BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 2767 (Committee on Judiciary)
As Amended May 13, 2010
Hearing Date: June 10, 2010
Fiscal: Yes
Urgency: No
BCP:jd
SUBJECT
Civil Law: Omnibus Bill
DESCRIPTION
This bill would enact assorted changes in various provisions of
law. Specifically, those assorted changes would, among other
things:
correct a drafting error relating to a Judicial Council
report on homestead exemptions;
clarify the treatment of unclaimed restitution money by
a court;
correct a drafting error relating to nonprofit religious
corporations;
clarify the ability to copy paternity files under
certain circumstances; and
make various changes necessitated by trial court
restructuring.
BACKGROUND
AB 2767 is the Assembly Committee on Judiciary's omnibus bill.
To be considered for inclusion, each provision must be
non-controversial and not be so substantive as to be more
appropriate for a stand-alone bill. If a non-controversial
provision later becomes controversial, that provision will be
removed from the bill.
CHANGES TO EXISTING LAW
1. Existing law requires the Legislature to protect, by law, a
certain portion of the homestead and other property from
(more)
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forced sale. (Cal. Const, Art. XX Sec. 1.5.)
Existing law contains both an automatic and a declared
homestead exemption that serves to protect a portion of equity
in a debtor's home from creditors. (Code Civ. Proc. Secs.
704.710 et seq., 704.910 et seq.) Existing law sets the
amount of the homestead exemption as follows:
$75,000, unless the judgment debtor or spouse of the
judgment debtor who resides in the homestead is a person
described below;
$100,000 if the judgment debtor or spouse of the
judgment debtor who resides in the homestead at the time of
sale is a member of the family unit, and there is at least
one member of the family unit who owns no interest in the
homestead or whose only interest in the homestead is a
community property interest with the judgment debtor; or
$175,000 if the judgment debtor or spouse of the
judgment debtor who resides in the homestead at the time of
sale is either: (1) a person 65 years of age or older; (2)
a person physically or mentally disabled and as a result of
that disability is unable to engage in substantial gainful
employment, as specified; or (3) a person 55 years of age
or older with a limited gross annual income, as specified.
(Code Civ. Proc. Sec. 704.730.)
Existing law requires the Judicial Council, on April 1, 2010,
and at each three-year interval ending on April 1 thereafter,
to submit to the Legislature the amount by which the dollar
amounts of the above homestead exemptions may be increased
based upon the change in the annual California Consumer Price
Index for All Urban Consumers, for the most recent three-year
period, as specified. Those increases shall not take effect
unless they are approved by the Legislature. (Code Civ. Proc.
Sec. 703.150.)
This bill would, instead, require the Judicial Council to
submit those amounts by April 1, 2013, and at each three-year
interval ending on April 1 thereafter.
2. Existing law states that any money, excluding restitution
to victims, that has been deposited with a superior court, or
that a superior court is holding in trust, in a court bank or
trust account, that remains unclaimed for three years shall
become the property of the superior court if, after published
notice, the money is not claimed or no verified compliant is
filed and served. (Gov. Code Sec. 68084.1.)
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This bill would provide that any money representing
restitution collected on behalf of victims that remains
unclaimed for three years shall be deposited into either the
State Restitution Fund for the purpose of providing victim
services or into the general fund of a county that administers
a victim services program for the provision of victim
services.
3. Existing law provides that a paternity hearing or trial may
be held in closed court, and that all papers and records,
other than the final judgment, are subject to inspection only
in exceptional cases upon an order of the court for good cause
shown. (Fam. Code Sec. 7643(a).)
Existing law provides that papers and records pertaining to
the action that are part of the permanent record are subject
to inspection by the parties to the action, their attorneys,
and by agents acting pursuant to written authorization. An
attorney must obtain consent prior to authorizing an agent to
inspect the permanent record, as specified. (Fam. Code Sec.
7643(b).)
This bill would clarify that inspection pursuant to the above
provisions includes copying.
4. Existing law provides that where the appellate division of
the superior court grants a writ of review directed to the
superior court, the superior court is an inferior tribunal, as
specified. (Code Civ. Proc. Secs. 1085, 1103.)
This bill would replace "writ of review" with "writ of
mandate" in Section 1085, and "writ of prohibition" in Section
1103.
5. Existing law provides that any number of offices of a
nonprofit religious corporation may be held by the same person
unless the articles or bylaws provide otherwise, except that
the secretary, the treasurer, or the chief financial officer
may serve concurrently as the president or chair of the board.
(Corp. Code Sec. 9213.)
This bill would clarify that the secretary, treasurer, or
chief financial officer may not serve concurrently as the
president or chair of the board.
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6. Existing law specifies how interpreters' and translators'
fees shall be paid in criminal, coroners', and civil cases.
(Gov. Code Sec. 68092.)
This bill would make technical, clarifying changes, including
moving fees for coroners' cases to a standalone section.
7. Existing law provides for the deposit of moneys, including
bail, coming into possession of a judge or officer of a court
and deposited in a bank account by the court, as provided.
(Gov. Code Secs. 53647.5, 53679.)
This bill would make technical, clarifying changes to these
provisions.
8. Existing law defines subordinate judicial officer as an
officer appointed to perform subordinate judicial duties, as
authorized, including, but not limited to, a court
commissioner, probate commissioner, referee, traffic referee,
and juvenile referee. (Gov. Code Sec. 71601.)
This bill would add child support commissioner and juvenile
hearing officer to the definition of subordinate judicial
officer and make another technical, clarifying changes to the
definition.
9. Existing law authorizes the Commission on Peace Officer
Standards and Training to amend rules establishing minimum
standards relating to physical, mental, and moral fitness that
govern the recruitment of various law enforcement officers.
(Pen. Code Sec. 13510.)
This bill would make technical, clarifying changes to those
provisions.
COMMENT
1. Correction of a drafting error in AB 1046 (Anderson,
Chapter 499, Statutes of 2009)
Last year, AB 1046 increased the then-existing homestead
exemptions by $25,000 each (resulting in a $75,000 base
exemption, $100,000 exemption for family units, and $175,000
exemption for those aged 65 or older, disabled, or 55 or older
with limited income). Those exemptions serve to protect a
specified portion of a person or family unit's principal
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dwelling ("homestead") from being sold pursuant to a court order
to satisfy a debt to creditors. If the dwelling cannot be sold
for an amount that exceeds the exemption (plus liens and
encumbrances on the property itself), it may not be sold to
satisfy the judgment.
To facilitate future increases, AB 1046 also required the
Judicial Council on April 1, 2010, and at each three-year
interval, to submit to the Legislature the dollar amounts that
the exemptions may be increased based upon change in the annual
California Consumer Price Index for All Urban Consumers. AB
1046 also stated that those increases would not take effect
unless approved by the Legislature.
After the enactment of AB 1046, Judicial Council expressed
concern about the requirement to submit those dollar amounts on
April 1, 2010, essentially three months after enactment of the
bill. The author and sponsor of the bill, the California
Teamsters Union, concurred that it was not their intent to
require a report just months after enactment, and that the
current requirement is the result of a drafting error. Those
proponents of this omnibus provision contend: "The date
specified in subdivision (c) of section 703.150 should have been
April 1, 2013, and the proposed clean-up legislation will fix
that error and avoid the need for the council to submit an
unnecessary report to the Legislature." To address that
drafting error, this bill would, instead, require Judicial
Council's report to be provided on April 1, 2013, instead of on
April 1, 2010.
Committee staff notes that, if enacted, this non-urgency bill
would not go into effect until January 1, 2011. As a result,
this provision in the omnibus bill would not technically
eliminate the requirement for Judicial Council to submit some
form of report on April 1, 2010 (a date which has already passed
at the time of this hearing). As a result, the effect of this
provision would be to clarify, on a prospective basis, that the
Judicial Council is now required to submit a report on April 1,
2013.
2. Disposition of unclaimed victim restitution money
Under existing law, money that has been deposited with a court
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and remains unclaimed after three years becomes the property of
the court ("escheats") after compliance with specified notice
and claims procedures. Those escheat provisions do not apply to
restitution money that a defendant has deposited with a court
for distribution to his or her victims. As a result, the court
has no formal direction on how to deal with unclaimed
restitution. The Judicial Council, sponsor of this provision,
notes that the lack of direction on how to handle unclaimed
victim restitution money results in the money being left in
limbo, and that the lack of direction "was simply a drafting
oversight when the court escheat law was created."
To clarify what happens to that unclaimed restitution money
after a period of three years, this provision would provide that
if the court complies with specified notice and claims
procedures, the money may be deposited either into: (1) the
State Restitution Fund; or (2) the general fund of a county that
administers a victim services program. The Judicial Council
contends that those changes will clarify statute and provide
superior courts with the necessary direction to process
unclaimed victim restitution.
3. Correction of error in AB 1233 (Silva, Chapter 631,
Statutes of 2009)
Last year, AB 1233 (Silva, 2009) sought to clarify various
provisions in the Corporations Code relating to different types
of corporations and associations. As part of the clarification,
AB 1233 amended Corporations Code Sections 5213 (pertaining to
nonprofit public benefit corporations) and Section 9213
(pertaining to nonprofit religious corporations). Both sections
previously contained the phrase "neither the secretary nor the
chief financial officer may serve concurrently as the president
or chairman of the board." AB 1233's clarifications correctly
amended Section 5213 to read: ". . . the secretary, the
treasurer, or the chief financial officer may not serve
concurrently as the president or chair of the board" while the
word "not" was omitted from that same phrase in Section 9213.
This provision, sponsored by the Business Law Section of the
State Bar of California would fix that inadvertent omission by
inserting the word "not" into Section 9213.
4. Clarification of intent to allow for copying of paternity
files in certain circumstances
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In 2008, AB 1679 (Evans, Chapter 50, Statutes of 2008) amended
Section 7643 of the Family Code to permit inspection of court
files relating to paternity by the party's attorneys and agents
of those attorneys that have written authorization. Those
paternity cases may be held in closed court, and, aside from the
above authorization for attorneys and their agents, the files
are generally subject to inspection only in exceptional cases
upon an order of the court (parties to the paternity action may
also inspect those papers and records).
The Executive Committee of the Family Law Section of the State
Bar of California (FLEXCOM), sponsor of this provision, contends
that the intent behind the amendment made by AB 1679 was to
permit inspection and copying of the files, and that court
clerks have literally interpreted the statute and are allowing
for inspection, but not copying of those files. This provision
would clarify that both inspection and copying are permitted
under Section 7643.
FLEXCOM states that this amendment "will allow a party to
authorize an attorney or an agent for an attorney (i.e. a court
service, paralegal, etc.) with both access and the ability to
photocopy paternity court files. This [provision will] allow a
party unable to take time off from work or with a physical
disability due to illness or injury to have a friend or relative
go to the court to get documents from the file; allow an
attorney to view the court file before being retained; and allow
an attorney service or non-attorney employees of prospective
counsel to obtain documents from the court file."
5. Remaining provisions would make various changes
necessitated by trial court restructuring
Pursuant to Government Code Section 71675, the California Law
Revision Commission (CLRC) is required to determine whether any
provisions of law are obsolete as a result of trial court
restructuring and to recommend to the Legislature any amendments
to remove those obsolete provisions. The CLRC, sponsor of these
provisions, states that the included changes are largely
technical and "would not create new policy, but would add,
amend, or delete language to reflect trial court restructuring."
CLRC asserts that "[r]emoving material made obsolete by trial
court restructuring would help avoid confusion and prevent
disputes, thereby reducing litigation expenses and conserving
judicial resources."
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Consistent with their statutory directive, these provisions
would make technical and clarifying changes to sections relating
to, among other things, employment, assignment and compensation
of interpreters and translators (Gov. Code Secs. 27473, 68092),
interest on deposits of bail (Gov. Code Sec. 53647.5), municipal
court bank accounts (Gov. Code Sec. 53679), municipal court
marshals (Pen. Code Sec. 13510), and subordinate judicial
officers (Gov. Code Sec. 71601.)
6. Author's amendment
The author offers the following amendment to remove a section of
the bill that is no longer necessary in light of the May 13,
2010 amendments:
Amendment :
On page 5, strike out lines 27 through 40, inclusive, and on
page 6, lines 1 through 8, inclusive.
Support : None Known
Opposition : None Known
HISTORY
Source : Business Law Section of the State Bar; California Law
Revision Commission; California Teamsters Union; Executive
Committee of the Family Law Section of the State Bar; Judicial
Council
Related Pending Legislation : None Known
Prior Legislation :
AB 1046 (Anderson, Chapter 499, Statutes of 2009) (See Comment
1.)
AB 1233 (Silva, Chapter 631, Statutes of 2009) (See Comment 3.)
AB 1679 (Evans, Chapter 50, Statutes of 2008) (See Comment 4.)
Prior Vote :
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Appropriations Committee (Ayes 15, Noes 0)
Assembly Floor (Ayes 70, Noes 0)
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