BILL ANALYSIS
AB 1742
Page 1
Date of Hearing: April 26, 2005
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
AB 1742 (Judiciary Committee) - As Amended: April 18, 2005
PROPOSED CONSENT
SUBJECT : CIVIL OMNIBUS AND COURT OPERATIONS
KEY ISSUE : SHOULD VARIOUS NONCONTROVERSIAL CHANGES TO CIVIL LAW
AND PROCEDURE, AS WELL AS SEVERAL TECHNICAL STATUTORY CHANGES BE
MADE TO IMPROVE COURT OPERATIONS AND PRACTICE?
SYNOPSIS
This non-controversial bill seeks to improve court operations
and practice by making a variety of changes to civil law and
procedure, as well as technical changes. Most of these
provisions are sponsored by the Judicial Council. The remaining
provisions are sponsored by the County of San Mateo (one
provision) and two others sponsored by the Conference of
Delegates of California Bar Associations.
SUMMARY : Seeks to improve court operations and practice by
making a variety of changes to civil law and procedure, as well
as several technical statutory changes. Specifically, this
bill :
1)Conforms the liability standards for arrests made through an
Automated Warrant System (AWS) with those of the traditional,
paper warrant process by providing 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.
2)Clarifies and streamlines small claims court procedures by:
a) providing that, when a claim is filed in the small
claims court, the case shall be scheduled for hearing no
earlier than 20 days and not more than 70 days from the
date of the order;
b) requiring that proof of service of the claim and order
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be filed at least 5 days before the hearing;
c) authorizing a party to make only one motion to correct a
clerical error or set aside and vacate a judgment, and
allowing a party 30 days after the clerk mails notice of
entry of judgment to make that motion; and
d) deleting the 10-day waiting period before a small claims
appeal and judgment can be transferred to the small claims
court for enforcement proceedings.
3)Deletes the repeal date of January 1, 2006, in Code of Civil
Procedure (CCP) section 128.7, which authorizes sanctions for
the filing of frivolous lawsuits, thereby continuing
indefinitely the courts' sanctioning authority in this area.
4)Authorizes access by law enforcement officials and registered
process servers to a staffed gated community for the purpose
of serving a subpoena, consistent with their current access
for the purpose of performing lawful service of process.
5)Makes a technical, non-substantive correction to CCP section
425.115 regarding service of punitive damages statements in
order to correct typographical errors by changing the word
"motion" to "statement".
6)Requires that acceptance of an offer to compromise a claim,
whether made on the document containing the offer or on a
separate document of acceptance, be in writing and signed.
7)Extends until June 30, 2006, the court security fee that will
expire on June 30, 2005, or until the Uniform Civil Fee
proposal is implemented, whichever happens first.
8)Slightly broadens existing law on disqualification where an
attorney in one case is or was representing a court, a judge
or justice, or any other judicial branch entity in an
unrelated matter to provide that disqualification is not
mandated solely because of that representation.
9)Harmonizes the procedures for presenting a claim against a
judicial branch entity with the procedures under the Tort
Claims Act for presenting a claim against a statewide public
entity by:
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a) clarifying the kinds of claims that need to be presented
to the Judicial Council before a lawsuit can be filed to
make the section consistent with the provisions governing
claims against the state,
b) clarifying that the judicial branch, like the state and
local government entities, is not required to present
claims against local government entities before commencing
a lawsuit, and
c) allowing the Judicial Council, like the state, to
require claimants to present their claims on a mandated
claim form.
10)Allows courts to make temporary custody and visitation orders
before a venue change, as they currently can for support
orders, and adds actions under the Uniform Parentage Act to
the existing authority to make these temporary orders in
separation and dissolution cases.
11)Deletes an obsolete reference to the California Judges
Association in the reference to the code of judicial ethics
contained in Labor Code section 123.6.
12)Provides that the provisions of this bill apply prospectively
only.
EXISTING LAW :
1)Provides that 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. (Civil Code section
43.55.)
2)Establishes procedures in small claims court governing time
periods for scheduling cases for hearing and methods for
service of the claim and order on a defendant. Authorizes a
court to correct a clerical error in a judgment or set aside
and vacate a judgment on the ground of an incorrect or
erroneous legal basis for the decision. Provides for a 10-day
waiting period before a small claims appeal and judgment can
be transferred to the small claims court for enforcement
proceedings. (CCP sections 116.330, 116.340, 116.725,
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116.780(d).)
3)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. (CCP section 128.7.)
4)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. (CCP
section 415.21.)
5)Governs offers by a party to compromise a claim, and requires
such offers to be in writing. (CCP section 998.)
6)Imposes a surcharge of $20 for court security in addition to
the total court fees collected pursuant to specified
provisions and also authorizes the collection of an additional
surcharge in certain cases filed from January 1, 2004 to June
30, 2005, inclusive. (Government Code section 69926.5.)
7)Requires the Judicial Council to provide for the
representation or defense of judicial officers and employees
by the county counsel or Attorney General, and authorizes such
representation or defense of the Judicial Council. Existing
law also provides that this representation or defense shall
not be the sole basis for the disqualification of a judicial
officer or employee in an unrelated action. (Government Code
section 811.9.)
8)Sets forth the procedure for filing a claim against a
statewide public entity, as specified. (Government Code
section 810 et seq .)
9)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. (CCP section 396(b).)
10)Requires workers' compensation administrative law judges, as
specified, to subscribe to the Code of Judicial Ethics and to
not engage in conduct contrary to that code or to the
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commentary to the Code of Judicial Ethics made by the
California Judges Association. (Labor Code section 123.6.)
FISCAL EFFECT : As currently in print this bill is keyed
fiscal.
COMMENTS : This bill seeks to make a variety of
non-controversial changes to civil law and procedure, as well as
several technical statutory changes that will improve court
operations and practice. The Judicial Council is sponsoring all
but three of the provisions. The remaining three are technical
proposals sponsored by the County of San Mateo and the
Conference of Delegates of California Bar Associations.
Judicial Council-Sponsored Provisions:
Sanctions for Frivolous Lawsuits - Removal of Sunset Provision .
According to the Judicial Council, Code of Civil Procedure (CCP)
section 128.7, the sole remaining statute authorizing sanctions
for the filing of frivolous lawsuits, is due to expire on
January 1, 2006. (See CCP section 128.7(j).) Section 7 of the
bill, which removes the sunset provision of section 128.7, will
help deter the filing of frivolous lawsuits by continuing
indefinitely the courts' sanctioning authority in this area.
Requiring Written Acceptance of Settlement Offers . The Judicial
Council notes that CCP section 998 requires that an offer to
compromise a claim be in writing. (See CCP section 998(b).)
But the statute has no parallel provision expressly requiring
acceptance to also be in writing. To avoid confusion that can
arise with oral acceptances, section 11 of the bill amends the
statute to so require.
Small Claims Clean-up . The sponsor states that the bill
clarifies and streamlines small claims practice and procedures
and simplifies the handling of such cases. Section 2 of the
bill provides that when a claim is filed in small claims court,
the case must be scheduled for hearing no earlier than 20 days
nor later than 70 days from the date of the order. This change
will eliminate the various time periods that exist under current
law, give the plaintiff a wider choice of hearing dates and more
time to serve on the defendant an order to appear, reduce
requests for continuances, and save the courts both processing
time and costs.
Section 3 of the bill requires that proof of service of the
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claim and order be filed at least five days before the hearing.
A uniform statewide procedure requiring small claims plaintiffs
to file proof of service of the claim several days before the
hearing would help courts manage their small claims trial
calendars and avoid confusion for parties who file small claims
actions in multiple courts around the state.
Section 5 of the bill authorizes a party to make only one motion
to correct a clerical error or to set aside and vacate a
judgment, and provides that a party has 30 days to make that
motion after the clerk mails notice of entry of judgment. The
30 day period, which coincides with the time for filing a notice
of appeal, provides reasonable time for the parties to inspect
the notice for clerical or other errors and, if necessary, to
seek to correct or vacate the judgment. The bill will also help
conserve judicial resources by preventing a party from filing
multiple, non-meritorious motions to correct or vacate a
judgment.
Section 6 of the bill repeals the 10-day waiting period before a
small claims appeal and judgment can be transferred to the small
claims court for enforcement proceedings. Now that the trial
court system has been unified statewide, this delay is no longer
necessary; the proposed repeal would allow enforcement
proceedings to commence immediately as in any other civil
action.
Extension of Security Fee Sunset . According to the Judicial
Council, section 16 of the bill extends until June 30, 2006, the
court security fee that will expire on June 30, 2005, or until
the Uniform Civil Fee (UCF) proposal is implemented, whichever
happens first. The Judicial Council expects that the soonest
the UCF will be implemented is November 1, 2005. Without this
bridge legislation, court funding would be reduced each month
until the UCF is in place. The council estimates that the loss
in revenue is approximately $15 million over the course of a
fiscal year.
Temporary Custody and Visitation Orders . Judicial Council notes
that section 8 of the bill allows courts to make temporary
custody and visitation orders before a venue change (currently
they can only make support orders), and adds actions under the
Uniform Parentage Act to the existing authority to make these
temporary orders in separation and dissolution cases.
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Tort Claims Act Clean-up . The sponsor states that sections 12,
13, 14, and 15 of the bill, which contain some clean-up of the
judicial provisions in the Tort Claims Act, place the judicial
branch process on a consistent footing with the state process by
(1) clarifying the kinds of claims that need to be presented to
the Judicial Council before a lawsuit can be filed to make the
section identical to the provisions governing claims against the
state, (2) clarifying that the judicial branch, like the state
and other local governments, is not required to present claims
against local governments before commencing a lawsuit, and (3)
allowing the courts, like the state, to require claimants to
present their claims on a mandated claim form. In addition, the
bill slightly broadens existing law on disqualification when an
attorney on a case is representing the court or another judicial
branch entity in an unrelated matter; it provides that
disqualification is not mandated solely because such
representation is currently taking place (current law includes a
provision for prior representation but is silent on a
contemporaneous situation).
Code of Judicial Ethics Clean-up . Judicial Council explains
that from 1975 to 1995, the California Judges Association was
responsible for adopting a conduct code for judges. Effective
March 1995, the California Constitution was amended to provide
that the Supreme Court makes the rules for judicial conduct.
(Cal. Const., art. VI, 18(m).) In January 1996, the Supreme
Court formally adopted the Code of Judicial Ethics, as well as
the commentary to the Code. (Appendix to the Cal. Rules of
Court, Div. II, Preamble.) Section 17 of the bill updates the
reference to the code of judicial ethics in Labor Code section
123.6 to reflect this change.
San Mateo County-Clarification of Peace Officer Immunity:
Section 1 of the bill, sponsored by the County of San Mateo,
amends Civil Code section 43.55 to conform the liability
standards for arrests made through an Automated Warrant System
(AWS) with those of the traditional, paper warrant process.
Current law expressly protects any peace officer who makes an
arrest based on a warrant of arrest regular upon its face.
However, some counties are concerned that a court could
interpret the phrase "a warrant regular upon its face" to
exclude a warrant issued through an AWS alone, which then could
expose an arresting officer to liability. The amendments to
Civil Code section 43.55 would protect any peace officer who
makes an arrest under a warrant of arrest that is entered into
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an AWS by law enforcement or court personnel authorized to make
such entries at or near the time a judicial order is made for
the warrant.
Conference of Delegates of California Bar Associations -
Miscellaneous Technical Amendments:
Section 9 of the bill, sponsored by the Conference of Delegates,
amends CCP section 415.21 to require guards of gated communities
to allow law enforcement officials and registered process
servers access to such communities for a reasonable period of
time to serve a subpoena compelling testimony at a deposition,
hearing, or trial. Although section 415.21 presently requires
that such officials and process servers be given access to gated
communities to serve summonses, no similar provision exists for
the service of a subpoena. The bill cures this omission, so
that no person would be able to evade lawful service of a
subpoena by virtue of their living in a gated community.
Section 10 of the bill, which is also sponsored by the
Conference of Delegates, makes a technical, non-substantive
correction to CCP section 425.115 regarding service of punitive
damages statements. The amendments correct typographical errors
by changing the word "motion" to "statement" in subdivisions
(g)(1) and (g)(2).
REGISTERED SUPPORT / OPPOSITION :
Support
Judicial Council
California Judges Association
County of San Mateo
Minorities in Law Enforcement
Opposition
None on file
Analysis Prepared by : Cindy Fischer / JUD. / (916) 319-2334