According to the American Bar Association, calendar and deadline-related errors are the leading cause of malpractice actions against lawyers (Profile of Legal Malpractice Claims 2004-2007, ABA Standing Comm. on Prof’l Liab. (2008)). In California especially, there are many traps for the unwary attorney. Although the court may set a handful of specific dates in a given case, most “drop dead” dates must be calculated – such as a statute of limitations or the window for filing an appeal. Quite often, several different rules and codes apply to determining a specific deadline. To complicate matters, the applicable rules and codes are subject to amendment – they may well change in January or July, and sometimes even in the interim. Yet errors crop up even when attorneys make simple calendaring calculations that involve rules and codes that have been on the books for decades.
How Mistakes Are Made
Calendaring errors occur in a multitude of ways. People forget to calendar, do not know what to calendar, apply the wrong rules when they do calendar, forget how many days there are in a particular month, or simply miscount.
Case law is replete with examples. One secretary erred by calendaring the deadline for requesting a trial de novo from the day the award was received instead of from the day it was filed (Yeap v. Leake, 60 Cal. App. 4th 591 (1997)).
A similar error occurred when counsel failed to realize that the time for requesting a hearing in a CEQA case ran from the date the petition was filed, not the date the administrative record was completed (Nacimiento Reg. Water Mgmt. Advisory Comm. v. Monterey County Water Res. Agency, 122 Cal. App. 4th 961 (2004)).
With calendaring, even a single day makes a difference. In one case, an attorney missed a deadline because he forgot that October has 31 days, not 30 (Fiorentino v. City of Fresno, 150 Cal. App. 4th 596 (2007)). And in another instance, counsel counted incorrectly and filed a governmental tort claim on the 101st day, mistakenly believing it to be on the 100th day (Segal v. Southern California Rapid Transit Dist., 12 Cal. App. 3d 509 (1970)).
Such errors do not sit well with judges. In Bank of America v. Henkin (185 Cal. App. 3d 919, 922 (1986)), when the appellant’s counsel insisted he had been given improper notice of a summary judgment motion, the court sanctioned him for pursuing a frivolous appeal, noting, “The entire brief is based upon an error in performing the simplest, most rudimentary function – counting the days on a calendar.”
Different Calendaring Methods
An effective way to minimize errors is to use a rules-based computerized calendaring program – such as those offered by CompuLaw (www.compulaw.com) and AbacusLaw, (www.abacuslaw.com) – or an automated Internet-based legal date calculation service such as Deadlines On Demand (www.deadlines.com). Resources like these have proved so effective at reducing calendaring mistakes that some insurance carriers offer discounts or financial considerations to law firms that utilize them.
And yet, many firms cling to outdated or ineffective calendaring methods. Some still work off paper calendars or hand-operated calendar “wheels.” Others rely on generic computerized calendaring features embedded in Microsoft Outlook, for example. But doing so is dangerous because such applications do nothing more than count days on a calendar.
Doing It Right
To accurately calendar California state court deadlines, four main steps are involved. Skipping any step or making an error along the way can leave a law firm on the wrong side of a lawsuit.
1. Recognize the triggering event. The first step is realizing that a given event leads to a corresponding deadline. In general, assume that anything filed or served in a case – and any notification from the court – will trigger at least one deadline. Typical triggering events include the filing of a complaint; service of a summons and complaint; service of discovery requests and responses; and the granddaddy of all initiating events, the trial date. And of course even after a case is tried, the deadlines don’t stop: The appellate arena has a separate set of time limits.
2. Identify the deadline. Some of the applicable deadlines are obvious. For example, filing a complaint activates the deadline for filing proof of service of the summons. But not every deadline is so apparent: When you file a complaint, you trigger three more events – the deadline for the plaintiff to challenge the judge assigned to the case, the last day to hold the case management conference, and the first day a defendant may move for summary judgment.
3. Use current codes and rules. Given that codes and rules are subject to change, be sure to calculate deadlines according to the current requirements. Some deadlines have been moving targets; a case in point is Code of Civil Procedure section 1005(b). (Note: All further section references are to the Code of Civil Procedure.) Currently, the section requires a minimum of 16 court days’ notice for certain motions. Once, the time span was 21 days, and prior to that, 15 days. Each time the Legislature amended the notice period, the corresponding deadlines for filing and serving opposition and reply papers also shifted.
4. Apply the rules correctly. This is where it becomes complicated. To start with, correctly identify the time frame for each deadline. For example, when calculating the last day to respond to written discovery, the relevant time frame begins with the date the discovery was served (not received), and it ends on the date responses must be served (not received). In the Yeap and Nacimiento cases cited above, someone began counting from the wrong event.
Next, determine the date from which to start counting and the date on which to stop counting. The rule is to count “by excluding the first day and including the last, unless the last day is a holiday, and then it is also excluded.” (§ 12.)
When weekends and legal holidays fall during the relevant time frame, whether to skip or count them depends on the language of the applicable code or rule. Count all calendar days (every single day) unless the language specifies “court days” (as does section 1005(b)). If court days are specified, exclude any weekends and legal holidays.
An example is helpful. In the case of interrogatories, a response is due within 30 days after the questions have been served (per section 2030.060). If the interrogatories were served on April 1, start with April 2 as day one and count every day until reaching the 30th day (May 1). That’s the date the response will be due – unless May 1 falls on a weekend or holiday, in which case the deadline is automatically extended to the next court day. (See § 12a(a).)
What’s the difference between court days and non-court days? Not so long ago, it was easier to make this distinction: Court days were days the courts were open; non-court days were days the courts were closed. And California courts tracked the federal courts’ calendar except for three holidays: Lincoln’s Birthday (February 12), Cesar Chavez Day (March 31), and the day after Thanksgiving.
More recently, thanks to California’s ongoing budget crisis, this determination became more challenging. In the summer of 2009, several California counties implemented monthly furlough days, when the courts would be closed to save money, on the third Wednesday of each month. Although only limited court services were available, those furlough days remained court days under state law. Then from September 2009 through June 2010, the Judicial Council closed all state courts on the third Wednesday of each month, designating these as non-court days for calendaring purposes. As a result, the third Wednesday in July 2009 was not a holiday, the third Wednesday of September 2009 was a holiday, and the third Wednesday of July 2010 was not. Fortunately, court closure days are (for now) a thing of the past, yet individual courts still have the authority to implement furlough days. Practitioners are advised to keep a watchful eye.
Another ripple stems from the fact that some time periods are extended under particular circumstances. Section 1013, for example, extends “any period of notice and any right or duty to do any act or make any response” depending on how the triggering papers were served and, in the case of mail only, where the papers were sent. This section affects many deadlines – including the time to plead, respond to discovery, or move to compel further discovery responses – and it may require extra notice of a deposition.
Here’s how it works: For papers mailed to someone within California, the extension is 5 calendar days; if mailed to someone outside the state, the extension is 10 calendar days; and if mailed to someone outside the country, add 20 calendar days. If overnight delivery (such as Federal Express) or fax service (allowed only by agreement of the parties confirmed in writing) is used, the extension is 2 court (not calendar) days. And if a party agrees to accept electronic service, section 1010.6(a)(6) provides an automatic extension of 2 court days to act or respond.
It is crucial to understand that there are exceptions to these extensions. Both sections 1013 and 1010.6 state specifically that they do not extend the time for filing notice of intention to move for a new trial or to vacate judgment, or for notice of appeal. They also do not apply if another statute or rule so provides, as is the case with rule 3.1312(a) of the California Rules of Court regarding the service of proposed orders.
Setting a Hearing
Calculating the last day to serve notice of a motion is, as noted above, complicated by the manner of service, but the various statutory extensions are just different enough to confuse things further. Section 1005(b) adds the same extensions for mail service as set forth in section 1013, but for service by overnight delivery and fax it adds 2 calendar days, in contrast to court days under section 1013. Section 1010.6, on the other hand, requires 2 extra court days for a notice of motion served electronically.
As litigators might expect, summary judgment motions get special treatment. Pursuant to section 437c(a) there is a 75-day notice period, but the section incorporates the same automatic extensions as section 1013 (relating to extensions of time to respond) instead of section 1005(b) (relating to notice of motion).
Using any method other than hand delivery to serve notice of motion invites even more calendaring challenges, because the deadline is derived by counting a combination of calendar days and court days. For example, calculating the last day to serve a motion by mail under section 1005(b) involves counting 16 court days plus 5 calendar days; calculating the last day to serve a motion for summary judgment by overnight delivery or fax requires counting 75 calendar days plus 2 court days.
Starting January 1, 2011, California at last will have a rule as to the order or the direction in which these two distinct sets of days are to be counted. (Under the existing system, different counting methods can result in different deadlines depending on the day of the week the hearing falls on.) New section 12c resolves that ambiguity, directing attorneys to count backward from the hearing date first by the number of days specified in the applicable code (for example, 16 court days or 75 calendar days), and then to continue counting backward to add the extra days. This is all well and good, but anyone counting forward from the service date to determine the first available date for the hearing must be sure to also count backward from the proposed hearing date as directed by section 12c to ensure adequate notice. Got that?
Get with a Program
Given the virtual minefield of mistakes waiting to happen in every single step of the calendaring process, it is no wonder that missed deadlines are the leading cause of malpractice claims. To minimize the chance of such errors, every law firm should consider using a rules-based calendaring program – on a computer, or online. Here’s how these programs can help keep human errors from causing miscalculations at any step of the process.
• Triggering events. Attorneys who do not recognize that a triggering event has occurred will certainly fail to calendar the applicable deadlines. Learn to recognize triggering events by studying the ones identified in rules-based calendaring programs, or go to www.deadlines .com for a free list.
• Calling out deadlines. The aforementioned software automatically recognizes and calendars every triggered deadline, so attorneys won’t be in danger of forgetting or overlooking one.
• Keeping current. Rules-based calendaring systems are updated whenever the codes and rules change. Some, such as Deadlines On Demand, send an email alert to users when rules or statutes are amended.
• Correct counting. Rules-based calendaring technology helps prevent calendaring in the wrong time frame. The technology “knows” when to calculate calendar days instead of court days, and it recognizes differences between state and federal holidays. Extensions of time based on service method are automatically added. And best of all, these helpful tools will correctly count days on a calendar, shielding attorneys from their own bad math or memory lapses about when leap year falls.
These resources are no longer available only to large law firms with extensive IT support, or useful only to firms whose attorneys concentrate on litigation. Calendaring technology is both affordable and manageable for firms of all sizes, including sole practitioners. There really is no excuse for passing up such helpful tools.
But remember: Software can only do so much. When in doubt – or just to be safe – file papers and serve notices and responses earlier rather than later. After all, there is no penalty for extra notice or an early response, but the consequences of too little notice or a response too late can be very serious indeed.