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Litigation By The Numbers®

The Essential California Civil Litigation Handbook

Are You Rusty On California Procedure

Are You Rusty? (On California Procedure)

© 2016 by Julie A. Goren, Esq.

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 latest 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 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Following outdated requirements can have serious consequences, among them, waiving the right to do whatever it was you were attempting to do.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®, and to keep it current by subscribing to the twice yearly Update Service. To get your own copy of “Litigation By The Numbers® (“LBTN”)” href=”http://lbtn.contentshelf.com”>click here.  We offer a 100% money back guaranty.]

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 January 2016, starting with the most recent changes. 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® Update Service subscribers over the past few years. 

[MORE UPDATES COMING SOON.]

January 2016 Changes

CODE CHANGES

Notice of Deposition – C.C.P. § 2025.220(a)(8) added to require disclosure of contractual relationships between deposing party/third party financing case and court reporting agency or requirement that attorney use a particular reporting agency.

Demurrers – C.C.P. § 430.41 added to require demurring party to attempt to meet and confer prior to filing demurrer and file meet and confer declaration with demurrer; limits on subsequent demurrers; limits amendments to pleadings after demurrer.

MSJ’s and MSA’s – Adds definition of “material fact” to emphasize that only material facts are to be raised and disputed; revised and renumbered the section allowing parties to stipulate to an MSA not disposing of an entire cause of action.

Expedited Jury Trials – Expedited Jury Trial Act divided into two separate sections, one for Voluntary EJT’s and one, effective 7/1/16, for Mandatory EJT’s in certain limited cases. Voluntary EJT section remains as before except that the time limit to put on a case is increased from three hours to five hours.

C.C.P. § 998 – revised to limit recovery for both sides to post-offer costs.

RULE CHANGES

Telephone Appearances – C.R.C., Rule 3.670 revised timing of notice of intent to appear telephonically for regular motions and ex parte hearings.

Memorandum of Costs – C.R.C., Rule 3.1700(a)(1) revised so time runs from service by clerk as opposed to mailing.

JUDICIAL COUNCIL FORM CHANGES

Form POS-040 “Proof of Service-Civil” – Revised

Form CIV-020 “Notice of Intent to Appear By Telephone” – Revised

E-FILING CHANGES

Added Fresno, Santa Barbara, and Tulare.

July 2015 Changes

CODE CHANGES

C.C.P. § 135 is amended (via the budget trailer bill)  to add Native American Day to the list of Gov. Code § 6700 holidays which are not also court holidays.

E-FILING CHANGES

Five new courts have instituted mandatory or voluntary eFiling:  Kern, Kings, Merced, Riverside, and San Luis Obispo.

LOS ANGELES COUNTY COURT CHANGES

Civil Case Cover Sheet Addendum (L.A. County court form) has been revised. 

January 2015 Changes

JUDICIAL COUNCIL FORM CHANGES

Proof of Electronic Service POS-050 – revised

CODE CHANGES

Gov. Code § 6700 adds “Native American Day” on the 4th Friday of September. Although there was no intent to create a court holiday, one was created by virtue of the fact that C.C.P. § 135 was not concurrently amended.

C.C.P. § 659a is revised to provide that the timing of post-trial motions, oppositions, and replies is uniform: moving papers due 10 days after filing notice of motion; opposition due 10 days after service of moving papers; reply due five days after service of opposition.

Gov. Code § 26720.9 increases the fee for serving a writ to $40.

E-FILING CHANGES

San Francisco is the first court to open a direct portal for eFiling. It also now mandates eFiling in all General Civil cases (not Limited Unlawful Detainer or Small Claims) after the conventional filing of the complaint.

July 2014 Changes

JUDICIAL COUNCIL FORM CHANGES

Abstract of Judgment (EJ-001) – revised
Notice of Levy (EJ-150) – revised
Acknowledgment of Satisfaction of Judgment (EJ-100) – revised

E-FILING CHANGES

Changes affect San Francisco and San Diego counties

RULE CHANGES – L.A.S.C. PI COURT

As of March 1, 2014, the Antelope Valley courthouse began handling filings and pre-trial matters in Personal Injury Court cases (“PI Cases”) within its district.

Regarding motions format:  the hearing reservation ID number must be included on the face page of the notice and the receipt for payment of the hearing fee must be attached as the last page of the motion.

January 2014 Changes

RULE CHANGES

C.R.C., Rule 2.101 no longer requires the use of recycled paper.

C.R.C., Rule 3.670, regarding telephone appearances, has been revised in many respects, including timing of notice (reduced from 3 to 2 court days), and a new set of rules authorizing telephone appearances at ex parte hearings by either applicant or opponent, or both, with specific (and confusing) notice requirements due to error by Judicial Council rules committee. Several subsections have been renumbered.

CODE CHANGES

Changes throughout the C.C.P. clarify that the deadline for moving to compel further responses is triggered by the service of verified responses.

July 2013 Changes

RULE CHANGES

New C.R.C., Rule 3.720(b) Emergency suspension of rules. “A court by local rule may exempt specified types or categories of general civil cases filed before January 1, 2016, from the case management rules in this chapter, provided that the court has in place alternative procedures for case processing and trial setting for such actions, including, without limitation, compliance with Code of Civil Procedure sections 1141.10 et seq. and 1775 et seq. The court must post the alternative procedures on its website.” (adopted Feb. 26, 2013)

L.A.S.C.R., Rule 3.24(b) exempts several types of cases, including “Personal Injury Actions.”

C.R.C., Rule 3.1385(C)(3)(A):  with exceptions . . . “on the filing of the notice of conditional settlement, the court must vacate all hearings and other proceedings requiring the appearance of a party and may not set any hearing or other proceeding requiring the appearance of a party earlier than 45 days after the dismissal date specified in the notice, unless requested by a party.”

C.R.C., Rules 2.250-2.254, 2.256, 2.258, 2.259

Several eFiling and eService rules changed and/or were renumbered. Key changes: (1) any court may make eFiling mandatory in any civil case; (2) eService is mandatory in any case in which eFiling is mandatory; (3) any court can establish a midnight eFiling deadline; (4) self-represented parties are automatically exempt from any mandatory eFiling and eService rules and orders, and self-represented parties can only consent to eService by serving notice that they agree – eFiling a document does not mean consent.

E-FILING CHANGES

Orange County – midnight eFiling deadline adopted

San Diego – Central Division – mandatory eFiling in Class, Consolidated, and Coordinated Actions

MISCELLANEOUS

Tremendous changes in L.A. County pursuant to Court Consolidation Plan.  Includes designation of “Personal Injury Actions” with special case management rules, including no case management conference, assignment of final status and trial dates upon filing complaint, informal conference with court as prerequisite to filing motions to compel further responses to discovery

Telephonic appearance fee increased to $86.

January 2013 Changes

JUDICIAL COUNCIL FORM CHANGES

Request for Dismissal – Revised

Form Interrogatories – Construction Litigation – New

CODE CHANGES

C.C.P. § 631(b) – revised.   Deadline for depositing the non-refundable jury fee changed effective 9/27/12 to on or before the date scheduled for the initial CMC

New C.C.P. § 2025.290. With exceptions, limits to seven hours the amount of time a deponent may be required to testify

New C.C.P. §2031.240(c). Requires objections to document demands based on privilege to contain sufficient information to evaluate the merits of the claim, including, if necessary, a privilege log

RULE CHANGES

C.R.C., Rule 2.200 – revised.  Requires notice of change of address, telephone, fax, or email address of any attorney or self-represented party

E-FILING CHANGES

Orange County Superior Court Pilot Project – Mandatory e-Filing for all limited, unlimited, and complex civil cases; San Bernardino – allowed in Collections Cases; San Diego – allowed general civil imaged cases; Ventura – stopped eFiling

Several changes relating to EFSP’s at various courts (name changes, additions, etc.)

July 2012 Changes

JUDICIAL COUNCIL FORM CHANGES

Expedited Jury Trials – Two new forms:  (1) [Proposed] Consent Order for Expedited Jury Trial [EJT-020]; (2) Attachment to [Proposed] Consent Order for Expedited Jury Trial [EJT-020A].

CODE CHANGES

C.C.P. §631 changes the deadline for making the jury fee deposit.

Government Code § 70616 increases appearance fees, complex case fees and caps, hearing fees, and more.

MISCELLANEOUS

Many courts have ceased providing court reporters all together or drastically reduced availability of court reporters.  It is now up to the parties to determine whether the court will make a court reporter available, and if not, to follow the steps to obtain the appointment of a court reporter pro tempore.

San Francisco Superior Court adds to those cases which must be eFiled: Complex, Single Assignment, and by stipulation.

January 2012 Changes

JUDICIAL COUNCIL FORM CHANGES

SUBP-002 – has been renamed “Civil Subpoena (Duces Tecum) for Personal Appearance and Production of Documents, Electronically Stored Information, and Things at Trial or Hearing and Declaration” and revised to reference ESI and to remind the user that they may specify the format in which ESI is to be produced.

CIV-120 – “Notice of Entry of Dismissal and Proof of Service” has been revised to include electronic service.

EJ-130 – “Writ of Execution” has been revised to conform to the January 2011 changes to C.C.P. § 699.520 relating to the legal entity of the judgment debtor and designating whether the case is limited or unlimited.

CODE CHANGES

C.C.P. § 437c has been revised to add new subsection (s).  Generally, motions for summary adjudication (“MSA”) are only to be granted where they will completely dispose of a cause of action, affirmative defense, a claim for damages, or an issue of duty. However, parties may now stipulate to bringing MSA’s that do not do so.

C.C.P. § 116.221 has been revised to increase the jurisdictional limits of small claims court for individuals to $10,000, however, claims for bodily injury in auto accident cases where the defendant is covered by an automobile insurance policy that includes a duty to defend cannot exceed $7,500.

Government Code § 70616 has been revised to clarify that one $550 complex case fee covers all plaintiffs.

MISCELLANEOUS

On 12/15/11 the Orange County Superior Court issued an Administrative Order requiring documents in breach of contract actions commenced after 1/1/12 to be eFiled.

In October of 2011 the Los Angeles Superior Court developed a set of Voluntary Efficient Litigation Stipulations meant to encourage cooperation between the parties and to assist in resolving issues in a manner that promotes economic case resolution and judicial efficiency.

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: www.lasuperiorcourt.org 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. Although the url may change with the new California Courts website, as of this writing, for more information and a “Link Referral” go to http://www.courtinfo.ca.gov/newsite.htm.

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. Although the url may change with the new California Courts website, as of this writing, for the full text of each notice, including the reductions in services and hours, go to: http://www.courtinfo.ca.gov/courtadmin/closures.htm.

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.  For more information on this very important topic, see our CCP § 12c article.

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.” The new rules may be accessed here: http://www.courts.ca.gov/rules.htm.

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).” The new rules may be accessed here: http://www.courts.ca.gov/rules.htm.

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. The new rules may be accessed here: http://www.courts.ca.gov/rules.htm.

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. The new rule may be accessed here: http://www.courts.ca.gov/rules.htm.

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. The fee schedule may be accessed here: http://www.courtinfo.ca.gov/reference/documents/fee-schedule-101910.pdf.

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. Suggestion: 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

Court Closure Days.On July 29, 2009, urgency legislation was enacted, as a result of which the Judicial Council designated the third Wednesday of every month from 9/1/09 through 6/30/10 as a “court closure day” for every California state court. The courts were closed for most purposes, and the day was deemed to be a non-court day for purposes of calendaring deadlines.

California Electronic Discovery Act. The California Electronic Discovery Act, which sets the procedures for the discovery of electronically stored information, was signed into law and became immediately effective on July 29, 2009. For an introduction to the Electronic Discovery Act, click here.

January 2009 Changes

Settlement. 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). (C.R.C., Rule 3.220)

Click here to read about pre-2009 changes.

 

Julie A. Goren, Esq. is the author of Litigation By The Numbers, a loose leaf updated every January and July with over 440 pages devoted solely to the intricacies of California civil litigation procedure, and the co-author of California Civil Litigation and Discovery, a more substantive text on California litigation. She frequently lectures and writes about California state court calendaring, and changes to rules, forms, and codes. For more information about her publications, and to get your own copies, visit www.litigationbythenumbers.com.

For more information on our essential California civil litigation handbook, click here.

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Julie A. Goren, Esq.

has been involved in various aspects of California litigation for more than three decades. more