Are You Rusty?
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.
Perhaps you have been working in a busy law office, with constant "rushes" leaving you little or no time to keep up with the myriad changes made to California’s codes, rules, and forms. Or, maybe you have recently moved from a large firm with a docketing department calculating your deadlines and sending you memos alerting you to rule changes, to a small office where you are completely on your own. Either way, with respect to current California civil litigation procedure . . . 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, serve notice of a hearing, calendar a deadline. Unfortunately, you are unlikely to discover that something has changed, and that you have made a mistake, until after you have done so. At best, these errors may cause you some embarrassment. At worst, they may constitute malpractice.
In an effort to help you avoid either of these results, and make your re-entry smoother, presented below are some changes to the California Rules of Court, California Code of Civil Procedure, and Judicial Council forms instituted over the past few years. They range in importance from deadline changes to new optional Judicial Council forms. Changes made in 2010 and 2009 are highlighted first. Changes made prior to 2009 are addressed afterwards by subject.
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. A Judicial Council memorandum announcing the closures may be found here: http://litigationbythenumbers.com/CourtClosures.pdf.)
The Judicial Council will meet on April 23, 2010 to decide how to proceed with court closure days after June 2010. Watch for developments!
Fee increases. Several fees were increased effective August 1, 2009. The current schedule may be accessed here: www.courtinfo.ca.gov/courts/trial/lake/feesched.pdf . (These fees were made uniform throughout the state in 2006.)
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. You may view the full text of the Act here: http://litigationbythenumbers.com/ElectronicDiscoveryAct.pdf.
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)
