HomeMy WebLinkAboutMINUTES - 02011994 - 1.2 i
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TO: BOARD OF SUPERVISORS L.. Contra
Phil Batchelor, County Administrator Costa FROM: Costa
Januar 2 7 1994 y` Count
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DATE: Y i � CU�ryC J
SUBJECT: LEGISLATION - AB 2533 (Campbell) - USE OF CLERK'S CERTIFICATE
OF MAILING IN LIEU OF REGISTERED MAIL
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
RECOMMENDATION:
ACKNOWLEDGE that the Board of Supervisors is the sponsor of AB 2533
by Assemblyman Robert Campbell, which would allow the Municipal
Court to substitute a clerk' s certificate of mailing for the use of
registered mail in the situation where the Court must notify an
individual that the check used to pay a court fine has been
returned by the bank for insufficient funds and that the individual
is subject to a judgment equal to three times the amount of the
original fine.
BACKGROUND:
Under current law, an individual is subject to a judgment of three
times the amount of a fine in a situation where the individual paid
a fine with a check which is later returned unpaid by the bank or
other financial institution for insufficient funds . This
notification must be provided by certified mail . In order to
obtain the judgment, the Court Clerk must be able to produce in
court the certified mail receipt, showing that the required notice
was provided.
Certified mail currently costs about $5 . 00. The Municipal Court in
Contra Costa County receives about 2,000 returned checks a year.
Therefore, it costs about $10,000 annually to provide the necessary
certified mailing notification to each individual . The Code of
Civil Procedure already provides that proof of service may be made
by several means, one of which involves having the clerk attach a
clerk' s certificate of mailing. This is done by having the clerk
set forth the exact title of the document served and filed in the
cause, showing the name of the clerk and the name of the court of
CONTINUED ON ATTACHMENT: YES SIGNATURE:
x RECOMMENDATION OF COUNTY ADMINISTRATOR RECOMMENDATION OF BOA(((RD COMMITTEE /1
APPROVE OTHER
SIGNATURES:
ACTION OF BOARD ON— Eeb' A 7��, 19 9 a APPROVED AS RECOMMENDED OTHER
VOTE OF SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A TRUE
_Z UNANIMOUS(ABSENT ) AND CORRECT COPY OF AN ACTION TAKEN
AYES: NOES: AND ENTERED ON THE MINUTES OF THE BOARD
ABSENT: ABSTAIN: OF SUPERVISORS ON THE DATE SHOWN.
ATTESTED 19
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Contact: PHIL BATCHELOR.CLOK OF THE BOARD OF
cc: County Administrator SUPERVISORS AND COUNTY ADMINISTRATOR
Acting Municipal Court Administrator
Les Spahnn, Heim, Noack & Spahnn
BY �(�• ���xx�--a/ DEPUTY
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which he or she is the clerk, that he or she is not a party to the
cause, and showing the date and place of deposit in the mail, the
name and address of the person served as shown on the envelope, and
showing that the envelope was sealed and deposited in the mail with
the postage thereon fully prepaid.
The Municipal Court believes that it can save the $10,000 currently
spent on certified mail by using the clerk's certificate of mailing
in lieu of the cost of certified mail . Obviously, if implemented
statewide, the savings would amount to several hundreds of
thousands of dollars. This proposal is an element of the Board' s
adopted 1994 Legislative Program and it is, therefore, recommended
that the Board acknowledge that it is the sponsor of AB 2533.
f i
CALIFORNIA LEGISLATURE-1993-94 REGULAR SESSION
ASSEMBLY BILL No. 2533
Introduced by Assembly Member Campbell
January 18, 1994
An act to amend Section 1719 of the Civil Code, relating to
civil procedure.
LEGISLATIVE COUNSEL'S DIGEST
AB 2533, as introduced, Campbell. Civil procedure:
commercial paper.
Existing law creates a cause of action for treble the amount,
except as specified, for failure to pay upon a dishonored
check, in cash, within 30 days of written demand therefor
mailed to the maker by certified mail. In the case of a check
dishonored pursuant to a stop payment order, a court may not
award damages or costs unless it receives into evidence a
signed certified mail receipt showing delivery or, if delivery
is refused, of attempted delivery, of the demand notice.
This bill would provide that the required service also may
be by mail by a municipal court clerk and would make a
..,:;,,rti2:;tit;;y�iii):{a?{i•y76+ corresponding .change with regard to evidence of mailing in
the case of checks dishonored pursuant to a stop payment
order.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
The people of the State of California do enact as follows.
1 SECTI®N 1. Section 1719 of the Civil Code is
2 amended to read:
3 1719. (a) Notwithstanding any penal sanctions
4 whieh that may apply, any person who makes, utters,
5 draws, or delivers any check, or draft, or order upon any
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AB 2533 — 2 -
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1 bank or depository, or.person, or firm, or corporation, for
2 the payment of money, which refuses to honor the same
3 for lack of funds or credit to pay, or because the maker
4 has no account with the drawee, or because the maker
5 instructed the drawee to stop payment, and who fails to
6 pay the same amount in cash to the payee within 30 days
7 following a written demand therefor informing the
8 maker of the provisions 'of this section, mailed to the
9 maker by certified mail or by a municipal court clerk,
10 shall be liable to the payee, in addition to the amount
11 owing upon that check or draft or order, for damages of
12 treble the amount so owing, but in no case less than one
13 hundred dollars ($100), and in no case more than five
14 hundred dollars ($500), plus the costs of mailing the
15 written demand for payment. However, there shall be no
16 cause of action under this section if a maker stops
17 payment in order to resolve a good faith dispute with the
18 payee. The payee is entitled to the damages only upon
19 proving by clear and convincing evidence that there was
20 no good faith dispute, as defined in subdivision (b) .
21 (b) For purposes of this section, in the case of a stop
22 payment the existence of a "good faith dispute" shall be
23 determined by the trier of fact. A "good faith dispute" is
24 one in which the court finds that the maker had a
25 reasonable belief of his or her legal entitlement to
26 withhold payment. Grounds eek for the entitlement
27 include, but are not limited to, the following: services
28 were not rendered, goods were not delivered, goods or
29 services purchased are faulty, not as promised, or
30 otherwise unsatisfactory, or there was an overcharge.
31 (c) In the case of a stop payment, the notice to the
32 maker required by this section shall be in substantially
33 the following form:
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for 1 NOTICE
ane 2
4ker 3 To:
.ker 4 (name of maker)
s to 5 is the payee of a check you wrote
lays 6 (name of payee)
the 7 for $ . The check was not paid because
the 8 (amount)
ark, 9 you stopped payment, and the payee demands payment.
unt 10 You may have a good faith dispute as to whether you owe
s of 11 -the full amount. If you do not have a good faith dispute
one 12 with the payee and fail to pay the payee the full amount
Cave 13 of the check in cash within 30 days after this notice was
the 14 mailed, you could be sued and held responsible to pay at
no 15 least all of the following:
:ops 16 (1) The amount of the check.
the 17 (2) Damages of at least $100 or, if higher, three times
pon 18 the amount of the check up to $500.
was 19 (3) The cost of mailing this notice.
20 If the court determines that you do have a good faith
;top 21 dispute with the payee, you will not have to pay the
I be 22 damages and mailing cost mentioned above. If you
!" is 23 stopped payment because you have a good faith dispute
3 a 24 with the payee, you should try to work out your dispute
to 25 with the payee. You can contact the payee at:
.ent 26
ices 27 (name of payee)
s or 28
or 29 (street address)
30
the 31 (telephone number)
ally 32 You may wish to contact a lawyer to discuss your legal
33 rights and responsibilities.
34
35 (name of sender of notice)
36
37 (d) In the case of a stop payment, a court may not
38 award damages or costs under this section unless the
39 court receives into evidence a copy of the written
40 demand which, in that: case, shall have been sent to the
ata) 99 160
AB 2533 —4 -
1
4 -1 maker, and either a signed certified mail receipt
2 showing delivery, or attempted delivery if refused, of the
3 written demand to the maker's address, or a certificate
4 of mailing by a municipal court clerk in the form
5 provided for in subdivision (4) of Section 1013a of the
6 Code of Civil Procedure for service in civil actions.
7 (e) A cause of action under this section may be
8 brought in small claims court, if it does not exceed .the
9 jurisdiction of that court, or in any other appropriate
10 court. The payee shall, in order to recover damages
11 because the maker instructed the drawee to stop
12 payment, show to the satisfaction of the trier of fact that
13 there was a reasonable effort on the part of the payee to
14 reconcile and resolve the dispute prior to pursuing the
15 dispute through the courts.
16 (f) A cause of action under this section may be brought
17 in municipal or justice court by an assignee of the payee.
18 However, if the assignee is acting on behalf of the payee,
19 for a flat fee or a percentage fee, the assignee may not
20 charge the payee a greater flat fee or percentage fee for
21 that portion of the amount collected that represents
22 treble damages than is charged the payee for collecting
23 the face amount of the check, draft, or order. This
24 subdivision shall not apply to an action brought in small
25 claims court.
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