the person arrested is the
one referred to in the warrant.
(b) As used in this section, a "warrant of arrest regular upon its
face" includes both of the following:
(1) A paper arrest warrant that has been issued pursuant to a
judicial order.
(2) A judicial order that is entered into an automated warrant
system by law enforcement or court personnel authorized to make those
entries at or near the time the judicial order is made.
SEC. 2. Section 116.330 of the Code of Civil Procedure
is amended to read:
116.330. (a) When a claim is filed, the clerk shall schedule the
case for hearing in accordance with subdivision (c)
and shall issue an order directing the parties to appear at
the time set for the hearing with witnesses and documents to prove
their claim or defense. The case shall be scheduled for hearing
no earlier than 20 days but not more than 70 days from the date of
the order.
(b) In lieu of the method of setting the case for hearing
described in subdivision (a), at the time a claim is filed the clerk
may do all of the following:
(1) Cause a copy of the claim to be mailed to the defendant by any
form of mail providing for a return receipt.
(2) On receipt of proof that the claim was served as provided in
paragraph (1), issue an order scheduling the case for hearing in
accordance with subdivision (c) (a) and
directing the parties to appear at the time set for the hearing with
witnesses and documents to prove their claim or defense.
(3) Cause a copy of the order setting the case for hearing and
directing the parties to appear, to be served upon the parties by any
form of mail providing for a return receipt.
(c) If the defendant resides in the county in which the action is
filed, the case shall be scheduled for hearing at least 15 days but
not more than 40 days from the date of the order. If the defendant
resides outside the county in which the action is filed, the case
shall be scheduled for hearing at least 30 days but not more than 70
days from the date of the order.
(d) If there are two or more defendants and one or more of them
resides outside the county in which the action is filed, the date for
the appearance of all the defendants shall be at least 30 days but
not more than 70 days from the date of the order.
(e) A public entity, as defined in Section 811.2 of the Government
Code, which files more than 10 claims at one time may request a date
for the appearance of the defendant later than that otherwise
specified in this section, and the clerk may set the case for hearing
at that later date subject to the following limits:
(1) If all defendants reside in the county in which the action is
filed, the date for appearance shall not be more than 70 days from
the date of the order.
(2) In other cases, the date for appearance shall not be more than
90 days from the date of the order.
SEC. 3. Section 116.340 of the Code of Civil Procedure
is amended to read:
116.340. (a) Service of the claim and order on the defendant may
be made by any one of the following methods:
(1) The clerk may cause a copy of the claim and order to be mailed
to the defendant by any form of mail providing for a return receipt.
(2) The plaintiff may cause a copy of the claim and order to be
delivered to the defendant in person.
(3) The plaintiff may cause service of a copy of the claim and
order to be made by substituted service as provided in subdivision
(a) or (b) of Section 415.20 without the need to attempt personal
service on the defendant. For these purposes, substituted service as
provided in subdivision (b) of Section 415.20 may be made at the
office of the sheriff or marshal who shall deliver a copy of the
claim and order to any person authorized by the defendant to receive
service, as provided in Section 416.90, who is at least 18 years of
age, and thereafter mailing a copy of the claim and order to the
defendant's usual mailing address.
(4) The clerk may cause a copy of the claim to be mailed, the
order to be issued, and a copy of the order to be mailed as provided
in subdivision (b) of Section 116.330.
(b) Service of the claim and order on the defendant shall be
completed at least 15 days before the hearing date if the defendant
resides within the county in which the action is filed, or at least
20 days before the hearing date if the defendant resides outside the
county in which the action is filed.
(c) Proof of service of the claim and order shall be filed
with the small claims court at least five days before the hearing.
(d) Service by the methods described in subdivision (a)
shall be deemed complete on the date that the defendant signs the
mail return receipt, on the date of the personal service, as provided
in Section 415.20, or as established by other competent evidence,
whichever applies to the method of service used.
(d)
(e) Service shall be made within this state, except as
provided in subdivisions (e) and (f).
(e)
(f) The owner of record of real property in California
who resides in another state and who has no lawfully designated agent
in California for service of process may be served by any of the
methods described in this section if the claim relates to that
property.
(f)
(g) A nonresident owner or operator of a motor vehicle
involved in an accident within this state may be served pursuant to
the provisions on constructive service in Sections 17450 to 17461,
inclusive, of the Vehicle Code without regard to whether the
defendant was a nonresident at the time of the accident or when the
claim was filed. Service shall be made by serving both the Director
of the California Department of Motor Vehicles and the defendant, and
may be made by any of the methods authorized by this chapter or by
registered mail as authorized by Section 17454 or 17455 of the
Vehicle Code.
(g)
(h) If an action is filed against a principal and his
or her guaranty or surety pursuant to a guarantor or suretyship
agreement, a reasonable attempt shall be made to complete service on
the principal. If service is not completed on the principal, the
action shall be transferred to the court of appropriate jurisdiction.
SEC. 4. Section 116.725 of the Code of Civil Procedure
is repealed.
116.725. Nothing in this chapter shall be construed to prevent a
court from correcting a clerical error in a judgment or from setting
aside and vacating a judgment on the ground of an incorrect or
erroneous legal basis for the decision.
SEC. 5. Section 116.725 is added to the Code of Civil Procedure,
to read:
116.725. (a) A motion to correct a clerical error in a judgment
or to set aside and vacate a judgment on the ground of an incorrect
or erroneous legal basis for the decision may be made as follows:
(1) By the court on its own motion at any time.
(2) By a party within 30 days after the clerk mails notice of
entry of judgment to the parties.
(b) Each party may file only one motion to correct a clerical
error or to set aside and vacate the judgment on the ground of an
incorrect or erroneous legal basis for the decision.
SEC. 6. Section 116.780 of the Code of Civil Procedure
is amended to read:
116.780. (a) The judgment of the superior court after a hearing
on appeal is final and not appealable.
(b) Article 6 (commencing with Section 116.610) on judgments of
the small claims court applies to judgments of the superior court
after a hearing on appeal, except as provided in subdivisions (c) and
(d).
(c) For good cause and where necessary to achieve substantial
justice between the parties, the superior court may award a party to
an appeal reimbursement of (1) attorney's fees actually and
reasonably incurred in connection with the appeal, not exceeding one
hundred fifty dollars ($150), and (2) actual loss of earnings and
expenses of transportation and lodging actually and reasonably
incurred in connection with the appeal, not exceeding one hundred
fifty dollars ($150).
(d) Upon the expiration of 10 days following the completion of the
appeal process, the superior court shall order the appeal and any
judgment transferred to the small claims court in which the action
was originally filed for purposes of enforcement and other
proceedings under Article 8 (commencing with Section 116.810) of this
chapter.
SEC. 7. Section 128.7 of the Code of Civil Procedure is
amended to read:
128.7. (a) Every pleading, petition, written notice of motion, or
other similar paper shall be signed by at least one attorney of
record in the attorney's individual name, or, if the party is not
represented by an attorney, shall be signed by the party. Each paper
shall state the signer's address and telephone number, if any. Except
when otherwise provided by law, pleadings need not be verified or
accompanied by affidavit. An unsigned paper shall be stricken unless
omission of the signature is corrected promptly after being called to
the attention of the attorney or party.
(b) By presenting to the court, whether by signing, filing,
submitting, or later advocating, a pleading, petition, written notice
of motion, or other similar paper, an attorney or unrepresented
party is certifying that to the best of the person's knowledge,
information, and belief, formed after an inquiry reasonable under the
circumstances, all of the following conditions are met:
(1) It is not being presented primarily for an improper purpose,
such as to harass or to cause unnecessary delay or needless increase
in the cost of litigation.
(2) The claims, defenses, and other legal contentions therein are
warranted by existing law or by a nonfrivolous argument for the
extension, modification, or reversal of existing law or the
establishment of new law.
(3) The allegations and other factual contentions have evidentiary
support or, if specifically so identified, are likely to have
evidentiary support after a reasonable opportunity for further
investigation or discovery.
(4) The denials of factual contentions are warranted on the
evidence or, if specifically so identified, are reasonably based on a
lack of information or belief.
(c) If, after notice and a reasonable opportunity to respond, the
court determines that subdivision (b) has been violated, the court
may, subject to the conditions stated below, impose an appropriate
sanction upon the attorneys, law firms, or parties that have violated
subdivision (b) or are responsible for the violation. In determining
what sanctions, if any, should be ordered, the court shall consider
whether a party seeking sanctions has exercised due diligence.
(1) A motion for sanctions under this section shall be made
separately from other motions or requests and shall describe the
specific conduct alleged to violate subdivision (b). Notice of motion
shall be served as provided in Section 1010, but shall not be filed
with or presented to the court unless, within 21 days after service
of the motion, or any other period as the court may prescribe, the
challenged paper, claim, defense, contention, allegation, or denial
is not withdrawn or appropriately corrected. If warranted, the court
may award to the party prevailing on the motion the reasonable
expenses and attorney's fees incurred in presenting or opposing the
motion. Absent exceptional circumstances, a law firm shall be held
jointly responsible for violations committed by its partners,
associates, and employees.
(2) On its own motion, the court may enter an order describing the
specific conduct that appears to violate subdivision (b) and
directing an attorney, law firm, or party to show cause why it has
not violated subdivision (b), unless, within 21 days of service of
the order to show cause, the challenged paper, claim, defense,
contention, allegation, or denial is withdrawn or appropriately
corrected.
(d) A sanction imposed for violation of subdivision (b) shall be
limited to what is sufficient to deter repetition of this conduct or
comparable conduct by others similarly situated. Subject to the
limitations in paragraphs (1) and (2), the sanction may consist of,
or include, directives of a nonmonetary nature, an order to pay a
penalty into court, or, if imposed on motion and warranted for
effective deterrence, an order directing payment to the movant of
some or all of the reasonable attorney's fees and other expenses
incurred as a direct result of the violation.
(1) Monetary sanctions may not be awarded against a represented
party for a violation of paragraph (2) of subdivision (b).
(2) Monetary sanctions may not be awarded on the court's motion
unless the court issues its order to show cause before a voluntary
dismissal or settlement of the claims made by or against the party
that is, or whose attorneys are, to be sanctioned.
(e) When imposing sanctions, the court shall describe the conduct
determined to constitute a violation of this section and explain the
basis for the sanction imposed.
(f) In addition to any award pursuant to this section for conduct
described in subdivision (b), the court may assess punitive damages
against the plaintiff upon a determination by the court that the
plaintiff's action was an action maintained by a person convicted of
a felony against the person's victim, or the victim's heirs,
relatives, estate, or personal representative, for injuries arising
from the acts for which the person was convicted of a felony, and
that the plaintiff is guilty of fraud, oppression, or malice in
maintaining the action.
(g) This section shall not apply to disclosures and discovery
requests, responses, objections, and motions.
(h) A motion for sanctions brought by a party or a party's
attorney primarily for an improper purpose, such as to harass or to
cause unnecessary delay or needless increase in the cost of
litigation, shall itself be subject to a motion for sanctions. It is
the intent of the Legislature that courts shall vigorously use its
sanctions authority to deter that improper conduct or comparable
conduct by others similarly situated.
(i) This section shall apply to a complaint or petition filed on
or after January 1, 1995, and any other pleading, written notice of
motion, or other similar paper filed in that matter.
(j) This section shall remain in effect only until January 1,
2006, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2006, deletes or extends
that date.
SEC. 8. Section 396b of the Code of Civil Procedure is
amended to read:
396b. (a) Except as otherwise provided in Section 396a, if an
action or proceeding is commenced in a court having jurisdiction of
the subject matter thereof, other than the court designated as the
proper court for the trial thereof, under this title, the action may,
notwithstanding, be tried in the court where commenced, unless the
defendant, at the time he or she answers, demurs, or moves to strike,
or, at his or her option, without answering, demurring, or moving to
strike and within the time otherwise allowed to respond to the
complaint, files with the clerk, a notice of motion for an order
transferring the action or proceeding to the proper court, together
with proof of service, upon the adverse party, of a copy of those
papers. Upon the hearing of the motion the court shall, if it appears
that the action or proceeding was not commenced in the proper court,
order the action or proceeding transferred to the proper court.
(b) In its discretion, the court may order the payment to the
prevailing party of reasonable expenses and attorney's fees incurred
in making or resisting the motion to transfer whether or not that
party is otherwise entitled to recover his or her costs of action. In
determining whether that order for expenses and fees shall be made,
the court shall take into consideration (1) whether an offer to
stipulate to change of venue was reasonably made and rejected, and
(2) whether the motion or selection of venue was made in good faith
given the facts and law the party making the motion or selecting the
venue knew or should have known. As between the party and his or her
attorney, those expenses and fees shall be the personal liability of
the attorney not chargeable to the party. Sanctions shall not be
imposed pursuant to this subdivision except on notice contained in a
party's papers, or on the court's own noticed motion, and after
opportunity to be heard.
(c) The court in a proceeding for dissolution of marriage or legal
separation , or under the Uniform Parentage
Act (Part 3 (commencing with Section 7600) of Division 12 of the
Family Code) may, prior to the determination of the motion to
transfer, consider and determine motions for allowance of temporary
spousal support, support of children, and counsel fees and
costs, and motions to determine custody of and visitation with
children, and may make all necessary and proper
orders in connection therewith.
(d) In any case, if an answer is filed, the court may consider
opposition to the motion to transfer, if any, and may retain the
action in the county where commenced if it appears that the
convenience of the witnesses or the ends of justice will thereby be
promoted.
(e) If the motion to transfer is denied, the court shall allow the
defendant time to move to strike, demur, or otherwise plead if the
defendant has not previously filed a response.
SEC. 9. Section 415.21 of the Code of Civil Procedure
is amended to read:
415.21. (a) Notwithstanding any other provision of law, any
person shall be granted access to a gated community for a reasonable
period of time for the purpose of performing lawful service of
process or service of a subpoena , upon identifying to the
guard the person or persons to be served, and upon displaying a
current driver's license or other identification, and one of the
following:
(1) A badge or other confirmation that the individual is acting in
his or her capacity as a representative of a county sheriff or
marshal.
(2) Evidence of current registration as a process server pursuant
to Chapter 16 (commencing with Section 22350) of Division 8 of the
Business and Professions Code.
(b) This section shall only apply to a gated community
which that is staffed at the time service of
process is attempted by a guard or other security personnel assigned
to control access to the community.
SEC. 10. Section 425.115 of the Code of Civil Procedure
is amended to read:
425.115. (a) As used in this section:
(1) "Complaint" includes a cross-complaint.
(2) "Plaintiff" includes a cross-complainant.
(3) "Defendant" includes a cross-defendant.
(b) The plaintiff preserves the right to seek punitive damages
pursuant to Section 3294 of the Civil Code on a default judgment by
serving upon the defendant the following statement, or its
substantial equivalent:
NOTICE TO _____________________________________:
(Insert name of defendant or cross-defendant)
_____________________ reserves the right to seek
(Insert name of plaintiff or cross-complainant)
$ __________________________ in punitive damages
(Insert dollar amount)
when ___________________ seeks a judgment in the
(Insert name of plaintiff or
cross-complainant)
suit filed against you.
_____________________________ ________________
(Insert name of attorney or
( d D
ate)
party appearing in propria
persona)
(c) Where If the plaintiff seeks
punitive damages pursuant to Section 3294 of the Civil Code, and
where if the defendant appears in the
action, the plaintiff shall not be limited to the amount set forth in
the statement served on the defendant pursuant to this section.
(d) A plaintiff who serves a statement on the defendant pursuant
to this section shall be deemed to have complied with Sections 425.10
and 580 of this code and Section 3295 of the Civil Code.
(e) The plaintiff may serve a statement upon the defendant
pursuant to this section, and may serve the statement as part of the
statement required by Section 425.11.
(f) The plaintiff shall serve the statement upon the defendant
pursuant to this section before a default may be taken,
where if the motion for default judgment
includes a request for punitive damages.
(g) The statement referred to in subdivision (b) shall be served
by one of the following methods:
(1) If the party has not appeared in the action, the
motion statement shall be served in the same
manner as a summons pursuant to Article 3 (commencing with Section
415.10) of Chapter 4 of Title 5 of Part 2 of the Code of Civil
Procedure.
(2) If the party has appeared in the action, the motion
statement shall be served upon his or her
attorney, or upon the party if he or she has appeared without an
attorney, either in the same manner as a summons pursuant to Article
3 (commencing with Section 415.10) of Chapter 4 of Title 5
of the Code of Civil Procedure or in the manner provided by
Chapter 5 (commencing with Section 1010) of Title 14 of
Part 2 of the Code of Civil Procedure .
SEC. 11. Section 998 of the Code of Civil Procedure is
amended to read:
998. (a) The costs allowed under Sections 1031 and 1032 shall be
withheld or augmented as provided in this section.
(b) Not less than 10 days prior to commencement of trial or
arbitration (as provided in Section 1281 or 1295) of a dispute to be
resolved by arbitration, any party may serve an offer in writing upon
any other party to the action to allow judgment to be taken or an
award to be entered in accordance with the terms and conditions
stated at that time. The written offer shall include a
statement of the offer, containing the terms and conditions of the
judgment or award, and a provision that allows the accepting party to
indicate acceptance of the offer by signing a statement
that the offer is accepted. Any acceptance of the offer, whether made
on the document containing the offer or on a separate document of
acceptance, shall be in writing and shall be signed by counsel for
the accepting party or, if not represented by counsel, by the
accepting party.
(1) If the offer is accepted, the offer with proof of acceptance
shall be filed and the clerk or the judge shall enter judgment
accordingly. In the case of an arbitration, the offer with proof of
acceptance shall be filed with the arbitrator or arbitrators who
shall promptly render an award accordingly.
(2) If the offer is not accepted prior to trial or arbitration
, or within 30 days after it is made,
whichever occurs first, it shall be deemed withdrawn, and cannot be
given in evidence upon the trial or arbitration.
(3) For purposes of this subdivision, a trial or arbitration shall
be deemed to be actually commenced at the beginning of the opening
statement of the plaintiff or counsel, and if there is no opening
statement, then at the time of the administering of the oath or
affirmation to the first witness, or the introduction of any
evidence.
(c) (1) If an offer made by a defendant is not accepted and the
plaintiff fails to obtain a more favorable judgment or award, the
plaintiff shall not recover his or her postoffer costs and shall pay
the defendant's costs from the time of the offer. In addition, in any
action or proceeding other than an eminent domain action, the court
or arbitrator, in its discretion, may require the plaintiff to pay a
reasonable sum to cover costs of the services of expert witnesses,
who are not regular employees of any party, actually incurred and
reasonably necessary in either, or both, preparation for trial or
arbitration, or during trial or arbitration, of the case by the
defendant.
(2) (A) In determining whether the plaintiff obtains a more
favorable judgment, the court or arbitrator shall exclude the
postoffer costs.
(B) It is the intent of the Legislature in enacting subparagraph
(A) to supersede the holding in Encinitas Plaza Real v. Knight, 209
Cal.App.3d 996, that attorney's fees awarded to the prevailing party
were not costs for purposes of this section but were part of the
judgment.
(d) If an offer made by a plaintiff is not accepted and the
defendant fails to obtain a more favorable judgment or award in any
action or proceeding other than an eminent domain action, the court
or arbitrator, in its discretion, may require the defendant to pay a
reasonable sum to cover postoffer costs of the services of
expert witnesses, who are not regular employees of any party,
actually incurred and reasonably necessary in either, or both,
preparation for trial or arbitration, or during trial or arbitration,
of the case by the plaintiff, in addition to plaintiff's costs.
(e) If an offer made by a defendant is not accepted and the
plaintiff fails to obtain a more favorable judgment or award, the
costs under this section, from the time of the offer, shall be
deducted from any damages awarded in favor of the plaintiff. If the
costs awarded under this section exceed the amount of the damages
awarded to the plaintiff the net amount shall be awarded to the
defendant and judgment or award shall be entered accordingly.
(f) Police officers shall be deemed to be expert witnesses for the
purposes of this section ; plaintiff . For
purposes of this section, "plaintiff " includes a
cross-complainant and defendant
"defendant "
includes a cross-defendant. Any judgment or award entered pursuant to
this section shall be deemed to be a compromise settlement.
(g) This chapter does not apply to either of the following:
(1) An offer that is made by a plaintiff in an eminent domain
action.
(2) Any enforcement action brought in the name of the people of
the State of California by the Attorney General, a district attorney,
or a city attorney, acting as a public prosecutor.
(h) The costs for services of expert witnesses for trial under
subdivisions (c) and (d) shall not exceed those specified in Section
68092.5 of the Government Code.
(i) This section shall not apply to labor arbitrations filed
pursuant to memoranda of understanding under the Ralph C. Dills Act
(Chapter 10.3 (commencing with Section 3512) of Division 4 of Title 1
of the Government Code).
SEC. 12. Section 811.9 of the Government Code is
amended to read:
811.9. (a) Notwithstanding any other provision of law, judges,
subordinate judicial officers, and court executive officers of the
superior and municipal courts are state officers
for purposes of Part 1 (commencing with Section 810) to Part 7
(commencing with Section 995), inclusive, and trial court employees
are employees of the trial court for purposes of Part 1 (commencing
with Section 810) to Part 7 (commencing with Section 995), inclusive.
The Judicial Council shall provide for representation, defense, and
indemnification of such those
individuals and the court pursuant to Part 1 (commencing with Section
810) to Part 7 (commencing with Section 995), inclusive. The
Judicial Council shall provide for such that
representation or defense through the county counsel, the
Attorney General, or other counsel. The county counsel and the
Attorney General may, but are not required to, provide such
representation or defense for the Judicial Council. The
fact that a justice, judge, subordinate judicial officer,
court executive officer, trial court employee,
or the court , the Judicial Council, or the
Administrative Office of the Courts is or was represented or
defended by the county counsel, the Attorney General, or other
counsel shall not be the sole basis for a judicial determination of
disqualification of a just ice, judge,
subordinate judicial officer, the county counsel, the Attorney
General, or other counsel in unrelated actions.
(b) To promote the cost-effective, prompt, and fair resolution of
actions, proceedings, and claims affecting the trial courts, the
Judicial Council shall adopt rules of court requiring the
Administrative Office of the Courts to manage actions, proceedings,
and claims that affect the trial courts and involve superior
or municipal courts, superior or municipal
court judges, subordinate judicial officers, court
executive officers, or trial court employees in consultation with the
affected courts and individuals. The Administrative Office of the
Courts' management of these actions, proceedings, and claims shall
include, but not be limited to, case management and administrative
responsibilities such as selection of counsel and making strategic
and settlement decisions.
(c) Nothing in this section shall be construed to affect the
employment status of subordinate judicial officers, court executive
officers, and trial court employees related to any matters not
covered by subdivision (a).
SEC. 13. Section 905 of the Government Code is amended
to read:
905. There shall be presented in accordance with Chapter 1
(commencing with Section 900) and Chapter 2 (commencing with Section
910) of this part all claims for money or damages against local
public entities except:
(a) Claims under the Revenue and Taxation Code or other statute
prescribing procedures for the refund, rebate, exemption,
cancellation, amendment, modification or adjustment of any tax,
assessment, fee or charge or any portion thereof, or of any
penalties, costs or charges related thereto.
(b) Claims in connection with which the filing of a notice of
lien, statement of claim, or stop notice is required under any
provision of law relating to mechanics', laborers' or materialmen's
liens.
(c) Claims by public employees for fees, salaries, wages, mileage
or other expenses and allowances.
(d) Claims for which the workmen's workers
' compensation authorized by Division 4 (commencing
with Section 3201) 3200 )
of the Labor Code is the exclusive remedy.
(e) Applications or claims for any form of public assistance under
the Welfare and Institutions Code or other provisions of law
relating to public assistance programs, and claims for goods,
services, provisions or other assistance rendered for or on behalf of
any recipient of any form of public assistance.
(f) Applications or claims for money or benefits under any public
retirement or pension system.
(g) Claims for principal or interest upon any bonds, notes,
warrants, or other evidences of indebtedness.
(h) Claims which that relate to a
special assessment constituting a specific lien against the property
assessed and which that are payable
from the proceeds of such an the
assessment, by offset of a claim for damages against it or by
delivery of any warrant or bonds representing it.
(i) Claims by the State state or by
a state department or agency or by another local public entity
or by a judicial branch entity.
(j) Claims arising under any provision of the Unemployment
Insurance Code, including but not limited to claims for money or
benefits, or for refunds or credits of employer or worker
contributions, penalties, or interest, or for refunds to workers of
deductions from wages in excess of the amount prescribed.
(k) Claims for the recovery of penalties or forfeitures made
pursuant to Article 1 (commencing with Section 1720) of Chapter 1 of
Part 7 of Division 2 of the Labor Code.
(l) Claims governed by the Pedestrian Mall Law of 1960, Part 1
(commencing with Section 11000) of Division 13 of the Streets and
Highways Code.
SEC. 14. Section 905.7 is added to the Government Code, to read:
905.7. (a) All claims against a judicial branch entity for money
or damages based upon an express contract or for an injury for which
the judicial branch entity is liable shall be presented in accordance
with Chapter 1 (commencing with Section 900) and Chapter 2
(commencing with Section 910) of this part. The provisions of this
section are declaratory of existing law.
(b) For a two-year period ending on January 1, 2008, a failure to
timely present a claim against a judicial branch entity pursuant to
Section 911.2 shall be presumed to constitute excusable neglect. The
judicial branch entity may rebut this presumption by showing that the
party responsible for presenting the claim knew or should have known
that the claim against the judicial branch entity was required to be
presented pursuant to Section 911.2. This paragraph shall remain
operative only until January 1, 2008, and as of that date is no
longer operative.
SEC. 15. Section 910.4 of the Government Code is
amended to read:
910.4. The board shall provide forms specifying the information
to be contained in claims against the state or a judicial branch
entity . The person presenting a claim shall use the form in
order that his or her claim is deemed in conformity with Sections 910
and 910.2. A claim may be returned to the person if it was not
presented using the form. Any claim returned to a person may be
resubmitted using the appropriate form.
SEC. 16. Section 123.6 of the Labor Code is amended to
read:
123.6. (a) All workers' compensation administrative law judges
employed by the administrative director and supervised by the court
administrator shall subscribe to the Code of Judicial Ethics adopted
by the Supreme Court pursuant to subdivision (m) of Section 18 of
Article VI of the California Constitution for the conduct of judges
and shall not otherwise, directly or indirectly, engage in conduct
contrary to that code or to the commentary to the Code of Judicial
Ethics made by the California Judges Association .
In consultation with both the court administrator and the
Commission on Judicial Performance, the administrative director shall
adopt regulations to enforce this section. Existing regulations
shall remain in effect until new regulations based on the
recommendations of the court administrator and the Commission on
Judicial Performance have become effective. To the extent possible,
the rules shall be consistent with the procedures established by the
Commission on Judicial Performance for regulating the activities of
state judges, and, to the extent possible, with the gift, honoraria,
and travel restrictions on legislators contained in the Political
Reform Act of 1974 (Title 9 (commencing with Section 81000) of the
Government Code). The court administrator shall have the authority to
enforce the rules adopted by the administrative director.
(b) Honoraria or travel allowed by the court administrator, and
not otherwise prohibited by this section in connection with any
public or private conference, convention, meeting, social event, or
like gathering, the cost of which is significantly paid for by
attorneys who practice before the board, may not be accepted unless
the court administrator has provided prior approval in writing to the
workers' compensation administrative law judge allowing him or her
to accept those payments.
SEC. 17. Section 16020 of the Vehicle Code is amended
to read:
16020. (a) Every driver and every owner of a motor vehicle shall
at all times be able to establish financial responsibility pursuant
to Section 16021, and shall at all times carry in the vehicle
evidence of the form of financial responsibility in effect for the
vehicle.
(b) "Evidence of financial responsibility" means any of the
following:
(1) A form issued by an insurance company or charitable risk pool,
as specified by the department pursuant to Section 4000.37.
(2) If the owner is a self-insurer, as provided in Section 16052
or a depositor, as provided in Section 16054.2, the certificate of
self-insurance or the assignment of deposit letter issued by the
department.
(3) An insurance covering note or binder pursuant to Section 382
or 382.5 of the Insurance Code.
(4) A showing that the vehicle is owned or leased by, or under the
direction of, the United States or any public entity, as defined in
Section 811.2 of the Government Code.
(c) For purposes of this section, "evidence of financial
responsibility" also may be obtained by a law enforcement officer
and court personnel from an electronic reporting system
when that system becomes available for use by law enforcement
officers.
(d) For purposes of this section, "evidence of financial
responsibility" also includes any of the following:
(1) The name of the insurance company and the number of an
insurance policy or surety bond that was in effect at the time of the
accident or at the time that evidence of financial responsibility is
required to be provided pursuant to Section 16028, if that
information is contained in the vehicle registration records of the
department.
(2) The identifying motor carrier of property permit number issued
by the Department of the California Highway Patrol to the motor
carrier of property as defined in Section 34601, and displayed on the
motor vehicle in the manner specified by the Department of the
California Highway Patrol.
(3) The identifying number issued to the household goods carrier,
passenger stage carrier, or transportation charter party carrier by
the Public Utilities Commission and displayed on the motor vehicle in
the manner specified by the commission.
(4) The identifying number issued by the Interstate Commerce
Commission or its successor federal agency, if proof of financial
responsibility must be presented to the issuing agency as part of the
identification number issuance process, and displayed on the motor
vehicle in the manner specified by the issuing agency.
(e) Evidence of financial responsibility does not include any of
the identification numbers in paragraph (1), (2), (3), or (4) of
subdivision (d) if the carrier is currently suspended by the issuing
agency for lack or lapse of insurance or other form of financial
responsibility.
SEC. 18. Section 16058.1 of the Vehicle Code is amended
to read:
16058.1. The department shall develop a method by which law
enforcement officers and court personnel , on and after
July 1, 2006, may electronically verify that an insurance policy or
bond for a motor vehicle has been issued.
SEC. 19. The provisions of this act shall apply prospectively
only. All matter omitted in this version of the bill appears
in the bill as amended in the Senate, June 28, 2005 (JR11)
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Text - Pages 6, 7, 9, 10, 12, 14, 15, 16, 17, 18, 19, 20, 21, 22,
and 23.
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