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Calendaring Under the C.C.P. — Extending Time Based On Service Method . . . or Not
© 2011 by Julie A. Goren, Esq.
Deadlines must be calculated at every phase of the California state court lawsuit. If you manually calculate the last day to take a particular action, e.g., to move to compel further responses to discovery, or you manually calculate the last day to respond to something, e.g., a cross-complaint or discovery, you must follow several steps, in the proper order. Usually, the last step is to extend the deadline if the document which triggered the running of the deadline was served by any means other than personal service. However, there are exceptions, and unless you use an up-to-date guide like Litigation By The Numbers® coupled with a rules-based computerized program to automatically calculate your deadlines, you must tread very carefully at this last step.
Adding time when you should not, or failing to add time when you should, will result in a calendaring error. If you fail to add an extension on your client’s behalf when you should have, the papers will be served and/or filed early. This is not a problem. But, if you fail to add an extension when calendaring the opposing party’s deadline, you would, at best, suffer embarrassment were you to contend that they were late. If you err by adding an extension for your client when you should not, however, there will be dire consequences indeed: a waiver of your client’s rights, and quite possibly, a malpractice claim against your law firm. Clearly, then, it behooves anyone who manually calendars deadlines to take a close look at the exceptions. But, first, some time-extension basics.
For the most part, deadlines start running from service of some triggering document, e.g., service of interrogatories triggers the deadline for serving the response; service of responses to interrogatories triggers the deadline for serving a motion to compel further responses, etc. Any service method other than personal service will result in a delay between the act of service (i.e., deposit in a USPS mail box, transmission to a fax machine, sending an electronic transmission), on the one hand, and the other party’s receipt of the document, on the other. To obviate any prejudice in this delay in receipt, various extensions of time are added depending upon the method by which the triggering document is served. These extensions of time are found in C.C.P. Sections 1013 and 1010.6 (for ease of reference, “Extending Statutes”), as follows:
C.C.P. Section 1013 extends certain deadlines to act or respond for all service methods except electronic service (i.e., mail, fax, express mail or overnight delivery). It provides that “any period of notice and any right or duty to do any act or make any response within any period or on a date certain after service of the document, which time period or date is prescribed by statute or rule of court, shall be extended by . . .” five days if mailed within California, and two court days if served via fax, express mail or overnight delivery.
C.C.P. Section 1010.6 extends certain deadlines to act or respond by two court days when the triggering document is served electronically.
Before we tackle the various exceptions, we should differentiate between exceptions, on the one hand, and instances where the extensions are presumably inapplicable in the first place — deadlines which start running from mailing, not service. For example, under C.C.P. Section 411.20, the deadline for paying filing fees after bouncing a check runs from the date the clerk mails notice that the check bounced. Under C.R.C., Rule 3.1700, the deadline for filing and serving a memorandum of costs runs from, among other things, the date the clerk mails the notice of entry of judgment.
There are at least two reasons why the C.C.P. Section 1013 extensions for service by mail should not be applicable to these deadline calculations.
First, C.C.P. Section 1013 expressly provides that the extensions apply to any period or date certain “after service” of a document. It does not say “after mailing” of a document.
Second, where the triggering document must be mailed, and the deadline is therefore based on mailing, it would be counter-intuitive to add extra time for mail. [2013 Update: The court in Nevis Homes LLC. v. CW Roofing, Inc. (2013) 216 Cal.App.4th 353, held that time for filing and serving a memorandum of costs is extended when notice is served by mail by a party, but left open whether time is extended when notice is mailed by the clerk.] The language of a particular statute might eliminate any ambiguity. See, for example, C.C.P. Section 488.460, dealing with safe deposit box attachments. This section requires the levying officer to mail notice to the judgment creditor that an additional fee is due, and provides a deadline of three business days “plus the extended time period specified in subdivision (a) of Section 1013 for service by mail” within which to pay that fee.
Now, on to the exceptions.
Each Extending Statute contains three express exceptions: (1) “notice of intention to move for new trial,” (2) “notice of intention to move to vacate judgment pursuant to Section 663a,” and (3) “notice of appeal” (for ease of reference, “Express Exceptions”). The hard and fast rule with Express Exceptions is simple to follow: do not ever add time when calculating one of these deadlines! Instead, think “malpractice.”
In addition to the Express Exceptions, the Extending Statutes allude to others, providing that the extensions apply in the absence of a specific exception provided by “any other statute or rule of court” (for ease of reference, “Specific Exceptions”). You can find the Specific Exceptions by searching the Code of Civil Procedure and the Rules of Court for references to C.C.P. Sections 1013 and 1010.6.
Your search will reveal Specific Exceptions referencing Section 1013 generally, thus making it clear that there is no extension for service by mail, fax, express mail, or overnight delivery. You will find some that only except the extension for service by mail, leaving unanswered whether C.C.P. Section 1013’s extensions for fax or overnight delivery remain applicable. You will not find a single exception specifically relating to extensions for fax service or electronic service. You will, however, find one rule of court, very recently revised, which makes it clear that no extension is applicable, even for electronic service. Let’s take a look at the Specific Exceptions your search may reveal.
Section 116.140 (Small Claims Actions) provides that “Section 1013 . . . on the extension of the time for taking action when notice is given by mail” does not apply to small claims actions. This leaves unanswered questions: What about service by fax or overnight mail under Section 1013, or electronic service under Section 1010.6? Do those extensions apply? The plain language of the relevant statutes as currently drafted dictate that they do: Sections 1013 and 1010.6 both clearly provide that there is an extension in the absence of a Specific Exception, and this exception specifies mail, nothing else. I am not, however, suggesting that you add an extension for everything but mail!
Section 413.20 (Service of Summons By Mail) provides: “If a summons is served by mail pursuant to this chapter, the provisions of Section 1013 that extend the time for exercising a right or doing an act shall not extend any time specified in this title.” There are three provisions for serving a summons by mail: (1) service by notice and acknowledgment of receipt under Section 415.30, (2) service by certified mail on an out-of-state defendant under Section 415.40, and (3) certified mail on a lessee in certain unlawful detainer actions under Section 415.47. The exception makes clear that you do not add additional time for mail when calculating the response due dates.
Section 437c (Motions for Summary Judgment), which sets forth the deadlines for notices of motion, oppositions, and replies for motions for summary judgment and summary adjudication, expressly provides that Section 1013 does not apply. This exception should not be surprising; the statute contains its own extensions of time for notice based upon service via fax, express mail or overnight delivery. It would make no sense to add the C.C.P. Section 1013 extensions on top of the built-in extensions. But, there is no mention of the extension for electronic service.
Section 594 (Notice of Trial) provides that a trial or hearing may be held in the absence of the adverse party so long as the requisite notice has been given. Subsection (b) provides: “The time provisions of Section 1013 shall not serve to extend the notice of trial requirements under this subdivision for unlawful detainer actions.” There is no mention of an exception for electronic service.
Section 659 (Notice of Intention to Move for New Trial) provides that the time “shall not be extended by . . . those provisions of Section 1013 of this code which extend the time for exercising a right or doing an act where service is by mail.” Again, the specific reference to mail under Section 1013 might make one wonder what happens when service is by fax, overnight mail, or electronic service, but there is actually an answer to this one. Notice of intention to move for a new trial is one of the Express Exceptions in Sections 1013 and 1010.6. So, this is not really a Specific Exception at all. It is just a very handy reminder that you never, ever extend the deadline for filing notice of intention to move for a new trial regardless of the service method.
Section 663a (Notice of Intention to Move to Set Aside Judgment) provides that the “provisions of Section 1013 of this code extending the time for exercising a right or doing an act where service is by mail shall not apply to extend the time above specified.” Again, as one of the three Express Exceptions, this is not a Specific Section, but a great reminder to never extend this deadline regardless of the service method.
Section 1005 (Regular Motions), which sets forth the deadlines for notices of motion, oppositions, and replies for regular motions, provides: “Section 1013, which extends the time within which a right may be exercised or an act may be done, does not apply to a notice of motion, papers opposing a motion, or reply papers governed by this section.” Like the Section 437c exception, this one is not surprising because Section 1005 contains its own extensions of time based upon service by fax, express mail, or overnight delivery. But, what about electronic service?
Section 1094.6 (Petition for Writ of Mandate) provides that the deadline for filing a petition for writ of mandate following a decision of a local agency other than a school district starts running from the date the decision becomes final. Where there is a provision for a written decision or written findings, the decision is final on the date it is mailed to the party seeking the writ. Section 1094.6 provides that “Subdivision (a) of Section 1013 does not apply to extend the time, following deposit in the mail of the decision or findings, within which a petition shall be filed.” Given that the decision is supposed to be mailed, however, Section 1013 is probably not applicable in the first place, making the exception superfluous.
The cited statutes referring only to service by mail were drafted decades ago, when futuristic technological advances like fax and electronic service were not contemplated. The statutes which exclude all C.C.P. Section 1013 extensions have not yet been amended in light of C.C.P. Section 1010.6. But, things are beginning to change, at least in the Rules of Court.
C.R.C., Rule 3.1312, another Specific Exception, sets forth the time limit for a party to object to a proposed order. Before it was amended as of January 1, 2011, the rule required the prevailing party to mail the proposed order to the opposing party, and allotted the opposing party a mere five days from mailing to notify the prevailing party whether or not it approves the proposed order. Notwithstanding the fact that the deadline was based on mailing, the rule included a Specific Exception: “Code of Civil Procedure section 1013, relating to service of papers by mail, does not apply to this rule.”
The January 1, 2011, amendment made two key changes. First, the rule no longer requires the prevailing party to mail the proposed order. On the contrary, service by mail is impliedly prohibited; the proposed order now must be served by a means “reasonably calculated to ensure delivery to the other party or parties no later than the close of the next business day,” i.e., not U.S. Mail. Second, the amended rule provides that: “The extensions of time based on a method of service provided under any statute or rule does not apply to this rule.” This all-encompassing language makes clear that there is no extension of time for any service method.
We need more amendments like this. Statutes which except extensions only for service by mail, should be amended so that they except all service methods under C.C.P. Section 1013 and C.C.P. Section 1010.6. Rather than amending every Specific Exception, perhaps C.C.P. Section 1013 could be revised to provide something to the effect that: “This extension applies in the absence of either of the following in any other statute or rule of court: (i) a specific exception, or (ii) an exception referring to service by mail.” C.C.P. Section 1010.6 could be amended to provide: “This extension applies in the absence of either of the following in any other statute or rule of court: (i) a specific exception, or (ii) an exception to one or more extensions provided by Section 1013.” These amendments would go a long way toward eliminating the pervasive ambiguities with which we currently contend.
In the meantime, if you have any doubt whatsoever, DO NOT extend your deadline. The risk of malpractice is simply too great. And, as I always recommend, use a rules-based computerized calendaring program to calculate your deadlines.
Julie A. Goren, Esq. is the author of Litigation By The Numbers®, a California civil litigation practice guide updated every January and July with 490 pages devoted solely to the intricacies of California civil litigation procedure.