Coming Soon - Certainty In Calculating CA Hearing-Related Deadlines

p>Effective January 1, 2011, Section 12c will beand the court to determine whether notice was
added to the California Code of Civil Procedure. Atimely. This method of counting makes sense --
result of State Bar-sponsored legislation (AB 2119once a hearing date is set, it is logical to count
(Tran)), Section 12c finally eliminates an ambiguitybackward from the hearing date and to add the
which has long-plagued those charged withextra days at the end. But, what about selecting
calculating the last day to serve hearing-relatedthe hearing date in the first place?
documents. All practitioners will need to calendar inThe Lingering Pitfall
accordance with the new section. In jurisdictionsIn some courts, the litigant selects the hearing
where hearing dates are available on short notice,date (e.g., Los Angeles, San Mateo, Sacramento);
however, practitioners must be particularly carefulin others, the court assigns the hearing date. In
to avoid a rather dangerous pitfall which could leadeither case, the moving party will select, or
to malpractice. This article explains the ambiguityrequest that the court assign, what they believe
and the Section 12c solution, warns about theis the earliest possible hearing date. How does the
pitfall, and suggests ways to avoid itsmoving party determine that date? By counting
consequences.forward from the service date.
The AmbiguityFor example, assume it is Monday, January 10,
Calculating the last day to serve notice of motion2011, and you have just put the finishing touches
and supporting papers often requires counting aon your motion. The only tasks remaining are to
combination of calendar days and court days. Forselect the earliest possible hearing date, add it to
example, under Section 1005(b) (all references areyour moving papers, and mail them. So, you
to the Code of Civil Procedure), if served bycount forward from January 10, 2011, 16 court
hand, notice of motion and supporting papersdays and five calendar days, landing on February
must be served at least 16 court days before7, 2011. If February 7 is available, you will select it
the hearing. That period is extended if service isas your hearing date, and mail your papers on
by any other means -- another five calendar daysJanuary 10, 2011.
for mail service within California, or two calendarUnfortunately, you will not have given sufficient
days for fax service or overnight delivery. Thus,notice. Under Section 12c, moving papers for a
service by mail requires counting a combination ofMonday, February 7, 2011, hearing would have had
16 court days and five calendar days. Sectionto be mailed on or before Friday, January 7, 2011
437c, governing deadlines for motions for-- three days before the motion was even ready!
summary judgment and summary adjudication,The problem is that the factors necessitating
requires 75 calendar days' notice, adding twoSection 12c still linger. Selecting a hearing date by
court days for fax service and overnight delivery.counting forward from a Monday or a Tuesday
Quite often, the result of a deadline calculation willservice date will always result in inadequate notice
be affected by: (1) the direction in which the daysunder the Section 12c counting methodology
are counted (forward from the service datewhen service is by mail. Other methods of
versus backward from the hearing date), and/orservice on other days of the week can also be
(2) the order in which the two distinct sets ofproblematic. For example, if you count forward
days are counted (first calendar days, then courtfrom Thursday, September 15, 2011, to
days versus first court days, then calendar days).determine the first available hearing date after
Generally, the calculations will differ when aservice by overnight delivery (16 court days plus
weekend (consisting of non-court days)two calendar days), you would select an October
immediately precedes the hearing date or11, 2011 hearing date. But, if you count backward
immediately follows the service date. Thus,from October 11, 16 court days plus two calendar
calculations relating to hearings scheduled ondays, you would find that service would have had
Mondays, Tuesdays following Monday holidays, orto be made one day earlier, on Wednesday,
Fridays will vary depending on the countingSeptember 14.
method.So, how can you avoid this pitfall? Here are a few
This is best explained by example. Assume youoptions.
have a September 7, 2010, hearing date (a
Tuesday following the Labor Day holiday) for a1. After you count forward to pick a hearing date,
motion to compel discovery responses, which youalways count backward to make sure you have
intend to serve by mail. If you calculate the lasttime to serve by the method you selected. If
day to serve notice by counting backward fromthere is insufficient time, move the hearing date
the hearing date 16 court days plus five calendarout a day or two, and then count backward again
days, you will land on August 6. If you switch theto see if that works, adjust again as necessary,
order, and instead count backward from theetc. Unfortunately, this may be rather
hearing date five calendar days plus 16 courttime-consuming.
days, you will land on August 11 -- a five-day2. In applying the first option, as soon as you
difference. If you were to count forward fromdiscover that you are unable to serve by the
August 11, 16 court days, and then five calendarmethod you selected, switch to a method which
days, you would land right on the hearing date; iftakes less time, e.g., instead of serving by mail,
you counted forward from August 6, 16 courtserve by fax or electronic service (if you have
days, and then five calendar days, you would landthe requisite agreements) or by overnight
on the Saturday preceding the hearing. Here liesdelivery. But, you still must count backward again
the ambiguity -- which method of counting isto make sure that the alternate service method
correct, or put another way, what is the last dayworks.
to serve the notice?3. Always build in a safety cushion by moving
The Section 12c Solutionyour hearing date out by a given number of days.
As of January 1, 2011, the correct method will beBut how much is enough? How much is too
to count backward from the hearing date themuch? Could an unnecessary delay in obtaining the
number of days specified in the applicable code,requested relief adversely affect your client's
e.g., 16 court days or 75 calendar days, and theninterests?
to continue counting backward to add the extra4. Avoid the issue entirely by serving motions
days. Section 12c provides:only by hand. But, this would not only waste
(a) Where any law requires an act to bemoney, it would often be impractical or simply
performed no later than a specified number ofimpossible.
days before a hearing date, the last day toThe best solution does not yet exist, but is
perform that act shall be determined by countinghopefully in the works -- an automated
backward from the hearing date, excluding therules-based calendaring program with a "Select My
day of the hearing as provided by Section 12.Hearing Date" feature. Ideally, the end user would
(b) Any additional days added to the specifiedsimply need to enter the proposed service date
number of days because of a particular methodand the source of the deadline (e.g., Section
of service shall be computed by counting1005(b) or Section 437c), and the program would
backward from the day determined in accordanceinstantly generate an accurate list identifying the
with subdivision (a).first available hearing date for each service
Section 12c unquestionably brings much-neededmethod. The user would then select the hearing
certainty to this particular issue. Once a hearingdate, and serve the papers by the method which
date is set, and the moving papers are served byensures adequate notice.
a particular method, it will be easy for the partiesNow that's certainty.