BILL ANALYSIS
SB 1274
Page 1
Date of Hearing: June 15, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
SB 1274 (Judiciary) - As Amended: March 23, 2010
PROPOSED CONSENT
SENATE VOTE : 33-0
SUBJECT : ELECTRONIC SERVICE OF PROCESS
KEY ISSUE : SHOULD EXISTING LAW BE UPDATED TO REFLECT ADVANCES
IN MODERN TECHNOLOGY AND PROVIDE A MORE EFFICIENT, PAPERLESS
OPTION OF SERVING NOTICE?
FISCAL EFFECT : As currently in print this bill is keyed fiscal.
SYNOPSIS
This non-controversial bill, sponsored by the Judicial Council
and the Conference of California Bar Associations, amends
Section 1010.6 of the Government Code, 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. There is no known opposition to the bill.
SUMMARY : Seeks to improve the law governing electronic filing
and service of documents. Specifically, this bill :
1)Allows 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 of California.
2)Requires 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.
3)Provides 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
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transmission.
4)Provides that the court may also electronically serve court
issued documents, provided that the documents are not required
to be personally served.
5)Defines "electronic service" to include both electronic
notification and electronic transmission as follows:
a) 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.
b) Electronic transmission - occurs when a document is sent
through electronic means to an electronic address that has
been provided by the receiving party.
6)Provides that electronic service of documents would be
considered complete at the time the electronic transmission or
the electronic notification is sent.
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 of Civil Procedure
Section 1010.6(a) et seq.)
COMMENTS : This non-controversial bill, sponsored by the
Judicial Council and the Conference of California Bar
Associations, amends Section 1010.6 of the Government Code,
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. As technology
continues to advance, the usage of electronic methods for
service of documents has become increasingly widespread. The
two primary methods in use for electronic service are the
"electronic transmission" method and the "electronic
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notification" method. The electronic transmission method
electronically sends the document to the person being served.
Under the electronic notification method, instead of
electronically sending the document, the recipient is
electronically notified of the document and given a hyperlink
where the document may be accessed.
Background : 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. (2009) 170 Cal.App.4th 1129, 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., 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.
As a result, current law only authorizes service by the
electronic transmission method, but not the electronic
notification method. Prior to InSyst, both electronic
transmission and electronic notification were being used
increasingly in civil cases, as they perform the same goal in a
slightly different way. This bill simply seeks to re-define
electronic service to include both methods of electronic
transmission and electronic notification.
Additional considerations : 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.) This bill will allow parties to opt into
receiving electronic service, as long as both parties consent
and the document is not required to be personally served; a
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local rule authorizing electronic service would no longer be
required. Instead, the bill will 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 the bill will have no effect on documents which are
required to be served personally. It will only affect those
documents which may be sent by mail, express mail, over night
delivery, or facsimile transmission.
ARGUMENT IN SUPPORT : The Judicial Council, sponsor of this
bill, states that the measure "expands the court's ability to
serve certain documents electronically, which promotes its use
and increases the overall efficiency of the service process."
In further support, 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?
REGISTERED SUPPORT / OPPOSITION :
Support
Judicial Council (sponsor)
Conference of California Bar Associations (co-sponsor)
SB 1274
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Opposition
None on file
Analysis Prepared by : Drew Liebert / JUD. / (916) 319-2334