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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)

© 2017 by Julie A. Goren, Esq.

Are you an attorney, paralegal, or legal secretary re-entering the world of California litigation? Have you 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? Have you 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, file a demurrer without complying with the meet and confer procedure, etc. 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Following outdated requirements can have serious consequences, among them, waiving the right to do whatever it was you were attempting to do.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.

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 of the changes that have been made to the California Rules of Court, California Code of Civil Procedure, and Judicial Council forms instituted from January 2012 through January 2017, 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 accompanying the twice yearly Updates sent to Litigation By The Numbers® Update Service subscribers over the past few years. It does not include all changes nor does it include commentary.]

January 2017 Changes

CODE CHANGES

Allowable Costs – C.C.P. § 1033.5 is revised to add two more items of recoverable costs: (1) fees for mandatory eFiling or eService through an EFSP, and (2) fees for mandatory hosting of electronic documents by an EFSP.

RULE CHANGES

“Technical” Changes affect format of papers, page numbering, exhibits – C.R.C., Rules 2.109, 3.1110(c), and 3.1113(d) and (h) are all revised.

Service by Fax and Electronic Service – The proofs of service no longer have to include the time of service.

eFiled Documents – entirety of document, including exhibits, must be text searchable where technologically feasible; exhibits must be bookmarked in a particular manner, and more.

JUDICIAL COUNCIL FORM CHANGES

“Meet and Confer Declaration in Support of Demurrer” – NEW

“Declaration of Demurring Party Regarding Meet and Confer” – NEW

“Application and Order for Appearance and Examination” – Revised

July 2016 Changes

RULE CHANGES

Expedited Jury Trials – are mandatory in all limited cases except unlawful detainer and eviction. The rules have been completely revised and reorganized; new procedures include opt out procedure. New and revised Judicial Council forms affect mandatory and voluntary EJT’s. Voir dire is now included in the 5-hour time limit for each side to present its case.

JUDICIAL COUNCIL FORM CHANGES

Form EFS-005 “Consent to Electronic Service” – Renumbered

Form POS-040(P) “Attachment to Proof of Service-Civil” – Revised

LOS ANGELES COUNTY COURT CHANGES

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

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.

Click here to read about pre-2012 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, and a step by step Calendaring Video. 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