[THIS ARTICLE HAS BEEN UPDATED TO NOTE THAT EFILING AND ESERVICE ARE MANDATORY IN MANY COURTS.]
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 it also simplifies the calculation of court deadlines. In general, deadlines triggered by eService are easier to calculate than any service method other than hand delivery. But 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. Let’s take a look.
eService Extensions are Entirely Consistent; Fax and Overnight Delivery are NOT
In general, when a document is not personally served, calculation of the triggered deadline requires an extension of time. (There are many exceptions to this rule! See Calendaring Under the C.C.P. — Extending Time Based On Service Method . . . or Not.) For example, 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(b)) On the other hand, 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 leads to confusion and calendaring errors. A surprising number of practitioners and support staff are not even aware that the extension for service by fax or overnight delivery depends upon the document that was or is being served. The question: “How much time is added for service by fax or overnight service?” 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(a)(4), the extension, if any, is two court days no matter what was or is being served. So, calendaring as it relates to any eServed document avoids the “is it two court days or two calendar days?” question.
eService Never Requires Adjustments for Holidays and Weekends; Mail, Fax and Overnight Delivery MAY
Deadlines based upon calendar days (e.g., service by mail in all instances, service of regular motions by fax or overnight delivery) may fall on a weekend or holiday. When that happens, the deadline needs to be adjusted. An all too common question is: “Do I go forward or backward?” That’s a subject in and of itself (explained in detail in my Calendaring Video), but the point here is that this dilemma never comes up with eService. Why? If one is counting court days, the last day can never land on a weekend or holiday.
eService Avoids C.C.P. § 12c Problems; Mail, Fax and Overnight Delivery CAUSE them
Calculating the last day to serve notice of a regular motion requires the application of at least two statutes: C.C.P. §1005(b) 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. Combining court days and calendar days to calculate a deadline is problematic. The resulting deadline 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).
C.C.P. §12c was enacted in 2011 to clarify the order and direction for the calculation (in our example, court days first, backward from the hearing date), but it left 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. Again, there’s an entire article on this (Certainty in Calculating Hearing-Related Deadlines in California State Court) as well as a full explanation with examples in my Calendaring Video. 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. This would be discovered by counting backward from that hearing date as C.C.P. §12c dictates and finding that the last day for notice would have been at least three days prior to the service date.
If notice of motion is eServed, the problem never arises. 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. eFiling and eService are now mandatory (with certain exceptions) in many courts in California, including Los Angeles Superior Court. If you’re not already eServing where you have the option, you might want to get moving.
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, including eService.