BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
AB 1742 A
Assembly Judiciary Committee B
As Amended June 28, 2005
Hearing Date: July 12, 2005 1
Various Codes 7
AMT:cjt 4
2
SUBJECT
Courts: Civil Fees: Procedure: Court Operations
DESCRIPTION
This bill would make a number of changes to statutes that
govern civil procedure and court operations. Specifically,
it would modify the terms of the Tort Claims Act ("Act") to
provide that certain claims against judicial branch
entities must be filed under the restraints of the Act, and
that judicial branch entities must be treated similarly to
the state under the terms of the Act. The bill would also:
make a number of streamlining changes to small claims court
procedure; delete the sunset for a statute that permits
imposition of sanctions on frivolous lawsuit filers; extend
the scope of family law orders that may be made before a
court considers a motion to transfer; requires specified
settlement acceptances to be made in writing; permits court
personnel to access Department of Motor Vehicles'
electronic car insurance information systems; provides that
regular warrants include paper warrants and judicial orders
entered into automated warrant systems; provides that
subpoenas may be served in gated communities in the same
manner as other service of process; and makes other
technical, non-substantive changes. The bill would
establish that all of these changes are prospective only.
(This analysis reflects author's amendments to be offered
in committee.)
BACKGROUND
(more)
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This is the Assembly Judiciary Committee's civil omnibus
and court operations bill. The bulk of its provisions are
sponsored by the Judicial Council, but one provision is
sponsored by the County of San Mateo and other provisions
are sponsored by the Conference of Delegates of California
Bar Associations. Although the bill was recently amended
to include the terms of the Uniform Civil Fees and Standard
Fee Schedule Act of 2005, the author will amend the bill
again in committee to remove those provisions. The uniform
fees provisions have been relocated to the budget trailer
bill.
CHANGES TO EXISTING LAW
1.Existing law , the Tort Claims Act, establishes that a
claim for money or damages against the state or a local
public entity must be presented in accordance with the
terms of the Act. [Gov. Code 905, 905.2.]
Existing law requires the board to provide forms
specifying the information that must be contained in a
Tort Claims Act claim against the state. [Gov. Code
910.4.]
Existing law specifies that a claim against a local
public entity need not be presented in accordance with
the Tort Claims Act if the claim is made by the state or
another local public entity. [Gov. Code 905(i).]
This bill would state that 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" must be presented in accordance with
the Tort Claims Act. It would state that this is
declaratory of existing law.
This bill would require the board to provide forms
specifying the information that must be contained in a
claim against a judicial branch entity.
This bill would specify that a judicial branch entity's
claim for money or damages against a local public entity
need not be presented in accordance with the Tort Claims
Act.
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2.Existing law requires Judicial Council to use county
counsel, the Attorney General, or other counsel to
represent or defend judges, subordinate judicial
officers, and court executive officers of the municipal
and superior courts that are sued under the Tort Claims
Act. The law provides that a prior defense shall not be
the sole basis for judicial disqualification of any of
the listed parties. [Gov. Code 811.9]
This bill would extend the disqualification provision by
providing that an ongoing defense shall not be the sole
basis for disqualification.
This bill would also make non-substantive changes to
include references to justices and the Administrative
Office of the Courts, and to delete references to
municipal courts.
3.Existing law provides that a small claims case must be
scheduled for hearing between 15 and 40 days from the
date of a court order directing the parties to appear, if
all defendants reside in the county where the action is
filed. But a case with at least one defendant residing
out of the county must be scheduled between 30 and 70
days from the date of the order. When a public entity
files more than 10 claims at one time, and at least one
defendant resides out of the county, the date for
appearance may not be more than 90 days from the date of
the order. [Code Civ. Proc. 116.330.]
This bill would provide that all small claims cases,
regardless of the defendant's county of residence, must
be scheduled for hearing between 20 to 70 days from the
date of the court order directing the parties to appear.
4.Existing law requires a defendant to be served with a
small claims court claim and the court order directing
his or her appearance at least 15 days before a hearing
date if the defendant resides in the county, and 20 days
prior if the defendant resides outside the county. [Code
Civ. Proc. 116.340.]
This bill would require proof of service of that claim to
be filed with the court at least five days before the
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hearing.
5.Existing law permits a small claims court to correct a
clerical error in a judgment or set aside and vacate a
judgment because of an incorrect or erroneous legal basis
for the decision. [Code Civ. Proc. 116.725.]
This bill would establish that a party to the case may
only bring one motion to correct such errors, and must do
so within 30 days after the clerk mails notice of entry
of judgment. The bill would not limit a small claims
court from correcting errors on its own motion at any
time.
6.Existing law requires a superior court that hears a small
claims court appeal to wait 10 days after completion of
the appeal process before transferring the action back to
the small claims court for enforcement or other
proceedings. [Code Civ. Proc. 116.780.]
This bill would delete that 10-day waiting period.
7.Existing law provides that a court may impose sanctions
and punitive damages on an attorney, law firm, or party
who presents a paper to the court: (1) that is presented
primarily for an improper purpose; (2) that contains
claims, defenses, or other legal contentions unsupported
by either existing law or a non-frivolous extension of
existing law; (3) that contains allegations or factual
contentions that do not have evidentiary support and are
not likely to have evidentiary support after a reasonable
opportunity for discovery; or (4) that contains denials
of factual contentions that are not supported by evidence
or reasonable information and belief. This statute is
set to sunset on January 1, 2006. [Code Civ. Proc.
128.7.]
This bill would delete the sunset provision.
8.Existing law permits the court in a proceeding for
dissolution of marriage or legal separation to make all
necessary and proper orders in connection with motions
for allowance of temporary spousal support, support of
children, counsel fees and costs before deciding a motion
to transfer. [Code Civ. Proc. 396b.]
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This bill would apply the above permissions to Uniform
Parentage Act proceedings. The bill would also extend
the list of orders that may be decided prior to hearing a
motion to transfer, adding motions to determine custody
and visitation of children.
9.Existing law permits any party to serve a written offer
upon any other party to a trial or arbitration to settle
a claim. [Code Civ. Proc. 998.]
This bill would require the written offer to include a
provision that allows the accepting party to indicate
acceptance of the offer by signing a statement that the
offer is accepted.
This bill would also require that any acceptance of the
offer be in writing and signed by counsel for the
accepting party, or by the accepting party if not
represented by counsel.
10.Existing law requires all drivers and owners of motor
vehicles to carry "evidence of financial responsibility,"
including insurance cards or certificates of
self-insurance, in their vehicles at all times. The law
permits law enforcement personnel to obtain evidence of
financial responsibility from an electronic reporting
system, when available. [Vehicle Code 16020.]
Existing law requires the Department of Motor Vehicles
(DMV) to develop a method by which law enforcement
officers may electronically verify that an insurance
policy or bond for a motor vehicle has been issued.
[Vehicle Code 16058.1.]
This bill would provide that the DMV electronic reporting
systems for the insurance policies would be available to
court personnel.
11.Existing law requires workers' compensation
administrative law judges to 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
not engage in conduct contrary to that code or to the
commentary to the Code of Judicial Ethics made by the
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California Judges Association. [Labor Code 123.6.]
This bill makes a technical amendment to remove the
reference to the California Judges Association.
12.Existing law provides that a peace officer who makes an
arrest pursuant to an arrest warrant that is regular upon
its face may not be held liable for an arrest if he or
she acts without malice and in the reasonable belief that
the person arrested is the person referred to in the
warrant. [Civ. Code 43.55.]
This bill would state that a warrant that is regular upon
its face may include a paper arrest warrant or a judicial
order entered into an automated warrant system by law
enforcement or authorized court personnel.
13.Existing law allows certain people access to gated
communities for the purpose of performing a lawful
service of process when the community is staffed by a
guard or other security personnel. [Code Civ. Proc.
415.21.]
This bill would extend the statute to include lawful
service of a subpoena.
COMMENT
1.Stated need for Tort Claims Act amendments
Sponsor Judicial Council asserts that proposed amendments
to the Tort Claims Act are needed to place the judicial
branch tort claims process "on a consistent footing with
the state process." Although AB 2321 (Hertzberg, 2002)
enacted a number of statutory provisions to govern
Judicial Council's response to claims filed against
"judicial branch entities" under the Tort Claims Act,
that bill did not explicitly require claims against
judicial branch entities to be filed under the Tort
Claims Act.
This bill would enact a new code provision to require
presentation of claims against judicial branch entities
under the Tort Claims Act when the claims are "for money
or damages based upon an express contract or for an
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injury for which the judicial branch entity is liable."
This language is based upon existing statutory language
applicable to claims filed against the state. According
to the existing statute, a claim filed against the state
must be presented in accordance with the Tort Claims Act
if: it is a claim "[f]or money or damages based upon an
express contract or for an injury for which the state is
liable;" it is a settlement provided for by statute or
constitutional provision, but for which no appropriation
has been made or the appropriation has been exhausted; or
it is a claim for which settlement has not been provided
by statute or constitutional provision. [Gov. Code
905.2.] It appears that the "money or damages" language
incorporated into this bill is the only language in
Section 905.2 which could appropriately be extended to
judicial branch entities.
To further establish conformity, this bill would require
forms to be provided that specify what information should
be contained in Tort Claims Act claims against both the
state and judicial branch entities. The current law only
requires forms to address the information necessary for
claims against the state.
The bill would establish that a judicial branch entity,
like the state or a local public entity, need not present
a claim under the Tort Claims Act when it sues a local
public entity for money or damages. The bill would not
provide a reciprocal right for a local public entity to
sue a judicial branch entity outside the terms of the
Act, but the current law similarly does not provide that
reciprocal right for a local public entity to sue the
state outside the terms of the Act. Judicial Council
states that the objective of this bill is to enact
statutes to govern judicial branch entities that parallel
existing provisions applicable to the state.
Other Tort Claims Act provisions of the bill would
establish that a defense provided by county counsel, the
Attorney General, or other counsel to a justice, judge,
subordinate judicial officer, or court executive officer
at the behest of Judicial Council or the Administrative
Office of the Courts shall not be used as the sole basis
for disqualification of any of those parties. This is an
extension of the current statute, which states that prior
defenses only -- not ongoing defenses -- are subject to
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this provision.
2.Whether a failure to file a claim against a judicial
branch entity should be deemed "excusable neglect" for
the first two years this bill is in operation
Under the requirements of the Tort Claims Act, a claim
must be filed with a government entity to describe the
person's basis for seeking money or damages. [Gov. Code
910.] Claims must be presented within six months or
one year of the accrual of the cause of action, as
specified. [Gov. Code 911.2.] Upon timely receipt of
a claim, the entity must grant or deny the claim. [Gov.
Code 911.6.] But an entity may return a late-filed
claim without action. [Gov. Code 911.3.]
Where compliance with the Tort Claims Act is required, no
suit may be brought against the public entity for money
or damages until the entity has acted on a claim filed
with the entity. [Gov. Code 945.4.] Since a
late-filed claim may be returned from the entity without
action, a person could be prevented from bringing suit
against a public entity if he or she failed to timely
comply with claim filing requirements. A failure to
timely comply with the Act may be excused, however, if it
is due to "mistake, inadvertence, surprise, or excusable
neglect." [Gov. Code 946.6.]
This bill would newly codify a requirement that claims
against a judicial branch entity be filed in accordance
with the Tort Claims Act. Because this new requirement
could ultimately bar a suit for a person who fails to
file a timely claim, it may be appropriate to specify
that it is "excusable neglect" under Section 946.6 for a
person to fail to meet claim filing deadlines for
judicial branch entities during the first two years that
the bill is in operation. This two-year window would
account for the fact that some claims are not untimely
until a full year has passed. It would also give a
person an opportunity to discover the necessity of filing
a Tort Claims Act claim in, for example, personal injury
cases where the statute of limitations for filing suit is
two years. [See Code Civ. Proc. 335.1.]
SHOULD A FAILURE TO TIMELY FILE A TORT CLAIMS ACT CLAIM
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WITH A JUDICAL BRANCH ENTITY CONSTITUTE "EXCUSABLE
NEGLECT" DURING THE FIRST TWO YEARS THIS BILL IS IN
EFFECT?
3.Stated need for amendments to small claims procedures
The bill would make a number of changes to clarify and
streamline small claims procedures. (1) It would replace
varied timelines for the setting of small claims hearings
-- which currently vary based on the county of residence
of a defendant or defendants -- with a single timeline of
20 to 70 days. Judicial Council states this change will
give plaintiffs a wider choice of hearing dates, will
allow plaintiffs more time to serve defendants with
orders to appear, will reduce requests for continuances,
and will save the courts processing time and costs. (2)
The bill would require filing of a proof of service to
demonstrate that an order to appear was served on a
defendant at least five days before a hearing. Judicial
Council asserts this will help courts manage their small
claims trial calendars. (3) The bill would limit parties
to one motion to correct or vacate a judgment, and
require such motions to be filed within 30 days of the
mailing of the judgment. Judicial Council states this
change will help conserve judicial resources by
preventing the filing of multiple, non-meritorious
motions to correct or vacate a judgment. (4) The bill
would eliminate the current, 10-day waiting period before
a small claims appeal and judgment may be transferred
back to the small claims court for enforcement
proceedings. Judicial Council states the 10-day delay is
no longer necessary, now that the trial court system has
been unified statewide.
4.Other provisions in the bill
The bill would eliminate the January 1, 2006 sunset date
for the frivolous lawsuits sanctions currently possible
under Section 128.7 of the Code of Civil Procedure.
Judicial Council states that this code section is the
sole remaining statute for authorizing sanctions against
the filing of frivolous lawsuits, and will help to deter
the filing of frivolous lawsuits.
This bill would require proceedings under the Uniform
Parentage Act to be treated the same as dissolution of
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marriage or legal separation proceedings to the extent
that the court is permitted to issue all necessary and
proper orders in connection with temporary spousal
support, support of children, and counsel fees and costs
before deciding a motion to transfer. The bill would
also permit a court to decide necessary and proper
motions regarding custody and visitation of children
before deciding a motion to transfer.
The bill would expand on the current statutory
requirement that an offer to settle a case under Section
998 of the Code of Civil Procedure be in writing,
requiring in addition that the written offer include a
provision that would allow the accepting party to
indicate acceptance by signing the offer. The bill would
further require that any acceptance of a written offer be
in writing and signed.
The bill would provide that electronic systems used by
the Department of Motor Vehicles for reporting and
verifying the insurance of drivers and vehicle owners may
be accessed by "court personnel," in addition to the law
enforcement officers who are currently permitted to
access the information.
The bill would make a technical amendment to the statute
governing the Judicial Ethics Code for workers'
compensation administrative law judges by deleting a
reference to the California Judges Association (CJA).
Judicial Council states that CJA is no longer responsible
for adopting the judicial conduct code because the
Supreme Court formally adopted the code in 1996.
In a provision sponsored by the County of San Mateo, the
bill would clarify that a "warrant of arrest regular upon
its face," as referenced in a Civil Code section that
protects peace officers from liability for execution of
arrest warrants in specified circumstances, includes both
paper warrants and judicial orders entered into automated
warrant systems.
In provisions sponsored by the Conference of Delegates of
the California Bar Associations, the bill would extend an
existing statute permitting service of process in a gated
community to permit service of subpoenas as well, and
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would make technical, non-substantive changes to the
civil procedure code section governing service of
punitive damages statements.
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5.Author's amendments
The author may accept the following technical amendments
in committee, and will also amend to delete all
provisions pertaining to the Uniform Civil Fees Act:
a) On page 29, strike out lines 1 to 2, inclusive, and
on line 3, strike out "(c)" and insert:
(b)
b) On page 29, between lines 7 and 8, insert:
(c) Proof of service of the claim and order shall be
filed with the small claims court at least five days
before the hearing.
c) On page 53, line 18, strike out the comma.
d) On page 53, line 19, strike out "after the
statement of the offer" and insert:
a statement of the offer,
e) On page 53, line 20, after the comma insert:
and
Support: California Judges Association (CJA); Minorities
in Law Enforcement (MILE)
Opposition: None Known
HISTORY
Source: Conference of Delegates of California Bar
Association; County of San Mateo; Judicial Council
Related Pending Legislation: None Known
Prior Legislation: AB 2321 (Hertzberg), Ch. 1007, Stats.
of 2002, set forth various processes for
Judicial Council to follow in responding to
claims filed against judicial branch entities
under the Tort Claims Act, and defined the
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term "judicial branch entity."
Prior Vote: Assembly Floor: 71 - 0
Assembly Appropriations Committee: 18 - 0
Assembly Judiciary Committee: 9 - 0
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