Following are summaries of bills enacted into law that may directly affect filings made and business conducted with the Secretary of State’s office. Unless otherwise indicated, these measures took effect on January 1, 2005. To research any legislation or existing law, please refer to the California Legislative Information website.
Effective September 27, 2004
This act makes changes to the California Corporate Disclosure Act, which requires publicly traded domestic stock and foreign corporations to file a corporate disclosure statement containing specified information. AB 1000 took effect September 27, 2004, as an urgency measure. The primary changes are as follows:
- The corporate disclosure statement must be filed separately from the statement of information, and the corporate disclosure statement must be filed annually within 150 days after the end of the corporation’s fiscal year.
- Removes the requirement to include the date of the last report prepared for the corporation by the independent auditor and the requirement to attach a copy of the most recent independent auditor’s report.
- Clarifies the terms publicly traded corporation, executive officer, compensation, and loan.
- Requires the name of the independent auditor that prepared the most recent auditor’s report and, if different, the name of the independent auditor employed by the corporation on the date of the statement.
- Changes the time period for reporting the description of other services performed by the independent auditor to the two most recent fiscal years and the period between the end of its most recent fiscal year and the date of the statement.
- Requires the compensation paid to the chief executive officer if the chief executive officer is not among the five most highly compensated executive officers of the corporation.
- Requires a description of any loan to directors made at an interest rate lower than the interest rate available from unaffiliated commercial lenders generally to a similarly–situated borrower rather than loans at a preferential rate. Loans must be reported for the two most recent fiscal years rather than the previous 24 months.
- Requires a statement indicating whether an order for relief has been entered in a bankruptcy case rather than a statement indicating whether any bankruptcy was filed. Clarifies that the time period for reporting this information is 10 years preceding the date of the statement.
- Requires a statement indicating whether any member of the board of directors or executive officer of the corporation has been convicted of fraud within the previous 10 years only if the conviction has not been overturned or expunged. Clarifies that the time period for reporting this information is 10 years preceding the date of the statement.
- Requires a description of any material pending legal proceedings, other than ordinary routine litigation incidental to the business, to which the corporation or any of its subsidiaries is a party or of which any of their property is the subject, as specified by Item 103 of Regulation S–K of the Securities Exchange Commission (§ 229.103 of Title 12 of the Code of Federal Regulations).
- Requires a description of any material legal proceeding during which the corporation was found legally liable by entry of a final judgment or final order that was not overturned on appeal during five years preceding the date of the statement.
This act provides that a foreign corporation that designates an agent for service of process pursuant to the requirements of Corporations Code § 2105(a)(4) consents to the service of any validly issued and properly served search warrant for records or documents that are in the possession of the foreign corporation and are located inside or outside of California. It defines "properly served" to mean delivery by hand, or in a manner reasonably allowing for proof of delivery if delivered by U.S. mail, overnight delivery service, or fax to a person or entity listed in Corporations Code § 2110.
This act creates a short–form cancellation process for a domestic limited liability company that filed its articles of organization on or after January 1, 2004, and meets the following requirements:
- The certificate of cancellation must be executed and acknowledged by a majority of the members, or if there are no members, a majority of the managers, if any, or if no members or managers, the person or a majority of the persons who signed the articles of organization.
- The certificate of cancellation must be filed within 12 months from the date the articles of organization were filed.
- The limited liability company must not have any debts or other liabilities, except for state tax liabilities.
- The certificate of cancellation must include a statement that the tax liability of the limited liability company will be satisfied on a taxes–paid basis or that a person, limited liability company, or other business entity assumes the tax liability, if any, of the dissolving limited liability company as security for the issuance of a tax clearance certificate from the Franchise Tax Board and is responsible for additional taxes or fees, if any, that are assessed under the Revenue and Taxation Code and become due after the date of the assumption of the tax liability.
- The final tax return for the limited liability company must have been filed with the Franchise Tax Board.
- The known remaining assets for the limited liability company after all debts and liabilities have been paid or otherwise provided for must have been distributed to the persons entitled to them or a statement must be made that the limited liability company acquired no known assets.
- The limited liability company must not have conducted any business from the time of filing the articles of organization.
- A majority of the managers or members must have voted, or if there are no managers or members, the person or a majority of the persons who signed the articles of organization must have voted, to dissolve the limited liability company.
- If the limited liability company received payments for interests from investors, those payments must have been returned to the investors.
This act exempts a limited liability company that files a certificate of cancellation pursuant to this process from the requirement to obtain a tax clearance certificate and from paying the LLC annual tax for the first taxable year beginning in 2005 that is normally required pursuant to the Revenue and Taxation Code. However, it does not allow for reimbursement of taxes that have already been paid.
This act allows a domestic for–profit life insurer to be organized as a nonprofit mutual benefit corporation. A domestic life insurer organized under the Nonprofit Mutual Benefit Corporation Law would be subject to all of the provisions applicable to a domestic incorporated stock life insurer pursuant to the Insurance Code.
Effective August 30, 2004
This act, which took effect August 30, 2004, as a tax levy, contains numerous provisions concerning property owned by limited liability companies. The provision of the bill that affects the Secretary of State’s office is found in newly amended Corporations Code § 17002, which specifies that a limited liability company may engage in not–for–profit activities.
This act repeals current provisions concerning unincorporated associations, enacts new provisions, and makes conforming changes relative to the liability of members of unincorporated associations. It also exempts labor organizations, labor federations, labor councils, and labor committees that are governed by constitutions or by–laws from the provisions of the Corporations Code that regulate unincorporated associations.
This act exempts professional corporations rendering professional services by persons licensed by the Speech–Language Pathology and Audiology Board from the requirement to obtain a certificate of registration. It also eliminates the restriction that a chiropractic corporation include in its name only the name or the last name of one or more of the present, prospective, or former shareholders and the words "chiropractic" and "corporation" or wording or abbreviations denoting corporate existence.
Effective September 21, 2004
This act, which took effect September 21, 2004, as an urgency measure, enacts the Electronic Recording Delivery Act of 2004. Most provisions of the bill do not affect the Secretary of State’s office. However, new Government Code § 27391(e) allows a county recorder to accept for recording a signature that is not accompanied by a notary’s seal or stamp if the electronic signature of the notary contains all of the following: the name of the notary; the words "Notary Public"; the name of the county where the bond and oath of office of the notary are filed; the sequential identification number assigned to the notary, if any; and the sequential identification number assigned to the manufacturer or vendor of the notary’s physical or electronic seal, if any.
Effective January 22, 2004
This act, which took effect on January 22, 2004, as an urgency measure, contains many public records provisions that do not affect the Secretary of State’s office. However, new Government Code § 27201.5 specifies that a notary acknowledgment shall be deemed complete for recording purposes without a photographically reproducible official seal of the notary public if the seal is present and legible, and the name of the notary, the county of the notary’s principal place of business, the notary’s telephone number, the notary’s registration number, and the notary’s commission expiration date are typed or printed in a manner that is photographically reproducible below, or immediately adjacent to, the notary’s signature in the acknowledgment.
This act includes three major provisions affecting notaries public:
- This act sets forth the procedures for the execution of a jurat by a notary public and specifies the form that must be used. Personal knowledge of the person appearing before the notary public or satisfactory evidence (as defined in Civil Code § 1185) of the person’s identification is required.
- With respect to the course of study requirement for notaries public, this act provides that satisfactory completion of the course of study is required for appointments made on or after July 1, 2005, rather than on or after January 1, 2005.
- This act requires that the official journal of a notary public include the character of every instrument sworn to or affirmed before the notary.
This act pertains to the Cache Creek Resources Management Plan. The only provision that affects the Secretary of State’s office provides that the bill shall not take effect until the date the State Mining and Geology Board notifies the Secretary of State in writing that the board has approved an ordinance adopted by the Yolo County Board of Supervisors that governs in–channel noncommercial extraction activities carried out pursuant to the Cache Creek Resources Management Plan.
This act requires the Secretary of State, as part of the duties associated with the Advance Health Care Directive Registry, to receive and release a person’s advance health care directive and transmit the information to the registry of another jurisdiction upon request. It requires the Secretary of State to respond by the close of business on the next business day to a request for information received from the emergency department of a general acute care hospital.
This act exempts an affiliate discount buying organization from the requirement that it maintain a $20,000 surety bond and modifies the requirements concerning the maintenance of a trust account for the deposit of contract payments received from buyers if the affiliate discount buying organization maintains a $250,000 surety bond and its parent maintains an aggregate $2,500,000 surety bond and a letter of credit for all of its affiliates that do not maintain their own surety bonds.
This act requires an immigration consultant who is required to file a surety bond to notify the Secretary of State when the surety bond is renewed and to also file additional information with the Secretary of State, as well as a copy of valid photo identification. It also requires the Secretary of State’s office to post information on its website demonstrating that an immigration consultant is in compliance with the bond requirement.