COVID Changes to California Civil Procedure

It’s now been twenty months since Governor Newsom proclaimed a state of emergency in California, upending business as usual. Temporary measures have now been permanently codified, and certain aspects of civil litigation have changed for good.

Electronic Service

While the Federal Rules of Civil Procedure have long provided for electronic service of, e.g., moving papers (Fed. R. Civ. P. 5(b)(2)(E)), California state civil procedure has lagged. While Civil Code Section 1010.6 ostensibly set forth a mechanism where e-filing opened the door to e-service, in practice the statute was so confusing that judges often interpreted it differently.

COVID Emergency Rules

In response to COVID-19, however, the Judicial Council adopted a set of Emergency Rules, including Rule 12 (original emergency rules):

Emergency rule 12. Electronic service

(a) Application

(1) Notwithstanding any other law, including Code of Civil Procedure section 1010.6, Probate Code section 1215, and rule 2.251, this rule applies in all general civil cases and proceedings under the Family and Probate Codes, unless a court orders otherwise.

(2) Notwithstanding (1), the rule does not apply in cases where parties are already required by court order or local rule to provide or accept notices and documents by electronic service, and is not intended to prohibit electronic service in cases not addressed by this rule.

(b) Required electronic service

(1) A party represented by counsel, who has appeared in an action or proceeding, must accept electronic service of a notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission. Before first serving a represented party electronically, the serving party must confirm by telephone or email the appropriate electronic service address for counsel being served.

(2) A party represented by counsel must, upon the request of any party who has appeared in an action or proceeding and who provides an electronic service address and a copy of this rule, electronically serve the requesting party with any notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission.

(c) Permissive electronic service

Electronic service on a self-represented party is permitted only with consent of that party, confirmed in writing. The written consent to accept electronic service may be exchanged electronically.

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Repeal of the Emergency Rules Following Adoption of SB 1146

Emergency Rule 12 has now been repealed, because: “On September 18, 2020, the Governor signed Senate Bill 1146 (Stats. 2020, ch. 112),4 making it effective immediately. Among the stated objectives of SB 1146 is the intent to codify the provisions of emergency rules 11 and 12 by allowing deponents to appear for deposition remotely and mandating under specified circumstances the electronic service and acceptance of nonjurisdictional notices and documents between represented parties in certain civil proceedings.”

Electronic Service is Now Authorized by Statute

Senate Bill 1146, among other actions, codified the above rule as subd. (e) of the California Code of Civil Procedure section 1010.6:

(e)

(1) A party represented by counsel, who has appeared in an action or proceeding, shall accept electronic service of a notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission. Before first serving a represented party electronically, the serving party shall confirm by telephone or email the appropriate electronic service address for counsel being served.

(2) A party represented by counsel shall, upon the request of any party who has appeared in an action or proceeding and who provides an electronic service address, electronically serve the requesting party with any notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission.

(Emphasis added.) Subsection (a)(2)(A)(ii) provides: “For cases filed on or after January 1, 2019, if a document may be served by mail, express mail, overnight delivery, or facsimile transmission, electronic service of the document is authorized if a party or other person has expressly consented to receive electronic service in that specific action, the court has ordered electronic service on a represented party or other represented person under subdivision (c) or (d), or the document is served electronically pursuant to the procedures specified in subdivision (e).”

Subsection (a)(4)(A) states “electronic service of that document is deemed complete at the time of the electronic transmission of the document...” while subsection (a)(5) mirrors the federal rules providing for service before midnight on a court day as deemed served on that court day: “Any document that is served electronically between 12:00 a.m. and 11:59:59 p.m. on a court day shall be deemed served on that court day. Any document that is served electronically on a noncourt day shall be deemed served on the next court day.”

Finally, subsection (a)(4)(B) tacks on an additional two court days for electronic service of most documents (instead of, e.g., the 5+ calendar day extension of time to respond provided for mail service in Code of Civil Procedure section 1013(a)).

The only potential hiccup - which many seem to miss - is that Section 1010.6(e)(1) does require, before serving documents electronically, that the serving party “shall confirm by telephone or email the appropriate electronic service address for counsel being served.” (Emphasis added.) This obligation can be satisfied by simply calling or emailing opposing counsel and asking what address they use to receive electronic service.

Remote Depositions Authorized

Additionally, the emergency rule allowing a deponent, or party noticing a deposition, to elect to have the deposition conducted remotely (e.g., via Zoom), has now been permanently codified into law. SB1146 amended the Civil Discovery Act:

Cal. Code Civ. Proc. § 2025.310(a): “At the election of the deponent or the deposing party, the deposition officer may attend the deposition at a different location than the deponent via remote means. A deponent is not required to be physically present with the deposition officer when being sworn in at the time of the deposition.”

Although the language is narrow, in practice this has lead to depositions occurring mostly or entirely through remote means, with counsel for each side, the deponent, and the court reporter all in separate locations.

Statute of Limitations Tolled

Finally, deadlines to file lawsuits have been extended by tolling the statute of limitations.

Emergency rule 9(a) provided: “Notwithstanding any other law, the statutes of limitations and repose for civil causes of action that exceed 180 days are tolled from April 6, 2020, until October 1, 2020.”

Tolling is defined in part as, “(Of a time period, esp. a statutory one) to stop the running of; to abate .” (Black’s Law Dictionary, 11th Ed. 2019, “Toll.”) The effect of tolling is that the limitations period stops running during the tolling event, and begins to run again when the tolling event has concluded. (See Lantzy v. Centex Homes (2003) 31 Cal.4th 363, 370.) “As a consequence, the tolled interval, no matter when it took place, is tacked onto the end of the limitations period, thus extending the deadline for suit by the entire length of time during which the tolling event previously occurred.’ (Id. at 370-71; see also Willis v. City of Carlsbad (2020) 48 Cal.App.5th 1104, 1120-1121 [same]; cf. United States v. Ibarra (1991) 502 U.S. 1, 4 n. 2 [“Principles of equitable tolling usually dictate that when a time bar has been suspended and then begins to run again upon a later event, the time remaining on the clock is calculated by subtracting from the full limitations period whatever time ran before the clock was stopped.”].)

As observed by numerous trial courts (in non-precedential decisions, but providing useful analysis nonetheless), Emergency Rule 9 extends the deadline to bring a lawsuit by the amount of time the statute is tolled:

• 20STCV47323, July 30, 2021 (demurrers, motions to strike), finding a December 10, 2020 filed Complaint timely for a November 9, 2019 date of injury (1 year statute of limitations, MedMal), noting “the sixth month-extension of the statute of limitations provided for by Emergency Rule 9.”
• 21STCV08056, May 28, 2021 (demurrer): “Plaintiff argues that her Complaint was within the statute of limitations because she filed her Complaint 150 days after October 1, 2020, when the tolling period ended. Plaintiff’s math seems to be predicated on the assumption that the tolling period gave Plaintiff an additional 178 days after October 1, 2020 to file her Complaint. However, from August 1, 2018 to April 6, 2020 was already 614 days into the statute of limitations period (or 1 year, 8 months, and 5 days). There are 730 days in two years, so when the tolling period was over on October 1, 2020, Plaintiff had 116 days from October 1, 2020 to file her Complaint. This means that the deadline to file her Complaint was January 26, 2021.”
• 21STCV107222, July 19, 2021 (demurrer): “On February 24, 2021, Plaintiff Lewis Buchanan filed this action against Defendant Metropolitan Property Services, LLC (“Defendant”) (erroneously sued as “Metropolitan Property Services, Inc.”). Plaintiff alleges he tripped and fell on an elevator threshold on February 20, 2019. Defendant demurs to the Complaint on the grounds that the statute of limitations has expired. … The statute of limitations for a personal injury action is 2 years. (Code Civ. Proc., § 335.1.) Due to the COVID-19 pandemic, the Judicial Council enacted Emergency Rule 9 which tolled all statutes of limitations over 180 days from April 6, 2020 to October 1, 2020. This gave Plaintiff an additional 178 days to file his action. Plaintiff needed to file this lawsuit by August 17, 2021. Plaintiff timely filed his Complaint on February 24, 2021. Defendant argues that Emergency Rule 9 only applies to actions with a statute of limitations which would have expired within April 6 and October 1, 2020. (Demurrer, 5:9-19.) Defendant refers to the legislative history of Emergency Rule 9 but produces no admissible evidence showing such history to support its specious proposition which contradicts the plain language of the rule.”
• 21STCV07279, June 9, 2021 (motion to strike): “Emergency Rule 9 stopped the running of the statute of limitations in this matter from April 6, 2020 to October 1, 2020. The time between April 6, 2020 and October 1, 2020 is 178 days. Consequently, because EmergencyRule 9 tolled the statute of limitations for Howard’s claims for 178 days, this tolled interval was tacked onto the end of the limitations period and extended the time for Howard to file his action by 178 days. [Citing Lantzy, supra; Willis, supra] 178 days after October 1, 2020 was March 29, 2021. Therefore, Howard’s complaint was timely filed on February 24, 2021.”
• 20STCV43052, March 15, 2021 (demurrer): “Here, the complaint alleges the incident occurred on 7/27/18, and the complaint was filed 11/10/20. The parties’ primary dispute concerns the parties’ interpretation and whether pursuant to Emergency Rule 9, Plaintiff was required to file the complaint on 10/1/20, or whether Emergency Rule 9 gave Plaintiff an additional 178 days to file the action after 10/1/20. … Emergency Rule 9 stopped the running of the statute of limitations in this matter from 4/6/20 to 10/1/20. The time between 4/6/20 and 10/1/20 is 178 days. Consequently, because Emergency Rule 9 tolled the statute of limitations for Plaintiff’s claims for 178 days, this tolled interval was tacked onto the end of the limitations period and extended the time for Plaintiff to file his action by 178 days. [Citing Lantzy, supra; Willis, supra] Therefore, Plaintiff’s complaint was timely filed on 11/10/20.”

Applies Even When Statute of Limitations Expired After Tolling Period

The usual meaning of the term “tolled” is, essentially, “suspended.” (See Code Civ. Proc., §§ 352 [time of disability or lack of capacity is “not part of the time limited for the commencement of the action]; 352.5 [time during which an order for restitution is in effect is “not part of the time limited for the commencement of … an action”]; 352.1 [time of imprisonment is not a part of the time limited for the commencement of the action].” The authors of a prominent treatise, the Rutter Group California Practice Guide for Personal Injury, concur: “Under certain circumstances, the running of the applicable statute of limitations may be ‘tolled’ or ‘suspended,’ in effect adding additional time within which suit may be maintained.” (Rutter Group, Cal. Prac. Guide Pers. Inj., ¶ 5:126 (emphasis added).)

Accordingly, courts have applied Emergency Rule 9 under the “plain meaning rule” (Gonzalez v. County of Los Angeles (2004) 122 Cal.App.4th 1124 [“Under the so-called ‘plain meaning’ rule, courts seek to give the words employed by the legislature their usual and ordinary meaning”]), and have found the statute of limitations extended by the 178 days between April 6, 2020 and October 1, 2020, no matter when the filing deadline would have ordinarily fallen.

When the Statute Expires on a Weekend or Holiday

Although not COVID-specific, it’s perhaps worth mentioning here that the standard rules extending statutes of limitations still apply. California Code of Civil Procedure § 12a states that “[i]f 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.” Further, section § 13b provides: “[a]ny act required by law to be performed on a particular day or within a specified period may be performed (but is not hereby required to be performed) on a Saturday, with like effect as if performed on a day which is not a holiday.” Consequently, where the statute of limitations expires on a holiday, a plaintiff has until the following non-holiday to file a complaint. See Drvol v. Bant (1960) 183 Cal.App.2d 351, 357; Ystrom v. Handel (1988) 205 Cal.App.3d 144, 147-48.