Are you an attorney, paralegal, or legal secretary re-entering the world of California litigation? Whether you temporarily switched to transactional work, voluntarily took time off to raise your children, or fell victim to the economic crisis, it is unlikely that you have been keeping up on changes to California civil litigation procedure in the interim. Admit it. You are rusty.
You know the old adage: “a little knowledge can be dangerous”? This can be so true if you are rusty. The problem is that you think you know what you are doing because you did it just a few months ago, and, instead of checking the rules, you might simply go ahead and do it, e.g., draft a motion in the wrong format, serve notice of a hearing too late, calendar a deadline past the due date. Unfortunately, you are unlikely to discover that something has changed, and that you have made a grave error, until after you have done so.
Following outdated requirements can have serious consequences, among them, waiving the right to do whatever it was you were attempting to do. That’s why it is so important to use an up-to-date, step-by-step California-specific handbook like Litigation By The Numbers-Fourth Edition and to keep it current by subscribing to the twice yearly Update Service.
In addition to relying on up-to-date information while performing a given task, the prepared legal professional will benefit by focusing on what has changed. To give you a head start, here are some changes to the California Rules of Court, California Code of Civil Procedure, and Judicial Council forms instituted from January 2009 through 2011, starting with 2011. There is a link to earlier changes at the end of this article. [This list was compiled from cover memos sent to Litigation By The Numbers®-Fourth Edition Update Service subscribers over the past few years. To get your own copy, just go to the Buy Now page of our website. We offer a 100% money back guaranty.]
July 2011 Changes
STATEWIDE RULE, CODE, AND FORM CHANGES
Proof of Service and Attachment (POS-040 and POS-040(P)) have been revised as they should have been in January, to change “electronic notification address” to “electronic service address.”
Rule 3.670(i) adds uniform fees for scheduling telephone appearances, an additional fee for a late request for telephone appearance, and, in lieu of those fees, a cancellation fee.
Case Management Statement has been revised to add a new section with detailed information about ADR.
C.R.C., Rule 3.1113 no longer requires lodging copies of non-CA authorities and unpublished cases; court may order lodging. Upon request, the citing party must promptly provide a copy of non-CA authority to a party. Revised rule details what must be included in cite to unpublished case.
LOS ANGELES COUNTY COURT CHANGES
Civil Case Cover Sheet Addendum (L.A. County court form) has been revised.
Rule reorganization – The L.A.S.C.R. are supposed to be entirely reorganized and renumbered effective 7/1/11. The court website has the “proposed rules” and the new rules as well as correlation tables showing the new/old numbers.
Former L.A.S.C.R., Rule 9.0(c), which required documents exceeding 3″ in thickness to be separated into volumes, has been deleted in the revised rules. There is now a “strong request” to do so posted on the court website, but it is limited to the Stanley Mosk courthouse.
The Stanley Mosk courthouse requests courtesy copies of all documents filed seven days or less before a hearing.
January 2011 Changes
California Courts website changes. The Judicial Council initially announced that the California Courts website would be redesigned and launched some time in January, and then postponed it until February. Whenever it happens, the address is changing from “courtinfo.ca.gov” to “courts.ca.gov.” Certain page names will stay the same, e.g., “/forms, /rules.” The old links are supposed to work for a while, or at the least redirect to the new home page.
Limited Service Days. “Furlough days” (which preceded and succeeded “court closure days” (see July 29, 2009 Urgency Legislation below)) have been replaced by “limited service days” — days upon which courts might close one or more courtrooms or reduce the hours of one or more of its clerks’ offices, or both. Courts may designate limited service days upon 60 days notice; the Judicial Council posts the notices on their website. As of January 1, 2011, Lassen, San Francisco, San Mateo, and Santa Cruz counties have given notice of limited service days.
Hearing-Related Calendaring. New C.C.P. § 12c requires hearing-related deadlines to be calculated by counting backward from the hearing date, starting with the statutory deadline (e.g., 16 court days for a regular motion), and then continuing backward to add the extension based on service method (e.g., 5 days for service by mail within California). While this section brings much needed certainty, determining the first available date for a hearing now presents different challenges which may lead to inadequate notice.
Electronic Service. Electronic service now includes “electronic transmission” and “electronic notification,” the former meaning emailing the document as an attachment, the latter meaning emailing a hyperlink where the document can be opened and downloaded. C.R.C., Rule 2.251 (formerly 2.260) imposes various obligations on a party serving by electronic notification to maintain the hyperlink and integrity of the document. The Judicial Council forms relating to electronic service change references from “electronic notification address” to “electronic service address,” but they neglected to change the multi-purpose POS-040. It will be revised in July. Suggestion: If you have an in-house form for POS by electronic service, change it to refer to “electronic service address.”
Proposed Orders. Proposed Orders may no longer be mailed to the opposing party. C.R.C., Rule 3.1312(a) has been revised effective January 1, 2011, to require that they be served “in a manner reasonably calculated to ensure delivery by the close of the next business day.” In addition, there are new rules on electronically submitting proposed orders to the court(C.R.C., Rule 3.1312(c)). Two versions of the proposed order must be submitted along with new mandatory Judicial Council form EFS-020 “Proposed Order (Cover Sheet).”
Expedited Jury Trial Act. C.C.P. §§ 630.01-630.10 establishes the Expedited Jury Trial Act; C.R.C., 3.1545-3.1552 sets forth detailed procedures for litigating under the Act. Basically, the jury is smaller (9 instead of 12, no alternates); the case has to be tried in one day; time for voir dire is limited to 15 minutes per side; time for putting on a case is limited to 3 hours per side; parties waive rights to appeal and to bring certain post trial motions; it has its own set of deadlines; it allows the parties to enter into “high/low agreements,” guaranteeing the plaintiff a minimum award and capping defendant’s exposure irrespective of the jury verdict.
Demurrers. C.R.C., Rule 3.1320(j) clarifies that defendant has 10 days to answer or otherwise plead upon expiration of the time to amend if the demurrer was sustained with leave to amend.
Writ of Execution. C.C.P. § 699.520 was revised to add to Writs of Execution: (1) whether limited or unlimited case, and (2) type of legal entity of judgment debtor. The Writ of Execution form will not change until 2012.
Fee Increases. Many fees increased prior to the close of 2010. The fee for motions for summary judgment increased from $200 to $500.
2010 Changes
New Judicial Council Forms. The Judicial Council has adopted a new optional “Notice of Entry of Judgment or Order.” There are also three new optional forms relating to electronic service: “Consent to Electronic Service and Notice of Electronic Notification Address,” “Notice of Change of Electronic Notification Address,” and “Proof of Electronic Service.”
Revised Rule re Proof of Electronic Service. C.R.C., Rule 2.260(f) no longer requires a proof of service by electronic service to state that the “transmission was reported as complete and without error.” The multi-purpose POS-040 has been revised to reflect that change. If you have created a multi-purpose in-house form, you might want to delete that now obsolete language from the section on electronic service. Do not delete it from the section on fax service — it is still required for fax service.
Statements of Decision and Proposed Judgments. C.R.C., Rule 3.1590, regarding the statement of decision and proposed judgment process, is revised. The time within which to prepare a proposed statement of decision has changed, as has the time within which the court must sign a proposed judgment.
Time for Filing Notice of Appeal. C.R.C., Rule 8.104 re time for filing notice of appeal is revised. The rule specifies that the notice of entry of judgment may be served by any method — it does not have to be mailed (despite the clear language of C.C.P. § 664.5) — and time for filing notice of appeal starts running from the service as opposed to the mailing of the notice. [The Judicial Council did not change the mailing vs. service rule as to any other deadline dependent upon mailing notice of entry, i.e., memo of costs, motion for attorneys fees, etc. Look for those in the future.]
Urgency Legislation – July 29, 2009
On July 29, 2009, significant changes were made as a result of the current economic crisis.
Court Closures. From September 1, 2009 through June 30, 2009, the third Wednesday of every month is a court closure day — a day deemed to be a non-court day for purposes of calendaring deadlines. (This change was proposed to be codified as new Rule 1.12, but the proposal was dropped.)
The Judicial Council will meet on April 23, 2010 to decide how to proceed with court closure days after June 2010. Watch for developments!
California Electronic Discovery Act. The California Discovery Act, which tracks the 2006 amendments to the Federal Rules of Civil Procedure, was signed into law and became immediately effective on July 29, 2009.
January 2009 Changes
Settlement. By way of background, when a case is settled, it is supposed to be dismissed within a specified 45-day period (either 45 days after the date of settlement if the settlement is “unconditional,” or 45 days after the settlement is supposed to be completed if the settlement is “conditional”). (See Judicial Council form “Notice of Settlement of Entire Case” for details.) In the past, if the case was not dismissed by the parties within that period, the court would set an OSC re dismissal, and the parties would have to appear and explain the delays and request more time.
C.R.C., Rule 3.1385 now provides that if a case which has been settled involves the compromise of a minor’s claim or a person with a disability where court approval is required (thus delaying completion of the settlement), the court cannot hold an OSC re dismissal until after the hearing to approve the settlement. In addition, there is now a mechanism for continuing the OSC re dismissal without an appearance. Specific papers must be submitted no later than five court days prior to the prescribed 45th day. (See C.R.C., Rule 3.1385 for details on what must be submitted.)
Judicial Council Forms.
There is now a mandatory Judicial Council form “Summons–Cross-Complaint.” (No longer do you take the “Summons” form and conform it for use on a cross-complaint.)
In addition to being served in complex cases, the Civil Case Cover Sheet must now be served in “Collections Cases” (a type of case created by C.R.C., Rule 3.740 in July 2007, discussed below). (C.R.C., Rule 3.220)
Pre-2009 Changes
You should be aware of several changes to codes, rules, and forms instituted prior to January 2009. An attempt has been made to present them in the order in which they would arise during a case.
Reorganization/Renumbering of Rules. The California Rules of Court have been completely reorganized; every rule number has changed.
Format of Papers. Inclusion of a fax number and email address on pleadings, etc., filed with the court is no longer optional. It is now required if the number/address “is available.” (C.R.C., Rule 2.111)
Summons. The court clerk now retains the original summons. (C.C.P. §412.10) You no longer need to resubmit it to the clerk when you request entry of default.
Electronic Filing and Service. This area presents new vocabulary (“electronic service provider,” “electronic filer,” “electronic notification address”) and continuously evolving procedure varying from court to court. Be sure to familiarize yourself with C.R.C., Rules 2.250 and 2.260 before you embark upon either electronic filing or electronic service. For electronic filing, check your local rules to determine if they accept electronic filing in your type of case, and how you do it, e.g., directly with the court, or through an electronic service provider.
Collections Cases. New C.R.C., Rule 3.740 creates “Collections Cases.” They are actions for recovery of money owed in a sum stated to be certain, not exceeding $25,000, exclusive of interest and attorneys fees, arising from a transaction in which property, services, or money was acquired on credit, and which does not seek tort or punitive damages, recovery of real or personal property or a prejudgment writ of attachment. Rule 3.740 exempts Collections Cases from the statutory deadlines for filing Proof of Service of Summons and obtaining default judgment, and establishes different deadlines.
Proof of Service.
Proof of Service in a multi-party case must identify the party represented. (C.R.C., Rule 1.21(c))
The first named plaintiff is required to maintain fax lists in all cases where the parties have agreed to accept service by fax, and all parties are required to serve the list along with any order, notice or pleading on a party who has not yet appeared (C.R.C., Rule 3.254)
There are now four optional Judicial Council proof of service forms. The multi-purpose POS-040 is particularly useful.
Regular Motions.
Filing and service deadlines for regular motions are (since January 2005) as follows:
Notice of motion must be filed at least 16 COURT days prior to the hearing.
Oppositions must be filed and served at least 9 COURT days prior to the hearing.
Replies to oppositions to regular motions must be filed and served at least 5 COURT days prior to the hearing.
Oppositions and replies must be served in a manner so as to be received by the end of the next business day. (C.C.P. §1005(b))
Telephone appearances. Appearance by telephone is now favored. Intent to appear telephonically may be indicated in the moving, opposing, or reply papers. It may be arranged up to three court days (instead of five court days) before the hearing. A party receiving notice of another party’s intent to appear by by telephone may give notice of intent to appear by telephone by noon on the court day before the hearing. (C.R.C., Rule 3.670)
Motions for Summary Judgment (“MSJ’s”) and Summary Adjudication (“MSA’s”). Very significant changes have been made to MSJ’s and MSA’s:
The deadline to file objections to evidence on MSJ’S and MSA’S has changed. They now must be submitted with the opposition and/or reply (as opposed to the prior rule, which allowed filing as late as three court days prior to the hearing). (C.R.C., Rule 3.1354(a))
Objections must follow a specific format. (C.R.C., Rule 3.1354(b))
Objections must be accompanied by a proposed order, which must follow a specific format. (C.R.C., Rule 3.1354(c))
The mandatory format for separate statements for MSJ’s and MSA’s has changed. (C.R.C., Rule 3.1350(h))
It would be so easy to violate these rules! All you have to do is rely on your prior rusty knowledge, your rusty form file, and, if you don’t use rules-based computerized calendaring, your equally rusty calendaring “cheat sheet.” If, for example, without first checking for procedural changes, you pull a response to motion for summary judgment from your form file to use as a template, you would draft your objections to evidence in an improper format. You would also either fail to submit a proposed order at all, or draft it in an improper format. Then, if you calendar your deadlines by hand, and you use your outdated calendaring “cheat sheet,” you would top it all off by filing your evidentiary objections too late.
If objections to evidence are not timely filed, or are not presented in the proper format, the trial court may ignore them. (See, for example, Tverberg v. Fillner Construction, Inc. (2008) 168 Cal.App.4th 1278, in which the court, citing Rule 3.1354(b), noted that “[t]he form of the [responding party’s objections to evidence] was improper and the trial court may not have ruled on those objections.” As a result, the possibly objectionable evidence is part of the record on appeal. Could this constitute malpractice?