civil litigation process in california
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Calendaring In California State Court
Calendaring-related errors are the leading cause of malpractice lawsuits, particularly in California, where deadlines come from several sources, including the Code of Civil Procedure, the California Rules of Court, and local rules. Usually, calculating a single deadline requires the application of several codes and rules. A single error, e.g., using an old rule, forgetting to add extra time based on the service method (or adding extra time when you should not), counting calendar days instead of court days, missing a holiday, or simply miscounting, will cause a calendaring error.
I cannot stress enough the importance of using a computerized calendaring program to calculate your deadlines. By computerized calendaring, I do not mean that you manually calculate the deadline and enter it on a calendar on your computer, or that you use an electronic calendar to help you calculate the date that is five days before or after a given date. I mean rules-based computerized calendaring, such as AbacusLaw, CompuLaw or Deadlines on Demand. With these programs, you simply enter an “event,” and they automatically calculate the deadlines for you in accordance with the applicable codes and rules.
Even with rules-based computerized calendaring, however, you need to know how to calendar manually. What if you need to calendar something when your computer is down or inaccessible? What if your computer is fully operational, but you do not know enough to tell it that something needs calendaring? You must know the calendaring steps.
Step 1: Identify the triggering event
A “triggering event” is anything which triggers one or more deadlines. A triggering event might be the filing of a document, the service of a document, or an appearance. For example: filing a complaint, serving a complaint, entering default, answering a complaint, serving interrogatories, serving interrogatory responses, a hearing date, a deposition date, settlement, etc. To identify triggering events in your case, assume that everything you file with the court and/or serve on opposing counsel, and everything you are served with, including notices from the court, involves a triggering event, i.e., something needs to be calendared.
Step 2: Identify what is triggered
Once you have recognized that a triggering event has occurred, you need to identify what has been triggered. For example: filing a complaint triggers the deadline to serve defendant and file Proof of Service of Summons, serving the complaint triggers the deadline for defendant to serve the response, a hearing on a motion triggers the deadline to file and serve notice of motion, opposition, and reply. Sometimes deadlines are triggered which are less obvious. Rules-based computerized calendaring may reveal deadlines you would not have thought of on your own. For example, filing a complaint also triggers the last day for plaintiff to challenge the judge assigned to the case; first day plaintiff may serve written discovery; first day plaintiff may serve notice of deposition; first day for defendant to make a motion for summary judgment.
Step 3: Identify the current codes and rules which apply to the deadlines
Once you have determined what is triggered, you need to identify the current codes and rules governing the applicable deadlines. It is not enough to identify the correct code section or rule number; you must be sure to apply the current deadline in the code section or rule. In California, the codes and rules are moving targets. The one you memorized last year or the year before may be different today. This is another benefit of rules-based computerized calendaring programs — they are updated to apply the current code sections and rules.
Step 4: Correctly apply those codes and rules
This is the most difficult part. It requires several steps which must be accomplished in order and painstakingly applied. It involves identifying what to count, how to count, and then actually counting in conformance with certain very specific rules. Again, rules-based computerized calendaring programs do all of this instantly.
Step 4A: Identify the time frame for each triggered deadline
When calculating the due date for a response to a complaint, you have to know that the relevant time frame begins with the effective date of service (and you have to know how to determine the effective date of service). When calculating the due date for responses to written discovery, you have to know that the relevant time frame begins with the date the discovery was served, and ends with the date the responses are to be served.
When calculating the earliest date to calendar the hearing on a motion, you have to know that the relevant time frame begins on the date you serve your notice and motion, and ends on the hearing date. If the hearing date is already set, and you are calculating the last day to serve notice, the time frame begins on the hearing date and ends on the service date.
Once you have identified the time period you need to count, you need to know exactly how to count the days in that time period.
Step 4B: Identify what date to start counting and what date to stop counting
C.C.P. § 12 provides: “The time in which any act provided by law is to be done is computed by excluding the first day and including the last, unless the last day is a holiday, and then it is also excluded.” Thus, if interrogatories are served on April 1st (the date, according to the proof of service, that they were mailed, faxed, etc.), in order to calculate the 30-day deadline to respond, you start counting with April 2nd as the first day, April 3rd as the second day, and keep counting until you reach the 30th day, May 1st. So long as the interrogatories were personally served, and so long as May 1st is not a weekend or a holiday, the deadline to serve responses is May 1st.
When calculating the earliest date to calendar the hearing on your motion, you start counting the day after you serve the notice as day one, the next day as day two… and the hearing date as the last day. If your hearing date is set, and you are calculating the last day to serve notice, which requires you to count backwards from the hearing date to the notice date, you start counting the day before the hearing date as day one, two days before the hearing date as day two… and the date of service as the last day.
Step 4B(1): Counting or skipping interim weekends and California holidays
In order to calendar correctly, you must know whether to count or skip weekends and California holidays occurring during the relevant time frame. This depends upon whether you are supposed to count “calendar days” or “court days.” In that regard, unless a code or rule specifies “court days,” as is the case with notices of motion, oppositions, and replies under C.C.P. § 1005(b), you are supposed to count calendar days. Thus, “five days” means “five calendar days.”
Of course, you cannot count court days unless you know the holidays in the court in which your case is pending. You must be very careful to use a calendar which shows the California holidays. In addition to the federal holidays, California celebrates Lincoln’s Birthday (February 12th), Cesar Chavez Day (March 31st), and the day after Thanksgiving. In addition, due to budget cuts, California courts are closed the third Wednesday of each month through at least June 30, 2010, and those days are considered holidays for calendaring purposes.
Step 4B(2): Determine the last day – deal with weekends, holidays, extra time, and counting backwards
When calculating the last day to perform an act triggered by the service of a document (e.g., last day to respond to a discovery demand, last day to make a motion to compel further responses to discovery), you must consider how the document which triggered the deadline was served. If it was personally served, there is one procedure; if it was not personally served, additional steps must be taken. When calculating the last day to serve notice of a motion when the hearing date is already set, it is simple if you are personally serving the notice; it is not if you are serving by any other method. In any case, to calculate these deadlines, you need to know what happens when the last day to do something lands on a holiday, and you need to know how to determine the “last day.”
C.C.P. § 12a(a) provides: “If the last day for the performance of any act provided or required by law to be performed within a specified period of time is a holiday, then that period is hereby extended to and including the next day that is not a holiday.” “Holiday” includes weekends. Thus, if the last day is a Saturday, the deadline would be extended to Monday, so long as it is not a holiday. If Monday is a holiday, then the deadline would be extended to Tuesday.
(a) For personal service, adjust when the last day falls on a weekend or California holiday
If the 30th day after interrogatories were personally served is a Saturday, this is the “last day” under C.C.P. § 12a(a). Since the last day is a weekend, the due date is extended to the next court day, Monday (unless it is a holiday).
(b) For a triggering document not personally served, first add the applicable extension of time to determine the last day, then adjust when the last day falls on a weekend or California holiday
As a general rule, documents may be served personally (also referred to as service “by hand” or “hand delivery”), by mail, by express mail, or overnight delivery (C.C.P. §§ 1011, 1013), and, so long as the recipient has agreed to accept service by these methods, service generally may be made by fax (C.R.C., Rule 2.306) or electronically (C.C.P. § 1010.6(a)(6) and C.R.C., Rule 2.260). Every method other than hand delivery has associated extensions of time.
These extensions of time are mandated because, for the most part, deadlines and notice periods start running from the date documents are served, not the date they are received by the opposing party. For example, responses to interrogatories are due 30 days after the interrogatories are served; a motion to compel further responses must be filed within 45 days after the responses to interrogatories are served; a deposition may be taken ten days after the notice of taking deposition is served; a motion may be heard 16 court days after notice of the motion is served.
Any method other than personal service will result in a delay between the act of service and the person’s actual receipt of the document. In that regard, service by mail is deemed complete upon deposit in a USPS mail box (C.C.P. § 1013(a)), but the papers might not arrive in the recipient’s mail for days. Service by fax is deemed complete upon transmission of the entire document to the receiving party’s fax machine (C.C.P. § 1013(e) and C.R.C., Rule 2.306(g)), but that does not mean the document will be in the hands of the intended recipient that day. A document served electronically is deemed complete upon transmission (C.C.P. § 1010.6(a)(6)), but it may sit unopened in the recipient’s email inbox for hours, if not days.
To obviate any inherent prejudice in this delay in receipt of a document, various extensions of time are added depending upon the type of document served and the method by which it is served. These extensions of time are found in C.C.P. §§1013, 1005(b), and 1010.6. Note: By their own terms, these code sections are not always applicable! Fortunately, rules-based calendaring programs know when they are and when they are not.
Extensions for Service by Mail under C.C.P. § 1013 and 1005(b)
Add five days for service by mail to a person within California; ten days outside California, but within the U.S., and 20 days outside the U.S. These extensions would apply to notice periods for depositions, hearings on motions, and time to respond or act within a given time period.
Extensions for Fax/Overnight Delivery/Express Mail under C.C.P. § 1013 and 1005(b)
C.C.P. §1013 adds two court days; C.C.P. § 1005(b) (for motions only) adds two calendar days. These extensions would apply to notice periods for depositions, hearings on motions, and time to respond or act within a given time period. This two court day vs. two calendar day difference is an unfortunate one, which seems to invite errors. It is easy to forget which period of time you are supposed to add. Sometimes the result will be the same, e.g., when the next two days are non-holiday weekdays, they are both calendar days and court days. However, when one or both of the next two days fall on a weekend or a holiday, there is room for error.
Extensions for Electronic Service
C.C.P. § 1010.6 adds two court days to notice periods and time to respond or act.
Here’s how these provisions would extend the time within which to respond to interrogatories, depending upon how they are served: service by mail on a party in California – five extra days; service by fax, overnight delivery or express mail – two extra court days; service by electronic service – two extra court days.
Were the extensions applied to service of a notice of motion, service by mail would extend the period by five days; fax, overnight delivery or express mail would extend the period by two days; and electronic service would extend the period by two court days.
It is at this point in the calendaring process that you provide for the extra days. It is imperative that you know where to add them.
Rule of Thumb
When determining the last day to respond to a document not personally served, the “last day” is determined by counting the number of days allotted pursuant to the applicable code section or rule, and then immediately adding the applicable extension of time. For example, if Saturday, November 14th is the 30th day after service of interrogatories by mail, to determine the “last day,” you simply continue counting until you reach the 35th day, November 19th. You do not make any adjustment for the fact that day 30 was a Saturday, because it is not the “last day.” If Saturday, November 14th is the 30th day after service of interrogatories by fax, to determine the “last day,” you simply continue counting two court days, to Tuesday, November 17th. You do not make any adjustment for the fact that day 30 was a Saturday, because it is not the “last day.”
Another Rule of Thumb
When in doubt, serve your responses earlier rather than later, and err on the side of giving more notice rather than less.
As you can see, winding one’s way through the California state court calendaring maze is difficult at best. It certainly gets easier with experience, and simple calculations may become almost second nature. However, given the constant changes in the codes and rules, the potential for human error at every step of the way, and the dire results of a missed deadline, rules-based computerized calendaring should be utilized.
This article contains excerpts from Litigation By The Numbers®-Fourth Edition, by Julie A. Goren, Esq. To learn more about this essential California civil litigation handbook and to view excerpts and testimonials, go to http://www.litigationbythenumbers.com.