| p>Calendaring-related errors are the leading cause | | | | served. If it was personally served, there is one |
| of malpractice lawsuits, particularly in California, | | | | procedure; if it was not personally served, |
| where deadlines come from several sources, | | | | additional steps must be taken. In either case, you |
| including the Code of Civil Procedure, the California | | | | need to know what happens when the last day |
| Rules of Court, and local rules. Usually, calculating a | | | | to do something lands on a holiday, and you need |
| single deadline requires the application of several | | | | to know how to determine the "last day." |
| codes and rules. A single error, e.g., using an old | | | | C.C.P. § 12a(a) provides: "If the last day for |
| rule, forgetting to add extra time based on the | | | | the performance of any act provided or required |
| service method (or adding extra time when you | | | | by law to be performed within a specified period |
| should not), counting calendar days instead of | | | | of time is a holiday, then that period is hereby |
| court days, missing a holiday, or simply | | | | extended to and including the next day that is not |
| miscounting, will cause a calendaring error. | | | | a holiday." "Holiday" includes all of the California |
| I cannot stress enough the importance of using a | | | | holidays and weekends. Thus, if the last day is a |
| computerized calendaring program to calculate | | | | Saturday, the deadline would be extended to |
| your deadlines. By computerized calendaring, I do | | | | Monday, so long as it is not a holiday. If Monday is |
| not mean that you manually calculate the deadline | | | | a holiday, then the deadline would be extended to |
| and enter it on a calendar on your computer, or | | | | Tuesday. |
| that you use an electronic calendar to help you | | | | (a) For personal service, adjust when the last day |
| calculate the date that is five days before or | | | | falls on a weekend or California holiday |
| after a given date. I mean rules-based | | | | If the 30th day after interrogatories were |
| computerized calendaring, such as Deadlines On | | | | personally served is a Saturday, this is the "last |
| Demand or AbacusLaw. With these programs, | | | | day" under C.C.P. § 12a(a). Since the last day |
| you simply enter an "event," and they | | | | is a weekend, the due date is extended to the |
| automatically calculate the deadlines for you in | | | | next court day, Monday (unless it is a holiday). |
| accordance with the applicable codes and rules. | | | | (b) For a triggering document not personally |
| Even with rules-based computerized calendaring, | | | | served, first add the applicable extension of time |
| however, you need to know how to calendar | | | | to determine the last day, then adjust when the |
| manually. What if you need to calendar something | | | | last day falls on a weekend or California holiday |
| when your computer is down or inaccessible? | | | | As a general rule, documents may be served |
| What if your computer is fully operational, but you | | | | personally (also referred to as service "by hand" |
| do not know enough to tell it that something | | | | or "hand delivery"), by mail, by express mail, or |
| needs calendaring? You must know the | | | | overnight delivery (C.C.P. §§ 1011, 1013), |
| calendaring steps. | | | | and, so long as the recipient has agreed to accept |
| Calendaring Steps | | | | service by these methods, service generally may |
| Step 1: Identify the triggering event | | | | be made by fax (C.R.C., Rule 2.306) or |
| A "triggering event" is anything which triggers one | | | | electronically (C.C.P. § 1010.6(a)(6) and C.R.C., |
| or more deadlines. A triggering event might be | | | | Rule 2.260). Every method other than hand |
| the filing of a document, the service of a | | | | delivery has associated extensions of time. |
| document, or an appearance. For example: filing a | | | | These extensions of time are mandated because, |
| complaint, serving a complaint, entering default, | | | | for the most part, deadlines and notice periods |
| answering a complaint, serving interrogatories, | | | | start running from the date documents are |
| serving interrogatory responses, a hearing date, a | | | | served, not the date they are received by the |
| deposition date, settlement, etc. To identify | | | | opposing party. For example, responses to |
| triggering events in your case, assume that | | | | interrogatories are due 30 days after the |
| everything you file with the court and/or serve | | | | interrogatories are served; a motion to compel |
| on opposing counsel, and everything you are | | | | further responses must be filed within 45 days |
| served with, including notices from the court, | | | | after the responses to interrogatories are served; |
| involves a triggering event, i.e., something needs | | | | a deposition may be taken ten days after the |
| to be calendared. | | | | notice of taking deposition is served; a motion |
| Step 2: Identify what is triggered | | | | may be heard 16 court days after notice of the |
| Once you have recognized that a triggering event | | | | motion is served. |
| has occurred, you need to identify what has been | | | | Any method other than personal service will result |
| triggered. For example: filing a complaint triggers | | | | in a delay between the act of service and the |
| the deadline to serve defendant and file Proof of | | | | person's actual receipt of the document. In that |
| Service of Summons, serving the complaint | | | | regard, service by mail is deemed complete upon |
| triggers the deadline for defendant to serve the | | | | deposit in a USPS mail box (C.C.P. § 1013(a)), |
| response, a hearing on a motion triggers the | | | | but the papers might not arrive in the recipient's |
| deadline to file and serve notice of motion, | | | | mail for days. Service by fax is deemed complete |
| opposition, and reply. Sometimes deadlines are | | | | upon transmission of the entire document to the |
| triggered which are less obvious. Rules-based | | | | receiving party's fax machine (C.C.P. § |
| computerized calendaring may reveal deadlines | | | | 1013(e) and C.R.C., Rule 2.306(g)), but that does |
| you would not have thought of on your own. For | | | | not mean the document will be in the hands of |
| example, filing a complaint also triggers the last | | | | the intended recipient that day. A document |
| day for plaintiff to challenge the judge assigned to | | | | served electronically is deemed complete upon |
| the case, last day to hold case management | | | | transmission (C.C.P. § 1010.6(a)(6)), but it |
| conference, first day for defendant to make a | | | | may sit unopened in the recipient's email inbox for |
| motion for summary judgment, last day to bring | | | | hours, if not days. |
| the action to trial. | | | | To obviate any inherent prejudice in this delay in |
| Step 3: Identify the current codes and rules which | | | | receipt of a document, various extensions of time |
| apply to the deadlines | | | | are added depending upon the type of document |
| Once you have determined what is triggered, you | | | | served and the method by which it is served. |
| need to identify the current codes and rules | | | | These extensions of time are found in C.C.P. |
| governing the applicable deadlines. It is not enough | | | | §§1013, 1005(b), and 1010.6. Note: By |
| to identify the correct code section or rule | | | | their own terms, these code sections are not |
| number; you must be sure to apply the current | | | | always applicable! Fortunately, rules-based |
| deadline in the code section or rule. In California, | | | | calendaring programs know when they are and |
| the codes and rules are "moving targets." The | | | | when they are not. |
| one you memorized last year or the year before | | | | Extensions for Service by Mail under C.C.P. § |
| may be different today. This is another benefit of | | | | 1013 and 1005(b) |
| rules-based computerized calendaring programs -- | | | | Add five days for service by mail to a person |
| they are updated to apply the current code | | | | within California; ten days outside California, but |
| sections and rules. | | | | within the U.S., and twenty days outside the U.S. |
| Step 4: Correctly apply those codes and rules | | | | These extensions would apply to notice periods |
| This is the most difficult part. It requires several | | | | for depositions, hearings on motions, and time to |
| steps which must be accomplished in order and | | | | respond or act within a given time period. |
| painstakingly applied. It involves identifying what to | | | | Extensions for Fax/Overnight Delivery/Express |
| count, how to count, and then actually counting in | | | | Mail under C.C.P. § 1013 and 1005(b) |
| conformance with certain very specific rules. | | | | C.C.P. §1013 adds two court days; C.C.P. |
| Again, rules-based computerized calendaring | | | | § 1005(b) (for motions only) adds two |
| programs do all of this instantly. | | | | calendar days. These extensions would apply to |
| Step 4A: Identify the time frame for each | | | | notice periods for depositions, hearings on |
| triggered deadline | | | | motions, and time to respond or act within a |
| When calculating the due date for a response to a | | | | given time period. This two court day vs. two |
| complaint, you have to know that the relevant | | | | calendar day difference is an unfortunate one, |
| time frame begins with the effective date of | | | | which seems to invite errors. It is easy to forget |
| service (and you have to know how to determine | | | | which period of time you are supposed to add. |
| the effective date of service). When calculating | | | | Sometimes the result will be the same, e.g., when |
| the due date for responses to written discovery, | | | | the next two days are non-holiday weekdays, |
| you have to know that the relevant time frame | | | | they are both calendar days and court days. |
| begins with the date the discovery was served, | | | | However, when one or both of the next two |
| and ends with the date the responses are to be | | | | days fall on a weekend or a holiday, there is |
| served. | | | | room for error. |
| Once you have identified the time period you | | | | Extensions for Electronic Service |
| need to count, you need to know exactly how to | | | | C.C.P. § 1010.6 adds two court days to |
| count the days in that time period. | | | | notice periods and time to respond or act. |
| Step 4B: Identify what date to start counting and | | | | Here's how these provisions would extend the |
| what date to stop counting | | | | time within which to respond to interrogatories, |
| C.C.P. § 12 provides: "The time in which any | | | | depending upon how they are served: service by |
| act provided by law is to be done is computed by | | | | mail on a party in California - five extra days; |
| excluding the first day and including the last, unless | | | | service by fax, overnight delivery or express mail |
| the last day is a holiday, and then it is also | | | | - two extra court days; service by electronic |
| excluded." Thus, if interrogatories are served on | | | | service - two extra court days. |
| April 1st (the date, according to the proof of | | | | Were the extensions applied to service of a |
| service, that they were mailed, faxed, etc.), in | | | | notice of motion, service by mail would extend |
| order to calculate the 30-day deadline to respond, | | | | the period by five days; fax, overnight delivery or |
| you start counting with April 2nd as the first day, | | | | express mail would extend the period by two |
| April 3rd as the second day, and keep counting | | | | days; and electronic service would extend the |
| until you reach the 30th day, May 1st. So long as | | | | period by two court days. |
| the interrogatories were personally served, and so | | | | It is at this point in the calendaring process that |
| long as May 1st is not a weekend or a holiday, | | | | you provide for the extra days. It is imperative |
| the deadline to serve responses is May 1st. | | | | that you know where to add them. |
| Step 4B(1): Counting or skipping interim weekends | | | | Rule of Thumb |
| and California holidays | | | | When determining the last day to respond to a |
| In order to calendar correctly, you must know | | | | document not personally served, the "last day" is |
| whether to count or skip weekends and California | | | | determined by counting the number of days |
| holidays occurring during the relevant time frame. | | | | allotted pursuant to the applicable code section or |
| This depends upon whether you are supposed to | | | | rule, and then immediately adding the applicable |
| count "calendar days" or "court days." In that | | | | extension of time. For example, if Saturday, |
| regard, unless a code or rule specifies "court | | | | November 14th is the 30th day after service of |
| days," as is the case with notices of motion, | | | | interrogatories by mail, to determine the "last |
| oppositions, and replies under C.C.P. § | | | | day," you simply continue counting until you reach |
| 1005(b), you are supposed to count calendar | | | | the 35th day, November 19th. You do not make |
| days. Thus, "five days" means "five calendar | | | | any adjustment for the fact that day 30 was a |
| days." | | | | Saturday, because it is not the "last day." If |
| Of course, you cannot count court days unless | | | | Saturday, November 14th is the 30th day after |
| you know the holidays in the court in which your | | | | service of interrogatories by fax, to determine |
| case is pending. You must be very careful to use | | | | the "last day," you simply continue counting two |
| a calendar which shows the California holidays. In | | | | court days, to Tuesday, November 17th. You do |
| addition to the federal holidays, California | | | | not make any adjustment for the fact that day |
| celebrates Lincoln's Birthday (February 12th), | | | | 30 was a Saturday, because it is not the "last |
| Cesar Chavez Day (March 31st), and the day | | | | day." |
| after Thanksgiving. For the period September 1, | | | | Another Rule of Thumb |
| 2009 through June 30, 2010, California courts | | | | When in doubt, serve your responses earlier |
| were also closed on the third Wednesday of each | | | | rather than later, and err on the side of giving |
| month, and those days were considered holidays | | | | more notice rather than less. |
| for calendaring purposes. | | | | As you can see, winding one's way through the |
| Step 4B(2): Determine the last day - deal with | | | | California state court calendaring maze is difficult |
| weekends, holidays, and extra time | | | | at best. It certainly gets easier with experience, |
| When calculating the last day to perform an act | | | | and simple calculations may become almost |
| triggered by the service of a document (e.g., last | | | | second nature. However, given the constant |
| day to respond to a discovery demand, last day | | | | changes in the codes and rules, the potential for |
| to make a motion to compel further responses | | | | human error at every step of the way, and the |
| to discovery), you must consider how the | | | | dire results of a missed deadline, rules-based |
| document which triggered the deadline was | | | | computerized calendaring should be utilized. |