Are You Rusty (on California Procedure)?

August 26th, 2010 | Author: coecujenn

Property Developers Paralimni Cyprus

Image : http://www.flickr.com

Are you an attorney, paralegal, or legal secretary re-entering the world of California litigation? Whether you temporarily switched to transactional work, voluntarily took time off to raise your children, or 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 have 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 2010 and 2009 are highlighted first. Changes made prior to 2009 are addressed afterwards by subject.

2010 Changes

New Judicial Council Forms. The Judicial Council has adopted a new optional “Notice of Entry of Judgment or Order.” There are also three new optional forms relating to electronic service: “Consent to Electronic Service and Notice of Electronic Notification Address,” “Notice of Change of Electronic Notification Address,” and “Proof of Electronic Service.”

Revised Rule re Proof of Electronic Service. C.R.C., Rule 2.260(f) no longer requires a proof of service by electronic service to state that the “transmission was reported as complete and without error.” The multi-purpose POS-040 has been revised to reflect that change. If you have created a multi-purpose in-house form, you might want to delete that now obsolete language from the section on electronic service. Do not delete it from the section on fax service — it is still required for fax service.

Statements of Decision and Proposed Judgments. C.R.C., Rule 3.1590, regarding the statement of decision and proposed judgment process, is revised. The time within which to prepare a proposed statement of decision has changed, as has the time within which the court must sign a proposed judgment.

Time for Filing Notice of Appeal. C.R.C., Rule 8.104 re time for filing notice of appeal is revised. The rule specifies that the notice of entry of judgment may be served by any method — it does not have to be mailed (despite the clear language of C.C.P. § 664.5) — and time for filing notice of appeal starts running from the service as opposed to the mailing of the notice. [The Judicial Council did not change the mailing vs. service rule as to any other deadline dependent upon mailing notice of entry, i.e., memo of costs, motion for attorneys fees, etc. Look for those in the future.]

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 was proposed to be codified as new Rule 1.12, but the proposal was dropped.)

The Judicial Council will meet on April 23, 2010 to decide how to proceed with court closure days after June 2010. Watch for developments!

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.

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 on a cross-complaint.)

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.

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.

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 judgment, and establishes different deadlines.

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?

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 (go to http://www.litigationbythenumbers.com for more information about this California civil litigation handbook.) By no means does this article purport to identify all changes.

Thanks To : My Dvd Collection Update Super Simple Creative Costumes http://jaimewynter.xpertsociety.com/ http://contactzero.net/thomasfuqua/ http://inezappling.blogage.us/

Posted in Litigation

Alyssa Gast

Are You Rusty (on California Procedure)?

Leave a Reply