Are You Rusty?
by Julie A. Goren, Esq.
Are you an attorney, paralegal, or legal secretary re-entering the world of California litigation? Whether you temporarily switched to transactional work, or you voluntarily took time off to raise your children, or you fell victim to the economic crisis, it is unlikely that you have been keeping up on changes to California civil litigation procedure in the interim. Admit it. You are rusty.
Perhaps you have been working in a busy law office, with constant “rushes” leaving you little or no time to keep up with the myriad changes made to California’s codes, rules, and forms. Or, maybe you have recently moved from a large firm with a docketing department calculating your deadlines and sending you memos alerting you to rule changes, to a small office where you are completely on your own. Either way, with respect to current California civil litigation procedure, you are rusty.
You know the old adage: "a little knowledge can be dangerous"? This can be so true if you are rusty. The problem is that you think you know what you are doing because you did it just a few months ago, and, instead of checking the rules, you might simply go ahead and do it, e.g., draft a motion, serve notice of a hearing, calendar a deadline. Unfortunately, you are unlikely to discover that something has changed, and that you made a mistake, until after you have done so. At best, these errors may cause you some embarrassment. At worst, they may constitute malpractice.
In an effort to help you avoid either of these results, and make your re-entry smoother, presented below are some changes to the California Rules of Court, California Code of Civil Procedure, and Judicial Council forms instituted over the past few years. They range in importance from deadline changes to new optional Judicial Council forms. Changes made in 2009 are highlighted first. Changes made prior to 2009 are addressed afterwards by subject.
I cannot stress enough the importance of using a computerized calendaring program to help you calculate your deadlines according to these new rules. By computerized calendaring, I do not mean that you manually calculate the deadline and enter it on a calendar on your computer, or that you use an electronic calendar to help you calculate the date that is five days before or after a given date. We mean rules-based computerized calendaring, such as AbacusLaw. With AbacusLaw, you simply enter an “event,” and they automatically calculate the deadlines for you in accordance with the applicable codes and rules.
Urgency Legislation - July 29, 2009
On July 29, 2009, significant changes were made as a result of the current economic crisis.
Court Closures. From September 1, 2009 through
June 30, 2009, the third Wednesday of every month is a court closure
day -- a day deemed to be a non-court day for purposes of calendaring
deadlines. (This change is supposed to be codified as new Rule 1.12.
In the meantime, a Judicial Council memorandum announcing the closures
may be found here: http://litigationbythenumbers.com/CourtClosures.pdf.)
Fee increases. Several fees were increased effective August
1, 2009. The current schedule may be accessed here: http://www.courtinfo.ca.gov/courts/trial/lake/feesched.pdf.
(These fees were made uniform throughout the state in 2006.)
California Electronic Discovery Act. The California Discovery Act, which tracks the 2006 amendments to the Federal Rules of Civil Procedure, was signed into law and became immediately effective on July 29, 2009. You may view the full text of the Act here: http://litigationbythenumbers.com/ElectronicDiscoveryAct.pdf.
January 2009 Changes
Settlement. By way of background, when a case is settled, it is supposed to be dismissed within a specified 45-day period (either 45 days after the date of settlement if the settlement is “unconditional,” or 45 days after the settlement is supposed to be completed if the settlement is “conditional”). (See Judicial Council form “Notice of Settlement of Entire Case” for details.) In the past, if the case was not dismissed by the parties within that period, the court would set an OSC re dismissal, and the parties would have to appear and explain the delays and request more time.
C.R.C., Rule 3.1385 now provides that if a case which has been settled involves the compromise of a minor's claim or a person with a disability where court approval is required (thus delaying completion of the settlement), the court cannot hold an OSC re dismissal until after the hearing to approve the settlement. In addition, there is now a mechanism for continuing the OSC re dismissal without an appearance. Specific papers must be submitted no later than five court days prior to the prescribed 45th day. (See C.R.C., Rule 3.1385 for details on what must be submitted.)
Judicial Council Forms.
There is now a mandatory Judicial Council form "Summons--Cross-Complaint." (No longer do you take the “Summons” form and conform it for use with
In addition to being served in complex cases, the Civil Case Cover Sheet must now be served in “Collections Cases” (a type of case created by C.R.C., Rule 3.740 in July 2007, discussed below). (C.R.C., Rule 3.220)
Pre-2009 Changes
You should be aware of several changes to codes, rules, and forms instituted prior to January 2009. An attempt has been made to present them in the order in which they would arise during a case.
Reorganization/Renumbering of Rules. The California Rules of Court have been completely reorganized; every rule number has changed. Use this conversion table: http://www.courtinfo.ca.gov/rules to identify the new rule.
Format of Papers. Inclusion of a fax number and
email address on pleadings, etc., filed with the court is no longer
optional. It is now required if the number/address "is
available." (C.R.C., Rule 2.111)
Summons. The court clerk now retains the original summons.
(C.C.P. §412.10) You no longer need to resubmit it to the clerk when you request
entry of default.
Electronic Filing and Service. This area presents new vocabulary (“electronic service provider,” “electronic filer,” “electronic notification address”) and continuously evolving procedure varying from court to court. Be sure to familiarize yourself with C.R.C., Rules 2.250 and 2.260 before you embark upon either electronic filing or electronic service. For electronic filing, check your local rules to determine if they accept electronic filing in your type of case, and how you do it, e.g., directly with the court, or through an electronic service provider.
Several revisions have been proposed for January 2010, including new Judicial Council forms for indicating consent to electronic service, change of electronic notification address, and proof of service. Visit http://www.courtinfo.ca.gov/invitationstocomment/prevprop.htm and scroll down to “Court Technology” to learn more about these proposals.
Collections Cases. New C.R.C., Rule 3.740 creates "Collections Cases." They are actions for recovery of money owed in a sum stated to be certain, not exceeding $25,000, exclusive of interest and attorneys fees, arising from a transaction in which property, services, or money was acquired on credit, and which does not seek tort or punitive damages, recovery of real or personal property or a prejudgment writ of attachment. Rule 3.740 exempts Collections Cases from the statutory deadlines for filing Proof of Service of Summons and obtaining default
Proof of Service.
Proof of Service in a multi-party case must identify the party represented.
(C.R.C., Rule 1.21(c))
The first named plaintiff is required to maintain fax lists in all
cases where the parties have agreed to accept service by fax, and all
parties are required to serve the list along with any order, notice
or pleading on a party who has not yet appeared (C.R.C., Rule 3.254)
There are now four optional Judicial Council proof of service forms. The multi-purpose POS-040 is particularly useful.
Regular Motions.
Filing and service deadlines for regular motions are (since January 2005) as follows:
- Notice of motion must be filed at least 16 COURT days prior to the hearing.
- Oppositions must be filed and served at least 9 COURT days prior to the hearing.
- Replies to oppositions to regular motions must be filed and served at least 5 COURT days prior to the hearing.
- Oppositions and replies must be served in a manner so as to be received by the end of the next business day. (C.C.P. §1005(b))
Telephone appearances. Appearance by telephone is now favored. Intent to appear telephonically may be indicated in the moving, opposing, or reply papers. It may be arranged up to three court days (instead of five court days) before the hearing. A party receiving notice of another party’s intent to appear by by telephone may give notice of intent to appear by telephone by noon on the court day before the hearing. (C.R.C., Rule 3.670)
Motions for Summary Judgment (“MSJ’s”) and Summary Adjudication (“MSA’s”). Very significant changes have been made to MSJ’s and MSA’s:
- The deadline to file objections to evidence on MSJ’S and MSA’S has changed. They now must be submitted with the opposition and/or reply (as opposed to the prior rule, which allowed filing as late as three court days prior to the hearing). (C.R.C., Rule 3.1354(a))
- Objections must follow a specific format. (C.R.C., Rule 3.1354(b))
- Objections must be accompanied by a proposed order, which must follow a specific format. (C.R.C., Rule 3.1354(c))
- The mandatory format for separate statements for MSJ's and MSA's has changed. (C.R.C., Rule 3.1350(h))
It would be so easy to violate these rules! All you have to do is rely on your prior rusty knowledge, your rusty form file, and, if you don’t use rules-based computerized calendaring, your equally rusty calendaring “cheat sheet.” If, for example, without first checking for procedural changes, you pull a response to motion for summary judgment from your form file to use as a template, you would draft your objections to evidence in an improper format. You would also either fail to submit a proposed order at all, or draft it in an improper format. Then, if you calendar your deadlines by hand, and you use your outdated calendaring “cheat sheet,” you would top it all off by filing your evidentiary objections too late.
If objections to evidence are not timely filed, or are not presented in the proper format, the trial court may ignore them. (See, for example, Tverberg v. Fillner Construction, Inc. (2008) 168 Cal.App.4th 1278, in which the court, citing Rule 3.1354(b), noted that “[t]he form of the [responding party’s objections to evidence] was improper and the trial court may not have ruled on those objections.” As a result, the possibly objectionable evidence is part of the record on appeal. Could this constitute malpractice?
Except for the reference to the California Electronic Discovery Act, which will be addressed in the upcoming January 2010 Update, the changes mentioned in this article have been compiled from cover memos sent to Litigation By The Numbers®-Fourth Edition Update Service subscribers over the past few years. By no means does this article purport to identify all changes.
You may review all changes to the California Rules of Court instituted since April 2005 by going to http://www.courtinfo.ca.gov/rules/amendments.htm. Recent Judicial Council form changes may be viewed here: http://www.courtinfo.ca.gov/forms/latest.htm. To view form and rule changes proposed for January 2010, visit http://www.courtinfo.ca.gov/invitationstocomment/prevprop.htm.
Julie A. Goren, Esq. is the author and publisher of Litigation By The Numbers®-Fourth Edition and the co-author and publisher of California Civil Litigation and Discovery. Attorneys, paralegals, and legal secretaries throughout California stay current on California civil litigation procedure by subscribing to the twice yearly Update Service to Litigation By The Numbers®-Fourth Edition. For more information, visit http://www.litigationbythenumbers.com.
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