BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
SB 1274 (Committee on the Judiciary)
As Amended: March 23, 2010
Hearing Date: April 13, 2010
Fiscal: Yes
Urgency: No
KB/GW
SUBJECT
Electronic Service of Process
DESCRIPTION
This bill, sponsored by the Judicial Council, would amend
Government Code Section 1010.6, which authorizes electronic
service of documents, to re-define electronic service to include
both methods of electronic transmission and electronic
notification. Parties may only consent to electronic service
for documents which are not currently required to be served
personally.
BACKGROUND
Electronic mail, or e-mail, has become a popular form of
communication all over the world. To some, the internet is
considered to be a necessity, allowing instantaneous
communication with friends, family, and businesses. It has
become a part of every day office life, allowing companies to
communicate cheaply, effectively, and efficiently. In the
litigation context, parties have increasingly begun
electronically serving documents in civil cases, and it is
likely electronic service will become the principal method of
service in the years to come.
Until recently, attorneys and parties primarily utilized two
methods of electronic service: electronic transmission and
electronic notification. Electronic transmission occurs when a
document is electronically sent to the party to be served.
Electronic notification occurs when a notification, not a
document, is sent to the party, informing the party that the
(more)
SB 1274 (Committee on the Judiciary)
Page 2 of ?
document is available electronically, and providing the
hyperlink where the document may be accessed. However, recent
case law has interpreted the authorization of electronic service
to include only electronic transmission. (Inyst, Ltd. v.
Applied Materials Inc. ( 2009) 170 Cal.App.4th 1129.) SB 1274
has been introduced to address this gap between statute and
actual practice.
CHANGES TO EXISTING LAW
Existing law permits a trial court to adopt local rules
regarding electronic filing and service of documents. Documents
which may be sent by mail, express mail, overnight delivery, or
facsimile transmission, may also be served electronically as
long as both parties have agreed to electronic service for that
action. Documents that are filed electronically have the same
legal implications as the original document and must be filed in
compliance with specified conditions. (Code Civ. Proc. Sec.
1010.6(a) et seq.)
Existing case law has distinguished between electronic
transmission of a document and electronic notification of a
document, holding that the electronic transmission method is
considered to be the only valid method of electronic service
under current California law. (Inyst, Ltd. v. Applied Materials
Inc. ( 2009) 170 Cal.App.4th 1129.)
This bill would allow parties to consent to electronic service
of documents, pursuant to filing rules mandated by the local
trial court and service rules mandated by the Judicial Council.
This bill would require the Judicial Council to adopt uniform
rules relating to the integrity of electronic filing and
service of documents in the trial courts of the state.
This bill would provide that documents cannot be served
electronically if they are required to be served personally.
Documents that can be served electronically may include
documents which may be served by mail, express mail, overnight
mail, or facsimile transmission.
This bill would provide that the court may also electronically
serve court issued documents, provided that the documents are
not required to be personally served.
SB 1274 (Committee on the Judiciary)
Page 3 of ?
This bill would define "electronic service" to include both
electronic notification and electronic transmission as follows:
electronic notification: occurs when a party receives
notification through an electronic message specifying the
exact name of the document being served, and is provided a
hyperlink at which the document may be viewed and downloaded.
electronic transmission: occurs when a document is sent
through electronic means to an electronic address that has
been provided by the receiving party.
This bill would provide that electronic service of documents
would be considered complete at the time the electronic
transmission or the electronic notification is sent.
COMMENT
1.Stated need for the bill
The author states:
Under current law, if a document may be served by mail,
express mail, overnight delivery, or a facsimile transmission,
electronic service of the notice and its attached documents
may be utilized [if] the parties have consented to accept the
service electronically. (Code of Civ. Proc. Sec.
1010.6(a)(6).) A document that is filed electronically is
said to have the same legal effect as an original paper
document. (Code of Civ. Proc. Sec. 1010.6(a).) However,
current California statutes authorize for [electronic] service
by electronic transmission, but not by electronic
notification.
? This bill would update California statutes to reflect
advances in modern technology and provide a more efficient,
paperless option of serving notice. Code of Civil Procedure
Section 1010.6 would be amended to redefine electronic service
to include both electronic transmission and electronic
notification ? . The party to be served must have consented
to being served electronically.
SB 1274 (Committee on the Judiciary)
Page 4 of ?
Additionally, this bill would provide that once a party has
consented to accept electronic service, the court has
authorization to electronically serve any document issued by
the court which is not required to be personally served. This
bill would have no effect on other California statues which
require specific notices to be served personally.
The Judicial Council, sponsor of this bill, states that SB 1274
"expands the court's ability to serve certain documents
electronically, which promotes its use and increases the overall
efficiency of the service process."
2.SB 1274 specifically addresses the issue presented in InSyst,
Ltd. v. Applied Materials, Inc, by redefining electronic
service to include both electronic transmission and electronic
notification
In January 2009, the California Court of Appeals 4th District
examined the issue of valid electronic service under California
law. In InSyst, Ltd. v. Applied Materials, Inc., a party was
electronically given instructions to access a document on the
internet and given a hyperlink leading to a description of the
document. That description also included an additional
hyperlink that opened a file-stamped copy of the judgment.
Citing to California's Rules of Court Rule 2.250(6), the court
said that "[e]lectronic service is the electronic transmission
of a document to a party's electronic notification address ? ."
(InSyst., Ltd. v. Applied Materials, Inc., supra, 170
Cal.App.4th at p. 1139.) The court reasoned that neither Rule
2.250(6) of the California Rules of Court, nor Section 1010.6 of
California's Code of Civil Procedure, authorized a party to
electronically serve another party by providing a hyperlink.
Therefore, the court rejected the defendant's argument and found
that notifying the recipient electronically about the
availability of a document, and including a hyperlink at which
the document could be accessed, would not be considered valid
electronic service under California law.
However, as discussed above (See Background), electronic service
of documents has become an increasingly common practice in civil
cases. Until recently, "electronic notification" and
"electronic transmission" were the methods primarily being used
to electronically serve documents. Although both methods occur
differently, they essentially accomplish the same objective - to
electronically serve a document onto another party. However,
pursuant to InSyst, Ltd, the only method which is now considered
SB 1274 (Committee on the Judiciary)
Page 5 of ?
an acceptable form of electronic service is the electronic
transmission method. SB 1274 would re-define existing law's
definition of "electronic service" to include both electronic
transmission and electronic notification, updating California
law to more accurately reflect modern practices.
Modern technological advances of e-mail, have given law offices
and courts the opportunity to communicate effectively and
efficiently with clients, parties, and other lawyers, without
the costs of paper. In 2000, SB 367 (Dunn, Ch. 514, Stats.
1999) amended Code of Civil Procedure Section 1010 to reflect
current practices and modern technology by permitting the filing
of papers by facsimile transmission. Likewise, this bill would
update the code to better reflect the most recent technological
advances and common usage of internet transmission and
communication.
3.This bill would allow parties to consent to receive service
electronically, without the formal adoption of a local trial
court rule
Under current law, parties may consent to being served
electronically but only if the local trial court has authorized
electronic service. (Code Civ. Proc. Sec. 1010.6.) SB 1274
would allow for parties to opt into receiving electronic
service, as long as both parties consent and the document is not
required to be personally served; a local rule authorizing
electronic service would no longer be required. Instead, SB
1274 would require the Judicial Council to adopt rules to ensure
that electronic notification using hyperlinks is a reliable and
cost effective means of service, and to maintain the integrity
of the document served and the process of the service. These
rules would provide uniformity of electronic service throughout
the state, instead of having each county develop its own rules.
It is important to note, however, that SB 1274 will have no
effect on documents which are required to be served personally.
SB 1274 will only affect those documents which may be sent by
mail, express mail, over night delivery, or facsimile
transmission.
Support : None Known
Opposition : None Known
SB 1274 (Committee on the Judiciary)
Page 6 of ?
HISTORY
Source : Judicial Council of California
Related Pending Legislation : None Known
Prior Legislation : None Known
**************