Most of the rules are focused on criminal and family law proceedings. Here, however, we highlight the several rules that will have widespread impact on California state court civil litigation for many months to come, and we provide some practical considerations for how to approach your cases that now feel like they are in limbo.
Emergency Rules Applicable to Civil Matters:
- Rule 3 (Use of technology for remote appearances): Courts may now require judicial proceedings and court operations be conducted remotely, such as through video, audio, and telephonic means, the electronic authentication of documentary evidence, e-filing, and e-service. Some counties, like Alameda, have already adopted this requirement. (See Alameda Press Release.)
- Rule 9 (Tolling of the statute of limitations): All statutes of limitation for civil causes of action are tolled from April 6, 2020 until 90 days after the state of emergency related to COVID-19 is lifted. For causes of action with statutes of limitation in the four-year range, such as breach of contract, this emergency rule will undoubtedly cause headaches for calculating tolling periods years down the road.
- Rule 10 (Extensions of time in which to bring a civil action to trial): For all civil actions filed before April 6, 2020, the time in which to bring a civil action to trial is extended by six months, for a total of five years and six months. For actions where a new trial is granted, the time to bring to trial again is also increased by six months, for a total of three years and six months.
- Rule 11 (Depositions through remote electronic means): Any party or nonparty deponent, at their election or the election of the deposing party, is not required to be present with the deposition officer at the time of the deposition. This emergency rule solves the problem of complying with social distancing and shelter-in-place directives, while still allowing depositions to proceed. It prevents a party or deponent from trying force an in-person appearance.
Additional considerations:
- Interaction with local rules and general orders: Although the emergency rules were developed with input from local courts, and provide blanket requirements applicable to certain procedures, each county has discretion to issue its own general orders and local rules. For example, San Francisco Superior Court has issued a general order temporarily tolling the period of time to move to quash, file a demurrer, move to strike, or otherwise respond to a complaint and the time to respond to discovery, file objections, move for protective order, or move to compel. (See San Francisco Superior Court’s General Order.) Other counties have issued similar but different (See resources by county, below.) Put differently, the Judicial Council’s new rules are just the beginning of where you should be looking to figure out how your cases have been and will be impacted.
- Sunset Provision: Unless otherwise repealed by the Judicial Council, the emergency rules will remain in effect until 90 days after the Governor declares the state of emergency related to the COVID-19 pandemic is lifted. This means, for example, that remote depositions of parties may continue to be permitted even after social distancing and shelter-in-place orders are lifted.
What should you be doing?
- Contact opposing counsel to discuss what is happening with your pending cases—First, some state courts have e-filings now, which means some previously-set motions may be submitted on the papers, and some hearings may still proceed as scheduled, albeit telephonically. Second, when civil departments eventually return to normal operations, the courts will likely be inundated and backlogged for many months to come. Judges will likely appreciate collaborative efforts between parties to develop plans for how cases will move forward in the coming months. Many state court judges in civil departments have hundreds and hundreds of cases; organizing our cases is our job.
- Consider necessary stipulations—Will you need an extension of a filing deadline that has not been addressed by the rules? Do the parties need a non-waiver agreement for any previously-set deadlines that remained on calendar? Can you develop a scheduling order for discovery, dispositive motions, and trial setting the parties can agree on? Have you already agreed to continue the 45-day jurisdictional deadline for motions to compel further discovery responses? (Do NOT forget that.)
- Keep up to date with standing orders in each jurisdiction/venue—Remember that court operations can vary widely by county and that rules and circumstances are changing on a nearly daily basis. See the county-by-county resources below and visit your court’s website for the most up-to-date information.
- Finally, if necessary, consider contacting your bench officer—Many courtrooms have “department” email addresses that can receive communications from counsel (e.g., for scheduling questions; sending proposed orders; and the mundane). But remember, many courts are operating with minimal staff, and these emails are likely backlogged, too.
Below are links to superior court websites with dedicated COVID-19 pages, and/or direct links to local implementation orders of the Judicial Council’s April 6 Emergency Rules (current as of the date of publication). If your county is not listed below (and even if it is), check your court’s main website for the most recent information.
COVID-19 Resources/Implementation of Emergency Order by County
Alameda
Butte
Colusa
Contra Costa
Del Norte
Fresno
Glenn
Imperial
Kings
Lake
Los Angeles
Madera
Mariposa
Merced
Monterey
Nevada
Orange
Riverside
Sacramento
San Benito
San Diego
San Francisco
San Luis Obispo
Santa Barbara
Santa Clara
Santa Cruz
Solano
Tulare
Yolo
Yuba
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