The benefits of eService are many. Today we can enjoy the obvious benefits of saving time and trees, and the lesser-known benefit specific to California where eService simplifies calendaring (see https://www.litigationbythenumbers.com/eservice.html). January 1, 2018, brings even more benefits as key amendments to the Code of Civil Procedure go into effect.
As it stands now, the deadlines for eFiling and eService vary among the courts. They can vary on different days in the same court. Both deadlines are initially tied to the court’s filing counter closing time. (C.C.P. Section 1010.6(b)(3) provides that any document eFiled after “the close of business” is deemed to have been filed the next court day, and defines “close of business” as “5 p.m. or the time at which the court will not accept filing at the court’s filing counter, whichever is earlier.” The California Rules of Court also uses “close of business” in connection with eService (Rule 2.251(h)(4)) and eFiling (Rule 2.253(b)(7). Rule 2.253(b)(7) provides that where the eFiling deadline is midnight in a particular court, local rule prevails. There is no similar exception anywhere for eService. Thus, the eService deadline can be different from the eFiling deadline.
As of January 1, 2018, this is all going to change. Both the eFiling and eService deadlines will be 11:59:59 p.m. C.C.P. Section 1010.6(a)(5) will be added to the code to provide that any document served before midnight on a court day will be deemed served on that court day, and C.C.P. Section 1010.6(b)(3) will be revised to provide that any document eFiled before midnight on a court day will be deemed eFiled that day. These deadlines will apply to all courts where eFiling is allowed or mandatory and all cases in which the parties have agreed to accept eService or it is mandatory.
By comparison, personal service, mail service, and fax service all have 5:00 p.m. deadlines. eServers will get the equivalent of an extra business day to finish their papers and serve them! If you see this as an advantage, you might want to ensure that you can eServe in the particular case. This will be changing as well.
Today eService is authorized on anyone who has agreed to accept eService. (C.C.P. Section 1010.6(a)(2)). How one agrees is currently set forth in Rule 2.251(b)(1). A party can serve notice stating they agree, or (2) they can simply eFile a document with the court (this is inapplicable to self-represented parties). The amendments to C.C.P. Section 1010.6 leave this procedure in place for 2018 and change them significantly in 2019. (Note, however, that the Judicial Council is meeting to approve amendments to the court rules later this month, and, while unlikely, they could change how agreement to accept eService is manifested beginning in 2018. Stay tuned.) The C.C.P. provision beginning January 1, 2019, will be quite different from today’s procedure. At that point, a party must expressly consent in one of two ways, and the act of eFiling will not be construed as express consent for anyone, represented or not.
I’ve always been against midnight eFiling and eService deadlines. Maybe it harkens back to big firm all-nighters and the recognition that so many of us revise and perfect until the last minute, whatever time that is. But, I’m quite pleased that there will be uniformity among the courts and that there will be no difference between eFiling deadlines and eService deadlines.
Julie A. Goren, Esq. is the author of Litigation By The Numbers®, a 490-page California civil litigation practice guide updated twice yearly.