BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
AB 2303 A
Assembly Judiciary Committee B
As Amended August 7, 2006
Hearing Date: August 8, 2006 2
Various Codes 3
BCP/SJCS:cjt 0
3
SUBJECT
Omnibus Bill
-Civil, Criminal, Commercial, Government Law-
DESCRIPTION
This bill would enact the following 17 assorted changes in
32 various provisions of the law. The changes would range
the gamut from modifying and clarifying the mandatory
continuing education requirements for paralegals, to
revising rules for the Attorney General's (AG) regulation
of charitable fundraisers, to allowing the Supreme Court to
increase the limit of allowable costs for habeas corpus
investigations in capital cases. The assorted changes
would additionally:
grant the Commission on Judicial Performance access to
confidential court files and records to investigate
judicial misconduct;
extend the sunset for the court's authority to issue
monetary sanctions for jurors who fail to respond to
summons;
extend the time period for service of written notice when
seeking a review of a court's determination of
disqualification;
allow a party to a dissolution of marriage proceeding to
waive their receipt of preliminary disclosures;
increase the period for notice of a hearing from two to
five days in elder abuse cases;
revise procedures for petitions and applications for a
change of name proceeding;
empower the Attorney General to adopt regulations to
(more)
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implement a proposed law requiring initial registration
forms for charity solicitations, and to determine what
manner of payment would be acceptable for payment of
registration or renewal fees under the Uniform
Supervision of Trustees for Charitable Purposes Act;
authorize electronic submission of notice to appear
citations;
extend the sunset for Commercial Code provisions
concerning "general intangibles;"
allow status review hearings for dependent children to be
held earlier than every six months;
extend term limits for California non-profit public
benefit corporations' board of directors; and
enact technical amendments concerning construction
defects, the Car Buyer's Bill of Rights, service of
summons for corporations, and dismissals based upon forum
non conveniens.
BACKGROUND
AB 2303 is the Assembly Judiciary Committee's annual
judiciary omnibus bill. However, the breadth and range of
this year's bill goes far beyond matters affecting the
judiciary. Typically, policy committee omnibus bills have
been used to propose minor substantive changes that do not
warrant the effort and expense of a stand-alone bill.
Controversial or contested matters were also typically
excluded from inclusion in omnibus bills, for the simple
reason that a veto of the contested matter would cause all
other bills in the package to also fail. Measures which
proposed new programs or new procedures were also
disfavored, as they should be thoroughly vetted in their
own stand-alone proposals.
Perhaps to avoid or in response to the Joint Rules limiting
the number of bills that can be introduced by members, this
omnibus bill would enact some 17 different changes to the
law. Some are provisions typically included in an omnibus
bill, such as the clarifying and conforming changes to the
"Car Buyer's Bill of Rights" law enacted last year, and
like changes to the notice of hearing period in elder abuse
cases. However, other provisions are quite a bit more
substantive, such as granting the Commission on Judicial
Performance access to confidential court files and records
to investigate judicial misconduct, and removing the sunset
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date on a law allowing the court to impose monetary
sanctions on a juror who fails to appear for jury duty.
In keeping with the traditional policy, the August 7th
amendments deleted four provisions from AB 2303 that were
either contested or deemed by this committee's staff to be
too substantive for inclusion in an omnibus bill. They
were: 1) expanding the right of the sheriff or assessor to
independent legal counsel in cases where a conflict of
interest would arise if represented by a county counsel or
district attorney, to cases arising after the person leaves
office; 2) requiring all funds allocated for services to
assist self-represented parties to be expended to provide
services in all types of superior court civil actions and
proceedings, and establishing parameters for those
expenditures; 3) increasing from five calendar days to five
court days the time for which a registered process server
attaching personal or real property must file the necessary
writ of attachment or execution and other necessary
documents with the levying officer; and 4) establishing
that the current law's two-year statute of limitations to
file a personal injury or wrongful death claim also applies
to claims where a perpetrator dies before the limitation
period expires, in which case the action must be commenced
within two years of the perpetrator's date of death.
As to the remaining provisions, some are still quite
substantive. Thus, this committee is faced with a possible
conundrum as a few of the provisions arguably are on shaky
grounds in terms of being included in an omnibus bill under
the traditional criteria. On the one hand, the proposals
are unopposed, to the best of committee staff knowledge.
On the other hand, merely because a bill is unopposed does
not qualify it for inclusion in an omnibus bill for the
reasons stated above. Yet, the deletion of a proposal from
this omnibus bill would leave the sponsor of the particular
proposal with little time to find a replacement vehicle.
However, sponsors were told of this possible risk when
their bill was added to the omnibus bill.
To assist the committee's review, the more substantive
proposals are discussed individually in Comments 1 - 10
below.
CHANGES TO EXISTING LAW
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Existing law provides various provisions relating to civil,
criminal, commercial and government matters.
This bill would enact various changes to those provisions.
(See Comments 1 thru 16 below for an analysis of the
various provisions. The first 10 Comments discuss the more
substantive provisions, some with issues that need
resolution.)
COMMENT
1. Allowing the California Supreme Court to raise the
limit on allowable costs for capital habeas corpus
investigations
Under current law, counsel appointed to represent
indigent defendants in automatic appeals arising out of a
judgment of death or for state postconviction proceedings
may receive compensation for their services.
Additionally, the Supreme Court may compensate counsel
for investigative and other expenses up to $25,000,
without an Order to Show Cause. [Gov. Code 68666.]
The Judicial Council, sponsor of this section, seeks to
remove the $25,000 cap and instead allow the Supreme
Court to set the guideline limitation. In support of
this change, the Judicial Council states:
The inadequacy of the $25,000 cap on
investigation expenses is a constant complaint
heard from counsel reluctant to take habeas
corpus appointments. The complaints arise not
simply because of increases in costs, but also
because of the scope of investigation involved.
The request for eliminating the $25,000 cap is
not intended to suggest that the court will
forego all limits on this funding. Instead, it is
envisioned that the court will make a moderate
adjustment to the available amount to reflect
increased costs. The costs should be relatively
small overall, while at the same time allowing
the court to be reasonably responsive to the
concerns of counsel in light of changes in the
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costs of doing business.
This provision ordinarily would be heard by the Senate
Committee on Public Safety and not the Senate Judiciary
Committee in a civil omnibus bill. However, the Senate
Public Safety Committee staff has signed off on the
language and policy change. Still, a fuller analysis
might be beneficial in terms of the historical reasons
for the cap. For instance, there was a public outrage in
the 1970's and 1980's when investigative costs for the
Juan Corona murder trials spiraled into the hundreds of
thousands of dollars. It is not known whether the
reasons for implementing a cap on investigative service
costs were related to that case. While an increase may
indeed be appropriate, the significant questions are:
Who decides and how much?
SHOULD INSTEAD THE LEGISLATURE MAINTAIN CONTROL OVER THE
CAP, SINCE THESE COSTS WILL BE PAID BY TAXPAYERS?
SHOULD THE CAP BE LEGISLATIVELY RAISED TO A HIGHER
AMOUNT, BASED ON INFORMATION PROVIDED BY JUDICIAL COUNCIL
AS TO AVERAGE NECESSARY INVESTIGATIVE COSTS IN CAPITAL
CASES?
Further, it might be noted that this provision (SEC. 26
on page 62, line 25) only appeared in print on August 7,
2006, providing for little time for public review or
comment.
It might also be noted that SB 513 (Lockyer) increased
this cap from $12,000 to $25,000 in 1997.
2. Solicitations by charitable organizations
Section 22 of the bill would amend the legislative scheme
that regulates solicitations and fundraising by
charitable organizations to require every charitable
organization to file an initial registration form and
require the Attorney General to adopt rules and
regulations on the contents of this initial registration
form.
SB 1262 (Sher, Ch. 919, Stats. of 2004) established a
regulatory scheme for the solicitation of donations and
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fundraising efforts made by charitable organizations in
the state. The legislative scheme includes reporting to
the Attorney General on proposed fundraisers, use of
professional fundraisers and the reporting requirements
for those, limitations on the types of solicitation
activities permitted, and the recording and documentation
required for solicited funds.
Current law requires every charitable corporation,
unincorporated association, and trustee who holds
property or fundraisers for charitable purposes to file a
copy of their articles of incorporation, or other
instrument that governs their operation. According to
the Attorney General, sponsor of this provision in AB
2303, "the Articles of Incorporation alone do not provide
critical information about registrants which is needed by
the Registry of Charitable Trusts in order to fulfill its
regulatory role." Unlike other sections, the Attorney
General states that "[S]ection 12585 does not include
language which authorizes the Attorney General to draft
rules and regulations regarding the filing requirements."
Accordingly, Section 22 of this bill would amend that
Government Code Section to require the filing of an
initial registration form, and attach documents required
by the Attorney General. The Attorney General would be
required to "adopt rules and regulations as to the
contents of the initial registration form and the manner
of executing and filing that document or documents."
SHOULD THIS MATTER BE DELEGATED TO THE ATTORNEY GENERAL'S
OFFICE OR DETERMINED BY THE LEGISLATURE AFTER REVIEW OF
THE ATTORNEY GENERAL'S PROPOSED RECOMMENDATION?
Sections 23, 24, and 25 of the bill would empower the
Attorney General to determine what manner of payment
would be acceptable to the AG for payment of registration
or renewal fees under the Uniform Supervision of Trustees
for Charitable Purposes Act. Under the Act, the Attorney
General is required to collect a fee for registration or
renewal of registration for fundraising counsel,
charitable fundraisers and commercial coventurers
involved with charitable organizations. The AG states
that the Department of Justice plans to accept electronic
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payment of these fees.
In the past five years various legislation has authorized
the courts to receive payment of fines and fees via
credit card payments. Other state agencies have also
been authorized to receive payments by credit cards.
Electronic payments have also been used in some courts or
state agencies, but only through contracts with
third-party collectors or administrators. These third
party contractors charge a fee for use of the electronic
payment method. The use of e-payments in connection with
charitable fundraising registration fees would make sense
only if the AG is already capable of registration via its
Internet Web site. According to staff research on the
Internet, online registration by fundraising counsel,
charitable fundraisers and commercial coventurers is not
yet available. Additionally, if there is a service cost
for e-filing, it is not stated whether the filers or the
AG would pay that cost.
SHOULD NOT THESE ISSUES BE CLARIFIED?
3. Family law: establishing harmless error for failure
to comply with preliminary/final declaration of
disclosure
Currently, parties to a dissolution or nullity of
marriage or legal separation must serve each other a
preliminary declaration of disclosure that lists the
parties' assets and liabilities, and the percentage of
ownership in each item not solely owned by one or the
other party. [Fam. Code Section 2104.] Additionally, no
final judgment as to property rights may be entered
unless the parties declare that they have served the
required declarations on the other party, or they have
stipulated to a mutual waiver of a final disclosure
declaration (having exchanged preliminary disclosure
declarations), or unless the judgment will be taken by
default (in which case only the petitioner's declaration
of service of the preliminary disclosure is required).
[Fam. Code Sections 2105, 2106, 2110.]
Current law also provides for several courses of action
in the event a party complies with the service of the
preliminary disclosure but the other party does not.
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First, the complying party may request compliance from
the other party, and if the noncomplying party still does
not comply, the complying party may do one or both of
these: (1) file a motion to compel a response; or (2)
file a motion for an order preventing the noncomplying
party from presenting evidence on issues that should have
been covered by the disclosure.
This bill would give the complying party a third
alternative. It would allow the complying party to also
file a motion showing good cause for the court to grant
the complying party's voluntary waiver of receipt of the
preliminary disclosure or final disclosure. Proponents
of this part of AB 2303 state that allowing the complying
party to waive the receipt of a disclosure from the
noncomplying party would assist in moving a dissolution
case forward (without waiting for the noncomplying
party's declaration of disclosure or attempting to obtain
a response when the complying party knows that it will
not be made), especially where the noncomplying party is
not likely to respond with information different from
what the complying party has already declared in his or
her own disclosure statement.
Under the bill, the voluntary waiver may be made only if
the court grants a motion for good cause. The bill does
not define "good cause" for a waiver to be granted, but
presumably the noncomplying party's likelihood of ever
responding would be an example. Less clear is the case
where the opposing party, if he or she responds, will
respond with any additional useful information that is
not already set forth in the petitioner's declaration.
It might be arbitrary for the court to rule upon good
cause in that event, since it is speculative as to what
the opposing party would file.
INSTEAD OF THE "GOOD CAUSE" REQUIREMENT FOR THE COURT TO
GRANT A WAIVER, SHOULD THE COMPLYING PARTY BE ABLE TO
WAIVE RECEIPT OF THE OTHER PARTY'S DISCLOSURE DECLARATION
IF THE OTHER PARTY FAILS TO RESPOND WITHIN 30 DAYS TO A
MOTION TO COMPEL THE DECLARATION?
This would be a more concrete basis than "good cause" for
granting a motion to waive receipt of the declaration.
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If granted, the voluntary waiver would bar the
noncomplying party, in a later motion to set aside the
judgment, from basing said motion to set aside on the
fact that there was noncompliance with the declaration of
disclosure requirements (by the noncomplying party
himself or herself). In this case, the complying party
only may request that the court set aside the judgment on
the basis of noncompliance by the other party.
This is a significant change in the law, because Family
Code Section 2107(d) provides that the court shall set
aside a judgment if it entered a judgment when the
parties have failed to comply with all disclosure
requirements (meaning preliminary and final disclosures),
specifically declaring that failure to comply with the
disclosure requirements do not constitute harmless error.
Without the language this bill would add to Section
2107(d), both parties would be able to request the court
to set aside the judgment, even when it granted a waiver
to the complying party.
In essence, the proposed amendment to Section 2107(d)
establishes failure to comply with the disclosure
declaration requirement as "harmless error" on the part
of the noncomplying party.
Under this bill therefore, a party may comply by serving
a partially accurate disclosure declaration and then
waive receipt of the other party's declaration and be
assured the noncomplying party cannot set aside the
judgment on the basis of his or her own noncompliance or
that the complying party's declaration was not compliance
because it was inaccurate. Thus, unless amended, this
bill could invite gamesmanship to force the noncomplying
party who wants to set aside a judgment to find other
grounds on which to base the request.
This substantive change in the law was proposed by an
attorney, Dianne Fetzer. She argues that allowing a
complying party to waive receipt of a disclosure
declaration would expedite dissolution proceedings,
especially where one party (usually the respondent)
refuses to cooperate in sorting out the parties' property
for distribution.
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4. Commission on Judicial Performance access to
confidential court files
This section of AB 2303 would give the Commission on
Judicial Performance (CJP) access to confidential court
files and records in order to investigate judicial
misconduct.
According to the CJP, 97% of complaints submitted to the
CJP for investigation arise from court proceedings.
While court files and proceedings are generally open to
the public, they are closed in cases dealing with
juvenile and delinquency proceedings, and records can
only be accessed through a court order. CJP claims that
the process of obtaining a court order is time consuming,
and diminishes the confidentiality of the commission's
investigation (since the same or another judge will have
to rule on the request). CJP fears that a given judge or
others will be alerted and thus jeopardize the integrity
and confidentiality of the investigation.
The State Bar of California currently has a procedure for
access, on an ex parte basis, to all non-public court
records relevant to a disciplinary action against an
attorney. If the State Bar needs to make public use of
the records, it is required to give notice to the parties
in the case, who may then seek a hearing on whether or
not the records should be made public. The CJP modeled
the language currently in Section 27 of AB 2303 on this
State Bar provision, Business and Professions Code Sec.
6090.6.
Section 27 of AB 2303 would permit access to the
nonpublic records of court proceedings, including those
confidential sealed records and transcripts, relevant to
the performance of any judge, former judge, or
subordinate judicial officer, on an ex parte basis. The
procedure would require the CJP to make a written request
under seal to the court in which a proceeding occurred.
Access to the requested records would be provided within
15 days of the request.
If either the CJP or the judicial officer who is the
subject of the investigation intends to publicly disclose
any nonpublic record or information obtained under the ex
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parte process described above, the CJP or the judicial
officer must first seek authorization for disclosure from
the court that granted access or from another court that
has jurisdiction. The petition for disclosure of
identified records would be made under seal, and, to the
extent redaction would not unduly lessen the evidentiary
value of the records or defeat the purpose of disclosure,
the petitioner shall redact names and other identifying
information.
Under this procedure, the court would be required to
grant the petition for disclosure if the court finds good
cause, and may issue protective orders, including further
redaction of names or other identifying information. The
court also may, within 15 days of filing of the petition
to disclose, order notice to be given to any person who
may be "adversely affected by the disclosure." That
noticed person may, within 20 days of service of the
notice, object to the intended disclosure.
Suggested amendments:
1) On page 63, line 40, strike out "notice" and insert:
disclosure
2) On page 63, line 40, after "and" insert: serve the
objection on
Within 15 days of a timely filed objection or the
expiration of the time within which to object to the
intended disclosure, or within 15 days of the filing of
the petition to disclose for which no notice is required
by the court, the court shall grant or deny the petition
in whole or in part.
Under the rules established by proposed Section 68756 of
the Government Code, the subject of the investigation may
not object to intended disclosure of nonpublic records or
transcripts of proceedings, unless the subject was a
party or parent, guardian, or conservator of a party in
the underlying action. Additionally, a request for
access to nonpublic records or a petition for disclosure
filed under this new section of the Government Code shall
not be ruled upon or considered by the judicial officer
who is the subject of the CJP investigation or
disciplinary proceedings related to the requested
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information.
5. Monetary sanctions for jurors
AB 1180 (Harman, Ch. 359, Stats. 2003) created graduated
monetary sanctions on jurors who fail to appear as
required by a jury summons as an alternative to the more
onerous, expensive and time-consuming contempt
proceeding, which involves an arrest, a formal hearing
with witnesses called and examined, and a jail sentence.
The monetary sanctions may not exceed $250 for the first
offense, $750 for the second offense, and $1,500 for the
third or subsequent offenses. The fine may be reduced or
waived by a judge. The sanctions and procedure
established by AB 1180 had been practiced by the Los
Angeles courts without authorization for 12 years prior
to enactment of AB 1180. In order to limit its potential
for abuse, AB 1180 contained a sunset date of January 1,
2007. As proposed to be amended, this bill would extend
the sunset date by three years, (instead of repealing
the sunset date as originally proposed).
AB 1180 also required the Judicial Council to submit a
report to the Legislature by December 31, 2005. The
report was made available to staff only recently,
however. The report is sparse. So far, only Los Angeles
and San Bernardino Counties are included in the report
(Sacramento started to implement the sanctions only last
October 2005). The report highlights some of the
questions that were raised when AB 1180 was passed, and
which remain unanswered.
a. No measurable change in juror response
The report states there is no data on the change in
rates of response to juror summons in Los Angeles,
while San Bernardino reported a reduction in FTAs
(failures to appear) from 24% to 11%. Los Angeles had
been running a similar program prior to AB 1180, so
there was no measurable change in the response rate
that could be detected, except for periodic and
temporary increases in response when there were media
reports of Order to Show Cause hearings on sanctions
the courts wanted to impose on non-responsive jurors.
The Judicial Council notes, however, that the
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improvement in juror response (or reduction in FTAs)
should not be the basis for either extending or
eliminating the sunset date, as there has not really
been an expansion in the use of the monetary sanctions
to induce potential jurors to respond to a summons.
At the next report due by December 31, 2008, data will
include Sacramento, which started its program only in
October, 2005, and any other court that may begin to
participate. Los Angeles should continue to be
monitored, to measure any fluctuations in responses to
jury summons.
b. The monetary sanction procedure is an appropriate
way to use Trial Court Trust Funds, but how should the
collections be reallocated?
Prior to the next sunset date, this bill would require
another report by the Judicial Council on the efficacy
of these monetary sanctions. While the goal of the
sanctions is to improve responses to jury summons, the
sanctions are not intended to offset the cost of the
program. This year's Judicial Council Report confirms
that the costs of implementing the monetary sanctions
are definitely not recouped by the collections. For
example, in Los Angeles, the Superior Court collected
a total of $196,350 in fines, after imposing
approximately 13,800 sanctions between January 2004
and September, 2005 (averaging $9,350 per month).
Compared to the estimated cost of $17,375 per month
for implementing this sanction procedure, the
non-measurable change in juror response costs the
courts about $8,000 per month. In San Bernardino
County, the court collected $3,600 for 120 sanctions
imposed over a 12-month period, an average collection
of $300 per month. The sanction imposed is only the
$30 cost of the sheriff serving notice of the Order to
Show Cause (OSC) hearing on the sanction, as the fines
are waived otherwise. While the FTAs were reduced
from 24% to 11%, the cost of implementing the monetary
sanctions procedure averaged $4,200 per month. (It is
not known the degree to which costs would be incurred
if and when a court chooses to pursue contempt
proceedings against no-show jurors.)
The collections are remitted back to the Trial Court
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Trust Fund, as required by AB 1180. However, AB 1180
also intended that the monies collected be allocated,
"to the extent feasible," to the family courts and the
civil courts. Whether this directive was actually
followed or totally ignored by the Judicial Council or
the courts is not known, because the courts failed to
implement a mechanism for tracking the funds
collected.
AB 2303 would not change this directive. It might
also be noted that the Judicial Council Report
suggested that the monies collected pursuant to the
monetary sanctions program for jurors be used to pay
for jury improvements, such as Juror Appreciation Week
activities, refurbishing jury assembly rooms, and
improving the rate of juror pay, rather than be
reallocated to family and civil courts. However, this
recommendation was rejected by the Council and is not
part of this proposal. Thus, the burden will be on
the Judicial Council to create a mechanism for
tracking and allocating the collected funds.
c. Are sanctions being imposed fair or sufficient?
According to the Judicial Council Report, San
Bernardino imposed sanctions in the amount of only $30
in each case, that amount being the sheriff's cost of
serving notice of the OSC on the juror who failed to
appear pursuant to the jury summons, all other fines
being waived. Los Angeles, on the other hand, imposed
an average of $250 per sanction. The discrepancy in
the treatment between the citizens of these two
counties is stark. While it was not the intent of AB
1180 to make this program self-funding, it is not easy
to ignore the fact that a potential juror from Los
Angeles faces a much stiffer fine than one from San
Bernardino. Thus, the courts should probably consider
imposing the same fine across the board, statewide, so
that these differences may be minimized, especially
since the state is moving towards uniform fees in the
courts.
6. Extension of time period for service of written notice
and service by mail when seeking a review of a court's
determination on disqualification of a judge
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Under current law, if a judge should disqualify themself,
but fails to do so, any party may file a statement
objecting to the hearing or trial before the judge and
setting forth the grounds constituting disqualification.
[Code Civ. Proc. 170.3.] Unless that judge consents to
disqualification, the issue of disqualification shall be
heard by another judge. Any party seeking to challenge
the determination must seek a writ of mandate "within 10
days of notice to the parties of the decision." [Code
Civ. Proc. 170.3(d).]
Section 4, sponsored by the Conference of Delegates of
California Bar Associations, would instead require "[t]he
petition for the writ [to] be filed and served within 10
days after service of written notice of entry of the
court's order granting or denying a motion for
disqualification." Additionally, the time period for
writs served by mail would be extended as provided in
Section 1013(a) of the Code of Civil Procedure. In
support of these changes, the Conference of Delegates
Resolutions Committee states:
The "twin policies of judicial economy and
elimination of unfair manipulation of erroneously
denied challenges, are promoted by section 170.3,
subdivision (d) . . . ." (Guedalia v. Superior
Ct. (1989) 211 Cal.App.3d 1156, 1163.) However,
if the judge deciding the question of
disqualification determines the issue on the
papers, then section 170.3(d) is silent as to
when notice is deemed to have occurred so as to
begin the 10-day time period during which the
writ must be filed.
Revising 170.3(d) to commence the time period
within which a writ must be filed from service of
written notice would bring that statute into
conformity with the numerous other statutes
providing for writ review. [Citations omitted.]
Although most of [those] statutes do not specify
that the time limit be extended if service is
accomplished by mail, Code of Civil Procedure
437c(m)(1) does so provide. Incorporating
reference to Code of Civil Procedure section
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1013(a) provides additional clarification of the
time limit that applies.
In its counterargument to resolution 09-06-02, the basis
for this section, the San Diego County Bar Association
stated that the "resolution should be disapproved unless
it is amended to eliminate an invitation to sharp
practice." That bar association raised concerns that "a
party interested in the speedy and orderly process of the
case may not be aware of the need to give notice of entry
of the order." Thus, for determinations made from the
bench and without any written notice of the decision, a
party could "file a writ petition at a very disruptive
time, asserting its time to do so was indefinitely
extended by the lack of a proper notice of entry." While
those concerns are valid, it appears unlikely that any
court would allow a malicious party to abuse the system
as contemplated above. Regardless, these concerns about
this provision demonstrate why this very substantive
provision, akin to many others in this bill, should
probably be vetted more thoroughly in its own stand-alone
bill so that there are no unintended consequences.
Additionally, the San Diego County Bar Association stated
that "the resolution refers to a 'motion' to disqualify,
when the for-cause procedure is initiated by a
'statement.'" [Code Civ. Proc. 170.3(c)(1).] To
conform to the entirety of Code of Civil Procedure
Section 170.3, references to "motion" should be removed
from the proposed language.
Suggested amendment :
On page 27, line 38, strike "granting or denying
a motion for" and insert: determining the
question of
7. Conforming paralegals' compliance period with continuing
legal education requirements
Existing law requires all paralegals to certify
completion: a) every three years, four hours of mandatory
continuing legal education in legal ethics, and b) every
two years four hours of continuing legal education in
either general law or a specialized area of law.
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According to the California Alliance of Paralegal
Associations (CAPA), sponsor, the different compliance
periods were enacted as a result of a typographical error
as a two-year compliance and reporting period was
intended for both categories of continuing legal
education.
However, the legislative history of the enabling
legislation, AB 1761 (Brewer, Chapter 439, Stats. of
2000), indicates otherwise. The four hours of legal
ethics training with a three-year compliance period
resulted from an amendment suggested by the Assembly
Judiciary Committee in its analysis of AB 1761. That
amendment was made April 4, 2000. The four hours of
substantive law education with a two-year compliance
period was later added on June 7 while the bill was in
the Senate awaiting hearing by the Senate Judiciary
Committee. The legislative history does not indicate the
reason for the different reporting periods, but the
different terms were noted in both the Senate Judiciary
Committee and Senate Floor analyses. And the difference
went unchanged in the three additional times AB 1761 was
amended prior to being sent to the Governor for
signature.
However, even though the proposed conforming of the
reporting periods may not be supported by legislative
history, conformity appears to be supported by sound
public policy in favor of increasing, in effect, the
legal ethics education requirement by 50%. Moreover,
CAPA asserts that the different reporting periods
"creates accounting difficulties for paralegals
attempting to track how many hours of each type of
continuing education they need to complete." This bill
would simplify that task.
8. Increasing the period for notice of a hearing from two
to five days in elder abuse cases
Currently, a party requesting a protective order in cases
of elder or dependent adult abuse under the Elder and
Dependent Adult Civil Protection Act (EADACPA) must serve
the required papers on the respondent at least two days
before the hearing. [Welf. & Inst. Code 15657.03(g).]
AB 2303 (Asm. Judiciary Committee)
Page 18
In comparison, protective orders in civil harassment and
workplace violence cases require service five days prior
to the hearing. [Code Civ. Proc. 527.6(g), 527.8(h).]
The time for service in civil harassment and workplace
violence protective orders was originally two days but
was later lengthened to five days.
Section 32 of this bill would conform the time period for
notice in dependent adult or elder abuse cases to that
for civil harassment or workplace violence, by requiring
service five days, instead of two days, before the
hearing. The Judicial Council, sponsor of this section,
states that this increased time period "provides more
time for the respondent to prepare and file papers and
for the courts to review the papers . . . [the additional
time] also protects the abused individual by resulting in
the notice of the temporary restraining order being given
sooner to the respondent."
During the comment period on this provision, two
commentators expressed concern that the change in service
would be detrimental to abused persons. In response, the
Judicial Council states their belief that "earlier
notification about the protective orders would better
protect abused persons than later notice supported by the
two commentators." The Judicial Council additionally
points out that the court may, upon motion of the
petitioner or on its own motion, shorten the required
time period for notice. [Welf. Inst. Code 15657.03.]
9. Proposed amendments concerning petitions and
applications for change of a person's name, increasing
the time for hearing, and other procedural changes
According to the Judicial Council, sponsor of these
sections, "[t]he current procedures for changing a
person's name are sometimes problematic." Problems
identified by the Judicial Council include "insufficient
time to publish the required notice or to serve
non-consenting parents or minors," and the need to
clarify the law for changing a person's name. Six
comments, all supportive, were received during the Spring
2005 comment period. There are, however, two issues that
need to be resolved.
AB 2303 (Asm. Judiciary Committee)
Page 19
a. Chaptering out issues with SB 1743 (Bowen)
An added problem with large omnibus bills is the added
possibility of chaptering out problems. Specific to
this bill, Section 11 amends Code of Civil Procedure
Section 1277. SB 1743 (Bowen) also amends that
section in order to protect victims of sexual assault
from the unwanted publication of their request for a
name change. In order to prevent the unwanted
interference with the substance of that bill,
chaptering out language must be added to prevent
conflict. Failure to add that language could result
in these provisions overriding those of SB 1743, thus
undermining the protection for victims of sexual
assault in name change proceedings.
SHOULD NOT CHAPTERING OUT LANGUAGE BE ADDED TO REMOVE
THE CONFLICT BETWEEN THIS BILL AND SB 1743?
b. Change in notice requirements to nonconsenting
parents in name change proceedings
Currently, nonconsenting parents must be served with
notice of the time and place of the child's change of
name hearing, or a copy of the Order to Show Cause.
The sponsor's first proposed change would allow a
court, for good cause, to bypass personal service
requirements and instead accept notice by publication.
Due to the wide array of situations that could
constitute "good cause," that provision would allow a
court to accept notice by publication without even
requiring evidence that personal service cannot be
accomplished. Since notice by publication is unlikely
to result in actual notice to that individual, these
nonconsenting parents would likely be left without
notice of these proceedings. Although that lack of
notice may not trigger Due Process protections, if
those protections were mandated, this provision would
fail.
The proper approach to deal with potential absentee
parents, encompassed in the second proposed change, is
to require notice in a manner reasonably calculated to
give actual notice to the nonconsenting parent if
notice may not be reasonably accomplished by the
AB 2303 (Asm. Judiciary Committee)
Page 20
existing methods. That second change both addresses
the problem of absentee parents, and would require
some evidence as to why service by the current
required methods can not reasonably accomplish the
required service.
To justify both changes, the Judicial Council states
that "problems have sometimes arisen with the
requirements for service on non-consenting parents,
especially when their address is unknown." Thus, the
proposed change, according to the Judicial Council,
would arguably "improve the process of changing the
name for a minor where the change is appropriate and
notice cannot be achieved under existing statutory
requirements."
Due to the ability for a court to bypass personal
service requirements for "good cause" absent even
attempting service on a nonconsenting parent, the
first provision should be removed from this bill.
SHOULD NOT THE PROVISION ALLOWING NOTICE BY
PUBLICATION UPON "GOOD CAUSE" IN LIEU OF PERSONAL
SERVICES OR EVEN ATTEMPTS, BE REMOVED?
c. Clarifying the listing of the parents names for
change of name petitions
Existing law, Code of Civil Procedure Section 1276,
outlines the application form and procedure required
for filing a change of name petition. According to
the Judicial Council, that section contains "a
somewhat confusing statement that, if neither parent
has signed a petition for a change of name, the
petition shall provide the name and address of the
parents or, if neither parent is living, of near
relative."
As that provision does not specifically state that it
only applies to the name change of minors, the
Judicial Council proposes to include clarifying
language stating that the requirement applies "if the
person whose name is to be changed is under 18 years
of age."
AB 2303 (Asm. Judiciary Committee)
Page 21
d. Extension of time before hearing on name change,
and clarification of the ability to dispose of a
hearing when no written objection is received
Upon commencement of an action for a change of name,
the court is required to issue an order to show cause
why the application for a name change should not be
granted. That order directs all interested persons to
attend the hearing on the matter, which must be four
to eight weeks from the date of the order to show
cause. A copy of that order must be published in a
newspaper of general circulation, or posted by the
clerk of the court where no newspaper exists. [Code
Civ. Proc. 1277.]
The Judicial Council states that this "time frame
sometimes makes it difficult, as a practical matter,
for petitioners to accomplish publication and serve
the non-consenting parent, if any, in a timely
fashion." Accordingly, the proposed change would
instead require the court to set the matter for
hearing 6 to 12 weeks from the date of the order
directing notice and setting the hearing date. Any
objections would be required to be filed at least two
days before the matter is scheduled for hearing, and
the objecting individual would be required to appear
in court at the hearing to show cause. While existing
law allows a court to grant a petition without a
hearing when no objections are filed, conforming
changes would be made to require those objections to
be filed two court days before the matter is scheduled
to be heard.
All of these changes, according to the Judicial
Council, would "improve the process of changing the
name for a minor where the change is appropriate and
notice cannot be achieved under existing statutory
requirements." Additionally, the Judicial Council
states that the modification of the hearing
requirement would "eliminate many unnecessary
hearings."
e. Remaining changes in Sections 10 - 14 are technical
and clarifying
AB 2303 (Asm. Judiciary Committee)
Page 22
The remaining changes in Sections 10 - 14 are
technical and non-substantive.
10. Authorizing arresting officer to electronically submit
notice to appear (NTA) citations to the court for
non-parking Vehicle Code violations
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." [Pen. Code 959.1.] According to the
Judicial Council, sponsor of this section, that code
section "contains outdated references to parking
citations and outdated provisions regarding electronic
signatures and the electronic submission of citations for
Vehicle Code violations."
The proposed changes include removing references to
notice of parking violations, which are no longer within
the court's jurisdiction, and replacing those references
with notice to appear citations. Previous references to
Vehicle Code parking violations would be replaced with
Vehicle Code provisions for nonparking violations, which
remain within the jurisdiction of the court.
Additional changes would deem the NTA to have been signed
by the defendant if it includes a "digitized facsimile of
the defendant's signature." The citing officer would not
need to verify the NTA with a declaration under penalty
of perjury if that form indicates which parts are made
under penalty of perjury, along with the name of the
officer making that declaration. This provision would
bind a citing officer to their electronic representation,
under penalty of perjury, without any form of signature.
While this change would facilitate the submission of NTA
citations, it would be a distinct departure from the
traditional requirement of a signed verification prior to
holding an individual liable for perjury.
The Judicial Council states that these amendments
"conform section 959.1 with current technology and [are]
consistent with the existing practice of the California
Highway Patrol." This subject is usually under the
jurisdiction of the Senate Public Safety Committee.
However the matter appears to be noncontroversial and the
AB 2303 (Asm. Judiciary Committee)
Page 23
Senate Public Safety Committee staff has not raised any
objection to this provision.
11. Extension of sunset date for Commercial Code Section
9321 dealing with intangibles
In 1999, Commercial Code Section 9321 created rights for
licensees of "general intangibles." The purpose of that
addition, as part of the modernization of Article 9 of
the UCC (Uniform Commercial Code), was to create rights
for those licensees comparable to rights for buyers of
goods in the ordinary course of business. That provision
will sunset on January 1, 2007 unless the sunset is
extended or repealed.
According to the National Conference of Commissioners on
Uniform State Laws (NCCUSL), the original sunset date of
January 1, 2004, and the current sunset were in response
to expressed concerns by the Directors Guild of America,
Inc. and the Screen Actors Guild, Inc. that this addition
would negatively affect them. NCCUSL reports that there
were "no apparent problems" during the initial or
subsequent trial period. Additionally, the Directors
Guild of America, Inc., the Screen Actors Guild, Inc. and
Writers Guild of America, west, Inc. (collectively, the
"Guilds"), writing in support of the extension of the
sunset state that:
Section 9321 provides guidance concerning the
relative priority of certain security interests
in general intangibles, including motion picture
rights and proceeds. When a producer grants a
security interest in a picture to its lender, but
then licenses rights in that picture to a
distributor whose lender asserts a security
interest in that distributor's property, the
lenders to the licensor and licensee may be in
conflict concerning their relative interests in
the licensor and licensee's interests in those
rights. This issue concerns the Guilds because
they take security interests from producers of
motion pictures in order to enforce payment of
residuals obligations - payable to directors,
performers and writers, many of whom are
California citizens - that arise as a picture is
AB 2303 (Asm. Judiciary Committee)
Page 24
exploited over time through license agreements
with distributors.
As originally proposed, 9321 would have
permitted licensees in the ordinary course of
business to take such rights free of a Guild
security interest. But through negotiations in
1999 among the Guilds, Bion Gregory, and
representatives for NCCUSL and the American Law
Institute ("ALI"), 9321 was modified to limit
such treatment to those licensees who took their
rights under a "nonexclusive" license. This was
most helpful from the Guild perspective, as
licenses of motion picture property rights are
generally exclusive rather than nonexclusive.
However, with new digital distribution methods on
the horizon, the parties also considered the
possibility that distribution models would evolve
in which valuable licenses might increasingly be
nonexclusive. To balance the prospect of such
distribution with the interest of NCCUSL in
seeing 9321 conform with UCC 9-321 as enacted in
other jurisdictions, the parties ultimately
agreed to add the Sunset Clause in California,
thus facilitating re-examination of this question
on a periodic basis.
The Guilds, sponsors of this section, seek to extend the
sunset until January 1, 2010. The Guilds state that they
have evaluated the provision and "that extension of the
Sunshine Clause through December 31, 2009 is the most
prudent course of action."
12. Clarifying changes to Civil Code Section 896 relating
to construction defects
Existing law provides that, in any action to recover
damages arising out of, or related to deficiencies in
residential construction, design, specifications,
surveying, planning, supervision, testing, or observation
of construction, a builder, general contractor,
subcontractor, material supplier, individual product
manufacturer, or design professional is liable for, and a
claimant's claims or causes of action are limited to, a
violation of certain specified standards, including
AB 2303 (Asm. Judiciary Committee)
Page 25
standards related to water issues.
This bill would make a technical amendment to two of the
water standards to clarify that a waterproofing system
installation is separate and apart from a tile
installation, and thus the contractor responsible for a
violation of the standard would depend on which
contractor installed which system. The sponsor, CA
Professional Association of Specialty Contractors
(CalPASC), writes in support:
Under Civil Code Section 896(a)(17)(18), the tile
contractor is made responsible for work that
they, in many cases, do not perform. [It] is
potentially the work of the waterproofing
contractor or another trade contractor whose
scope of work includes the placement of a
waterproof barrier. Ceramic tile is not
waterproof ; therefore, a waterproofing system is
required to be installed behind the tile in order
to prevent what the statute describes as "leak
water to the interior of walls, flooring systems,
or other components."
In most residential construction, the tile
contractor installs the tile after the
waterproofing or other contractor installs the
waterproofing system. There are instances where
the tile and waterproofing contractor are one and
the same, and therefore must remain responsible
for any alleged defect to any system that they
have installed. However, in most cases, the tile
contractor installs the tile, whereas the
waterproofing contractor installs the
waterproofing system.
CalPASC and the Consumer Attorneys agree that
there needs to be a technical change that states
that the contractor that is responsible for the
installation of the waterproofing system is
responsible for any alleged defect that allows
the migration of water to the interior of walls,
flooring systems, or other components. Finally,
all parties agree that this technical amendment
to the code section will ensure that consumer
AB 2303 (Asm. Judiciary Committee)
Page 26
protections will remain and will not be affected
by this minor change.
All interested parties, including the CA Building
Industry Assoc., support the technical amendment to Civil
Code Section 896.
13. Allowing status review hearings to be held earlier than
every six months for dependent children
Many children are removed from their homes each year due
to abuse or neglect and placed in the juvenile dependency
court system. Through various proceedings, the
dependency court determines whether family reunification
services should be provided, whether parental rights
should be terminated, and formulates a permanent
placement plan for the child.
When a permanent plan of adoption or legal guardianship
for a dependent child is formulated, their status must be
reviewed by the court every six months to ensure the
rapid completion of that adoption or guardianship.
[Welf. & Inst. Code 366.3(a).] In contrast, if the
dependent child is placed in a home other than with their
legal guardian, and the court has not dismissed
jurisdiction, the status of the child shall be reviewed
at least every six months. [Welf. & Inst. Code
366.3(d).] The Children's Advocacy Institute, sponsor,
contends that subdivision (a) was intended to state "that
a child's status should be reviewed at least twice a
year."
Accordingly, the sponsor seeks to add a provision
allowing a status review hearing to be held in the above
situations 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." In
support of this change, the sponsor states that "there is
no public policy justification for inserting into code a
built-in minimum time of uncertainty and anxiety for the
child, if the court finds that a shorter period is in the
child's best interests."
The sponsor is correct, a court should be able to examine
the status of the child at less than six month intervals.
AB 2303 (Asm. Judiciary Committee)
Page 27
An interesting side effect of the sponsor's language is
that since one of the affected provisions, Welfare and
Institutions Code Section 366.3(d), already requires a
hearing "at least every six months," the proposed
language would require a finding of the best interest of
the child prior to setting that hearing, as opposed to no
specific finding under current law. This change would
not be problematic as a court would hold any hearing
based upon the best interests of the child. As the
sponsor reiterates, "public policy is always . . . in
favor of providing certainty for the child as soon as
possible."
14. Extension of term limits for California non-profit
public benefit corporations board of directors from three
to four years
Currently, the term limit for a board of director for a
California non-profit public benefit corporation is
limited to three years. [Corp. Code 5220.] In
comparison, non-profit mutual benefit corporations have a
term limit of four years, and non-profit religious
corporations have no term limit for directors. [Corp.
Code 7220, 9220.].
The Sierra Club, sponsor, seeks to extend the term limit
for directors of California non-profit public benefit
corporations to four years. Their rationale, according
to the background materials, is the current cost of
elections. Providing a term limit of four years, as
opposed to three years, would allow them to have board
elections every two years, as opposed to every year.
The Sierra Club indicates that they have checked with the
Attorney General's office and they do not have any
objection to the increased term limit.
15. Technical amendment to the Car Buyer's Bill of Rights
Last year, AB 68 (Montanez), Chapter 128, Statutes of
2005, enacted the Car Buyers Bill of Rights. Among other
provisions, car dealers are required to offer the buyer a
two-day contract cancellation option agreement. That
provision does not apply to "used vehicle[s] having a
purchase price of forty thousand dollars ($ 40,000) or
more, a motorcycle, . . . or a recreational vehicle."
AB 2303 (Asm. Judiciary Committee)
Page 28
[Veh. Code 11713.21.] Dealers must display a notice
describing the availability of a "2-day contract
cancellation option" for certain used vehicles. [Veh.
Code 11709.2.] Although the requirement of the two-day
cancellation option does not apply to recreational
vehicles, the notice fails to mention that exemption,
while listing all other exemptions. Similarly, the
statutory disclosure fails to mention that recreational
vehicles are not covered by the two-day contract
cancellation provision, unlike the other uncovered
categories.
Accordingly, Sections 3 and 29 would add "recreational
vehicles" to the list of vehicles for which the
requirement does not apply in both the statutory
disclosure statement and dealer's notice.
Other technical amendments would address the lack of
clarity when a used car has a purchase price of exactly
$40,000. Vehicle Code Section 11713.21(a)(1) states that
used vehicles with a "purchase price of forty thousand
dollars ($ 40,000) or more" are exempt from that
requirement. [Emphasis added.] Alternatively,
subdivision (a)(2)(D), defining the maximum purchase
price for that cancellation agreement, states that the
price of the agreement shall be "[o]ne percent of the
purchase price for a vehicle with a cash price of more
than thirty thousand dollars ($ 30,000), but not more
than forty thousand dollars ($ 40,000)." [Emphasis
added.]
In response to that inconsistency, the California Board
of Equalization, sponsor of Section 30, seeks to "make
Subdivision (a)(2)(D) consistent with Subdivision (a)(1)
and all other provisions enacted under AB 68."
Accordingly, that section would strike "not more than"
from subdivision (a)(2)(D) and replace it with "less."
16. Remaining technical and clarifying changes
The two remaining provisions are technical and
clarifying. Section 7, sponsored by the California
Association of Photocopiers and Process servers would add
chief executive officer, controller and chief financial
officer to the list of corporate officers that may be
AB 2303 (Asm. Judiciary Committee)
Page 29
served with a summons for the corporation. Code of Civil
Procedure Section 416.10 already allows service of that
summons on the president, vice president, secretary or
assistant secretary, treasurer or assistant treasurer, or
other person authorized to receive service of process.
Finally, Sections 8 and 9, sponsored by the Conference of
Delegates of California Bar Associations, would clarify
Code of Civil Procedure Sections 904.1 and 904.2 to state
that dismissal on the basis of forum non-conveniens must
be made in a written order.
Support: California Association of Homes and Services for
the Aging (CAHSA); California Association of
Nonprofits (CAN); Family Law Section of the State
Bar; National Conference of Commissioners on Uniform
State Laws (NCCUSL)
Opposition: None Known
HISTORY
Sources: Assembly Member Montanez; California Association
of Photocopiers and Process Servers; California
Attorney General's Office; Judicial Council;
California Alliance of Paralegal Associations;
California Board of Equalization; California RV
Dealers Association; California Sierra Club;
Children's Advocacy Institute; Conference of
Delegates of California Bar Associations; Directors
Guild of America, Inc.; Law Offices of Dianne M.
Fetzer; Screen Actors Guild, Inc.; Writers Guild of
America, west, Inc.
Related Pending Legislation: AB 2655 (Plescia), would make
changes to Civil Code Section 986
similar to those proposed in this
bill. (The Assembly Judiciary
Committee's hearing on this bill was
cancelled at the author's request.)
SB 1743 (Bowen), would extend the
address confidentiality program,
currently available only to domestic
violence and stalking victims, to
victims of sexual assault; and exempt
AB 2303 (Asm. Judiciary Committee)
Page 30
an action for name change, filed for
the purpose of avoiding domestic
violence or stalking or where the
petitioner is a victim of sexual
assault, from the requirement for
publication of the order to show
cause. (This bill is on Second
Reading in the Assembly.)
Prior Legislation: None Known
Prior Vote: Asm. Jud (Ayes 9, Noes 0)
Asm. Appr. (Ayes 13, Noes 0)
Asm. Floor (Ayes 80, Noes 0)
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