Courthouse News Service v. Michael Planet

Filing 30

Filed (ECF) Appellee Michael D. Planet citation of supplemental authorities. Date of service: 10/31/2012. [8383028] (RAN)

JONES DAY
3161 MICHELSON DRIVE • SUITE 800 • IRVINE, CALIFORNIA 92612.4408
TELEPHONE: [phone] • FACSIMILE: +1.949.553.7539

October 31, 2012

VIA CM / ECF FILING
Ms. Molly C. Dwyer, Clerk of the Court
United States Court of Appeals for the Ninth Circuit
The James R. Browning Courthouse
95 7th Street
San Francisco, California 94103
Re:

Courthouse News Service v. Planet
Case No. 11-57187

Dear Ms. Dwyer:
This firm represents Appellee Michael Planet in the matter referenced above. We write
to provide notice of additional authority pursuant to Federal Rule of Appellate Procedure 28(j).
Appellee’s Answering Brief noted that: (a) most California state courts in general, and
Ventura Superior Court in particular, do not have electronic filing capabilities (AAB at 2-3; SER
47-54); (b) California Government Code section 68150 and related California Rules of Court
authorize courts to maintain filings electronically and to provide “reasonable access” to them
(AAB 21-24); and (c) enactment of, and proposed amendments to, these Government Code and
Rule of Court provisions demonstrate that the right of reasonable access to court documents is an
issue of important state concern (AAB 27-30).
On September 14, 2012 and after we filed our Answering Brief, Governor Brown signed
AB 2073 into law. Among other things, AB 2073 amends California Code of Civil Procedure
section 1010.6(d) to permit Orange County Superior Court to conduct a pilot project that will for
the first time require parties to electronically file documents in “specified civil actions”:

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JONES DAY
Ms. Molly C. Dwyer
October 31, 2012
Page 2

In addition, AB 2073 adds new subdivision (f) to California Code of Civil Procedure
section 1010.6, which requires the Judicial Council to issue new statewide mandatory e-filing
rules, including rules for “public access” of electronically filed documents:

Appellee submits that enactment of AB 2073 further demonstrates that: (a) the State of
California continues to grapple with whether and how to establish an electronic filing system

JONES DAY
Ms. Molly C. Dwyer
October 31, 2012
Page 3
which should improve overall accessibility to court records, including newly-filed complaints;
and (b) the State of California continues to grapple with how best to provide “reasonable access”
to electronically filed court records as a matter of state law.
The chaptered version of AB 2073 as signed by Governor Brown is appended to this
letter for the Court’s convenience.

JONES DAY
Ms. Molly C. Dwyer
October 31, 2012
Page 4

AB 2073
As Chaptered On
September 14, 2012

Assembly Bill No. 2073
CHAPTER 320
An act to amend Section 1010.6 of the Code of Civil Procedure, relating
to civil actions.
[Approved by Governor September 14, 2012. Filed with
Secretary of State September 14, 2012.]

legislative counsel’s digest

AB 2073, Silva. Courts: electronic filing and service of documents.
Existing law authorizes a trial court to adopt local rules permitting
electronic filing and service of documents, subject to rules adopted by the
Judicial Council and other specified conditions. Existing law also authorizes
the court, in any action in which a party has agreed to accept electronic
service, or in which the court has ordered electronic service, as specified,
to electronically serve any document issued by the court that is not required
to be personally served, in the same manner that parties electronically serve
documents.
This bill would authorize the Orange County Superior Court, until July
1, 2014, to establish a pilot project to require parties to eligible civil actions,
as specified, to electronically file and serve documents, subject to rules
adopted by the Judicial Council and other specified conditions. The bill
would require the Judicial Council to conduct an evaluation of any pilot
project established pursuant to that provision and report to the Legislature
on or before December 31, 2013, on the results of the evaluation. The bill
would also require the Judicial Council to adopt uniform rules to permit
mandatory electronic filing and service of documents in eligible civil actions
on or before July 1, 2014. The bill would authorize a superior court to require
mandatory electronic filing, as specified, upon the adoption of those uniform
rules by the Judicial Council.
The people of the State of California do enact as follows:
SECTION 1. Section 1010.6 of the Code of Civil Procedure is amended
to read:
1010.6. (a) A document may be served electronically in an action filed
with the court as provided in this section, in accordance with rules adopted
pursuant to subdivision (e).
(1) For purposes of this section:
(A) “Electronic service” means service of a document, on a party or other
person, by either electronic transmission or electronic notification. Electronic
service may be performed directly by a party, by an agent of a party,

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Ch. 320

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including the party’s attorney, or through an electronic filing service
provider.
(B) “Electronic transmission” means the transmission of a document by
electronic means to the electronic service address at or through which a
party or other person has authorized electronic service.
(C) “Electronic notification” means the notification of the party or other
person that a document is served by sending an electronic message to the
electronic address at or through which the party or other person has
authorized electronic service, specifying the exact name of the document
served, and providing a hyperlink at which the served document may be
viewed and downloaded.
(2) If a document may be served by mail, express mail, overnight delivery,
or facsimile transmission, electronic service of the document is authorized
when a party has agreed to accept service electronically in that action.
(3) In any action in which a party has agreed to accept electronic service
under paragraph (2), or in which the court has ordered electronic service
under subdivision (c) or (d), the court may electronically serve any document
issued by the court that is not required to be personally served in the same
manner that parties electronically serve documents. The electronic service
of documents by the court shall have the same legal effect as service by
mail, except as provided in paragraph (4).
(4) Electronic service of a document is complete at the time of the
electronic transmission of the document or at the time that the electronic
notification of service of the document is sent. However, any period of
notice, or any right or duty to do any act or make any response within any
period or on a date certain after the service of the document, which time
period or date is prescribed by statute or rule of court, shall be extended
after service by electronic means by two court days, but the extension shall
not apply to extend the time for filing any of the following:
(A) A notice of intention to move for new trial.
(B) A notice of intention to move to vacate judgment under Section 663a.
(C) A notice of appeal.
This extension applies in the absence of a specific exception provided by
any other statute or rule of court.
(b) A trial court may adopt local rules permitting electronic filing of
documents, subject to rules adopted pursuant to subdivision (e) and the
following conditions:
(1) A document that is filed electronically shall have the same legal effect
as an original paper document.
(2) (A) When a document to be filed requires the signature, not under
penalty of perjury, of an attorney or a self-represented party, the document
shall be deemed to have been signed by that attorney or self-represented
party if filed electronically.
(B) When a document to be filed requires the signature, under penalty
of perjury, of any person, the document shall be deemed to have been signed
by that person if filed electronically and if a printed form of the document
has been signed by that person prior to, or on the same day as, the date of

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Ch. 320

filing. The attorney or person filing the document represents, by the act of
filing, that the declarant has complied with this section. The attorney or
person filing the document shall maintain the printed form of the document
bearing the original signature and make it available for review and copying
upon the request of the court or any party to the action or proceeding in
which it is filed.
(3) Any document that is electronically filed with the court after the close
of business on any day shall be deemed to have been filed on the next court
day. “Close of business,” as used in this paragraph, shall mean 5 p.m. or
the time at which the court would not accept filing at the court’s filing
counter, whichever is earlier.
(4) The court receiving a document filed electronically shall issue a
confirmation that the document has been received and filed. The confirmation
shall serve as proof that the document has been filed.
(5) Upon electronic filing of a complaint, petition, or other document
that must be served with a summons, a trial court, upon request of the party
filing the action, shall issue a summons with the court seal and the case
number. The court shall keep the summons in its records and may
electronically transmit a copy of the summons to the requesting party.
Personal service of a printed form of the electronic summons shall have the
same legal effect as personal service of an original summons. If a trial court
plans to electronically transmit a summons to the party filing a complaint,
the court shall immediately upon receipt of the complaint notify the attorney
or party that a summons will be electronically transmitted to the electronic
address given by the person filing the complaint.
(6) The court shall permit a party or attorney to file an application for
waiver of court fees and costs, in lieu of requiring the payment of the filing
fee, as part of the process involving the electronic filing of a document. The
court shall consider and determine the application in accordance with
Sections 68630 to 68641, inclusive, of the Government Code and shall not
require the party or attorney to submit any documentation other than that
set forth in Sections 68630 to 68641, inclusive, of the Government Code.
Nothing in this section shall require the court to waive a filing fee that is
not otherwise waivable.
(c) If a trial court adopts rules conforming to subdivision (b), it may
provide by order that all parties to an action file and serve documents
electronically in a class action, a consolidated action, or a group of actions,
a coordinated action, or an action that is deemed complex under Judicial
Council rules, provided that the trial court’s order does not cause undue
hardship or significant prejudice to any party in the action.
(d) (1) Notwithstanding subdivision (b), the Orange County Superior
Court may, by local rule and until July 1, 2014, establish a pilot project to
require parties to specified civil actions to electronically file and serve
documents, subject to the requirements set forth in paragraphs (1), (2), (4),
(5), and (6) of subdivision (b) and rules adopted pursuant to subdivision (e)
and the following conditions:

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Ch. 320

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(A) The court shall have the ability to maintain the official court record
in electronic format for all cases where electronic filing is required.
(B) The court and the parties shall have access either to more than one
electronic filing service provider capable of electronically filing documents
with the court, or to electronic filing access directly through the court. Any
fees charged by the court shall be for no more than the actual cost of the
electronic filing and service of the documents, and shall be waived when
deemed appropriate by the court, including, but not limited to, for any party
who has received a fee waiver. Any fees charged by an electronic filing
service provider shall be reasonable and shall be waived when deemed
appropriate by the court, including, but not limited to, for any party who
has received a fee waiver.
(C) The court shall have a procedure for the filing of nonelectronic
documents in order to prevent the program from causing undue hardship or
significant prejudice to any party in an action, including, but not limited to,
unrepresented parties.
(D) A court that elects to require electronic filing pursuant to this
subdivision may permit documents to be filed electronically until 12 a.m.
of the day after the court date that the filing is due, and the filing shall be
considered timely. However, if same day service of a document is required,
the document shall be electronically filed by 5 p.m. on the court date that
the filing is due. Ex parte documents shall be electronically filed on the
same date and within the same time period as would be required for the
filing of a hard copy of the ex parte documents at the clerk’s window in the
participating county. Documents filed on or after 12 a.m., or filed upon a
noncourt day, will be deemed filed on the soonest court day following the
filing.
(2) If a pilot project is established pursuant to paragraph (1), the Judicial
Council shall conduct an evaluation of the pilot project and report to the
Legislature, on or before December 31, 2013, on the results of the evaluation.
The evaluation shall review, among other things, the cost of the program
to participants, cost-effectiveness for the court, effect on unrepresented
parties and parties with fee waivers, and ease of use for participants.
(e) The Judicial Council shall adopt uniform rules for the electronic filing
and service of documents in the trial courts of the state, which shall include
statewide policies on vendor contracts, privacy, and access to public records,
and rules relating to the integrity of electronic service. These rules shall
conform to the conditions set forth in this section, as amended from time
to time.
(f) The Judicial Council shall, on or before July 1, 2014, adopt uniform
rules to permit the mandatory electronic filing and service of documents
for specified civil actions in the trial courts of the state, which shall be
informed by any study performed pursuant to paragraph (2) of subdivision
(d) and which shall include statewide policies on vendor contracts, privacy,
access to public records, unrepresented parties, parties with fee waivers,
hardships, reasonable exceptions to electronic filing, and rules relating to

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Ch. 320

the integrity of electronic service. These rules shall conform to the conditions
set forth in this section, as amended from time to time.
(g) (1) Upon the adoption of uniform rules by the Judicial Council for
mandatory electronic filing and service of documents for specified civil
actions in the trial courts of the state, as specified in subdivision (f), a
superior court may, by local rule, require mandatory electronic filing,
pursuant to paragraph (2) of this subdivision.
(2) Any superior court that elects to adopt mandatory electronic filing
shall do so pursuant to the requirements and conditions set forth in this
section, including, but not limited to, paragraphs (1), (2), (4), (5), and (6)
of subdivision (b) of this section, and subparagraphs (A), (B), and (C) of
paragraph (1) of subdivision (d), and pursuant to the rules adopted by the
Judicial Council, as specified in subdivision (f).

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