(1)Existing law provides that a party to an action in which it is alleged that 2 or more parties are joint tortfeasors or co-obligors on a contract debt is entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors, upon giving a specified notice. In the alternative, a settling party may give notice of settlement to all parties and to the court, together with an application for a determination of good faith settlement and a proposed order. Existing law requires that the notice, application, and proposed order be given by certified mail, return receipt requested.

This bill would provide that the notice, application, and proposed order may additionally be given by personal service.

(2)Existing law provides for the service of documents in a civil action, and establishes procedures for the service of documents by mail, Express Mail or other means of overnight delivery, facsimile transmission, or electronic service, as specified. Existing law applies these procedures to methods of discovery or service of a motion, as provided.

This bill would additionally apply existing procedures governing the personal service of documents to methods of discovery or the service of a motion, as provided.

(3)Existing law authorizes a party to demand that all parties simultaneously exchange information concerning each others expert trial witnesses. Existing law requires all parties who have appeared in the action to exchange information concerning expert witnesses in writing on or before the date of the exchange specified in the demand. Existing law permits the exchange of information to occur at a meeting of the attorneys for the parties involved or by a mailing on or before the date of exchange.

This bill would revise the methods by which parties may exchange information concerning expert witnesses by authorizing the parties to follow the procedures described above that are applicable to personal, mail, and electronic service, as specified.

(1)Existing law provides that a party to an action in which it is alleged that 2 or more parties are joint tortfeasors or co-obligors on a contract debt is entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors, upon giving a specified notice. In the alternative, a settling party may give notice of settlement to all parties and to the court, together with an application for a determination of good faith settlement and a proposed order. Existing law requires that the notice, application, and proposed order be given by certified mail, return receipt requested.

This bill would provide that the notice, application, and proposed order may additionally be given by personal service.

(2)Existing law provides for the service of documents in a civil action, and establishes procedures for the service of documents by mail, Express Mail or other means of overnight delivery, facsimile transmission, or electronic service, as specified. Existing law applies these procedures to methods of discovery or service of a motion, as provided.

This bill would additionally apply existing procedures governing the personal service of documents to methods of discovery or the service of a motion, as provided.

(3)Existing law authorizes a party to demand that all parties simultaneously exchange information concerning each others expert trial witnesses. Existing law requires all parties who have appeared in the action to exchange information concerning expert witnesses in writing on or before the date of the exchange specified in the demand. Existing law permits the exchange of information to occur at a meeting of the attorneys for the parties involved or by a mailing on or before the date of exchange.

This bill would revise the methods by which parties may exchange information concerning expert witnesses by authorizing the parties to follow the procedures described above that are applicable to personal, mail, and electronic service, as specified.

(1)Existing law provides that a party to an action in which it is alleged that 2 or more parties are joint tortfeasors or co-obligors on a contract debt is entitled to a hearing on the issue of the good faith of a settlement entered into by the plaintiff or other claimant and one or more alleged tortfeasors or co-obligors, upon giving a specified notice. In the alternative, a settling party may give notice of settlement to all parties and to the court, together with an application for a determination of good faith settlement and a proposed order. Existing law requires that the notice, application, and proposed order be given by certified mail, return receipt requested.

This bill would provide that the notice, application, and proposed order may additionally be given by personal service.

(2)Existing law provides for the service of documents in a civil action, and establishes procedures for the service of documents by mail, Express Mail or other means of overnight delivery, facsimile transmission, or electronic service, as specified. Existing law applies these procedures to methods of discovery or service of a motion, as provided.

This bill would additionally apply existing procedures governing the personal service of documents to methods of discovery or the service of a motion, as provided.

(3)Existing law authorizes a party to demand that all parties simultaneously exchange information concerning each others expert trial witnesses. Existing law requires all parties who have appeared in the action to exchange information concerning expert witnesses in writing on or before the date of the exchange specified in the demand. Existing law permits the exchange of information to occur at a meeting of the attorneys for the parties involved or by a mailing on or before the date of exchange.

This bill would revise the methods by which parties may exchange information concerning expert witnesses by authorizing the parties to follow the procedures described above that are applicable to personal, mail, and electronic service, as specified.

Date of Hearing: June 13, 2017

ASSEMBLY COMMITTEE ON JUDICIARY

Mark Stone, Chair

SBPCA Bill Id:SB 543

Author:(Morrell) – As Introduced Ver:February 16, 2017

PROPOSED CONSENT

SENATE VOTE: 37-0

SUBJECT: CIVIL ACTIONS: PERSONAL SERVICE OF DOCUMENTS

KEY ISSUE: TO ENSURE THAT PARTIES DURING CIVIL LITIGATION ARE BETTER ABLE TO PROVIDE SERVICE THROUGH PERSONAL SERVICE, SHOULD VARIOUS CIVIL PROCEDURE RULES BE CLARIFIED TO ALLOW PARTIES TO USE PERSONAL SERVICE?

SYNOPSIS

During civil litigation, parties are required to serve their papers and notices on other parties in the action. Undoubtedly, service is intended to ensure that parties have proper notice. For example, pleadings and motions, while filed with the court, must also be served on opposing parties. The Code of Civil Procedure specifies the general manner in which service may be done. For example, service may be achieved by personal service, by mail, or by fax. Service by electronic transmission is allowed if the document may be served by mail or by fax, and in other instances. For some matters, California law specifies the particular manner in which service must be performed. It seems safe to say that these specific rules are intended to promote notice. Although personal service is one of the most effective ways to secure actual notice, various sections of the Code of Civil Procedure remain silent as to personal service. This non-controversial bill clarifies several instances when service of a document may be achieved by personal service. Specifically, this bill states that personal service may be used in the following instances: (1) a settlement proposal in an action involving multiple tortfeasors; (2) a discovery request or motion; and (3) a discovery exchange of information concerning expert witnesses. The bill is sponsored by the Conference of California Bar Associations and has no opposition on file.

SUMMARY: Clarifies instances for when a party may serve a document by personal service. Specifically, this bill:

1. Clarifies that the notice, application, and proposed order of settlement in an action with multiple parties, as provided, may be served by either certified mail, return receipt requested, or by personal service.
2. Specifies that any method of discovery or service of a motion provided for in the Civil Discovery Act may, in addition to service by mail, be served by personal service, as defined.
3. Provides that an exchange of information concerning expert witnesses may, in addition to service by mail, be served by personal service as defined, on or before the date of the exchange.
4. Makes other technical and clarifying changes.

EXISTING LAW:

1. Provides that except with leave of the court, all pleadings subsequent to the complaint, together with proof of service unless a summons need be issued, shall be filed with the clerk or judge, and copies thereof served upon the adverse party or his or her attorney. (Code of Civil Procedure Section 465. All further statutory references are to that code unless stated otherwise.)
2. Specifies that in an action where two or more parties are joint tortfeasors or co-obligors, a settling party may give notice of settlement to all parties and to the court, together with an application for determination of good faith settlement and a proposed order, as provided. The notice, application, and proposed order shall be given by certified mail, return receipt requested. (Section 877.6 (a).)
3. Provides that within 25 days of the mailing of the notice, application, and proposed order, or within 20 days of personal service, a nonsettling party may file a notice of motion to contest the good faith of the settlement. If none of the nonsettling parties files a motion within 25 days of mailing of the notice, application, and proposed order, or within 20 days of personal service, the court may approve the settlement. (Section 877.6 (a).)
4. Specifies that in case of service by mail, the notice or other paper shall be deposited in a post office, as provided. Service is complete at the time of the deposit, as specified. (Section 1013 (a).)
5. Provides that service by mail described in 4) applies to any method of discovery or service of a motion provided for in the Civil Discovery Act. (Section 2016.050.)
6. Specifies that service may be personal, by delivery to the party or attorney on whom the service is required to be made, as provided. (Section 1011.)
7. Provides that after the setting of the initial trial date for the action, any party may obtain discovery by demanding that all parties simultaneously exchange information concerning each other’s expert trial witnesses as described. (Section 2034.210.)
8. Provides that all parties who have appeared in the action shall exchange information concerning expert witnesses in writing on or before the date of exchange specified in the demand. The exchange of information may occur at a meeting of the attorneys for the parties involved or by a mailing on or before the date of exchange. (Section 2034.260 (a).)

FISCAL EFFECT: As currently in print this bill is keyed non-fiscal.

COMMENTS: During civil litigation, parties are required to serve their papers and notices on the other parties in the action. Undoubtedly, service is intended to ensure that parties have proper notice. For example, pleadings and motions, while filed with the court, must also be served on opposing parties. The Code of Civil Procedure specifies the general manner in which service may be done. For example, service may be achieved by personal service, by mail, or by fax. Service by electronic transmission is allowed if the document may be served by mail or by fax, and in other instances. For some matters, California law specifies the particular manner in which service must be performed. It seems safe to say that these specific rules are intended to promote notice. Although personal service is one of the most effective ways to secure actual notice, various sections of the Code of Civil Procedure remain silent as to the use of personal service. This bill clarifies several instances when service of a document may be achieved by personal service. Specifically, this bill states that personal service may be used in the following instances: (1) a settlement proposal in an action involving multiple tortfeasors; (2) a discovery request or motion; and (3) a discovery exchange of information concerning expert witnesses.

Settlement in an action involving multiple tortfeasors. In an action involving multiple tortfeasors, existing law requires that when one of the parties proposes a settlement, the notice, application, and the order for the settlement must be served on the other parties by certified mail, with return receipt requested. This bill clarifies that the settlement notice, application, and order may also be served by personal service. Although it is unclear why the current statute excludes personal service, it appears that personal service may have already been envisioned in this area of the law. For example, in another part of the code section, it states that “within 25 days of the mailing of the notice, application, and proposed order, or within 20 days of personal service, a nonsettling party may file a notice of motion to contest the good faith of the settlement.” Clearly, personal service was considered, and may have been inadvertently left out. Accordingly, it would appear that this change in law is technical and clarifying.

Discovery requests. During civil discovery, existing law provides that discovery requests and motions related to discovery (e.g., a discovery dispute) may be served by mail. Similarly, existing law provides that when parties exchange information concerning expert witnesses, the exchange of information may occur at the meeting between the attorneys, or by mail on or before the date of exchange. As a practical matter, many practitioners already serve discovery notices personally. This bill simply clarifies that personal service may be used in these discovery matters (e.g., requests, motions, and exchange of expert information on or before the date of the exchange).

REGISTERED SUPPORT / OPPOSITION:

Support

Conference of California Bar Associations (sponsor)

Opposition

None on file

Analysis Prepared by: Eric Dang / JUD. / (916) 319-2334

 CONSENT 

Bill No: SB 543

Author:

:

Vote:

SENATE JUDICIARY COMMITTEE: 7-0, 5/9/17

AYES: Jackson, Moorlach, Anderson, Hertzberg, Monning, Stern, Wieckowski

SUBJECT:

SOURCE: Conference of California Bar Associations

DIGEST:

This bill expands the option of personal service in the civil litigation context, including for the service of applications for determination of good faith settlements, discovery, and the exchange of expert witness information.

ANALYSIS:

Existing law:

1. Provides, through the Civil Discovery Act, procedures by which parties to a civil action conduct and obtain “discovery.” (Code Civ. Proc. Sec. 2016.010 et seq.)
2. Establishes the guidelines for the manner and completion of service by mail, Express Mail, facsimile transmission, or electronically. (Code Civ. Proc. Sec. 1013.) Existing law provides that these guidelines apply to any method of discovery or service of a motion provided for in the Civil Discovery Act. (Code Civ. Proc. Sec. 2016.050.)
3. Establishes guidelines for the effectuation of personal service. (Code Civ. Proc. Sec. 1011.)
4. Requires parties to a civil action to exchange information concerning expert witnesses in writing on or before the date of exchange specified in the demand. The exchange may occur at a meeting of the attorneys for the parties involved or by a mailing on or before the date of the exchange. (Code Civ. Proc. Sec. 2034.260.)
5. Provides that when two or more parties are joint tortfeasors or co-obligors on a contract debt and a settlement is entered into between the plaintiff or other claimant and one or more of the alleged tortfeasors or co-obligors, the settling party may give notice of settlement to all parties and to the court, together with an application for determination of good faith settlement and a proposed order. The notice, application, and proposed order shall be given by certified mail, return receipt requested. (Code Civ. Proc. Sec. 877.6.)

This bill:

1. Allows personal service in connection with any method of discovery or service of a motion provided for in the Civil Discovery Act.
2. Provides that the exchange of expert witness information pursuant to Section 2034.260 of the Code of Civil Procedure may be accomplished through personal service pursuant to Section 1011 or through service by mail, Express Mail, facsimile transmission, or electronically pursuant to Section 1013.
3. Allows the notice, application, and proposed order from Code of Civil Procedure Section 877.6 be given by personal service.

Background

Code of Civil Procedure Section 1010 et seq. provides various methods of effectuating service in civil litigation in California courts and the attendant procedures and timelines. However, many statutes specifically prescribe the valid methods of service for particular contexts thereby restricting how certain documents can properly be served. Among these methods is personal service of the materials directly to the relevant party or attorney on whom service is required to be made. Personal service is a valid and reliable method of service that can be used in a variety of contexts.

This bill provides that personal service shall be an accepted method of service in three contexts where such service is not explicitly permitted.

Comments

The author writes:

Certain provisions of the Code of Civil Procedure impose unnecessary restrictions on the means whereby certain types of legal documents may be served or exchanged, in many cases excluding personal service, the surest and most effective means of service. The restrictions on service currently imposed by these statutes are unnecessary, serve no discernable policy purpose, and in at least two cases pose a trap for the unwary practitioner. SB 543 simply removes these unnecessary impediments in order to ensure effective service for three types of legal documents: applications for good faith settlements, time-sensitive discovery and discovery-related motions already in use, and expert witness information.

Code of Civil Procedure Section 2016.050

Section 2016.050 of the Code of Civil Procedure provides: “Section 1013 applies to any method of discovery or service of a motion provided for in [the Civil Discovery Act].” Section 1013 outlines the proper manner and completion of service by mail, Express mail, facsimile transmission, or electronically. This bill amends Section 2016.050 to provide that Code of Civil Procedure Section 1011 also applies to any method of discovery or service of a motion in connection with the Civil Discovery Act. Section 1011 outlines the proper manner and completion of personal service.

Section 2016.050, along with a host of other provisions in the Civil Discovery Act, was created when the Legislature restructured the laws governing civil discovery. It was a partial recodification of a previous statute, Section 2019 of the Code of Civil Procedure. The legislative history of that statute does not make clear that it was ever intended to exclude personal service. In fact, earlier iterations of the statute appear to have only intended that the provisions of Section 1013 should govern the use of service by mail, rather than as a restriction on other available methods.

Senate Judiciary Committee staff also notes that as a matter of practice, discovery and attendant notices and responses are frequently served personally. This bill simply makes clear that personal service is proper.

Code of Civil Procedure Section 2034.260

Section 2034.260 of the Code of Civil Procedure provides for the exchange of written information concerning expert witnesses in civil litigation. Currently, the parties may exchange the information at a meeting of the attorneys for the parties involved or by mailing it on or before the date of the exchange. This bill additionally allows for personal service of the information on or before the date of exchange. Given that personal service at a meeting of the attorneys is currently permitted, personal service prior to that meeting does not dramatically shift current practice.

Code of Civil Procedure Section 877.6

Section 877.6 of the Code of Civil Procedure governs certain settlements in actions involving multiple joint tortfeasors or co-obligors on a contract debt. The concern of the statute is that a plaintiff or claimant could enter into an improper settlement with one or more of these jointly responsible parties to the detriment of another party. The statute grants any party to the action the right to a hearing to assess the good faith of the settlement.

Alternatively, one of the parties to such a settlement can preemptively apply for a determination from the court establishing the good faith of the settlement. Notice, the application, and a proposed order are all required to be given by certified mail. This bill allows the applicant to provide these items through personal service.

It should be noted that the current statute is not entirely consistent with regards to the forms of service available. In the same paragraph that is amended by this bill, the statute provides: “Within 25 days of the mailing of the notice, application, and proposed order, or within 20 days of personal service, a nonsettling party may file a notice of motion to contest the good faith of the settlement. If none of the nonsettling parties files a motion within 25 days of mailing of the notice, application, and proposed order, or within 20 days of personal service, the court may approve the settlement.” (Code Civ. Proc. Sec. 877.6(a)(2).) This provision clearly contemplates the personal service of the relevant notice, application, and proposed order even though the statute does not explicitly allow for it. This bill resolves that existing tension.

Related/Prior Legislation

AB 976 (Berman, 2017) expands permissive electronic filing and service of court documents to other case types and clarifies the rules regarding electronic filing and service related to electronic signatures, timing, notice, and transmission. The bill is on the Assembly Floor.

FISCAL EFFECT: Appropriation: Fiscal Com.: Local:

SUPPORT: (Verified 5/10/17)

Conference of California Bar Associations (source)

OPPOSITION: (Verified 5/10/17)

None received

ARGUMENTS IN SUPPORT: The Conference of California Bar Associations, the sponsor of this bill, writes that this bill “would remove limitations on service of documents in civil cases that are unnecessary, serve no discernable policy purpose, and in at least two cases pose a trap for the unwary practitioner or pro per litigant.”

Prepared by:

5/12/17 11:04:35

**** END ****

SENATE JUDICIARY COMMITTEE

Senator Hannah-Beth Jackson, Chair

2017-2018 Regular Session

Bill No: SB 543 (Author:Morrell)

Version: February 16, 2017

Hearing Date: May 9, 2017

Fiscal: No

Urgency: No

Consultant: CK

SUBJECT

Civil actions: service of documents

DESCRIPTION

This bill would expand the option of personal service in the civil litigation context, including for the service of applications for determination of good faith settlements, discovery, and the exchange of expert witness information.

BACKGROUND

Code of Civil Procedure section 1010 et seq. provides various methods of effectuating service in civil litigation in California courts and the attendant procedures and timelines. However, many statutes specifically prescribe the valid methods of service for particular contexts thereby restricting how certain documents can properly be served. Among these methods is personal service of the materials directly to the relevant party or attorney on whom service is required to be made. Personal service is a valid and reliable method of service that can be used in a variety of contexts.

This bill would provide that personal service shall be an accepted method of service in three contexts where such service is not explicitly permitted.

CHANGES TO EXISTING LAW

Existing law, the Civil Discovery Act, provides procedures by which parties to a civil action conduct and obtain “discovery.” (Code Civ. Proc. Sec. 2016.010 et seq.)

Existing law establishes the guidelines for the manner and completion of service by mail, Express Mail, facsimile transmission, or electronically. (Code Civ. Proc. Sec. 1013.) Existing law provides that these guidelines apply to any method of discovery or service of a motion provided for in the Civil Discovery Act. (Code Civ. Proc. Sec. 2016.050.)

Existing law establishes guidelines for the effectuation of personal service. (Code Civ. Proc. Sec. 1011.)

This bill would allow personal service in connection with any method of discovery or service of a motion provided for in the Civil Discovery Act.

Existing law requires parties to a civil action to exchange information concerning expert witnesses in writing on or before the date of exchange specified in the demand. The exchange may occur at a meeting of the attorneys for the parties involved or by a mailing on or before the date of the exchange. (Code Civ. Proc. Sec. 2034.260.)

This bill provides that the exchange of expert witness information pursuant to Section 2034.260 of the Code of Civil Procedure may be accomplished through personal service pursuant to Section 1011 or through service by mail, Express Mail, facsimile transmission, or electronically pursuant to Section 1013.

Existing law provides that when two or more parties are joint tortfeasors or co-obligors on a contract debt and a settlement is entered into between the plaintiff or other claimant and one or more of the alleged tortfeasors or co-obligors, the settling party may give notice of settlement to all parties and to the court, together with an application for determination of good faith settlement and a proposed order. The notice, application, and proposed order shall be given by certified mail, return receipt requested. (Code Civ. Proc. Sec. 877.6.)

This bill would allow the notice, application, and proposed order from Code of Civil Procedure Section 877.6 be given by personal service.

COMMENT

1. Stated need for the bill

According to the author:

Certain provisions of the Code of Civil Procedure impose unnecessary restrictions on the means whereby certain types of legal documents may be served or exchanged, in many cases excluding personal service, the surest and most effective means of service. The restrictions on service currently imposed by these statutes are unnecessary, serve no discernable policy purpose, and in at least two cases pose a trap for the unwary practitioner. SB 543 simply removes these unnecessary impediments in order to ensure effective service for three types of legal documents: applications for good faith settlements, time-sensitive discovery and discovery-related motions already in use, and expert witness information.

The California Conference of Bar Associations, the sponsor of this bill, writes that this bill “would remove limitations on service of documents in civil cases that are unnecessary, serve no discernable policy purpose, and in at least two cases pose a trap for the unwary practitioner or pro per litigant.”

2. Code of Civil Procedure section 2016.050

Section 2016.050 of the Code of Civil Procedure provides: “Section 1013 applies to any method of discovery or service of a motion provided for in [the Civil Discovery Act].” Section 1013 outlines the proper manner and completion of service by mail, Express mail, facsimile transmission, or electronically. This bill would amend Section 2016.050 to provide that Code of Civil Procedure section 1011 also applies to any method of discovery or service of a motion in connection with the Civil Discovery Act. Section 1011 outlines the proper manner and completion of personal service.

Section 2016.050, along with a host of other provisions in the Civil Discovery Act, was created when the Legislature restructured the laws governing civil discovery. It was a partial recodification of a previous statute, Section 2019 of the Code of Civil Procedure. The legislative history of that statute does not make clear that it was ever intended to exclude personal service. In fact, earlier iterations of the statute appear to have only intended that the provisions of Section 1013 should govern the use of service by mail, rather than as a restriction on other available methods.

Staff also notes that as a matter of practice, discovery and attendant notices and responses are frequently served personally. This bill would simply make clear that personal service is proper.

3. Code of Civil Procedure section 2034.260

Section 2034.260 of the Code of Civil Procedure provides for the exchange of written information concerning expert witnesses in civil litigation. Currently, the parties may exchange the information at a meeting of the attorneys for the parties involved or by mailing it on or before the date of the exchange. This bill would additionally allow for personal service of the information on or before the date of exchange. Given that personal service at a meeting of the attorneys is currently permitted, personal service prior to that meeting would not dramatically shift current practice.

4. Code of Civil Procedure section 877.6

Section 877.6 of the Code of Civil Procedure governs certain settlements in actions involving multiple joint tortfeasors or co-obligors on a contract debt. The concern of the statute is that a plaintiff or claimant could enter into an improper settlement with one or more of these jointly responsible parties to the detriment of another party. The statute grants any party to the action the right to a hearing to assess the good faith of the settlement.

Alternatively, one of the parties to such a settlement can preemptively apply for a determination from the court establishing the good faith of the settlement. Notice, the application, and a proposed order are all required to be given by certified mail. This bill would also allow the applicant to provide these items through personal service.

It should be noted that the current statute is not entirely consistent with regards to the forms of service available. In the same paragraph that would be amended by this bill, the statute provides: “Within 25 days of the mailing of the notice, application, and proposed order, or within 20 days of personal service, a nonsettling party may file a notice of motion to contest the good faith of the settlement. If none of the nonsettling parties files a motion within 25 days of mailing of the notice, application, and proposed order, or within 20 days of personal service, the court may approve the settlement.” (Code Civ. Proc. Sec. 877.6(a)(2).) This provision clearly contemplates the personal service of the relevant notice, application, and proposed order even though the statute does not explicitly allow for it. This bill would resolve that existing tension.

Support: None Known

Opposition: None Known

HISTORY

Source: Conference of California Bar Associations

Related Pending Legislation: AB 976 (Berman, 2017) would expand permissive electronic filing and service of court documents to other case types and would clarify the rules regarding electronic filing and service related to electronic signatures, timing, notice, and transmission. This bill is in the Assembly Appropriations Committee.

Prior Legislation: None Known

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