For more detail on calendaring, check out our video:
“Calendaring in State Court: Steps and Traps for the Unwary”
eService Simplifies Calendaring in California State Court
© 2012 by Julie A. Goren, Esq.
[THIS ARTICLE WAS ACCURATE WHEN PUBLISHED. IT SHOULD NOT BE RELIED UPON NOW WITHOUT FIRST DETERMINING WHETHER ANY CITED CODES OR RULES HAVE CHANGED.]
eService provides significant advantages over service by mail, fax, or overnight delivery; some pretty obvious, some not so much. The most obvious advantages relate to the savings of trees, time, and money associated with document processing and service itself. In California State Court, another benefit, or more accurately, a series of benefits, relates to calculating deadlines.
In general, it is much easier to calculate deadlines triggered by eService than it is to calendar deadlines triggered by any method other than personal delivery. Even more significant, however, eService of notice of certain types of motions allows the moving party to avoid completely a little-known trap that could very easily result in insufficient notice to opposing parties.
The Extension of Time for eService is Much Less Confusing Than Extensions For Fax or Overnight Delivery.
With certain exceptions (see Calendaring Under the C.C.P. — Extending Time Based On Service Method . . . or Not, documents not personally served require specific extensions of time. To calculate a deadline to act or respond or a non-motion notice period, one must add two court days for service by fax or overnight delivery. (C.C.P. § 1013) However, to calculate the last day to serve notice of a “regular motion” (i.e., not a motion for summary judgment or summary adjudication (“MSJ or MSA”)) by fax or overnight delivery, one must add two calendar days. (C.C.P. § 1005) Yet, to calculate the last day to serve notice of an MSJ or MSA by fax or overnight delivery, one must add two court days. (C.C.P. § 437c)
This difference among the statutes is unfortunate. It leads to confusion and calendaring errors. A significant number of practitioners and support staff are not even aware that the length of the extension for service by fax or overnight delivery depends upon which statute applies, which, in turn, depends upon what is being served. Indeed, the question: “how much time is added for service by fax or overnight service” is really a trick question; it cannot possibly be answered without more information. Yet, people answer it all of the time.
eService is so much simpler. Under C.C.P. § 1010.6, the extension, if any, is two court days. Period. This is true whether one is calculating the deadline to respond to a discovery demand, the last day to serve a motion to compel, or the last day to serve an MSJ or MSA. So, calendaring as it relates to any eServed document avoids the “is it two court days or two calendar days?” question.
eService Does Not Require Adjustments for Holidays and Weekends.
Deadlines based upon calendar days (e.g., service by mail in all instances, service of regular motions by fax or overnight delivery) may initially fall on a weekend or holiday, requiring an adjustment under C.C.P. § 12a(a). Unfortunately, many practitioners and support staff do not know whether to move the deadline forward or backward. With eService, that dilemma never arises. Why? If one is counting court days, the last day can never land on a weekend or holiday.
So, in California State Court, eService generally has benefits over service by mail, fax, and overnight delivery. However, the advantages of eServing notices of motion for regular motions are even more significant.
eService Avoids C.C.P. § 12c Problems.
Calculating the last day to serve notice of a regular motion requires the application of at least two statutes: C.C.P. § 1005 and C.C.P. § 12c. C.C.P. § 1005 requires 16 court days’ notice, with a five calendar day extension for service by mail within California, and a two calendar day extension for service by fax or overnight delivery. The need to combine court days and calendar days in a single calculation is fraught with problems. In that regard, deadline calculations will differ depending upon the order in which one counts the two sets of days (court days first or calendar days first) as well as the direction in which one counts those days (forward from the notice date or backward from the hearing date).
This ambiguity was resolved by the enactment of C.C.P. § 12c, which provides that the last day to serve notice is calculated by counting backward from the hearing date starting with the 16 court days, and then adding the applicable extension. However, there remains a trap that greatly complicates the other end of the motion-related calendaring equation — determining the first available hearing date based on the notice date.
Significant detail and several examples may be found in Certainty in Calculating Hearing-Related Deadlines in California State Court. For now, however, suffice it to say that if, on a Monday or a Tuesday, one were to calculate the first available hearing date for a motion, to be served by mail that same day, by counting forward 16 court days and adding five calendar days, insufficient notice would be given under C.C.P. § 12c. In that regard, if one were to count backward from that hearing date 16 court days plus the applicable calendar day extension as C.C.P. § 12c dictates, the last day for notice would actually be at least three days prior to the service date. Similarly, if, on a Thursday, one were to calculate the first available hearing date for a motion, to be served by fax or overnight delivery that day, by counting forward from the notice date, insufficient notice would be given. The disparity is caused solely by the fact that, sometimes, counting court days and calendar days forward yields a different result than counting them backward, i.e., the reason C.C.P. § 12c was enacted in the first place.
The good news is that if notice of motion is eServed, the problem disappears. Why? Because one simply has to add two court days to the 16 court day period, i.e., giving 18 court days’ notice. 18 court days is 18 court days regardless of the direction in which one counts. Thus, if one counts forward 18 court days to determine the first available hearing date, one can be assured that a backward count of 18 court days from that hearing date will land on the notice date, resulting in sufficient notice under C.C.P. § 12c.
By switching to eService, all practitioners save the trees, time, and money associated with document processing. For California practitioners, eService may even help prevent those calendaring errors which could lead to malpractice. There is no better time than now to make the switch! For more information about eService in California, including when it is authorized, how it is accomplished, and more, check out the Filing, Service, and Calendaring Chapter of Litigation By The Numbers®.
Julie A. Goren, Esq. is the author of Litigation By The Numbers®, a looseleaf updated every January and July with 460 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.