BILL NUMBER: AB 2303 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 28, 2006
INTRODUCED BY Committee on Judiciary (Jones (Chair), Evans, Laird,
Levine, Lieber, and Montanez)
FEBRUARY 22, 2006
An act to amend Section 52.2 6450 of the
Business and Professions Code, to amend Section 2982 of the
Civil Code, to amend Sections 527.9, 1276, 1277,
1278, 1278.5, and 1279.5 of , and to amend and repeal Section
209 of, the Code of Civil Procedure, to amend Section 5220
of the Corporations Code, to amend Sections 2103, 2104, 2106, and
2107 of, and to add and repeal Sections 3150.2 and 3150.4 of, the
Family Code, to amend Sections 12585, 12599, 12599.1,
and 12599.2 12599.2, and 31000.6 of the
Government Code, to amend Section 959.1 of the Penal Code, and to
amend Section Sections 366.3 and
15657.03 of the Welfare and Institutions Code, relating to the
judiciary.
LEGISLATIVE COUNSEL'S DIGEST
AB 2303, as amended, Committee on Judiciary Judiciary: omnibus
bill.
(1) The Small Claims Act provides that the jurisdiction of the
small claims court includes actions brought by a natural person, if
the amount of the demand does not exceed $7,500, with specified
exceptions. Existing law limits the jurisdiction of the small claims
court in specified actions in which the demand does not exceed
$5,000, including actions for specified acts of discrimination,
boycotting, or blacklisting, or the refusal to buy or sell to a
person, actions for violence, threat of violence, or intimidation
based on specified characteristics of a person, actions for denial or
interference with the right of access of a disabled person to
specified public accommodations, and other related civil rights
actions, as specified.
This bill would permit these actions to be brought in small claims
court if the amount of damages demanded does not exceed the
jurisdiction of the small claims court for that person pursuant to
the Small Claims Act.
(2) Existing law requires a person subject to a temporary
restraining order or injunction issued pursuant to specified
provisions to relinquish any firearm in his or her immediate
possession or control, within 24 hours of the order, to local law
enforcement or by sale to a licensed gun dealer. If the respondent is
not present at the hearing, existing law allows for that
relinquishment or sale within a 48-hour period.
This bill would delete that latter provision, and instead would
require all relinquishments or sales to occur within 24 hours of the
respondent being served with the order.
(1) Existing law requires all paralegals, as defined, to certify
completion every 3 years of 4 hours of mandatory continuing legal
education in legal ethics.
This bill would instead require all paralegals who are certified
on or after January 1, 2007, to certify completion every 2 years of 4
hours of mandatory continuing legal education in legal ethics.
(2) The Car Buyer's Bill of Rights requires a conditional sale
contract for a motor vehicle to include a specified notice to inform
the buyer of a used vehicle with a purchase price of less than
$40,000 of his or her right to obtain a contract cancellation option
agreement. Existing law excepts specified vehicles from that contract
cancellation option requirement, including motorcycles and
recreational vehicles.
This bill would require the notice provisions in a conditional
sale contract to provide that a recreational vehicle is excepted from
that contract cancellation option requirement.
(3) Under existing law, a prospective trial juror who has
been summoned for jury service and fails to attend as directed or
respond to the court may be compelled to attend, as specified. In
addition, after an order to show cause hearing, the court may find
the prospective juror in contempt of court, which is punishable by
fine, incarceration, or both. Until January 1, 2007, existing law
permits the court, in lieu of imposing penalties for contempt, to
impose reasonable monetary sanctions of no more than $250 for a first
violation, $750 for a 2nd violation, and $1,500 for the 3rd and any
subsequent violation, upon a prospective juror who has failed to
respond and who has not been excused, after first providing the
prospective juror with notice and an opportunity to be
heard, as specified.
This bill would delete that date, thereby extending those
provisions indefinitely, and would also delete a related, obsolete
provision.
(4) Existing law sets forth the procedures
for a change of name, including requiring an application for a name
change to be made to the superior court of the county where the
person whose name is proposed to be changed resides, by petition
signed by the person, or if the person is under 18 years of age,
signed by one of the person's parents, if living, or if both parents
are dead, then by the guardian of the person.
This bill would revise and recast these provisions to, among other
things, modify the procedures for persons objecting to a name change
and notice thereto, as specified.
(4)
(5) The Nonprofit Public Benefit
Corporation Law prohibits a director of a nonprofit public benefit
corporation from being elected for terms greater than 3 years, as
fixed in the articles or bylaws.
This bill would instead allow those directors to be elected for
terms no greater than 4 years, as fixed in the articles or bylaws.
(6) Existing law requires each party to a proceeding for
dissolution of marriage to serve on the other party specified
financial disclosure statements. Existing law authorizes a complying
party to elect to take one or both of specified actions with respect
to a noncomplying party.
This bill would make the first provision described above
applicable to a party who has appeared in, rather than a party to,
that proceeding. The bill would also expand the actions a complying
party may take with respect to a noncomplying party to include filing
a motion showing good cause for the court to grant the noncomplying
party's voluntary waiver of the receipt of the complying party's
disclosure.
(7) Existing law authorizes the court to appoint private counsel
to represent the interests of a child in a custody or visitation
proceeding.
On or before January 1, 2008, and until January 1, 2012, this bill
would require the court to create a panel of attorneys for
appointment in the above-referenced proceedings, who would be
required to meet specified qualifications and report annually to the
court in that regard. The bill would allow the court to appoint a
non-panel attorney in those proceedings only under special
circumstances, as specified. The bill would authorize the Judicial
Council to report to the Legislature on or before June 30, 2011, with
regard to the number of those attorneys removed for cause or
disciplinary reasons, as specified. The bill would also create new
procedures with regard to allowing a parent or party to a proceeding
to terminate the appointment of, or to resolve a complaint against,
appointed counsel, and would provide appointed counsel with specified
quasi-judicial immunity during the course of his or her
representation of a minor child.
(8) Existing law requires a charitable
organization, unincorporated association, or a trustee holding
property for charitable purposes to register its articles of
incorporation with the Attorney General's Registry of Charitable
Trusts within 30 days of receiving the property.
This bill would instead require these entities to file an initial
registration form with the Attorney General, and would require the
Attorney General to adopt rules and regulations as to the contents of
that form and related procedures. The bill would make other
procedural changes relating to the means of payment of the annual
registration or renewal fee by other entities required to register
with the Attorney General's Registry of Charitable Trusts.
(5)
(9) Existing law provides a
specified procedure that requires the county board of supervisors,
upon the request of the county assessor or sheriff, to contract with
and employ legal counsel to assist the assessor or sheriff in the
performance of his or her duties in any case where the county counsel
or the district attorney would have a conflict of interest in
representing the assessor or sheriff, as defined.
This bill would revise this procedure and extend those provisions
to requests made by an assessor or sheriff after he or she leaves
office, under specified circumstances.
By imposing new duties on a county, this bill would impose a
state-mandated local program.
(10) Existing law allows a criminal
prosecution to be commenced by filing an accusatory pleading in
electronic form with the magistrate, or in a court having authority
to receive it, under specified conditions. Existing law also
authorizes a court to receive and file a notice of parking violation
or a notice to appear in electronic form under certain conditions.
This bill would revise and recast those conditions for the receipt
and filing of an accusatory pleading or a notice to appear in
electronic form.
(6)
(11) Existing law requires the juvenile court to conduct periodic
status review hearings every 6 months, and, in certain cases, to
terminate the parental rights to, and to order a permanent plan of
adoption or legal guardianship for, a dependent child of the juvenile
court.
This bill would allow the court to conduct those status review
hearings at any time earlier than 6 months, if in the best interest
of the child.
(12) Existing law provides for emergency
protective orders with respect to elder abuse, as specified. For
those purposes, existing law requires the respondent to be personally
served at least two days before the hearing on the protective order.
This bill would instead require at least five days service before
that hearing.
(7)
(13) The Administrative Office of the Courts
administers various court-related programs.
This bill would require the Administrative Office of the Courts to
expend all funds allocated for services to assist self-represented
litigants in proportion to the number of self-represented parties in
each county.
(14) 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: no yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 52.2 of the Civil Code is
amended to read:
52.2. An action pursuant to Section 52 or 54.3 may be brought in
any court of competent jurisdiction. A "court of competent
jurisdiction" shall include small claims court if the amount of the
damages sought in the action does not exceed the jurisdiction of the
small claims court for that person.
SEC. 2. Section 527.9 of the Code of Civil
Procedure is amended to read:
527.9. (a) A person subject to a temporary restraining order or
injunction issued pursuant to Section 527.6 or 527.8 of the Code of
Civil Procedure, or subject to a restraining order issued pursuant to
Section 136.2 of the Penal Code, or Section 15657.03 of the Welfare
and Institutions Code, shall relinquish the firearm pursuant to this
section.
(b) Upon issuance of a protective order described in subdivision
(a), the court shall order the person to relinquish any firearm in
that person's immediate possession or control, or subject to that
person's immediate possession or control, within 24 hours of being
served with the order, either by surrendering the firearm to the
control of local law enforcement officials, or by selling the firearm
to a licensed gun dealer, as specified in Section 12071 of the Penal
Code. A person ordered to relinquish any firearm pursuant to this
subdivision shall file with the court a receipt showing the firearm
was surrendered to the local law enforcement agency or sold to a
licensed gun dealer within 72 hours after receiving the order. In the
event that it is necessary to continue the date of any hearing due
to a request for a relinquishment order pursuant to this section, the
court shall ensure that all applicable protective orders described
in Section 6218 of the Family Code remain in effect or bifurcate the
issues and grant the permanent restraining order pending the date of
the hearing.
(c) A local law enforcement agency may charge the person subject
to the order or injunction a fee for the storage of any firearm
relinquished pursuant to this section. The fee shall not exceed the
actual cost incurred by the local law enforcement agency for the
storage of the firearm. For purposes of this subdivision, "actual
cost" means expenses directly related to taking possession of a
firearm, storing the firearm, and surrendering possession of the
firearm to a licensed dealer as defined in Section 12071 of the Penal
Code or to the person relinquishing the firearm.
(d) The restraining order requiring a person to relinquish a
firearm pursuant to subdivision (b) shall state on its face that the
respondent is prohibited from owning, possessing, purchasing, or
receiving a firearm while the protective order is in effect and that
the firearm shall be relinquished to the local law enforcement agency
for that jurisdiction or sold to a licensed gun dealer, and that
proof of surrender or sale shall be filed with the court within a
specified period of receipt of the order. The order shall also state
on its face the expiration date for relinquishment. Nothing in this
section shall limit a respondent's right under existing law to
petition the court at a later date for modification of the order.
(e) The restraining order requiring a person to relinquish a
firearm pursuant to subdivision (b) shall prohibit the person from
possessing or controlling any firearm for the duration of the order.
At the expiration of the order, the local law enforcement agency
shall return possession of any surrendered firearm to the respondent,
within five days after the expiration of the relinquishment order,
unless the local law enforcement agency determines that (1) the
firearm has been stolen, (2) the respondent is prohibited from
possessing a firearm because the respondent is in any prohibited
class for the possession of firearms, as defined in Sections 12021
and 12021.1 of the Penal Code and Sections 8100 and 8103 of the
Welfare and Institutions Code, or (3) another successive restraining
order is used against the respondent under this section. If the local
law enforcement agency determines that the respondent is the legal
owner of any firearm deposited with the local law enforcement agency
and is prohibited from possessing any firearm, the respondent shall
be entitled to sell or transfer the firearm to a licensed dealer as
defined in Section 12071 of the Penal Code. If the firearm has been
stolen, the firearm shall be restored to the lawful owner upon his or
her identification of the firearm and proof of ownership.
(f) The court may, as part of the relinquishment order, grant an
exemption from the relinquishment requirements of this section for a
particular firearm if the respondent can show that a particular
firearm is necessary as a condition of continued employment and that
the current employer is unable to reassign the respondent to another
position where a firearm is unnecessary. If an exemption is granted
pursuant to this subdivision, the order shall provide that the
firearm shall be in the physical possession of the respondent only
during scheduled work hours and during travel to and from his or her
place of employment. In any case involving a peace officer who as a
condition of employment and whose personal safety depends on the
ability to carry a firearm, a court may allow the peace officer to
continue to carry a firearm, either on duty or off duty, if the court
finds by a preponderance of the evidence that the officer does not
pose a threat of harm. Prior to making this finding, the court shall
require a mandatory psychological evaluation of the peace officer and
may require the peace officer to enter into counseling or other
remedial treatment program to deal with any propensity for domestic
violence.
(g) During the period of the relinquishment order, a respondent is
entitled to make one sale of all firearms that are in the possession
of a local law enforcement agency pursuant to this section. A
licensed gun dealer, who presents a local law enforcement agency with
a bill of sale indicating that all firearms owned by the respondent
that are in the possession of the local law enforcement agency have
been sold by the respondent to the licensed gun dealer, shall be
given possession of those firearms, at the location where a
respondent's firearms are stored, within five days of presenting the
local law enforcement agency with a bill of sale.
SECTION 1. Section 6450 of the Business
and Professions Code is amended to read:
6450. (a) "Paralegal" means a person who holds himself or herself
out to be a paralegal, who is qualified by education, training, or
work experience, who either contracts with or is employed by an
attorney, law firm, corporation, governmental agency, or other
entity, and who performs substantial legal work under the direction
and supervision of an active member of the State Bar of California,
as defined in Section 6060, or an attorney practicing law in the
federal courts of this state, that has been specifically delegated by
the attorney to him or her. Tasks performed by a paralegal include,
but are not limited to, case planning, development, and management;
legal research; interviewing clients; fact gathering and retrieving
information; drafting and analyzing legal documents; collecting,
compiling, and utilizing technical information to make an independent
decision and recommendation to the supervising attorney; and
representing clients before a state or federal administrative agency
if that representation is permitted by statute, court rule, or
administrative rule or regulation.
(b) Notwithstanding subdivision (a), a paralegal shall not do the
following:
(1) Provide legal advice.
(2) Represent a client in court.
(3) Select, explain, draft, or recommend the use of any legal
document to or for any person other than the attorney who directs and
supervises the paralegal.
(4) Act as a runner or capper, as defined in Sections 6151 and
6152.
(5) Engage in conduct that constitutes the unlawful practice of
law.
(6) Contract with, or be employed by, a natural person other than
an attorney to perform paralegal services.
(7) In connection with providing paralegal services, induce a
person to make an investment, purchase a financial product or
service, or enter a transaction from which income or profit, or both,
purportedly may be derived.
(8) Establish the fees to charge a client for the services the
paralegal performs, which shall be established by the attorney who
supervises the paralegal's work. This paragraph does not apply to
fees charged by a paralegal in a contract to provide paralegal
services to an attorney, law firm, corporation, governmental agency,
or other entity as provided in subdivision (a).
(c) A paralegal shall possess at least one of the following:
(1) A certificate of completion of a paralegal program approved by
the American Bar Association.
(2) A certificate of completion of a paralegal program at, or a
degree from, a postsecondary institution that requires the successful
completion of a minimum of 24 semester, or equivalent, units in
law-related courses and that has been accredited by a national or
regional accrediting organization or approved by the Bureau for
Private Postsecondary and Vocational Education.
(3) A baccalaureate degree or an advanced degree in any subject, a
minimum of one year of law-related experience under the supervision
of an attorney who has been an active member of the State Bar of
California for at least the preceding three years or who has
practiced in the federal courts of this state for at least the
preceding three years, and a written declaration from this attorney
stating that the person is qualified to perform paralegal tasks.
(4) A high school diploma or general equivalency diploma, a
minimum of three years of law-related experience under the
supervision of an attorney who has been an active member of the State
Bar of California for at least the preceding three years or who has
practiced in the federal courts of this state for at least the
preceding three years, and a written declaration from this attorney
stating that the person is qualified to perform paralegal tasks. This
experience and training shall be completed no later than December
31, 2003.
(d) All paralegals who are certified on or before December
31, 2006, shall be required to certify completion every three
years of four hours of mandatory continuing legal education in legal
ethics. All paralegals who are certified on or after January 1,
2007, shall be required to certify completion every two years of four
hours of mandatory continuing legal education in legal ethics.
All continuing legal education courses shall meet the requirements
of Section 6070. Every two years, all paralegals shall be required to
certify completion of four hours of mandatory continuing education
in either general law or in a specialized area of law. Certification
of these continuing education requirements shall be made with the
paralegal's supervising attorney. The paralegal shall be responsible
for keeping a record of the paralegal's certifications.
(e) A paralegal does not include a nonlawyer who provides legal
services directly to members of the public, or a legal document
assistant or unlawful detainer assistant as defined in Section 6400,
unless the person is a person described in subdivision (a).
(f) This section shall become operative on January 1, 2004.
SEC. 2. Section 2982 of the Civil Code
, as amended by Section 3 of Chapter 128 of the Statutes
of 2005, is amended to read:
2982. A conditional sale contract subject to this chapter shall
contain the disclosures required by Regulation Z, whether or not
Regulation Z applies to the transaction. In addition, to the extent
applicable, the contract shall contain the other disclosures and
notices required by, and shall satisfy the requirements and
limitations of, this section. The disclosures required by subdivision
(a) may be itemized or subtotaled to a greater extent than as
required by that subdivision and shall be made together and in the
sequence set forth in that subdivision. All other disclosures and
notices may appear in the contract in any location or sequence and
may be combined or interspersed with other provisions of the
contract.
(a) The contract shall contain the following disclosures, as
applicable, which shall be labeled "itemization of the amount
financed:"
(1) (A) The cash price, exclusive of document preparation fees,
business partnership automation fees, taxes imposed on the sale,
pollution control certification fees, prior credit or lease balance
on property being traded in, the amount charged for a service
contract, the amount charged for a theft deterrent system, the amount
charged for a surface protection product, the amount charged for an
optional debt cancellation agreement, and the amount charged for a
contract cancellation option agreement.
(B) The fee to be retained by the seller for document preparation.
(C) The fee charged by the seller for certifying that the motor
vehicle complies with applicable pollution control requirements.
(D) A charge for a theft deterrent device.
(E) A charge for a surface protection product.
(F) Taxes imposed on the sale.
(G) The amount of any optional business partnership automation fee
to register or transfer the vehicle, which shall be labeled
"Optional DMV Electronic Filing Fee."
(H) The amount charged for a service contract.
(I) The prior credit or lease balance remaining on property being
traded in, as required by paragraph (6). The disclosure required by
this subparagraph shall be labeled "prior credit or lease balance
(see downpayment and trade-in calculation)."
(J) Any charge for an optional debt cancellation agreement.
(K) Any charge for a used vehicle contract cancellation option
agreement.
(L) The total cash price, which is the sum of subparagraphs (A) to
(K), inclusive.
(M) The disclosures described in subparagraphs (D), (E), and (K)
are not required on contracts involving the sale of a motorcycle, as
defined in Section 400 of the Vehicle Code, or on contracts involving
the sale of an off-highway motor vehicle that is subject to
identification under Section 38010 of the Vehicle Code, and the
amounts of those charges, if any, are not required to be reflected in
the total price under subparagraph (L).
(2) Amounts paid to public officials for the following:
(A) Vehicle license fees.
(B) Registration, transfer, and titling fees.
(C) California tire fees imposed pursuant to Section 42885 of the
Public Resources Code.
(3) The aggregate amount of premiums agreed, upon execution of the
contract, to be paid for policies of insurance included in the
contract, excluding the amount of any insurance premium included in
the finance charge.
(4) The amount of the state fee for issuance of a certificate of
compliance, noncompliance, exemption, or waiver pursuant to any
applicable pollution control statute.
(5) A subtotal representing the sum of the foregoing items.
(6) The amount of the buyer's downpayment itemized to show the
following:
(A) The agreed value of the property being traded in.
(B) The prior credit or lease balance, if any, owing on the
property being traded in.
(C) The net agreed value of the property being traded in, which is
the difference between the amounts disclosed in subparagraphs (A)
and (B). If the prior credit or lease balance of the property being
traded in exceeds the agreed value of the property, a negative number
shall be stated.
(D) The amount of any portion of the downpayment to be deferred
until not later than the due date of the second regularly scheduled
installment under the contract and that is not subject to a finance
charge.
(E) The amount of any manufacturer's rebate applied or to be
applied to the downpayment.
(F) The remaining amount paid or to be paid by the buyer as a
downpayment.
(G) The total downpayment. If the sum of subparagraphs (C) to (F),
inclusive, is zero or more, that sum shall be stated as the total
downpayment and no amount shall be stated as the prior credit or
lease balance under subparagraph (I) of paragraph (1). If the sum of
subparagraphs (C) to (F), inclusive, is less than zero, then that
sum, expressed as a positive number, shall be stated as the prior
credit or lease balance under subparagraph (I) of paragraph (1), and
zero shall be stated as the total downpayment. The disclosure
required by this subparagraph shall be labeled "total downpayment"
and shall contain a descriptor indicating that if the total
downpayment is a negative number, a zero shall be disclosed as the
total downpayment and a reference made that the remainder shall be
included in the disclosure required pursuant to subparagraph (I) of
paragraph (1).
(7) The amount of any administrative finance charge, labeled
"prepaid finance charge."
(8) The difference between item (5) and the sum of items (6) and
(7), labeled "amount financed."
(b) No particular terminology is required to disclose the items
set forth in subdivision (a) except as expressly provided in that
subdivision.
(c) If payment of all or a portion of the downpayment is to be
deferred, the deferred payment shall be reflected in the payment
schedule disclosed pursuant to Regulation Z.
(d) If the downpayment includes property being traded in, the
contract shall contain a brief description of that property.
(e) The contract shall contain the names and addresses of all
persons to whom the notice required under Section 2983.2 and
permitted under Sections 2983.5 and 2984 is to be sent.
(f) (1) If the contract includes a finance charge determined on
the precomputed basis, the contract shall identify the method of
computing the unearned portion of the finance charge in the event of
prepayment in full of the buyer's obligation and contain a statement
of the amount or method of computation of any charge that may be
deducted from the amount of any unearned finance charge in computing
the amount that will be credited to the obligation or refunded to the
buyer. The method of computing the unearned portion of the finance
charge shall be sufficiently identified with a reference to the
actuarial method if the computation will be under that method. The
method of computing the unearned portion of the finance charge shall
be sufficiently identified with a reference to the Rule of 78's, the
sum of the digits, or the sum of the periodic time balances method in
all other cases, and those references shall be deemed to be
equivalent for disclosure purposes.
(2) If the contract includes a finance charge that is determined
on the simple-interest basis but provides for a minimum finance
charge in the event of prepayment in full, the contract shall contain
a statement of that fact and the amount of the minimum finance
charge or its method of calculation.
(g) (1) If the contract includes a finance charge that is
determined on the precomputed basis and provides that the unearned
portion of the finance charge to be refunded upon full prepayment of
the contract is to be determined by a method other than actuarial,
the contract shall contain a notice, in at least 10-point boldface
type if the contract is printed, reading as follows: "Notice to
buyer: (1) Do not sign this agreement before you read it or if it
contains any blank spaces to be filled in. (2) You are entitled to a
completely filled-in copy of this agreement. (3) You can prepay the
full amount due under this agreement at any time and obtain a partial
refund of the finance charge if it is $1 or more. Because of the way
the amount of this refund will be figured, the time when you prepay
could increase the ultimate cost of credit under this agreement. (4)
If you default in the performance of your obligations under this
agreement, the vehicle may be repossessed and you may be subject to
suit and liability for the unpaid indebtedness evidenced by this
agreement."
(2) If the contract includes a finance charge that is determined
on the precomputed basis and provides for the actuarial method for
computing the unearned portion of the finance charge upon prepayment
in full, the contract shall contain a notice, in at least 10-point
boldface type if the contract is printed, reading as follows: "Notice
to buyer: (1) Do not sign this agreement before you read it or if
it contains any blank spaces to be filled in. (2) You are entitled to
a completely filled-in copy of this agreement. (3) You can prepay
the full amount due under this agreement at any time and obtain a
partial refund of the finance charge if it is $1 or more. (4) If you
default in the performance of your obligations under this agreement,
the vehicle may be repossessed and you may be subject to suit and
liability for the unpaid indebtedness evidenced by this agreement."
(3) If the contract includes a finance charge that is determined
on the simple-interest basis, the contract shall contain a notice, in
at least 10-point boldface type if the contract is printed, reading
as follows: "Notice to buyer: (1) Do not sign this agreement before
you read it or if it contains any blank spaces to be filled in. (2)
You are entitled to a completely filled-in copy of this agreement.
(3) You can prepay the full amount due under this agreement at any
time. (4) If you default in the performance of your obligations under
this agreement, the vehicle may be repossessed and you may be
subject to suit and liability for the unpaid indebtedness evidenced
by this agreement."
(h) The contract shall contain a notice in at least 8-point
boldface type, acknowledged by the buyer, that reads as follows:
"If you have a complaint concerning this sale, you should try to
resolve it with the seller.
Complaints concerning unfair or deceptive practices or methods by
the seller may be referred to the city attorney, the district
attorney, or an investigator for the Department of Motor Vehicles, or
any combination thereof.
After this contract is signed, the seller may not change the
financing or payment terms unless you agree in writing to the change.
You do not have to agree to any change, and it is an unfair or
deceptive practice for the seller to make a unilateral change.
------------------------------
Buyer ' s Signature"
(i) (1) The contract shall contain an itemization of any insurance
included as part of the amount financed disclosed pursuant to
paragraph (3) of subdivision (a) and of any insurance included as
part of the finance charge. The itemization shall identify the type
of insurance coverage and the premium charged therefor, and, if the
insurance expires before the date of the last scheduled installment
included in the repayment schedule, the term of the insurance shall
be stated.
(2) If any charge for insurance, other than for credit life or
disability, is included in the contract balance and disbursement of
any part thereof is to be made more than one year after the date of
the conditional sale contract, any finance charge on the amount to be
disbursed after one year shall be computed from the month the
disbursement is to be made to the due date of the last installment
under the conditional sale contract.
(j) (1) Except for contracts in which the finance charge or
portion thereof is determined by the simple-interest basis and the
amount financed disclosed pursuant to paragraph (8) of subdivision
(a) is more than two thousand five hundred dollars ($2,500), the
dollar amount of the disclosed finance charge may not exceed the
greater of:
(A) (i) One and one-half percent on so much of the unpaid balance
as does not exceed two hundred twenty-five dollars ($225), 11/6
percent on so much of the unpaid balance in excess of two hundred
twenty-five dollars ($225) as does not exceed nine hundred dollars
($900) and five-sixths of 1 percent on so much of the unpaid balance
in excess of nine hundred dollars ($900) as does not exceed two
thousand five hundred dollars ($2,500).
(ii) One percent of the entire unpaid balance; multiplied in
either case by the number of months (computed on the basis of a full
month for any fractional month period in excess of 15 days) elapsing
between the date of the contract and the due date of the last
installment.
(B) If the finance charge is determined by the precomputed basis,
twenty-five dollars ($25).
(C) If the finance charge or a portion thereof is determined by
the simple-interest basis:
(i) Twenty-five dollars ($25) if the unpaid balance does not
exceed one thousand dollars ($1,000).
(ii) Fifty dollars ($50) if the unpaid balance exceeds one
thousand dollars ($1,000) but does not exceed two thousand dollars
($2,000).
(iii) Seventy-five dollars ($75) if the unpaid balance exceeds two
thousand dollars ($2,000).
(2) The holder of the contract may not charge, collect, or receive
a finance charge that exceeds the disclosed finance charge, except
to the extent (A) caused by the holder's receipt of one or more
payments under a contract that provides for determination of the
finance charge or a portion thereof on the 365-day basis at a time or
times other than as originally scheduled whether or not the parties
enter into an agreement pursuant to Section 2982.3, (B) permitted by
paragraph (2), (3), or (4) of subdivision (c) of Section 226.17 of
Regulation Z, or (C) permitted by subdivisions (a) and (c) of Section
2982.8.
(3) If the finance charge or a portion
thereof is determined by the simple-interest basis and the amount of
the unpaid balance exceeds five thousand dollars ($5,000), the holder
of the contract may, in lieu of its right to a minimum finance
charge under subparagraph (C) of paragraph (1), charge, receive, or
collect on the date of the contract an administrative finance charge
not to exceed seventy-five dollars ($75), provided that the sum of
the administrative finance charge and the portion of the finance
charge determined by the simple-interest basis shall not exceed the
maximum total finance charge permitted by subparagraph (A) of
paragraph (1). Any administrative finance charge that is charged,
received, or collected by a holder shall be deemed a finance charge
earned on the date of the contract.
(4) If a contract provides for unequal or irregular payments, or
payments on other than a monthly basis, the maximum finance charge
shall be at the effective rate provided for in paragraph (1), having
due regard for the schedule of installments.
(k) The contract may provide that for each installment in default
for a period of not less than 10 days the buyer shall pay a
delinquency charge in an amount not to exceed in the aggregate 5
percent of the delinquent installment, which amount may be collected
only once on any installment regardless of the period during which it
remains in default. Payments timely received by the seller under an
extension or deferral agreement may not be subject to a delinquency
charge unless the charge is permitted by Section 2982.3. The contract
may provide for reasonable collection costs and fees in the event of
delinquency.
(l) Notwithstanding any provision of a contract to the contrary,
the buyer may pay at any time before maturity the entire indebtedness
evidenced by the contract without penalty. In the event of
prepayment in full:
(1) If the finance charge was determined on the precomputed basis,
the amount required to prepay the contract shall be the outstanding
contract balance as of that date, provided, however, that the buyer
shall be entitled to a refund credit in the amount of the unearned
portion of the finance charge, except as provided in paragraphs (3)
and (4). The amount of the unearned portion of the finance charge
shall be at least as great a proportion of the finance charge,
including any additional finance charge imposed pursuant to Section
2982.8 or other additional charge imposed because the contract has
been extended, deferred, or refinanced, as the sum of the periodic
monthly time balances payable more than 15 days after the date of
prepayment bears to the sum of all the periodic monthly time balances
under the schedule of installments in the contract or, if the
contract has been extended, deferred, or refinanced, as so extended,
deferred, or refinanced. If the amount of the refund credit is less
than one dollar ($1), no refund credit need be made by the holder.
Any refund credit may be made in cash or credited to the outstanding
obligations of the buyer under the contract.
(2) If the finance charge or a portion thereof was determined on
the simple-interest basis, the amount required to prepay the contract
shall be the outstanding contract balance as of that date, including
any earned finance charges that are unpaid as of that date and, if
applicable, the amount provided in paragraph (3), and provided
further that in cases where a finance charge is determined on the
360-day basis, the payments theretofore received will be assumed to
have been received on their respective due dates regardless of the
actual dates on which the payments were received.
(3) Where the minimum finance charge provided by subparagraph (B)
or subparagraph (C) of paragraph (1) of subdivision (j), if either is
applicable, is greater than the earned finance charge as of the date
of prepayment, the holder shall be additionally entitled to the
difference.
(4) The provisions of this subdivision may not impair the right of
the seller or the seller's assignee to receive delinquency charges
on delinquent installments and reasonable costs and fees as provided
in subdivision (k) or extension or deferral agreement charges as
provided in Section 2982.3.
(5) Notwithstanding any provision of a contract to the contrary,
whenever the indebtedness created by any contract is satisfied prior
to its maturity through surrender of the motor vehicle, repossession
of the motor vehicle, redemption of the motor vehicle after
repossession, or any judgment, the outstanding obligation of the
buyer shall be determined as provided in paragraph (1) or (2).
Notwithstanding, the buyer's outstanding obligation shall be computed
by the holder as of the date the holder recovers the value of the
motor vehicle through disposition thereof or judgment is entered or,
if the holder elects to keep the motor vehicle in satisfaction of the
buyer's indebtedness, as of the date the holder takes possession of
the motor vehicle.
(m) Notwithstanding any other provision of this chapter to the
contrary, any information required to be disclosed in a conditional
sale contract under this chapter may be disclosed in any manner,
method, or terminology required or permitted under Regulation Z, as
in effect at the time that disclosure is made, except that permitted
by paragraph (2) of subdivision (c) of Section 226.18 of Regulation
Z, provided that all of the requirements and limitations set forth in
subdivision (a) of this section are satisfied. This chapter does not
prohibit the disclosure in that contract of additional information
required or permitted under Regulation Z, as in effect at the time
that disclosure is made.
(n) If the seller imposes a fee for document preparation, the
contract shall contain a disclosure that the fee is not a
governmental fee.
(o) A seller may not impose an application fee for a transaction
governed by this chapter.
(p) The seller or holder may charge and collect a fee not to
exceed fifteen dollars ($15) for the return by a depository
institution of a dishonored check, negotiated order of withdrawal, or
share draft issued in connection with the contract, if the contract
so provides or if the contract contains a generalized statement that
the buyer may be liable for collection costs incurred in connection
with the contract.
(q) The contract shall disclose on its face, by printing the word
"new" or "used" within a box outlined in red, that is not smaller
than one-half inch high and one-half inch wide, whether the vehicle
is sold as a new vehicle, as defined in Section 430 of the Vehicle
Code, or as a used vehicle, as defined in Section 665 of the Vehicle
Code.
(r) The contract shall contain a notice with a heading in at least
12-point bold type and the text in at least 10-point bold type,
circumscribed by a line, immediately above the contract signature
line, that reads as follows:
THERE IS NO COOLING-OFF PERIOD UNLESS
YOU
OBTAIN A CONTRACT CANCELLATION
OPTION.
California law does not provide for a
"cooling-off" or other cancellation period
for vehicle sales. Therefore, you cannot
later cancel this contract simply because you
change your mind, decide the vehicle costs
too much, or wish you had acquired a
different vehicle. After you sign
below, you may only cancel this contract with
the agreement of the seller or for legal
cause, such as
fraud.
However, California law does require a seller
to offer a 2-day contract cancellation option
on used vehicles with a purchase price of
less than $40,000, subject to certain
statutory conditions. This contract
cancellation option requirement does not
apply to the sale of a
recreational vehicle, a
motorcycle , or an off-highway motor vehicle
subject to identification under California
law. See the vehicle contract cancellation
option agreement for details.
SEC. 3. Section 209 of the Code of
Civil Procedure , as amended by Section 28 of Chapter 75
of the Statutes of 2005, is amended to read:
209. (a) Any prospective trial juror who has been summoned for
service, and who fails to attend as directed or to respond to the
court or jury commissioner and to be excused from attendance, may be
attached and compelled to attend. Following an order to show cause
hearing, the court may find the prospective juror in contempt of
court, punishable by fine, incarceration, or both, as otherwise
provided by law.
(b) In lieu of imposing sanctions for contempt as set forth in
subdivision (a), the court may impose reasonable monetary sanctions,
as provided in this subdivision, on a prospective juror who has not
been excused pursuant to Section 204 after first providing the
prospective juror with notice and an opportunity to be heard. If a
juror fails to respond to the initial summons within 12 months, the
court may issue a second summons indicating that the person failed to
appear in response to a previous summons and ordering the person to
appear for jury duty. Upon the failure of the juror to appear in
response to the second summons, the court may issue a failure to
appear notice informing the person that failure to respond may result
in the imposition of money sanctions. If the prospective juror does
not attend the court within the time period as directed by the
failure to appear notice, the court shall issue an order to show
cause. Payment of monetary sanctions imposed pursuant to this
subdivision does not relieve the person of his or her obligation to
perform jury duty.
(c) (1) The court may give notice of its intent to impose
sanctions by either of the following means:
(A) Verbally to a prospective juror appearing in person in open
court.
(B) The issuance on its own motion of an order to show cause
requiring the prospective juror to demonstrate reasons for not
imposing sanctions. The court may serve the order to show cause by
certified or first-class mail.
(2) The monetary sanctions imposed pursuant to subdivision (b) may
not exceed two hundred fifty dollars ($250) for the first violation,
seven hundred fifty dollars ($750) for the second violation, and one
thousand five hundred dollars ($1,500) for the third and any
subsequent violation. Monetary sanctions may not be imposed on a
prospective juror more than once during a single juror pool cycle.
The prospective juror may be excused from paying sanctions pursuant
to subdivision (b) of Section 204 or in the interests of justice. The
full amount of any sanction paid shall be deposited in a bank
account established for this purpose by the Administrative Office of
the Courts and transmitted from that account monthly to the
Controller for deposit in the Trial Court Trust Fund, as provided in
Section 68085.1 of the Government Code. It is the intent of the
Legislature that the funds derived from the monetary sanctions
authorized in this section be allocated, to the extent feasible, to
the family courts and the civil courts. The Judicial Council shall,
by rule, provide for a procedure by which a prospective juror against
whom a sanction has been imposed by default may move to set aside
the default.
(d) On or before December 31, 2005, the Judicial Council shall
report to the Legislature regarding the effects of the implementation
of subdivisions (b) and (c). The report shall include, but not be
limited to, information regarding any change in rates of response to
juror summons, the amount of moneys collected pursuant to subdivision
(c), the efficacy of the default procedures adopted in rules of
court, and how, if at all, the Legislature may wish to alter this
chapter to further attainment of its objectives.
(e) This section shall remain in effect only until January 1,
2007, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2007, deletes or extends
that date.
SEC. 4. Section 209 of the Code of
Civil Procedure , as added by Section 2 of Chapter 359 of
the Statutes of 2003, is repealed.
209. Any prospective trial juror who has been summoned for
service, and who fails to attend the court as directed or to respond
to the court or jury commissioner and to be excused from attendance,
may be attached and compelled to attend. Following an order to show
cause hearing, the court may find the prospective juror in contempt
of court, punishable by fine, incarceration, or both, as otherwise
provided by law.
This section shall become operative on January 1, 2007.
SEC. 3. SEC. 5. Section 1276 of the
Code of Civil Procedure is amended to read:
1276. (a) All applications for change of names shall be made to
the superior court of the county where the person whose name is
proposed to be changed resides, except as specified in subdivision
(e), either (1) by petition signed by the person or, if the person is
under 18 years of age, either by one of the person's parents, or by
any guardian of the person, or if both parents are dead and there is
no guardian of the person, then by some near relative or friend of
the person or (2) as provided in Section 7638 of the Family Code.
The petition or pleading shall specify the place of birth and
residence of the person, his or her present name, the name proposed,
and the reason for the change of name.
(b) In a proceeding for a change of name commenced by the filing
of a petition, if the person whose name is to be changed is under 18
years of age, the petition shall, if neither parent of the person has
signed the petition, name, as far as known to the person proposing
the name change, the parents of the person and their place of
residence, if living, or if neither parent is living, near relatives
of the person, and their place of residence.
(c) In a proceeding for a change of name commenced by the filing
of a petition, if the person whose name is proposed to be changed is
under 18 years of age and the petition is signed by only one parent,
the petition shall specify the address, if known, of the other parent
if living. If the petition is signed by a guardian, the petition
shall specify the name and address, if known, of the parent or
parents, if living, or the grandparents, if the addresses of both
parents are unknown or if both parents are deceased, of the person
whose name is proposed to be changed.
(d) In a proceeding for a change of name commenced by the filing
of a petition, if the person whose name is proposed to be changed is
12 years of age or older, has been relinquished to an adoption agency
by his or her parent or parents, and has not been legally adopted,
the petition shall be signed by the person and the adoption agency to
which the person was relinquished. The near relatives of the person
and their place of residence shall not be included in the petition
unless they are known to the person whose name is proposed to be
changed.
(e) All petitions for the change of the name of a minor submitted
by a guardian appointed by the juvenile court or the probate court
shall be made in the appointing court.
(f) If the petition is signed by a guardian, the petition shall
specify relevant information regarding the guardianship, the
likelihood that the child will remain under the guardian's care until
the child reaches the age of majority, and information suggesting
that the child will not likely be returned to the custody of his or
her parents.
SEC. 4. SEC. 6. Section 1277 of the
Code of Civil Procedure is amended to read:
1277. (a) If a proceeding for a change of name is commenced by
the filing of a petition, except as provided in subdivisions (b) and
(e), the court shall thereupon make an order reciting the filing of
the petition, the name of the person by whom it is filed, and the
name proposed. The order shall direct all persons interested in the
matter to appear before the court at a time and place specified,
which shall be not less than six or more than 12 weeks from the time
of making the order, unless the court orders a different time, to
show cause why the application for change of name should not be
granted. The order shall direct all persons interested in the matter
to make known any objection that they may have to the granting of the
petition for change of name by filing a written objection, which
includes the reasons for the objection, with the court at least two
court days before the matter is scheduled to be heard and by
appearing in court at the hearing to show cause why the petition for
change of name should not be granted. The order shall state that, if
no written objection is timely filed, the court may grant the
petition without a hearing.
A copy of the order to show cause shall be published pursuant to
Section 6064 of the Government Code in a newspaper of general
circulation to be designated in the order published in the county. If
no newspaper of general circulation is published in the county, a
copy of the order to show cause shall be posted by the clerk of the
court in three of the most public places in the county in which the
court is located, for a like period. Proof shall be made to the
satisfaction of the court of this publication or posting, at the time
of the hearing of the application.
Four weekly publications shall be sufficient publication of the
order to show cause. If the order is published in a daily newspaper,
publication once a week for four successive weeks shall be
sufficient.
If a petition has been filed for a minor by a parent and the other
parent, if living, does not join in consenting thereto, the
petitioner shall cause, not less than 30 days prior to the hearing,
to be served notice of the time and place of the hearing or a copy of
the order to show cause on the other parent pursuant to Section
413.10, 414.10, 415.10, or 415.40. If notice of the hearing cannot
reasonably be accomplished pursuant to Section 415.10 or 415.40, the
court may order that notice be given in a manner that the court
determines is reasonably calculated to give actual notice to the
nonconsenting parent. For good cause, the court may determine that
publication of the order to show cause pursuant to this subdivision
is sufficient notice to the nonconsenting parent.
(b) If the petition for a change of name alleges that the reason
for the petition is to avoid domestic violence, as defined in Section
6211 of the Family Code, or stalking, as defined in Section 646.9 of
the Penal Code, and the petitioner is a participant in the address
confidentiality program created pursuant to Chapter 3.1 (commencing
with Section 6205) of Division 7 of Title 1 of the Government Code,
the petition, the order of the court, and the copy published pursuant
to subdivision (a) shall, in lieu of reciting the proposed name,
indicate that the proposed name is confidential and will be on file
with the Secretary of State pursuant to the provisions of the address
confidentiality program.
(c) A proceeding for a change of name for a witness participating
in the state Witness Protection Program established by Title 7.5
(commencing with Section 14020) of Part 4 of the Penal Code who has
been approved for the change of name by the program is exempt from
the requirement for publication of the order to show cause under
subdivision (a).
(d) If application for change of name is brought as part of an
action under the Uniform Parentage Act (Part 3 (commencing with
Section 7600) of Division 12 of the Family Code), whether as part of
a petition or cross-complaint or as a separate order to show cause in
a pending action thereunder, service of the application shall be
made upon all other parties to the action in a like manner as
prescribed for the service of a summons, as is set forth in Article 3
(commencing with Section 415.10) of Chapter 4 of Title 5 of Part 2.
Upon the setting of a hearing on the issue, notice of the hearing
shall be given to all parties in the action in a like manner and
within the time limits prescribed generally for the type of hearing
(whether trial or order to show cause) at which the issue of the
change of name is to be decided.
(e) If a guardian files a petition to change the name of his or
her minor ward pursuant to Section 1276:
(1) The guardian shall provide notice of the hearing to any living
parent of the minor by personal service at least 30 days prior to
the hearing.
(2) If either or both parents are deceased or cannot be located,
the guardian shall cause, not less than 30 days prior to the hearing,
to be served a notice of the time and place of the hearing or a copy
of the order to show cause on the child's grandparents, if living,
pursuant to Section 413.10, 414.10, 415.10, or 415.40.
SEC. 5. SEC. 7. Section 1278 of the
Code of Civil Procedure is amended to read:
1278. (a) Except as provided in subdivisions (c) and (d), the
petition or application shall be heard at the time designated by the
court, only if objections are filed by any person who can, in those
objections, show to the court good reason against the change of name.
At the hearing, the court may examine on oath any of the
petitioners, remonstrants, or other persons, touching the petition or
application, and may make an order changing the name, or dismissing
the petition or application, as to the court may seem right and
proper.
If no objection is filed at least two court days before the date
set for hearing, the court may, without hearing, enter the order that
the change of name is granted.
(b) If the provisions of subdivision (b) of Section 1277 apply,
the court shall not disclose the proposed name unless the court finds
by clear and convincing evidence that the allegations of domestic
violence or stalking in the petition are false.
(c) If the application for a change of name is brought as part of
an action under the Uniform Parentage Act (Part 3 (commencing with
Section 7600) of Division 12 of the Family Code), the hearing on the
issue of the change of name shall be conducted pursuant to statutes
and rules of court governing those proceedings, whether the hearing
is conducted upon an order to show cause or upon trial.
(d) If the petition for a change of name is filed by a guardian on
behalf of a minor ward, the court shall first find that the ward is
likely to remain in the guardian's care until the age of majority and
that the ward is not likely to be returned to the custody of his or
her parents. Upon making those findings, the court shall consider the
petition and may grant the petition only if it finds that the
proposed name change is in the best interest of the child.
SEC. 6. SEC. 8. Section 1278.5 of
the Code of Civil Procedure is amended to read:
1278.5. In any proceeding pursuant to this title in which a
petition has been filed to change the name of a minor, and both
parents, if living, do not join in consent, the court may deny the
petition in whole or in part if it finds that any portion of the
proposed name change is not in the best interest of the child.
SEC. 7. SEC. 9. Section 1279.5 of
the Code of Civil Procedure is amended to read:
1279.5. (a) Except as provided in subdivision (b), (c), (d), or
(e), nothing in this title shall be construed to abrogate the common
law right of any person to change his or her name.
(b) Notwithstanding any other law, no person imprisoned in the
state prison and under the jurisdiction of the Director of
Corrections shall be allowed to file a petition for change of name
pursuant to Section 1276, except as permitted at the discretion of
the Director of Corrections.
(c) A court shall deny a petition for a name change pursuant to
Section 1276 made by a person who is under the jurisdiction of the
Department of Corrections, unless that person's parole agent or
probation officer grants prior written approval. Before granting that
approval, the parole agent or probation officer shall determine that
the name change will not pose a security risk to the community.
(d) Notwithstanding any other law, a court shall deny a petition
for a name change pursuant to Section 1276 made by a person who is
required to register as a sex offender under Section 290 of the Penal
Code, unless the court determines that it is in the best interest of
justice to grant the petition and that doing so will not adversely
affect the public safety. If a petition for a name change is granted
for an individual required to register as a sex offender, the
individual shall, within five working days, notify the chief of
police of the city in which he or she is domiciled, or the sheriff of
the county if he or she is domiciled in an unincorporated area, and
additionally with the chief of police of a campus of a University of
California or California State University if he or she is domiciled
upon the campus or in any of its facilities.
(e) For the purpose of this section, the court shall use the
California Law Enforcement Telecommunications System (CLETS) and
Criminal Justice Information System (CJIS) to determine whether or
not an applicant for a name change is under the jurisdiction of the
Department of Corrections or is required to register as a sex
offender pursuant to Section 290 of the Penal Code. Each person
applying for a name change shall declare under penalty of perjury
that he or she is not under the jurisdiction of the Department of
Corrections or is required to register as a sex offender pursuant to
Section 290 of the Penal Code. If a court is not equipped with CLETS
or CJIS, the clerk of the court shall contact an appropriate local
law enforcement agency, which shall determine whether or not the
petitioner is under the jurisdiction of the Department of Corrections
or is required to register as a sex offender pursuant to Section 290
of the Penal Code.
SEC. 10. Section 5220 of the
Corporations Code is amended to read:
5220. (a) Except as provided in subdivision (d), directors shall
be elected for such the terms, not
longer than three four years, as are
fixed in the articles or bylaws. However, the terms of directors of a
corporation without members may be up to six years. In the absence
of any provision in the articles or bylaws, the term shall be one
year. The articles or bylaws may provide for staggering the terms of
directors by dividing the total number of directors into groups of
one or more directors. The terms of office of the several groups and
the number of directors in
each group need not be uniform. No amendment of the articles or
bylaws may extend the term of a director beyond that for which the
director was elected, nor may any bylaw provision increasing the
terms of directors be adopted without approval of the members
(Section 5034).
(b) Unless the articles or bylaws otherwise provide, each
director, including a director elected to fill a vacancy, shall hold
office until the expiration of the term for which elected and until a
successor has been elected and qualified.
(c) The articles or bylaws may provide for the election of one or
more directors by the members of any class voting as a class.
(d) Subdivisions (a) through (c) notwithstanding, all or any
portion of the directors authorized in the articles or bylaws of a
corporation may hold office by virtue of designation or selection as
provided by the articles or bylaws rather than by election by a
member or members. Such directors shall continue in office for the
term prescribed by the governing article or bylaw provision, or, if
there is no term prescribed, until the governing article or bylaw
provision is duly amended or repealed, except as provided in
subdivision (e) of Section 5222. A bylaw provision authorized by this
subdivision may be adopted, amended, or repealed only by approval of
the members (Section 5034), subject, if so provided in the bylaws,
to the consent of the person or persons entitled to designate or
select any such director or directors.
(e) If a corporation has not issued memberships and (1) all the
directors resign, die, or become incompetent, or (2) a corporation's
initial directors have not been named in the articles and all
incorporators resign, die, or become incompetent before the election
of the initial directors, the superior court of any county may
appoint directors of the corporation upon application by any party in
interest.
SEC. 11. Section 2103 of the Family
Code is amended to read:
2103. In order to provide full and accurate disclosure of all
assets and liabilities in which one or both parties may have an
interest, each party to who has appeared in
a proceeding for dissolution of the marriage or legal
separation of the parties shall serve on the other party a
preliminary declaration of disclosure under Section 2104 and a final
declaration of disclosure under Section 2105, unless service of the
final declaration of disclosure is waived pursuant to Section 2105 or
2110, and shall file proof of service of each with the court.
SEC. 12. Section 2104 of the Family
Code is amended to read:
2104. (a) After Except by court order for
good cause as provided in Section 2107, after or concurrently
with service of the petition for dissolution or nullity of marriage
or legal separation of the parties, each party shall serve on the
other party a preliminary declaration of disclosure, executed under
penalty of perjury on a form prescribed by the Judicial Council. The
commission of perjury on the preliminary declaration of disclosure
may be grounds for setting aside the judgment, or any part or parts
thereof, pursuant to Chapter 10 (commencing with Section 2120), in
addition to any and all other remedies, civil or criminal, that
otherwise are available under law for the commission of perjury.
(b) The preliminary declaration of disclosure shall not be filed
with the court, except on court order ; however
. However , the parties shall file proof of service of the
preliminary declaration of disclosure with the court.
(c) The preliminary declaration of disclosure shall set forth with
sufficient particularity, that a person of reasonable and ordinary
intelligence can ascertain, all of the following:
(1) The identity of all assets in which the declarant has or may
have an interest and all liabilities for which the declarant is or
may be liable, regardless of the characterization of the asset or
liability as community, quasi-community, or separate.
(2) The declarant's percentage of ownership in each asset and
percentage of obligation for each liability where property is not
solely owned by one or both of the parties. The preliminary
declaration may also set forth the declarant's characterization of
each asset or liability.
(d) A declarant may amend his or her preliminary declaration of
disclosure without leave of the court. Proof of service of any
amendment shall be filed with the court.
(e) Along with the preliminary declaration of disclosure, each
party shall provide the other party with a completed income and
expense declaration unless an income and expense declaration has
already been provided and is current and valid.
SEC. 13. Section 2106 of the Family
Code is amended to read:
2106. Except as provided in subdivision (d) of Section 2105
or in , Section 2110, or
absent good cause as provided in Section 2107 , no
judgment shall be entered with respect to the parties' property
rights without each party, or the attorney for that party in this
matter, having executed and served a copy of the final declaration of
disclosure and current income and expense declaration. Each party,
or his or her attorney, shall execute and file with the court a
declaration signed under penalty of perjury stating that service of
the final declaration of disclosure and current income and expense
declaration was made on the other party or that service of the final
declaration of disclosure has been waived pursuant to subdivision (d)
of Section 2105 or in Section 2110.
SEC. 14. Section 2107 of the Family
Code is amended to read:
2107. (a) If one party fails to serve on the other party a
preliminary declaration of disclosure under Section 2104 or a final
declaration of disclosure under Section 2105, or fails to provide the
information required in the respective declarations with sufficient
particularity, and if the other party has served the respective
declaration of disclosure on the noncomplying party, the complying
party may, within a reasonable time, request preparation of the
appropriate declaration of disclosure or further particularity.
(b) If the noncomplying party fails to comply with a request under
subdivision (a), the complying party may do either
one or both more
of the following:
(1) File a motion to compel a further response.
(2) File a motion for an order preventing the noncomplying party
from presenting evidence on issues that should have been covered in
the declaration of disclosure.
(3) File a motion showing good cause for the court to grant the
complying party's voluntary waiver of receipt of the noncomplying
party's preliminary declaration of disclosure under Section 2104 or
final declaration of disclosure under Section 2105. The voluntary
waiver does not affect the right of either party to request the court
to set aside the judgment as provided in subdivision (d).
(c) If a party fails to comply with any provision of this chapter,
the court shall, in addition to any other remedy provided by law,
impose money sanctions against the noncomplying party. Sanctions
shall be in an amount sufficient to deter repetition of the conduct
or comparable conduct, and shall include reasonable attorney's fees,
costs incurred, or both, unless the court finds that the noncomplying
party acted with substantial justification or that other
circumstances make the imposition of the sanction unjust.
(d) If Except as otherwise provided in
this subdivision, if a court enters a judgment when the parties
have failed to comply with all disclosure requirements of this
chapter, the court shall set aside the judgment. The failure to
comply with the disclosure requirements does not constitute harmless
error. If the court granted the complying party's voluntary
waiver of receipt of the noncomplying party's preliminary declaration
of disclosure pursuant to paragraph (3) of subdivision (b), the
court shall set aside the judgment only at the request of the
complying party.
(e) Upon the motion to set aside judgment, the court may order the
parties to provide the preliminary and final declarations of
disclosure that were exchanged between them. Absent a court order to
the contrary, the disclosure declarations shall not be filed with the
court and shall be returned to the parties.
SEC. 15. Section 3150.2 is added to the
Family Code , to read:
3150.2. (a) In order to ensure a high quality of expertise for
appointed private counsel for minors, each court shall, on or before
January 1, 2008, create a minor's counsel panel of attorneys meeting
the minimum qualifications set forth below, for appointment in case
proceedings under this division requiring minor's counsel.
(b) Court-approved minor's counsel shall provide verification of
all of the following:
(1) Licensure as an attorney for at least three years during which
time period at least 50 percent of the attorney's practice was
devoted to family law with substantial emphasis in custody cases.
(2) A minimum of eight hours of training per year, accredited for
mandatory continuing legal education and offered by the Judicial
Council, State Bar, a local bar association, the court, or any other
group in subjects specifically relating to the representation of
children.
(3) Professional liability insurance.
(c) Each court, subject to the exceptions in subdivision (e),
shall maintain a list of attorneys who meet the qualifications in
subdivision (b). A qualified attorney shall provide verification of
his or her meeting the qualification requirements to the court and
annually certify to the court the following:
(1) Current licensure in good standing and proof of liability
insurance.
(2) Completion of eight hours per year of accredited continuing
education in the area of custody and representing children.
(d) Each attorney appointed to represent minors shall notify the
court within five days of any public or private disciplinary
proceeding by the State Bar, or any removal for cause pursuant to
Section 3150.4, stating the basis of the complaint and, when
available, the result of the proceeding.
(e) A court may appoint an attorney not on the court-approved
minor's counsel panel in special circumstances, taking into
consideration factors such as language, culture, special needs of
children, other specialized training of the attorney, unless
appointment from outside the panel is otherwise prohibited by a local
rule of court.
(f) In counties where the attorney population or expertise does
not make the creation of a panel possible, each court is encouraged
to form a partnership or regional panel of qualified attorneys
willing to be appointed in the courts participating in that regional
endeavor.
(g) The Judicial Council may, on or before June 30, 2011, report
to the Legislature on the number of appointed counsel removed for
cause or who have had disciplinary proceedings instituted against
them and the results of those actions.
(h) This section shall remain in effect only until January 1,
2012, and as of that date is repealed unless a later enacted statute,
that is enacted before January 1, 2012, deletes or extends that
date.
SEC. 16. Section 3150.4 is added to the
Family Code , to read:
3150.4. (a) If the court has appointed private counsel to
represent the best interest of the child pursuant to Section 3150, a
parent or a party to the proceeding may request that the court
terminate the appointment of the counsel or resolve any complaint by
the parent or party regarding the actions of the appointed counsel.
(b) That request shall be by noticed motion to the appointing
court. The motion shall include a declaration under penalty of
perjury by the moving party stating the basis for the request. The
motion shall be filed and served in the same manner and time limits
as any other family law motion.
(c) Private counsel appointed by the court pursuant to Section
3150.2, meeting the requirements set forth in subdivision (b) of
Section 3150.2, and not retained by one party to advocate for the
child, shall be entitled to quasi-judicial immunity for any
communications or conduct during the course of counsel's duties as
counsel for the minor child from the date of appointment until the
order relieving counsel from that appointment. Quasi-judicial
immunity provided herein is the same as that provided to
court-appointed mediators, investigators, and evaluators by case law.
(d) This section shall remain in effect only until January 1,
2012, and as of that date is repealed unless a later enacted statute,
that is enacted before January 1, 2012, deletes or extends that
date.
SEC. 8. SEC. 17. Section 12585 of
the Government Code is amended to read:
12585. (a) Every charitable corporation, unincorporated
association, and trustee subject to this article shall file with the
Attorney General an initial registration form, under oath, setting
forth information and attaching documents prescribed in accordance
with rules and regulations of the Attorney General, within 30 days
after the corporation, unincorporated association, or trustee
initially receives property. A trustee is not required to register as
long as the charitable interest in a trust is a future interest, but
shall do so within 30 days after any charitable interest in a trust
becomes a present interest.
(b) The Attorney General shall adopt rules and regulations as to
the contents of the initial registration form and the manner of
executing and filing that document or documents.
SEC. 9. SEC. 18. Section 12599 of
the Government Code is amended to read:
12599. (a) "Commercial fundraiser for charitable purposes" means
any individual, corporation, unincorporated association, or other
legal entity who for compensation does any of the following:
(1) Solicits funds, assets, or property in this state for
charitable purposes.
(2) As a result of a solicitation of funds, assets, or property in
this state for charitable purposes, receives or controls the funds,
assets, or property solicited for charitable purposes.
(3) Employs, procures, or engages any compensated person to
solicit, receive, or control funds, assets, or property for
charitable purposes.
A commercial fundraiser for charitable purposes shall include any
person, association of persons, corporation, or other entity that
obtains a majority of its inventory for sale by the purchase,
receipt, or control for resale to the general public, of salvageable
personal property solicited by an organization qualified to solicit
donations pursuant to Section 148.3 of the Welfare and Institutions
Code.
A commercial fundraiser for charitable purposes shall not include
a "trustee" as defined in Section 12582 or 12583, a "charitable
corporation" as defined in Section 12582.1, or any employee thereof.
A commercial fundraiser for charitable purposes shall not include an
individual who is employed by or under the control of a commercial
fundraiser for charitable purposes registered with the Attorney
General. A commercial fundraiser for charitable purposes shall not
include any federally insured financial institution that holds as a
depository funds received as a result of a solicitation for
charitable purposes.
As used in this section, "charitable purposes" includes any
solicitation in which the name of any organization of law enforcement
personnel, firefighters, or other persons who protect the public
safety is used or referred to as an inducement for transferring any
funds, assets, or property, unless the only expressed or implied
purpose of the solicitation is for the sole benefit of the actual
active membership of the organization.
(b) A commercial fundraiser for charitable purposes shall, prior
to soliciting any funds, assets, or property, including salvageable
personal property, in California for charitable purposes, or prior to
receiving and controlling any funds, assets, or property, including
salvageable personal property, as a result of a solicitation in this
state for charitable purposes, register with the Attorney General's
Registry of Charitable Trusts on a registration form provided by the
Attorney General. Renewals of registration shall be filed with the
Registry of Charitable Trusts by January 15 of each calendar year in
which the commercial fundraiser for charitable purposes does business
and shall be effective for one year. A registration or renewal fee
of two hundred dollars ($200) shall be required for registration of a
commercial fundraiser for charitable purposes, and shall be payable
by certified or cashier's check to the Attorney General's Registry of
Charitable Trusts at the time of registration or renewal. The
Attorney General may adjust the annual registration or renewal fee,
or means of payment, as needed pursuant to this section. The Attorney
General's Registry of Charitable Trusts may grant extensions of time
to file annual registration as required, pursuant to subdivision (b)
of Section 12586.
(c) A commercial fundraiser for charitable purposes shall file
with the Attorney General's Registry of Charitable Trusts an annual
financial report on a form provided by the Attorney General,
accounting for all funds collected pursuant to any solicitation for
charitable purposes during the preceding calendar year. The annual
financial report shall be filed with the Attorney General's Registry
of Charitable Trusts no later than 30 days after the close of the
preceding calendar year.
(d) The contents of the forms for annual registration and annual
financial reporting by commercial fundraisers for charitable purposes
shall be established by the Attorney General in a manner consistent
with the procedures set forth in subdivisions (a) and (b) of Section
12586. The annual financial report shall require a detailed, itemized
accounting of funds, assets, or property, solicited for charitable
purposes on behalf of each charitable organization exempt from
taxation under Section 501(c)(3) of the Internal Revenue Code or for
each charitable purpose during the accounting period, and shall
include, among other data, the following information for funds,
assets, or property, solicited by the commercial fundraiser for
charitable purposes:
(1) Total revenue.
(2) The fee or commission charged by the commercial fundraiser for
charitable purposes.
(3) Salaries paid by the commercial fundraiser for charitable
purposes to its officers and employees.
(4) Fundraising expenses.
(5) Distributions to the identified charitable organization or
purpose.
(6) The names and addresses of any director, officer, or employee
of the commercial fundraiser for charitable purposes who is a
director, officer, or employee of any charitable organization listed
in the annual financial report.
(e) A commercial fundraiser for charitable purposes that obtains a
majority of its inventory for sale by the purchase, receipt, or
control for resale to the general public, of salvageable personal
property solicited by an organization qualified to solicit donations
pursuant to Section 148.3 of the Welfare and Institutions Code shall
file with the Attorney General's Registry of Charitable Trusts, and
not with the sheriff of any county, an annual financial report on a
form provided by the Attorney General that is separate and distinct
from forms filed by other commercial fundraisers for charitable
purposes pursuant to subdivisions (c) and (d).
(f) It shall be unlawful for any commercial fundraiser for
charitable purposes to solicit funds in this state for charitable
purposes unless the commercial fundraiser for charitable purposes has
complied with the registration or annual renewal and financial
reporting requirements of this article. Failure to comply with these
registration or annual renewal and financial reporting requirements
shall be grounds for injunction against solicitation in this state
for charitable purposes and other civil remedies provided by law.
(g) A commercial fundraiser for charitable purposes is a
constructive trustee for charitable purposes as to all funds
collected pursuant to solicitation for charitable purposes and shall
account to the Attorney General for all funds. A commercial
fundraiser for charitable purposes is subject to the Attorney General'
s supervision and enforcement over charitable funds and assets to the
same extent as a trustee for charitable purposes under this article.
(h) Not less than 10 working days prior to the commencement of
each solicitation campaign, event, or service, or not later than
commencement of solicitation for solicitations to aid victims of
emergency hardship or disasters, a commercial fundraiser for
charitable purposes shall file with the Attorney General's Registry
of Charitable Trusts a notice on a form prescribed by the Attorney
General that sets forth all of the following:
(1) The name, address, and telephone number of the commercial
fundraiser for charitable purposes.
(2) The name, address, and telephone number of the charitable
organization with whom the commercial fundraiser has contracted.
(3) The fundraising methods to be used.
(4) The projected dates when performance under the contract will
commence and terminate.
(5) The name, address, and telephone number of the person
responsible for directing and supervising the work of the commercial
fundraiser under the contract.
(i) There shall be a written contract between a commercial
fundraiser for charitable purposes and a charitable organization for
each solicitation campaign, event, or service, that shall be signed
by the authorized contracting officer for the commercial fundraiser
and by an official of the charitable organization who is authorized
to sign by the organization's governing body. The contract shall be
available for inspection by the Attorney General and shall contain
all of the following provisions:
(1) The legal name and address of the charitable organization as
registered with the Registry of Charitable Trusts, unless the
charitable organization is exempt from registration.
(2) A statement of the charitable purpose for which the
solicitation campaign, event, or service is being conducted.
(3) A statement of the respective obligations of the commercial
fundraiser and the charitable organization.
(4) If the commercial fundraiser is to be paid a fixed fee, a
statement of the fee to be paid to the commercial fundraiser and a
good faith estimate of what percentage the fee will constitute of the
total contributions received. The contract shall clearly disclose
the assumptions upon which the estimate is based, and the stated
assumptions shall be based upon all of the relevant facts known to
the commercial fundraiser regarding the solicitation to be conducted
by the commercial fundraiser.
(5) If a percentage fee is to be paid to the commercial
fundraiser, a statement of the percentage of the total contributions
received that will be remitted to or retained by the charitable
organization, or, if the solicitation involves the sale of goods or
services or the sale of admissions to a fundraising event, the
percentage of the purchase price that will be remitted to the
charitable organization. The stated percentage shall be calculated by
subtracting from contributions received and sales receipts not only
the commercial fundraiser's fee, but also any additional amounts that
the charitable organization is obligated to pay as fundraising
costs.
(6) The effective and termination dates of the contract and the
date solicitation activity is to commence within the state.
(7) A provision that requires that each contribution in the
control or custody of the commercial fundraiser shall in its entirety
and within five working days of its receipt comply with either of
the following:
(A) Be deposited in an account at a bank or other federally
insured financial institution that is solely in the name of the
charitable organization and over which the charitable organization
has sole control of withdrawals.
(B) Be delivered to the charitable organization in person, by
United States express mail, or by another method of delivery
providing for overnight delivery.
(8) A statement that the charitable organization exercises control
and approval over the content and frequency of any solicitation.
(9) If the commercial fundraiser proposes to make any payment in
cash or in kind to any person or legal entity to secure any person's
attendance at, or sponsorship, approval, or endorsement of, a charity
fundraising event, the maximum dollar amount of those payments shall
be set forth in the contract. "Charity fundraising event" means any
gathering of persons, including, but not limited to, a party,
banquet, concert, or show, that is held for the purpose or claimed
purpose of raising funds for any charitable purpose or organization.
(10) A provision that includes all of the following statements:
(A) The charitable organization has the right to cancel the
contract without cost, penalty, or liability for a period of 10 days
following the date on which the contract is executed.
(B) The charitable organization may cancel the contract by serving
a written notice of cancellation on the commercial fundraiser.
(C) If mailed, service shall be by certified mail, return receipt
requested, and cancellation shall be deemed effective upon the
expiration of five calendar days from the date of mailing.
(D) Any funds collected after effective notice that the contract
has been canceled shall be deemed to be held in trust for the benefit
of the charitable organization without deduction for costs or
expenses of any nature.
(E) The charitable organization shall be entitled to recover all
funds collected after the date of cancellation.
(11) A provision that includes all of the following
statements:
(A) Following the initial 10-day cancellation period, the
charitable organization may terminate the contract by giving 30 days'
written notice.
(B) If mailed, service of the notice shall be by certified mail,
return receipt requested, and shall be deemed effective upon the
expiration of five calendar days from the date of mailing.
(C) In the event of termination under this subdivision, the
charitable organization shall be liable for services provided by the
commercial fundraiser up to 30 days after the effective service of
the notice.
(12) A provision that, following the initial 10-day cancellation
period, the charitable organization may terminate the contract at any
time upon written notice, without payment or compensation of any
kind to the commercial fundraiser, if the commercial fundraiser or
its agents, employees, or representatives do any of the following:
(A) Make any material misrepresentations in the course of
solicitations or with respect to the charitable organization.
(B) Are found by the charitable organization to have been
convicted of a crime arising from the conduct of a solicitation for a
charitable organization or purpose punishable as a misdemeanor or a
felony.
(C) Otherwise conduct fundraising activities in a manner that
causes or could cause public disparagement of the charitable
organization's good name or good will.
(13) Any other information required by the regulations of the
Attorney General.
(j) It shall be unlawful for a commercial fundraiser for
charitable purposes to not disclose the percentage of total
fundraising expenses of the fundraiser upon receiving a written or
oral request from a person solicited for a contribution for a
charitable purpose. "Percentage of total fundraising expenses," as
used in this section, means the ratio of the total expenses of the
fundraiser to the total revenue received by the fundraiser for the
charitable purpose for which funds are being solicited, as reported
on the most recent financial report filed with the Attorney General's
Registry of Charitable Trusts. A commercial fundraiser shall
disclose this information in writing within five working days from
receipt of a request by mail or facsimile. A commercial fundraiser
shall orally disclose this information immediately upon a request
made in person or in a telephone conversation and shall follow this
response with a written disclosure within five working days. Failure
to comply with the requirements of this subdivision shall be grounds
for an injunction against solicitation in this state for charitable
purposes and other civil remedies provided by law.
(k) If the Attorney General issues a report to the public
containing information obtained from registration forms or financial
report forms filed by commercial fundraisers for charitable purposes,
there shall be a separate section concerning commercial fundraisers
for charitable purposes that obtain a majority of their inventory for
sale by the purchase, receipt, or control for resale to the general
public, of salvageable personal property solicited by an organization
qualified to solicit donations pursuant to Section 148.3 of the
Welfare and Institutions Code. The report shall include an
explanation of the distinctions between these thrift store operations
and other types of commercial fundraising.
(l) No person may act as a commercial fundraiser for charitable
purposes if that person, any officer or director of that person's
business, any person with a controlling interest in the business, or
any person the commercial fundraiser employs, engages, or procures to
solicit for compensation, has been convicted by a court of any state
or the United States of a crime arising from the conduct of a
solicitation for a charitable organization or purpose punishable as a
misdemeanor or felony.
(m) A commercial fundraiser for charitable purposes shall not
solicit in the state on behalf of a charitable organization unless
that charitable organization is registered or is exempt from
registration with the Attorney General's Registry of Charitable
Trusts.
(n) If any provision of this section or the application thereof to
any person or circumstances is held invalid, that invalidity shall
not affect any other provision or application of this section that
can be given effect without the invalid provision or application, and
to this end the provisions of this section are severable.
SEC. 10. SEC. 19. Section 12599.1 of
the Government Code is amended to read:
12599.1. (a) "Fundraising counsel for charitable purposes" is
defined as any individual, corporation, unincorporated association,
or other legal entity who is described by all of the following:
(1) For compensation plans, manages, advises, counsels, consults,
or prepares material for, or with respect to, the solicitation in
this state of funds, assets, or property for charitable purposes.
(2) Does not solicit funds, assets, or property for charitable
purposes.
(3) Does not receive or control funds, assets, or property
solicited for charitable purposes in this state.
(4) Does not employ, procure, or engage any compensated person to
solicit, receive, or control funds, assets, or property for
charitable purposes.
(b) "Fundraising counsel for charitable purposes" does not include
any of the following:
(1) An attorney, investment counselor, or banker who in the
conduct of that person's profession advises a client when actually
engaged in the giving of legal, investment, or financial advice.
(2) A trustee as defined in Section 12582 or 12583.
(3) A charitable corporation as defined in Section 12582.1, or any
employee thereof.
(4) A person employed by or under the control of a fundraising
counsel for charitable purposes, as defined in subdivision (a).
(5) A person, corporation, or other legal entity, engaged as an
independent contractor directly by a trustee or a charitable
corporation, that prints, reproduces, or distributes written
materials prepared by a trustee, a charitable corporation, or any
employee thereof, or that performs artistic or graphic services with
respect to written materials prepared by a trustee, a charitable
corporation, or any employee thereof, provided that the independent
contractor does not perform any of the activities described in
paragraph (1) of subdivision (a).
(6) A person whose total annual gross compensation for performing
any activity described in paragraph (1) of subdivision (a) does not
exceed twenty-five thousand dollars ($25,000).
(c) A fundraising counsel for charitable purposes shall, prior to
managing, advising, counseling, consulting, or preparing material
for, or with respect to, the solicitation in this state of funds,
assets, or property for charitable purposes, register with the
Attorney General's Registry of Charitable Trusts on a registration
form provided by the Attorney General. Renewals of registration shall
be filed with the Registry of Charitable Trusts by January 15 of
each calendar year in which the fundraising counsel for charitable
purposes does business and shall be effective for one year.
A registration or renewal fee of two hundred dollars ($200) shall
be required for registration of a fundraising counsel for charitable
purposes, and shall be payable by certified or cashier's check to the
Attorney General's Registry of Charitable Trusts at the time of
registration and renewal. The Attorney General may adjust the annual
registration or renewal fee, or means of payment, as needed pursuant
to this section. The Attorney General's Registry of Charitable Trusts
may grant extensions of time to file annual registration as
required, pursuant to subdivision (b) of Section 12586.
(d) A fundraising counsel for charitable purposes shall file
annually with the Attorney General's Registry of Charitable Trusts on
a form provided by the Attorney General, a report listing each
person, corporation, unincorporated association, or other legal
entity for whom the fundraising counsel has performed any services
described in paragraph (1) of subdivision (a), and a statement
certifying that the fundraising counsel had a written contract with
each listed person, corporation, unincorporated association, or other
legal entity that complied with the requirements of subdivision (f).
(e) Not less than 10 working days prior to the commencement of the
performance of any service for a charitable organization by a
fundraising counsel for charitable purposes, or not later than
commencement of solicitation for solicitations to aid victims of
emergency hardship or disasters, the fundraising counsel shall file
with the Attorney General's Registry of Charitable Trusts a notice on
a form prescribed by the Attorney General that sets forth all of the
following:
(1) The name, address, and telephone number of the fundraising
counsel for charitable purposes.
(2) The name, address, and telephone number of the charitable
organization with whom the fundraising counsel has contracted.
(3) The projected dates when performance under the contract will
commence and terminate.
(4) The name, address, and telephone number of the person
responsible for directing and supervising the work of the fundraising
counsel under the contract.
(f) There shall be a written contract between a fundraising
counsel for charitable purposes and a charitable organization for
each service to be performed by the fundraising counsel for the
charitable organization, that shall be signed by the authorized
contracting officer for the fundraising counsel and by an official of
the charitable organization who is authorized to sign by the
organization's governing body. The contract shall be available for
inspection by the Attorney General and shall contain all of the
following provisions:
(1) The legal name and address of the charitable organization as
registered with the Registry of Charitable Trusts unless the
charitable organization is exempt from registration.
(2) A statement of the charitable purpose for which the
solicitation campaign is being conducted.
(3) A statement of the respective obligations of the fundraising
counsel and the charitable organization.
(4) A clear statement of the fees and any other form of
compensation, including commissions and property, that will be paid
to the fundraising counsel.
(5) The effective and termination dates of the contract and the
date services will commence with respect to solicitation in this
state of contributions for a charitable organization.
(6) A statement that the fundraising counsel will not at any time
solicit funds, assets, or property for charitable purposes, receive
or control funds, assets, or property solicited for charitable
purposes, or employ, procure, or engage any compensated person to
solicit, receive, or control funds, assets, or property for
charitable purposes.
(7) A statement that the charitable organization exercises control
and approval over the content and frequency of any solicitation.
(8) A provision that includes all of the following statements:
(A) The charitable organization has the right to cancel the
contract without cost, penalty, or liability for a period of 10 days
following the date on which the contract is executed.
(B) The charitable organization may cancel the contract by serving
a written notice of cancellation on the fundraising counsel.
(C) If mailed, service shall be by certified mail, return receipt
requested, and cancellation shall be deemed effective upon the
expiration of five calendar days from the date of mailing.
(9) A provision thatincludes all of the following statements:
(A) Following the initial 10-day cancellation period, the
charitable organization may terminate the contract by giving 30 days'
written notice.
(B) If mailed, service of the notice shall be by certified mail,
return receipt requested, and shall be deemed effective upon the
expiration of five calendar days from the date of mailing.
(C) In the event of termination under this subdivision, the
charitable organization shall be liable for services provided by the
fundraising counsel to the effective date of the termination.
(10) Any other information required by the regulations of the
Attorney General.
(g) It shall be unlawful for any fundraising counsel for
charitable purposes to manage, advise, counsel, consult, or prepare
material for, or with respect to, the solicitation in this state of
funds, assets, or property for charitable purposes unless the
fundraising counsel for charitable purposes has complied with the
registration or annual renewal and financial reporting requirements
of this article.
(h) A fundraising counsel for charitable purposes is subject to
the Attorney General's supervision and enforcement to the same extent
as a trustee for charitable purposes under this article.
(i) If any provision of this section or the application thereof to
any person or circumstances is held invalid, that invalidity shall
not affect other provisions or application of this section which can
be given effect without the invalid provision or application, and to
this end the provisions of this section are severable.
SEC. 11. SEC. 20. Section 12599.2 of
the Government Code is amended to read:
12599.2. (a) "Commercial coventurer" is defined as any person
who, for profit, is regularly and primarily engaged in trade or
commerce other than in connection with the raising of funds, assets,
or property for charitable organizations or charitable purposes, and
who represents to the public that the purchase or use of any goods,
services, entertainment, or any other thing of value will benefit a
charitable organization or will be used for a charitable purpose.
(b) A commercial coventurer is a trustee as defined in Section
12582. Notwithstanding the requirements of Sections 12585 and 12586,
a commercial coventurer is not required to register or file periodic
reports with the Attorney General provided that the commercial
coventurer:
(1) Has a written contract with a trustee or charitable
corporation subject to this article, signed by two officers of the
trustee or charitable corporation, prior to representing to the
public that the purchase or use of any goods, services,
entertainment, or any other thing of value will benefit the trustee
or charitable corporation or will be used for a charitable purpose.
(2) Within 90 days after commencement of those representations,
and at the end of each successive 90-day period during which the
representations are made, transfers to that trustee or charitable
corporation subject to this article all funds, assets, or property
received as a result of the representations.
(3) Provides in conjunction with each transfer required by
paragraph (2) a written accounting to the trustee or charitable
corporation subject to this article of all funds, assets, or property
received sufficient to enable the trustee or charitable corporation
(A) to determine that representations made to the public on its
behalf have been adhered to accurately and completely, and (B) to
prepare its periodic report filed with the Attorney General pursuant
to Section 12586.
(c) A commercial coventurer that does not meet the requirements of
paragraphs (1), (2), and (3) of subdivision (b) shall register and
report to the Attorney General on forms required by the Attorney
General. An annual registration or renewal fee of two hundred dollars
($200) shall be required for registration or renewal of registration
of a commercial coventurer, and shall be payable by certified or
cashier's check to the Attorney General's Registry of Charitable
Trusts at the time of registration or renewal. The Attorney General
may adjust the annual registration or renewal fee, or means of
payment, as needed pursuant to this section.
SEC. 21. Section 31000.6 of the
Government Code is amended to read:
31000.6. (a) Upon request of the assessor or the sheriff of the
county, the board of supervisors shall contract with and employ legal
counsel to assist the assessor or the sheriff in the performance of
his or her duties in any case where the county counsel or the
district attorney would have a conflict of interest in representing
the assessor or the sheriff.
(b) In the event that the board of supervisors does not concur
with the assessor or the sheriff that a conflict of interest exists,
the assessor or the sheriff, after giving notice to the county
counsel or the district attorney, may initiate an ex parte proceeding
before the presiding judge of the superior court. The county counsel
or district attorney may file an affidavit in the proceeding in
opposition to, or in support of, the assessor's or the sheriff's
position.
(c) The presiding superior court judge that determines in any ex
parte proceeding that a conflict actually exists, must, if requested
by one of the parties, also rule whether representation by the county
counsel or district attorney through the creation of an "ethical
wall" is appropriate. The factors to be considered in this
determination of whether an "ethical wall" should be created are: (1)
equal representation, (2) level of support, (3) access to resources,
(4) zealous representation, or (5) any other consideration that
relates to proper representation.
(d) If a court determines that the action brought by the assessor
or sheriff is frivolous and in bad faith, the assessor's office or
sheriff's office shall pay their own legal costs and all costs
incurred in the action by the opposing party. As used in this
section, "bad faith" and "frivolous" have the meaning given in
Section 128.5 of the Code of Civil Procedure.
(e) If the presiding judge determines that a conflict of interest
does exist, and that representation by the county counsel or district
attorney through the creation of an ethical wall is inappropriate,
the board of supervisors shall immediately employ legal counsel to
assist the assessor or the sheriff.
(f) This section shall also apply to any matter brought after
an assessor or sheriff leaves office under the circumstances that if
the matter had arisen or been discovered while the official was
still in office, he or she would have been authorized under this
section to request the appointment of independent counsel.
(g) As used in this section, "conflict of
interest" means a conflict of interest as defined in Rule 3-310 of
the Rules of Professional Conduct of the State Bar of California, as
construed for public attorneys.
SEC. 12. SEC. 22. Section 959.1 of
the Penal Code is amended to read:
959.1. (a) Notwithstanding Sections 740, 806, 949, and 959 or any
other law to the contrary, a criminal prosecution may be commenced
by filing an accusatory pleading in electronic form with the
magistrate or in a court having authority to receive it.
(b) As used in this section, accusatory pleadings include, but are
not limited to, the complaint, the information, and the indictment.
(c) A magistrate or court is authorized to receive and file an
accusatory pleading in electronic form if all of the following
conditions are met:
(1) The accusatory pleading is issued in the name of, and
transmitted by, a public prosecutor or law enforcement agency filing
pursuant to Chapter 5c (commencing with Section 853.5) or Chapter 5d
(commencing with Section 853.9), or by a clerk of the court with
respect to complaints issued for the offenses of failure to appear,
pay a fine, or comply with an order of the court.
(2) The magistrate or court has the facility to electronically
store the accusatory pleading for the statutory period of record
retention.
(3) The magistrate or court has the ability to reproduce the
accusatory pleading in physical form upon demand and payment of any
costs involved.
An accusatory pleading shall be deemed to have been filed when it
has been received by the magistrate or court.
When transmitted in electronic form, the accusatory pleading shall
be exempt from any requirement that it be subscribed by a natural
person. It is sufficient to satisfy any requirement that an
accusatory pleading, or any part of it, be sworn to before an officer
entitled to administer oaths, if the pleading, or any part of it,
was in fact sworn to and the electronic form indicates which parts of
the pleading were sworn to and the name of the officer who
administered the oath.
(d) Notwithstanding any other law, a notice to appear issued on a
form approved by the Judicial Council may be received and filed by a
court in electronic form, if the following conditions are met:
(1) The notice to appear is issued and transmitted by a law
enforcement agency prosecuting pursuant to Chapter 5c (commencing
with Section 853.5) or Chapter 5d (commencing with Section 853.9) of
Title 3 of Part 2 of this code, or Chapter 2 (commencing with Section
40300) of Division 17 of the Vehicle Code.
(2) The court has all of the following:
(A) The ability to receive the notice to appear in electronic
format.
(B) The facility to electronically store an electronic copy and
the data elements of the notice to appear for the statutory period of
record retention.
(C) The ability to reproduce the electronic copy of the notice to
appear and those data elements in printed form upon demand and
payment of any costs involved.
(3) The issuing agency has the ability to reproduce the notice to
appear in physical form upon demand and payment of any costs
involved.
(e) A notice to appear that is received under subdivision (d) is
deemed to have been filed when it has been accepted by the court and
is in the form approved by the Judicial Council.
(f) If transmitted in electronic form, the notice to appear is
deemed to have been signed by the defendant if it includes a
digitized facsimile of the defendant's signature on the notice to
appear. A notice to appear filed electronically under subdivision (d)
need not be subscribed by the citing officer. An electronically
submitted notice to appear need not be verified by the citing officer
with a declaration under penalty of perjury if the electronic form
indicates which parts of the notice are verified by that declaration
and the name of the officer making the declaration.
SEC. 23. Section 366.3 of the Welfare
and Institutions Code is amended to read:
366.3. (a) If a juvenile court orders a permanent plan of
adoption or legal guardianship pursuant to Section 360 or 366.26, the
court shall retain jurisdiction over the child until the child is
adopted or the legal guardianship is established, except as provided
for in Section 366.29. The status of the child shall be reviewed
every six months to ensure that the adoption or legal guardianship is
completed as expeditiously as possible. When the adoption of the
child has been granted, the court shall terminate its jurisdiction
over the child. Following establishment of a legal guardianship, the
court may continue jurisdiction over the child as a dependent child
of the juvenile court or may terminate its dependency jurisdiction
and retain jurisdiction over the child as a ward of the legal
guardianship, as authorized by Section 366.4. If, however, a relative
of the child is appointed the legal guardian of the child and the
child has been placed with the relative for at least 12 months, the
court shall, except if the relative guardian objects, or upon a
finding of exceptional circumstances, terminate its dependency
jurisdiction and retain jurisdiction over the child as a ward of the
guardianship, as authorized by Section 366.4. Following a termination
of parental rights, the parent or parents shall not be a party to,
or receive notice of, any subsequent proceedings regarding the child.
(b) If the court has dismissed dependency jurisdiction following
the establishment of a legal guardianship, or no dependency
jurisdiction attached because of the granting of a legal guardianship
pursuant to Section 360, and the legal guardianship is subsequently
revoked or otherwise terminated, the county department of social
services or welfare department shall notify the juvenile court of
this fact. The court may vacate its previous order dismissing
dependency jurisdiction over the child.
Notwithstanding Section 1601 of the Probate Code, the proceedings
to terminate a legal guardianship that has been granted pursuant to
Section 360 or 366.26 shall be held in the juvenile court, unless the
termination is due to the emancipation or adoption of the child.
Prior to the hearing on a petition to terminate legal guardianship
pursuant to this paragraph, the court shall order the county
department of social services or welfare department to prepare a
report, for the court's consideration, that shall include an
evaluation of whether the child could safely remain in the legal
guardian's home, without terminating the legal guardianship, if
services were provided to the child or legal guardian. If applicable,
the report shall also identify recommended services to maintain the
legal guardianship and set forth a plan for providing those services.
If the petition to terminate legal guardianship is granted, the
juvenile court may resume dependency jurisdiction over the child, and
may order the county department of social services or welfare
department to develop a new permanent plan, which shall be presented
to the court within 60 days of the termination. If no dependency
jurisdiction has attached, the social worker shall make any
investigation he or she deems necessary to determine whether the
child may be within the jurisdiction of the juvenile court, as
provided in Section 328.
Unless the parental rights of the child's parent or parents have
been terminated, they shall be notified that the legal guardianship
has been revoked or terminated and shall be entitled to participate
in the new permanency planning hearing. The court shall try to place
the child in another permanent placement. At the hearing, the parents
may be considered as custodians but the child shall not be returned
to the parent or parents unless they prove, by a preponderance of the
evidence, that reunification is the best alternative for the child.
The court may, if it is in the best interests of the child, order
that reunification services again be provided to the parent or
parents.
(c) If, following the establishment of a legal guardianship, the
county welfare department becomes aware of changed circumstances that
indicate adoption may be an appropriate plan for the child, the
department shall so notify
the court. The court may vacate its previous order dismissing
dependency jurisdiction over the child and order that a hearing be
held pursuant to Section 366.26 to determine whether adoption or
continued legal guardianship is the most appropriate plan for the
child. The hearing shall be held no later than 120 days from the date
of the order. If the court orders that a hearing shall be held
pursuant to Section 366.26, the court shall direct the agency
supervising the child and the licensed county adoption agency, or the
State Department of Social Services if it is acting as an adoption
agency in counties that are not served by a county adoption agency,
to prepare an assessment under subdivision (b) of Section 366.22.
(d) If the child is in a placement other than the home of a legal
guardian and jurisdiction has not been dismissed, the status of the
child shall be reviewed at least every six months. The review of the
status of a child for whom the court has ordered parental rights
terminated and who has been ordered placed for adoption shall be
conducted by the court. The review of the status of a child for whom
the court has not ordered parental rights terminated and who has not
been ordered placed for adoption may be conducted by the court or an
appropriate local agency. The court shall conduct the review under
the following circumstances:
(1) Upon the request of the child's parents or legal guardians.
(2) Upon the request of the child.
(3) It has been 12 months since a hearing held pursuant to Section
366.26 or an order that the child remain in long-term foster care
pursuant to Section 366.21, 366.22, 366.26, or subdivision (g).
(4) It has been 12 months since a review was conducted by the
court.
The court shall determine whether or not reasonable efforts to
make and finalize a permanent placement for the child have been made.
(e) Except as provided in subdivision (f), at the review held
every six months pursuant to subdivision (d), the reviewing body
shall inquire about the progress being made to provide a permanent
home for the child, shall consider the safety of the child, and shall
determine all of the following:
(1) The continuing necessity for and appropriateness of the
placement.
(2) Identification of individuals other than the child's siblings
who are important to a child who is 10 years of age or older and has
been in out-of-home placement for six months or longer, and actions
necessary to maintain the child's relationship with those
individuals, provided that those relationships are in the best
interest of the child. The social worker shall ask every child who
is 10 years of age or older and who has been in out-of-home placement
for six months or longer to identify individuals other than the
child's siblings who are important to the child, and may ask any
other child to provide that information, as appropriate. The social
worker shall make efforts to identify other individuals who are
important to the child, consistent with the child's best interests.
(3) The continuing appropriateness and extent of compliance with
the permanent plan for the child, including efforts to maintain
relationships between a child who is 10 years of age or older and who
has been in out-of-home placement for six months or longer and
individuals who are important to the child and efforts to identify a
prospective adoptive parent or legal guardian, including, but not
limited to, child-specific recruitment efforts and listing on an
adoption exchange.
(4) The extent of the agency's compliance with the child welfare
services case plan in making reasonable efforts to return the child
to a safe home and to complete whatever steps are necessary to
finalize the permanent placement of the child.
(5) Whether there should be any limitation on the right of the
parent or guardian to make educational decisions for the child. That
limitation shall be specifically addressed in the court order and may
not exceed what is necessary to protect the child. If the court
specifically limits the right of the parent or guardian to make
educational decisions for the child, the court shall at the same time
appoint a responsible adult to make educational decisions for the
child pursuant to Section 361.
(6) The adequacy of services provided to the child. The court
shall consider the progress in providing the information and
documents to the child, as described in Section 391. The court shall
also consider the need for, and progress in providing, the assistance
and services described in paragraphs (3) and (4) of subdivision (b)
of Section 391.
(7) The extent of progress the parents or legal guardians have
made toward alleviating or mitigating the causes necessitating
placement in foster care.
(8) The likely date by which the child may be returned to and
safely maintained in the home, placed for adoption, legal
guardianship, or in another planned permanent living arrangement.
(9) Whether the child has any siblings under the court's
jurisdiction, and, if any siblings exist, all of the following:
(A) The nature of the relationship between the child and his or
her siblings.
(B) The appropriateness of developing or maintaining the sibling
relationships pursuant to Section 16002.
(C) If the siblings are not placed together in the same home, why
the siblings are not placed together and what efforts are being made
to place the siblings together, or why those efforts are not
appropriate.
(D) If the siblings are not placed together, the frequency and
nature of the visits between siblings.
(E) The impact of the sibling relationships on the child's
placement and planning for legal permanence.
The factors the court may consider as indicators of the nature of
the child's sibling relationships include, but are not limited to,
whether the siblings were raised together in the same home, whether
the siblings have shared significant common experiences or have
existing close and strong bonds, whether either sibling expresses a
desire to visit or live with his or her sibling, as applicable, and
whether ongoing contact is in the child's best emotional interests.
(10) For a child who is 16 years of age or older, the services
needed to assist the child to make the transition from foster care to
independent living.
The reviewing body shall determine whether or not reasonable
efforts to make and finalize a permanent placement for the child have
been made.
Each licensed foster family agency shall submit reports for each
child in its care, custody, and control to the court concerning the
continuing appropriateness and extent of compliance with the child's
permanent plan, the extent of compliance with the case plan, and the
type and adequacy of services provided to the child.
Unless their parental rights have been permanently terminated, the
parent or parents of the child are entitled to receive notice of,
and participate in, those hearings. It shall be presumed that
continued care is in the best interests of the child, unless the
parent or parents prove, by a preponderance of the evidence, that
further efforts at reunification are the best alternative for the
child. In those cases, the court may order that further reunification
services to return the child to a safe home environment be provided
to the parent or parents for a period not to exceed six months.
(f) At the review conducted by the court and held at least every
six months, regarding a child for whom the court has ordered parental
rights terminated and who has been ordered placed for adoption, the
county welfare department shall prepare and present to the court a
report describing the following:
(1) The child's present placement.
(2) The child's current physical, mental, emotional, and
educational status.
(3) If the child has not been placed with a prospective adoptive
parent or guardian, identification of individuals, other than the
child's siblings, who are important to the child and actions
necessary to maintain the child's relationship with those
individuals, provided that those relationships are in the best
interest of the child. The agency shall ask every child who is 10
years of age or older to identify any individuals who are important
to him or her, consistent with the child's best interest, and may ask
any child who is younger than 10 years of age to provide that
information as appropriate. The agency shall make efforts to identify
other individuals who are important to the child.
(4) Whether the child has been placed with a prospective adoptive
parent or parents.
(5) Whether an adoptive placement agreement has been signed and
filed.
(6) If the child has not been placed with a prospective adoptive
parent or parents, the efforts made to identify an appropriate
prospective adoptive parent or legal guardian, including, but not
limited to, child-specific recruitment efforts and listing on an
adoption exchange.
(7) Whether the final adoption order should include provisions for
postadoptive sibling contact pursuant to Section 366.29.
(8) The progress of the search for an adoptive placement if one
has not been identified.
(9) Any impediments to the adoption or the adoptive placement.
(10) The anticipated date by which the child will be adopted, or
placed in an adoptive home.
(11) The anticipated date by which an adoptive placement agreement
will be signed.
(12) Recommendations for court orders that will assist in the
placement of the child for adoption or in the finalization of the
adoption.
The court shall determine whether or not reasonable efforts to
make and finalize a permanent placement for the child have been made.
The court shall make appropriate orders to protect the stability
of the child and to facilitate and expedite the permanent placement
and adoption of the child.
(g) At the review held pursuant to subdivision (d) for a child in
long-term foster care, the court shall consider all permanency
planning options for the child including whether the child should be
returned to the home of the parent, placed for adoption, or appointed
a legal guardian, or, if compelling reasons exist for finding that
none of the foregoing options are in the best interest of the child,
whether the child should be placed in another planned permanent
living arrangement. The court shall order that a hearing be held
pursuant to Section 366.26 unless it determines by clear and
convincing evidence, that there is a compelling reason for
determining that a hearing held pursuant to Section 366.26 is not in
the best interest of the child because the child is being returned to
the home of the parent, the child is not a proper subject for
adoption, or no one is willing to accept legal guardianship. If the
licensed county adoption agency, or the department when it is acting
as an adoption agency in counties that are not served by a county
adoption agency, has determined it is unlikely that the child will be
adopted or one of the conditions described in paragraph (1) of
subdivision (c) of Section 366.26 applies, that fact shall constitute
a compelling reason for purposes of this subdivision. Only upon that
determination may the court order that the child remain in foster
care, without holding a hearing pursuant to Section 366.26.
(h) If, as authorized by subdivision (g), the court orders a
hearing pursuant to Section 366.26, the court shall direct the agency
supervising the child and the licensed county adoption agency, or
the State Department of Social Services when it is acting as an
adoption agency in counties that are not served by a county adoption
agency, to prepare an assessment as provided for in subdivision (i)
of Section 366.21 or subdivision (b) of Section 366.22. A hearing
held pursuant to Section 366.26 shall be held no later than 120 days
from the date of the 12-month review at which it is ordered, and at
that hearing the court shall determine whether adoption, legal
guardianship, or long-term foster care is the most appropriate plan
for the child.
(i) The implementation and operation of the amendments to
subdivision (e) enacted at the 2005-06 Regular Session shall be
subject to appropriation through the budget process and by phase, as
provided in Section 366.35.
(j) The reviews conducted pursuant to subdivision (a) or (d) may
be conducted earlier than every six months if the court determines
that an earlier review is in the best interests of the child or as
courts rules prescribe.
SEC. 13. SEC. 24. Section 15657.03
of the Welfare and Institutions Code is amended to read:
15657.03. (a) An elder or dependent adult who has suffered abuse
as defined in Section 15610.07 may seek protective orders as provided
in this section.
(b) For the purposes of this section, "protective order" means an
order that includes any of the following restraining orders, whether
issued ex parte, after notice and hearing, or in a judgment:
(1) An order enjoining a party from abusing, intimidating,
molesting, attacking, striking, stalking, threatening, sexually
assaulting, battering, harassing, telephoning, including, but not
limited to, annoying telephone calls as described in Section 653m of
the Penal Code, destroying personal property, contacting, either
directly or indirectly, by mail or otherwise, or coming within a
specified distance of, or disturbing the peace of the petitioner.
(2) An order excluding a party from the petitioner's residence or
dwelling, except that this order shall not be issued if legal or
equitable title to, or lease of, the residence or dwelling is in the
sole name of the party to be excluded, or is in the name of the party
to be excluded and any other party besides the petitioner.
(3) An order enjoining a party from specified behavior that the
court determines is necessary to effectuate orders described in
paragraph (1) or (2).
(c) An order may be issued under this section, with or without
notice, to restrain any person for the purpose of preventing a
recurrence of abuse, if an affidavit shows, to the satisfaction of
the court, reasonable proof of a past act or acts of abuse of the
petitioning elder or dependent adult.
(d) (1) Upon filing a petition for protective orders under this
section, the petitioner may obtain a temporary restraining order in
accordance with Section 527 of the Code of Civil Procedure, except to
the extent this section provides a rule that is inconsistent. The
temporary restraining order may include any of the protective orders
described in subdivision (b). However, the court may issue an ex
parte order excluding a party from the petitioner's residence or
dwelling only on a showing of all of the following:
(A) Facts sufficient for the court to ascertain that the party who
will stay in the dwelling has a right under color of law to
possession of the premises.
(B) That the party to be excluded has assaulted or threatens to
assault the petitioner.
(C) That physical or emotional harm would otherwise result to the
petitioner.
(2) If a temporary restraining order is granted without notice,
the matter shall be made returnable on an order requiring cause to be
shown why a permanent order should not be granted, on the earliest
day that the business of the court will permit, but not later than 20
days or, if good cause appears to the court, 25 days from the date
the temporary restraining order is granted, unless the order is
otherwise modified or terminated by the court.
(e) The court may issue, upon notice and a hearing, any of the
orders set forth in subdivision (b). The court may issue, after
notice and hearing, an order excluding a person from a residence or
dwelling if the court finds that physical or emotional harm would
otherwise result to the other party.
(f) In the discretion of the court, an order issued after notice
and a hearing under this section may have a duration of not more than
three years, subject to termination or modification by further order
of the court either on written stipulation filed with the court or
on the motion of a party. These orders may be renewed upon the
request of a party, either for three years or permanently, without a
showing of any further abuse since the issuance of the original
order, subject to termination or modification by further order of the
court either on written stipulation filed with the court or on the
motion of a party. The failure to state the expiration date on the
face of the form creates an order with a duration of three years from
the date of issuance.
(g) Upon the filing of a petition for protective orders under this
section, the respondent shall be personally served with a copy of
the petition, notice of the hearing or order to show cause, temporary
restraining order, if any, and any affidavits in support of the
petition. Service shall be made at least five days before the
hearing. The court may, on motion of the petitioner or on its own
motion, shorten the time for service on the respondent.
(h) The court may, upon the filing of an affidavit by the
applicant that the respondent could not be served within the time
required by statute, reissue an order previously issued and dissolved
by the court for failure to serve the respondent. The reissued order
shall be made returnable on the earliest day that the business of
the court will permit, but not later than 20 days or, if good cause
appears to the court, 25 days from the date of reissuance. The
reissued order shall state on its face the date of expiration of the
order.
(i) (1) If the person named in a temporary restraining order is
personally served with the order and notice of hearing with respect
to a restraining order or protective order based thereon, but the
person does not appear at the hearing, either personally or by
counsel, and the terms and conditions of the restraining order or
protective order are identical to the temporary restraining order,
except for the duration of the order, then the restraining order or
protective order may be served on the person by first-class mail sent
to that person at the most current address for the person available
to the court.
(2) The judicial form for orders issued pursuant to this
subdivision shall contain a statement in substantially the following
form: "NO ADDITIONAL PROOF OF SERVICE IS REQUIRED IF THE FACE OF
THIS FORM INDICATES THAT BOTH PARTIES WERE PERSONALLY PRESENT AT THE
HEARING WHERE THE ORDER WAS ISSUED. IF YOU HAVE BEEN PERSONALLY
SERVED WITH A TEMPORARY RESTRAINING ORDER OR EMERGENCY PROTECTIVE
ORDER AND NOTICE OF HEARING, BUT YOU DO NOT APPEAR AT THE HEARING
EITHER IN PERSON OR BY COUNSEL, AND A RESTRAINING ORDER OR PROTECTIVE
ORDER IS ISSUED AT THE HEARING THAT DOES NOT DIFFER FROM THE PRIOR
TEMPORARY RESTRAINING ORDER OR EMERGENCY PROTECTIVE ORDER, A COPY OF
THE ORDER WILL BE SERVED UPON YOU BY MAIL AT THE FOLLOWING ADDRESS
____. IF THAT ADDRESS IS NOT CORRECT OR YOU WISH TO VERIFY THAT THE
TEMPORARY OR EMERGENCY ORDER WAS MADE PERMANENT WITHOUT SUBSTANTIVE
CHANGE, CALL THE CLERK OF THE COURT AT ____."
(j) (1) The court shall order the petitioner or the attorney for
the petitioner to deliver, or the clerk of the court to mail, a copy
of an order issued under this section, or a reissuance, extension,
modification, or termination of the order, and any subsequent proof
of service, by the close of the business day on which the order,
reissuance, extension, modification, or termination was made, to each
local law enforcement agency designated by the petitioner or the
attorney for the petitioner having jurisdiction over the residence of
the petitioner, and to any additional law enforcement agencies
within the court's discretion as are requested by the petitioner.
Each appropriate law enforcement agency shall make available
information as to the existence and current status of these orders to
law enforcement officers responding to the scene of reported abuse.
(2) An order issued under this section shall, on request of the
petitioner, be served on the respondent, whether or not the
respondent has been taken into custody, by any law enforcement
officer who is present at the scene of reported abuse involving the
parties to the proceeding. The petitioner shall provide the officer
with an endorsed copy of the order and a proof of service, which the
officer shall complete and send to the issuing court.
(3) Upon receiving information at the scene of an incident of
abuse that a protective order has been issued under this section, or
that a person who has been taken into custody is the respondent to
that order, if the protected person cannot produce an endorsed copy
of the order, a law enforcement officer shall immediately attempt to
verify the existence of the order.
(4) If the law enforcement officer determines that a protective
order has been issued, but not served, the officer shall immediately
notify the respondent of the terms of the order and where a written
copy of the order can be obtained, and the officer shall at that time
also enforce the order. The law enforcement officer's verbal notice
of the terms of the order shall constitute service of the order and
is sufficient notice for the purposes of this section and for the
purposes of Section 273.6 of the Penal Code.
(k) Nothing in this section shall preclude either party from
representation by private counsel or from appearing on the party's
own behalf.
(l) There is no filing fee for a petition, response, or paper
seeking the reissuance, modification, or enforcement of a protective
order filed in a proceeding brought pursuant to this section.
(m) (1) Fees otherwise payable by a petitioner to a law
enforcement agency for serving an order issued under this section may
be waived in any case in which the petitioner has requested a fee
waiver on the initiating petition and has filed a declaration that
demonstrates, to the satisfaction of the court, the financial need of
the petitioner for the fee waiver. The declaration required by this
subdivision shall be on one of the following forms:
(A) The form formulated and adopted by the Judicial Council for
litigants proceeding in forma pauperis pursuant to Section 68511.3 of
the Government Code, but the petitioner is not subject to any other
requirements of litigants proceeding in forma pauperis.
(B) Any other form that the Judicial Council may adopt for this
purpose pursuant to subdivision (r).
(2) In conjunction with a hearing pursuant to this section, the
court may make an order for the waiver of fees otherwise payable by
the petitioner to a law enforcement agency for serving an order
issued under this section.
(n) The prevailing party in any action brought under this section
may be awarded court costs and attorney's fees, if any.
(o) (1) An order issued pursuant to this section shall prohibit
the person subject to it from owning, possessing, purchasing,
receiving, or attempting to purchase or receive, a firearm.
(2) Paragraph (1) shall not apply to a case consisting solely of
financial abuse unaccompanied by force, threat, harassment,
intimidation, or any other form of abuse.
(3) The court shall order a person subject to a protective order
issued under this section to relinquish any firearms he or she owns
or possesses pursuant to Section 527.9 of the Code of Civil
Procedure.
(4) Every person who owns, possesses, purchases, or receives, or
attempts to purchase or receive a firearm while the protective order
is in effect is punishable pursuant to subdivision (g) of Section
12021 of the Penal Code.
(p) Any willful disobedience of any temporary restraining order or
restraining order after hearing granted under this section is
punishable pursuant to Section 273.6 of the Penal Code.
(q) This section does not apply to any action or proceeding
covered by Title 1.6C (commencing with Section 1788) of Part 4 of
Division 3 of the Civil Code, by Chapter 3 (commencing with Section
525) of Title 7 of Part 2 of the Code of Civil Procedure, or by
Division 10 (commencing with Section 6200) of the Family Code.
Nothing in this section shall preclude a petitioner's right to use
other existing civil remedies.
(r) The Judicial Council shall promulgate forms and instructions
therefor, rules for service of process, scheduling of hearings, and
any other matters required by this section. The petition and response
forms shall be simple and concise.
SEC. 14. SEC. 25. It is the intent
of the Legislature that effective self-help services be made
available to assist self-represented parties in civil matters in
every county. The Administrative Office of the Courts shall expend
all funds allocated for services to assist self-represented litigants
so as to provide services in all civil cases in proportion to the
number of self-represented parties in each county. In the allocation
of funds for new or augmented services, priority shall be given to
rural and other underserved areas and to the provision of court-based
services, supervised by an attorney, and coordinated with other
legal service providers in the community, including, but not limited
to, qualified legal service providers, pro bono legal service
projects, and local bar association referral services, allowing
assessment of the legal needs and provision of referral information,
as appropriate.
SEC. 26. If the Commission on State Mandates
determines that this act contains 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.