New Laws Affecting Civil Procedure in San Joaquin County

The Legislature and the courts introduced numerous statutes and rules affecting civil practice that went into effect at the beginning of this year. While the volume of changes is much too large to cover comprehensively in a single article, the following are eight of the most significant ones governing civil procedure in this county.

1. Scheduling ex parte hearings

Civil ex parte hearings are again being scheduled through the clerk for the department in which the matter will be heard, rather than at the filing clerk's office. (S.J. Local Rules 3-106, 3-114.) Ex parte moving papers must still be filed at least 24 hours prior to the hearing, and proof of service must be filed prior to the hearing. If a bond is necessary or the moving party seeks to waive a bond that is otherwise required, the moving papers must be accompanied by a declaration detailing the facts for determining the amount of the bond and stating the maximum loss, including attorney's fees, likely to occur from granting the order.

2. Informal discovery conferences

Newly-enacted Code of Civil Procedure section 2016.080 authorizes the court, on its own motion or upon request of any party, to conduct an "informal discovery conference" to attempt to resolve discovery disputes without a formal motion to compel. The request may be made only after the parties have met and conferred but have not been able to resolve the dispute informally amongst themselves. The process appears to be initiated by the filing of a meet-and-confer declaration under Code of Civil Procedure section 2016.040 requesting an informal discovery conference, to which any party may file a "response." The timeframe for that response is not specified in the statute, but the court must grant, deny, or schedule the request within 10 days after it is filed; if the court takes no action within that time, the request is deemed denied. If the court orders an informal discovery conference, the conference must take place within 30 days after the order and before the discovery cut-off date. If it does not, the request shall be deemed denied. In its order the court may, but apparently is not required to, toll the deadline for filing a discovery motion or "make any other appropriate discovery order." However, the outcome of an informal discovery conference does not bar a party from filing a discovery motion or prejudice the outcome of that motion.

3. Meet-and-confer requirement for motions to strike and motions for judgment on the pleadings

The requirement that a party intending to file a demurrer must first meet and confer with the opposing party has been extended to apply to motions to strike pleadings and motions for judgment on the pleadings. (C.C.P., §§ 435.5, 439.) The meeting-and-conferral must be by telephone or in person. If the court grants a motion to strike or motion for judgment on the pleadings, the court may order a conference of the parties before an amended pleading may be filed, and the time to file a motion to strike or motion for judgment on the pleadings shall not begin until after the conference has concluded. The new statutes also preclude a party from amending pleadings more than three times after the filing of a motion to strike or motion for judgment on the pleadings before the case is at issue absent "an offer to the trial court of additional facts to be pleaded that, if pleaded, would result in a reasonable possibility that the defect can be cured." An amendment made as a matter of right prior to the filing of a demurrer, motion to strike or motion for judgment on the pleadings does not count against the three-amendment limit.

4. Changes to jury voir dire

Code of Civil Procedure section 222.5 was amended significantly to enhance parties' participation in voir dire of prospective jurors. That section now provides that at the first practical opportunity, the judge must discuss the form and subject matter of questions to be asked in voir dire with the parties, and the parties may submit questions for the judge to ask in voir dire, although the court retains discretion whether to ask those questions. The fact that the judge has questioned prospective jurors about particular topics does not preclude the parties from asking appropriate follow-up questioning on the same areas. The judge "shall not impose specific unreasonable or arbitrary time limits or establish an inflexible time limit policy for voir dire," and the judge must allow supplemental time for questioning based on individual responses that indicate partiality, the composition of the jury panel, or an unusual number of for-cause challenges. Upon the request of any party, the court must allow a brief opening statement by the parties prior to oral questioning of prospective jurors. In civil cases, if the parties so stipulate, the court may permit counsel to examine prospective jurors outside of the judge's presence.

5. Limitations on sanctions for frivolous actions or tactics

Code of Civil Procedure section 128.5, which authorizes sanctions for frivolous tactics, has been amended significantly. That section now requires that the actions or tactics for which sanctions are to be imposed must be frivolous or solely intended to cause unnecessary delay and must be taken in bad faith. Sanctions must be sought by a separate motion that specifically describes the allegedly frivolous action or tactic, and the court must consider whether the party seeking the sanctions has exercised due diligence. If the allegedly frivolous action or tactic is the filing of a pleading, motion, or opposition that can be withdrawn or corrected, then the party seeking sanctions must first serve, but not file, a notice of motion for sanctions, and may only proceed with the filing of the motion if the objectionable document is not withdrawn or corrected within 21 days of service of the notice (or such other time as the court may prescribe). Any sanction ordered must be limited to that which is necessary to deter repetition of action or tactic, and may include directives an award of nonmonetary nature, an order to pay a penalty in the court, or some or all of the attorney's fees and expenses incurred as a direct result of the frivolous conduct.

6. Service on private mailbox

Code of Civil Procedure section 415.20(c) provides that if the only address reasonably known at which a person may be served is a private mailbox obtained through a commercial mail receiving agency, service of process may be effected on the first delivery attempt by leaving a copy of the summons and complaint with that agency.

7. Answer in intervention

Code of Civil Procedure section 387 has been amended to provide that a party seeking to intervene in an action must do so by filing a noticed motion or ex parte application that contains a copy of the proposed complaint in intervention or answer in intervention. If leave to intervene is granted, the intervenor must separately file the complaint or answer in intervention and must serve both the pleading and the order granting leave to intervene in the same manner provided for service of summons. Within 30 days thereafter, the party served may demur or otherwise plead to the complaint or answer in intervention as if it were an original complaint or answer.

8. Electronic service and filing

Code of Civil Procedure section 1010.6 now provides that a document that is electronically filed anytime up to 11:59 p.m. on a court day is deemed filed that court day. That is true even though a paper filing submitted after the clerk's office closes (4:00 p.m. in this county) would not be deemed filed until the following court day. If filed on a non-court day, it will be deemed filed on the next court day.

Although electronic filing is not yet available in the Superior Court in San Joaquin County, many of the rules applicable to electronic filing are likewise applicable to electronic service. Thus, a document electronically served at any time up to 11:59 p.m. on a court day is deemed served as of that date, provided that the other side has consented to receive electronic service. If a document may be served by mail, express mail, overnight delivery, or facsimile transmission, then "electronic service of that document is deemed complete at the time of the electronic transmission of the document or at the time that the electronic notification of service of the document is sent." (C.C.P, § 1010.6(a)(4).) Note that however, although the foregoing section states that electronic service is deemed complete upon transmission, the following subsection, echoing the rule for electronic filing, states that any document that is served electronically on a non-court day shall be deemed served on the next court day. (C.C.P., § 1010.6(a)(5).)

More information

While these changes are some of the most significant for 2018, they are far from the only ones. For a broad summary of recent procedural legislation affecting all practice areas, please consult the Judicial Council's 2017 Summary of Court-Related Legislation, which is available online at http://www.courts.ca.gov/documents/2017_LegSummary.pdf. 

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Wednesday, 25 April 2018

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