Are You Rusty (on California Procedure)?

p>Are you an attorney, paralegal, or legaltake the "Summons" form and conform it for use
secretary re-entering the world of Californiaon a cross-complaint.)
litigation? Whether you temporarily switched toIn addition to being served in complex cases, the
transactional work, voluntarily took time off toCivil Case Cover Sheet must now be served in
raise your children, or fell victim to the economic"Collections Cases" (a type of case created by
crisis, it is unlikely that you have been keeping upC.R.C., Rule 3.740 in July 2007, discussed below).
on changes to California civil litigation procedure in(C.R.C., Rule 3.220)
the interim. Admit it. You are rusty.Pre-2009 Changes
Perhaps you have been working in a busy lawYou should be aware of several changes to
office, with constant "rushes" leaving you little orcodes, rules, and forms instituted prior to January
no time to keep up with the myriad changes2009. An attempt has been made to present
made to California's codes, rules, and forms. Or,them in the order in which they would arise during
maybe you have recently moved from a largea case.
firm with a docketing department calculating yourReorganization/Renumbering of Rules. The
deadlines and sending you memos alerting you toCalifornia Rules of Court have been completely
rule changes, to a small office where you arereorganized; every rule number has changed.
completely on your own. Either way, with respectFormat of Papers. Inclusion of a fax number and
to current California civil litigation procedure... youemail address on pleadings, etc., filed with the
are rusty.court is no longer optional. It is now required if the
You know the old adage: "a little knowledge cannumber/address "is available." (C.R.C., Rule 2.111)
be dangerous"? This can be so true if you areSummons. The court clerk now retains the original
rusty. The problem is that you think you knowsummons. (C.C.P. §412.10) You no longer need to
what you are doing because you did it just a fewresubmit it to the clerk when you request entry
months ago, and, instead of checking the rules,of default.
you might simply go ahead and do it, e.g., draft aElectronic Filing and Service. This area presents
motion, serve notice of a hearing, calendar anew vocabulary ("electronic service provider,"
deadline. Unfortunately, you are unlikely to"electronic filer," "electronic notification address")
discover that something has changed, and thatand continuously evolving procedure varying from
you have made a mistake, until after you havecourt to court. Be sure to familiarize yourself with
done so. At best, these errors may cause youC.R.C., Rules 2.250 and 2.260 before you embark
some embarrassment. At worst, they mayupon either electronic filing or electronic service.
constitute malpractice.For electronic filing, check your local rules to
In an effort to help you avoid either of thesedetermine if they accept electronic filing in your
results, and make your re-entry smoother,type of case, and how you do it, e.g., directly with
presented below are some changes to thethe court, or through an electronic service
California Rules of Court, California Code of Civilprovider.
Procedure, and Judicial Council forms institutedCollections Cases. New C.R.C., Rule 3.740 creates
over the past few years. They range in"Collections Cases." They are actions for recovery
importance from deadline changes to new optionalof money owed in a sum stated to be certain,
Judicial Council forms. Changes made in 2010 andnot exceeding $25,000, exclusive of interest and
2009 are highlighted first. Changes made prior toattorneys fees, arising from a transaction in which
2009 are addressed afterwards by subject.property, services, or money was acquired on
2010 Changescredit, and which does not seek tort or punitive
New Judicial Council Forms. The Judicial Council hasdamages, recovery of real or personal property
adopted a new optional "Notice of Entry ofor a prejudgment writ of attachment. Rule 3.740
Judgment or Order." There are also three newexempts Collections Cases from the statutory
optional forms relating to electronic service:deadlines for filing Proof of Service of Summons
"Consent to Electronic Service and Notice ofand obtaining default judgment, and establishes
Electronic Notification Address," "Notice of Changedifferent deadlines.
of Electronic Notification Address," and "Proof ofProof of Service.
Electronic Service."Proof of Service in a multi-party case must
Revised Rule re Proof of Electronic Service. C.R.C.,identify the party represented. (C.R.C., Rule
Rule 2.260(f) no longer requires a proof of service1.21(c))
by electronic service to state that theThe first named plaintiff is required to maintain
"transmission was reported as complete andfax lists in all cases where the parties have
without error." The multi-purpose POS-040 hasagreed to accept service by fax, and all parties
been revised to reflect that change. If you haveare required to serve the list along with any
created a multi-purpose in-house form, you mightorder, notice or pleading on a party who has not
want to delete that now obsolete language fromyet appeared (C.R.C., Rule 3.254)
the section on electronic service. Do not delete itThere are now four optional Judicial Council proof
from the section on fax service -- it is stillof service forms. The multi-purpose POS-040 is
required for fax service.particularly useful.
Statements of Decision and Proposed Judgments.Regular Motions.
C.R.C., Rule 3.1590, regarding the statement ofFiling and service deadlines for regular motions are
decision and proposed judgment process, is(since January 2005) as follows:
revised. The time within which to prepare aNotice of motion must be filed at least 16 COURT
proposed statement of decision has changed, asdays prior to the hearing.
has the time within which the court must sign aOppositions must be filed and served at least 9
proposed judgment.COURT days prior to the hearing.
Time for Filing Notice of Appeal. C.R.C., Rule 8.104Replies to oppositions to regular motions must be
re time for filing notice of appeal is revised. Thefiled and served at least 5 COURT days prior to
rule specifies that the notice of entry ofthe hearing.
judgment may be served by any method -- itOppositions and replies must be served in a
does not have to be mailed (despite the clearmanner so as to be received by the end of the
language of C.C.P. § 664.5) -- and time for filingnext business day. (C.C.P. §1005(b))
notice of appeal starts running from the serviceTelephone appearances. Appearance by telephone
as opposed to the mailing of the notice. [Theis now favored. Intent to appear telephonically
Judicial Council did not change the mailing vs.may be indicated in the moving, opposing, or reply
service rule as to any other deadline dependentpapers. It may be arranged up to three court
upon mailing notice of entry, i.e., memo of costs,days (instead of five court days) before the
motion for attorneys fees, etc. Look for those inhearing. A party receiving notice of another
the future.]party's intent to appear by by telephone may
Urgency Legislation - July 29, 2009give notice of intent to appear by telephone by
On July 29, 2009, significant changes were madenoon on the court day before the hearing. (C.R.C.,
as a result of the current economic crisis.Rule 3.670)
Court Closures. From September 1, 2009 throughMotions for Summary Judgment ("MSJ's") and
June 30, 2009, the third Wednesday of everySummary Adjudication ("MSA's"). Very significant
month is a court closure day -- a day deemed tochanges have been made to MSJ's and MSA's:
be a non-court day for purposes of calendaringThe deadline to file objections to evidence on
deadlines. (This change was proposed to beMSJ'S and MSA'S has changed. They now must
codified as new Rule 1.12, but the proposal wasbe submitted with the opposition and/or reply (as
dropped.)opposed to the prior rule, which allowed filing as
The Judicial Council will meet on April 23, 2010 tolate as three court days prior to the hearing).
decide how to proceed with court closure days(C.R.C., Rule 3.1354(a))
after June 2010. Watch for developments!Objections must follow a specific format. (C.R.C.,
California Electronic Discovery Act. The CaliforniaRule 3.1354(b))
Discovery Act, which tracks the 2006Objections must be accompanied by a proposed
amendments to the Federal Rules of Civilorder, which must follow a specific format. (C.R.C.,
Procedure, was signed into law and becameRule 3.1354(c))
immediately effective on July 29, 2009.The mandatory format for separate statements
January 2009 Changesfor MSJ's and MSA's has changed. (C.R.C., Rule
Settlement. By way of background, when a case3.1350(h))
is settled, it is supposed to be dismissed within aIt would be so easy to violate these rules! All you
specified 45-day period (either 45 days after thehave to do is rely on your prior rusty knowledge,
date of settlement if the settlement isyour rusty form file, and, if you don't use
"unconditional," or 45 days after the settlement isrules-based computerized calendaring, your equally
supposed to be completed if the settlement isrusty calendaring "cheat sheet." If, for example,
"conditional"). (See Judicial Council form "Notice ofwithout first checking for procedural changes, you
Settlement of Entire Case" for details.) In thepull a response to motion for summary judgment
past, if the case was not dismissed by the partiesfrom your form file to use as a template, you
within that period, the court would set an OSC rewould draft your objections to evidence in an
dismissal, and the parties would have to appearimproper format. You would also either fail to
and explain the delays and request more time.submit a proposed order at all, or draft it in an
C.R.C., Rule 3.1385 now provides that if a caseimproper format. Then, if you calendar your
which has been settled involves the compromisedeadlines by hand, and you use your outdated
of a minor's claim or a person with a disabilitycalendaring "cheat sheet," you would top it all off
where court approval is required (thus delayingby filing your evidentiary objections too late.
completion of the settlement), the court cannotIf objections to evidence are not timely filed, or
hold an OSC re dismissal until after the hearing toare not presented in the proper format, the trial
approve the settlement. In addition, there is nowcourt may ignore them. (See, for example,
a mechanism for continuing the OSC re dismissalTverberg v. Fillner Construction, Inc. (2008) 168
without an appearance. Specific papers must beCal.App.4th 1278, in which the court, citing Rule
submitted no later than five court days prior to3.1354(b), noted that "[t]he form of the
the prescribed 45th day. (See C.R.C., Rule 3.1385[responding party's objections to evidence] was
for details on what must be submitted.)improper and the trial court may not have ruled
Judicial Council Forms.on those objections." As a result, the possibly
There is now a mandatory Judicial Council formobjectionable evidence is part of the record on
"Summons--Cross-Complaint." (No longer do youappeal. Could this constitute malpractice?