October 30, 2021
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.
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.
Emergency rule 12. Electronic service
(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.
Emergency Rule 12 has now been repealed, because: “On September 18, 2020, the Governor signed Senate Bill 1146 (Stats. 2020, ch. 112),4 making it effective immediately.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.”
(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.
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.
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
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:
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.
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.