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“Calendaring in State Court: Steps and Traps for the Unwary”
There’s an accidental court holiday coming to California in 2015
© 2014 by Julie A. Goren
It’s Litigation By The Numbers® update time. This requires perusal of all Judicial Council rule and form changes and all Legislative changes going into effect January 1, 2015. The Judicial Council changes are rarely surprising — I follow them from the Invitation to Comment stage, and have even proposed some of them myself.
The Legislative changes are a different story. Rather challenging to find. Recently I painstakingly reviewed a list of every Assembly Bill and Senate Bill chaptered in 2014 to see what might affect the practice of California state court litigation in 2015.
AB 1973 “an act to amend Section 6700 of the Government Code, relating to holidays” jumped out at me. What changed? As of January 1, 2015, the fourth Friday in September, known as “Native American Day,” is added to the list of “holidays in this state.”
What does this mean vis-a-vis the practice of law in California State Court? The answer requires a two-pronged analysis. Government Code § 6700 establishes it as a state holiday, but not all state holidays are “judicial holidays” or “non-court days,” e.g., “September 9th, known as ‘Admissions Day'” and “Good Friday from 12 noon until 3 p.m.” are not judicial holidays. Why? C.C.P. §135.
C.C.P. §135 designates “judicial holidays.” It provides that every full day listed as a holiday in Government Code §6700 (eliminating Good Friday), except Admissions Day, are court holidays. Because AB 1973 did not amend C.C.P. §135 to except it, Native American Day is a non-court day.
But, this was clearly not the intent of the author nor of anyone voting for it. The intent was to raise the status of the holiday from a yearly proclamation to an official holiday; nothing was intended to close public offices. Indeed, the Senate Appropriations Committee Fiscal Summary states: “Fiscal Impact: No direct state costs, as there is no provision in the bill that requires state and local entities to close public offices in observance of Native American Day as a paid holiday.” (The legislative history is posted here: http://leginfo.legislature.ca.gov/faces/billVotesClient.xhtml)
But, not being cognizant of the impact of C.C.P. §135, the Legislature has required the courts to close on Native American Day.
Rumor has it that this will somehow be rectified. But when? The Legislature does not reconvene until January 6, 2015. Bills are introduced in February. Enacted bills go into effect on the first day of January of the next year, that is unless they are introduced and passed as urgency bills, in which case they go into effect when the Governor signs it into law. Could this possibly rise to the level of an urgency bill?
So, how in the world are California civil litigation deadlines to be calendared in light of this accidental holiday which may or may not actually be a holiday in 2015 or 2016? Conservatively, as always.
First, understand that just about every deadline will be affected:
- All time periods based on court days, e.g., notice of motion, oppositions, and replies for regular motions under C.C.P. §1005; extensions based on electronic service under C.C.P. §1010.6; extensions based on service by overnight delivery/express mail/fax under C.C.P. §§437c and 1013.
- All deadlines within which to perform an act, e.g., respond to a complaint, respond to interrogatories, move to compel further responses to discovery, etc.
- All hearing dates and trial dates set for the fourth Friday of September.
Second, calendar very cautiously:
- To calculate a notice period, count it as a holiday. If the holiday disappears, you will have given an extra day’s notice. No harm.
- To calculate a deadline to act within a particular time period, count it as a court day; do not give yourself an extension for the last day falling on a holiday. That way, if the holiday disappears, you will not have missed your deadline.
- If you have a hearing date set for September 25, 2015, better talk to the court. It’s supposed to be closed, although they might not yet know it.
This key change and more will be included in the January 2015 Update to Litigation By The Numbers®!