October 18, 1996
Text of Comments to Sections Affected by
1996 Commission Recommendations

CLRC Staff Note. This document sets out the text of all Official Comments to Commission sponsored legislation in the 1996 legislative session. The source for each Comment is given in the Table of łSections affected by 1996 Commission Legislation.˛


Code Civ. Proc. § 664.5 (technical amendment). Notice of entry of judgment
Comment. Section 664.5 is amended to delete references to former Civil Code provisions. The reference to a proceeding for łsummary dissolution˛ is omitted from Section 664.5 as unnecessary, since summary dissolution is included under the language łdissolution of marriage˛ used in the amended section. See Chapter 5 (commencing with Section 2400) of Part 3 of Division 6 of the Family Code.

Govšt Code § 11019.6 (amended). Principal state agency
Comment. Section 11019.6 is amended to add a reference to the general provisions on administrative adjudication in the Administrative Procedure Act.

Govšt Code § 11346.14 (repealed). Statement of reasons
Comment. Section 11346.14 is repealed, operative immediately, because it is superseded by and its substance is continued in Section 11346.2, effective January 1, 1995.

Govšt Code § 11400.20 (amended). Adoption of regulations
Comment. Subdivision (a) of Section 11400.20 is amended to permit use of the procedure provided in this section for adoption of interim or permanent regulations under the formal hearing procedure, Chapter 5 (commencing with Section 11500).
Subdivision (a) makes clear that the authority of an agency to adopt regulations governing its hearings does not apply to hearings required to be conducted for it by the Office of Administrative Hearings, unless there is express statutory authority for the regulations. Examples of express statutory authority include:
Section 11420.10 (alternative dispute resolution)
Section 11425.50 (penalty guidelines)
Section 11440.10 (administrative review)
Section 11440.50 (intervention)
Sections 11445.20 and 11445.50 (informal hearing procedure)
Section 11460.20 (emergency decision)
Section 11518.5 (correction of mistakes and clerical errors in decision)
It should be noted that the provision of Section 11425.40(d) allowing an agency that conducts an adjudicative proceeding to provide by regulation for peremptory challenge of the presiding officer applies to the Office of Administrative Hearings and not the agency for which the Office of Administrative Hearings is conducting the proceeding. See Comment to Section 11425.40(d).
Nothing in subdivision (a) precludes regulations governing matters peripheral to administrative adjudication proceedings, such as a requirement that a person maintain an address with the agency for the purpose of notice.

Govšt Code § 11400.21 (added). Adoption of regulations
Comment. Section 11400.21 enables enactment of implementing regulations before the July 1, 1997, operative date of 1995 Cal. Stat. ch. 938.
Subdivision (a) makes clear that the authority of an agency to adopt regulations governing its hearings does not apply to hearings required to be conducted for it by the Office of Administrative Hearings, unless there is express statutory authority for the regulations. Examples of express statutory authority include:
Section 11420.10 (alternative dispute resolution)
Section 11425.50 (penalty guidelines)
Section 11440.10 (administrative review)
Section 11440.50 (intervention)
Sections 11445.20 and 11445.50 (informal hearing procedure)
Section 11460.20 (emergency decision)
Section 11518.5 (correction of mistakes and clerical errors in decision)
It should be noted that the provision of Section 11425.40(d) allowing an agency that conducts an adjudicative proceeding to provide by regulation for peremptory challenge of the presiding officer applies to the Office of Administrative Hearings and not the agency for which the Office of Administrative Hearings is conducting the proceeding. See Comment to Section 11425.40(d).
Nothing in subdivision (a) precludes regulations governing matters peripheral to administrative adjudication proceedings, such as a requirement that a person maintain an address with the agency for the purpose of notice.

Govšt Code § 11415.60 (amended). Settlement
Comment. Section 11415.60 is amended to protect conduct and statements made in settlement negotiations from admissibility, parallel to the protection provided in Section 1152 of the Evidence Code. This provision supplements the existing protection from admissibility of evidence of an offer of compromise or settlement (as opposed to evidence of conduct or statements made in settlement negotiations).

Govšt Code § 11425.60 (amended). Precedent decisions
Comment. Subdivision (d) of Section 11425.60 is amended to make clear that if an agency designates as precedential a decision issued before July 1, 1997, the decision must be indexed pursuant to subdivision (c).

Govšt Code § 11435.15 (amended). Application of article
Comment. Section 11435.15 is amended to correct a printing error.

Ins. Code § 1861.08 (amended). Conduct of hearings
Comment. Section 1861.08 is amended to reflect revision of the Administrative Procedure Act by 1995 Cal. Stat. ch 938.
The introductory portion of the section is amended to refer to the entire formal hearing chapter. That chapter is supplemented by Chapter 4.5 (commencing with Section 11400) of the same part, containing general provisions on administrative adjudication applicable to all state agency hearings. See Govšt Code § 11410.10 (application of chapter).
Subdivision (c) is amended to add a reference to Section 11517(b), which includes expanded procedures for agency adoption of a proposed administrative law judge decision. The reference in subdivision (c) to the procedure for adoption, amendment, or rejection of a decision is supplemented by a reference to the new procedure for correction of mistakes and clerical errors in the decision. See Govšt Code § 11518.5. The reference to a decision łsolely on the basis of the record˛ in subdivision (c) is amended to cross-refer to Government Code Section 11425.50. All decisions under the Administrative Procedure Act must be based exclusively on the record. Govšt Code § 11425.50 (decision).
The reference in subdivision (d) to former Government Code Section 11513.5 is deleted as obsolete. That section is superseded by Government Code Sections 11430.10-11430.80 (ex parte communications), which apply to all hearings under the Administrative Procedure Act. However, subdivision (d) makes clear that Government Code Sections 11430.30 (permissible ex parte communications from agency personnel) and 11430.70(b) (ex parte communications in individualized ratemaking proceeding) do not apply in hearings under this article; this preserves the effect of existing law under former Government Code Section 11513.5.
The reference in subdivision (e) to determination of discovery disputes by the administrative law judge is amended to cross-refer to Government Code Section 11507.7. All discovery disputes under the formal hearing procedure are now determined by the administrative law judge pursuant to Section 11507.7.

Prob. Code § 6452 (amended). Effect of birth out of wedlock
Comment. Section 6452 is amended to delete the łexcept˛ clause. This makes siblings of a child born out of wedlock and their issue subject to the same requirements under Section 6452 as other relatives of the out-of-wedlock child. This changes the rule in Estate of Corcoran, 7 Cal. App. 4th 1099, 9 Cal. Rptr. 2d 475 (1992).
Although a sibling may not inherit from a deceased out-of-wedlock child through a parent who has failed to acknowledge or contribute to the support of the deceased child, the sibling may nonetheless inherit through the other parent if that parent is not disqualified.

Prob. Code § 13050 (amended). Property excluded
Comment. Subdivision (a)(1) of Section 13050 is amended to add the reference to a trust revocable by the decedent during lifetime. It is a specific application of the principle stated in subdivision (a)(1) that property in which the decedent had an interest terminable at death is excluded in determining the property or estate of the decedent for purposes of this part. This codifies case law. See Estate of Heigho, 186 Cal. App. 2d 360, 364-65, 9 Cal. Rptr. 196 (1960).

Prob. Code § 16460. Limitations on proceedings against trustee
Comment. Subdivision (a)(2) of Section 16460 is amended to make clear that it applies both where an insufficient account or report is given the beneficiary as well as where the beneficiary has not received any written account or report. This revision is consistent with the original intent of this section, and rejects the contrary conclusion reached by the court in DiGrazia v. Anderlini, 22 Cal. App. 4th 1337, 1346-48, 28 Cal. Rptr. 2d 37, 42-44 (1994). The three-year statute of limitations under subdivision (a) is applicable to all claims for breach of trust and the four-year statute of Code of Civil Procedure Section 343 is inapplicable. See Comment to Section 16460 as enacted by 1986 Cal. Stat. ch. 820, Selected 1986 Trust and Probate Legislation, 18 Cal. L. Revision Commšn Reports 1201, 1424-25 (1986), and as re-enacted by 1990 Cal. Stat. ch. 79, Recommendation Proposing New Probate Code, 20 Cal. L. Revision Commšn Reports 1001, 1940-41 (1990).
Subdivision (c) is added to make clear that the requirements for a written account or report under this section are independent of other statutes. The governing rule determining whether paragraph (1) or paragraph (2) of subdivision (a) applies is whether the account or report ładequately discloses the existence of a claim.˛ Subdivision (c) rejects the holding in DiGrazia v. Anderlini, 22 Cal. App. 4th 1337, 1348-49, 28 Cal. Rptr. 2d 37, 44-45 (1994), that an account or report under this section must satisfy the minimum standards set out in Section 16061 or 16063.