6 minutes reading time (1117 words)

New Laws and Rules for 2016

New Laws and Rules for 2016

Numerous changes in California statutes, statewide rules of court, and local court rules have recently gone into effect or soon will. This article summarizes several (but by no means all) of the changes likely to affect civil practitioners in San Joaquin County.

Statewide Laws and Rules

1. Demurrers. Prior to filing a demurrer, the demurring party must meet and confer with the plaintiff in person or by telephone. As part of that process, the demurring party must identify each cause of action that is subject to demurrer and provide legal support for its position. The plaintiff must then provide legal support for its position that the complaint is sufficient, or must demonstrate how it can be amended. If a demurrer to an amended complaint is filed, the parties must meet and confer again.

Other than an amendment as a matter of right prior to the filing of a demurrer, a complaint may only be amended three times absent a showing that a reasonable possibility of curing the defect exists. A party demurring to an amended complaint filed after an earlier demurrer was sustained may not demur on grounds that could have been raised in the prior demurrer. The foregoing provisions do not apply in an unlawful detainer action or an action in which a party is incarcerated and not represented by counsel. An amendment to a complaint in lieu of opposition to a demurrer must be filed at or before the time opposition to the demurrer is due.(C.C.P., §§ 430.41, 472, 472(a).)

"Prior to filing a demurrer, the demurring party must meet and confer with the plaintiff in person or by telephone. A party intending to amend its complaint in lieu of filing an opposition to a demurrer must file the amended complaint at or before the time opposition to the demurrer is due."

2. Setting Aside Default Judgments in Favor of Debt Buyers. If a debt buyer has obtained a default or default judgment against a debtor in an action and the debtor did not have actual notice of the action prior to entry of the default, the debtor may bring a motion to set aside the default judgment within the earlier of (a) six years after the default or default judgment was entered or (b) 180 days after the debtor first acquired actual notice of the action.In the case of identity theft, the motion may be brought within "a reasonable time," but not more than 180 days after actual notice. This statute applies retroactively to defaults or default judgments entered on or after January 1, 2010.(Civ. Code, § 1788.61.)

3. False Claims. This law prohibits the filing or recording of a false lien, lawsuit, or encumbrance with intent to harass a person or entity and allows the person subject to the lien or encumbrance to file a petition for an order to show cause why the lien or encumbrance should not be stricken.(C.C.P., § 765.010.)

4. Statutes of Limitation; Human Trafficking. The limitations period for civil actions for victims of human trafficking has been extended to seven years. For minors, the limitations period has been extended to ten years after the plaintiff attains the age of majority. A ten-year limitations period has also been created for various torts including assault, battery, wrongful death, and taking of property where the action arises from acts of torture or crimes against humanity. The statute also provides for attorney's fees to a prevailing plaintiff.(C.C.P., § 354.8; Civ. Code, § 52.5.)

5. Partial Summary Judgment. Sections of Code of Civil Procedure section 437(c) allowing for partial summary judgment have been reinstated.

6. Ruling on Objections to Evidence on Summary Judgment. In granting or denying a motion for summary judgment, the court need only rule on objections made to evidence that the court deems material to the disposition of the motion. Objections to evidence not ruled upon are preserved for purposes of appellate review.(C.C.P., § 437c(q).)

7. C.C.P., § 998 Settlement Offers. Section 998 has been amended to clarify that only post offer expert witness costs are awardable to a party who fails to beat a Section 998 offer.

8. Juror Peremptory Challenges. Peremptory challenges to exclude jurors may not be made on the basis of ethnic group identification, age, genetic information, or disability.(C.C.P., § 231.5.)

9. Expedited Jury Trials. Expedited jury trials are now mandatory in limited civil cases, although either party may opt out under certain circumstances (e.g., punitive damages are sought; the case involves claims of "intentional conduct;" a party's insurer is providing a legal defense; the court finds good cause to order otherwise; etc.).(C.C.P., § 630.20 et seq.) The jury shall be comprised of eight members, six of whom must agree to reach a verdict.(C.C.P., § 630.26.) Various other provisions applicable to expedited jury trials have been added or changed. (See Stats.2015, c. 330 (A.B. 555).)

10. Wage Garnishment. Effective July 1, 2016, the maximum amount of disposable earnings of an individual that may be levied upon is now the lesser of (a) 25 percent of the individual's disposable earnings for that week or (b) 50 percent of the amount by which that individual's disposable income exceeds 40 times the state hourly minimum wage in effect at the time that the wages were payable. The maximum amount subject to levy is calculated using the local minimum wage if that is higher than the state minimum wage.(C.C.P., § 706.050.)

11. Holidays. Native American Day is no longer a judicial holiday.(C.C.P., § 135.)

"In granting or denying a motion for summary judgment, the court need only rule on objections made to evidence that the court deems material to the disposition of the motion."

San Joaquin County Superior Court

1. Motions. Hearing dates may no longer be scheduled by reservation. A hearing date will be assigned at the time that the moving papers are filed. Parties must provide a minimum of three dates (within applicable notice period) for the clerk to select at the time of filing. Proof of service must be filed prior to the hearing.(LR 3-113.)

2. Ex Parte Hearings. As with motion hearings, ex parte hearings may only be scheduled at the time that the application is filed. Moving papers must be filed at least 24 hours in advance of the hearing.(LR 3-106.)

3. Interpreters. Parties must request interpreters using the Court's Interpreter Request Form a minimum of five business days in advance.(LR 1-104.)

U.S. Bankruptcy Court for the Eastern District of California

Mandatory new forms have been adopted for all United States bankruptcy courts effective December 1, 2015. Among the new forms that debtors and creditors are required to use are the new form of bankruptcy petition, proof of claim, and attachments thereto (e.g., Form 410A, which must be used when the proof of claim pertains to a debt that is secured by the debtor's principal residence). The forms are available at http://www.caeb.uscourts.gov/Forms/FormsAndPublications.aspx.

The foregoing summary is not by any means a comprehensive list of new laws effective in 2016. A more detailed summary of important substantive and procedural statutory changes taking effect in 2016 is available from the Administrative Office of the Courts at http://www.courts.ca.gov/documents/2015_LegSummary.pdf

Related Posts

 

Comments

No comments made yet. Be the first to submit a comment
Guest
Tuesday, 01 December 2020

Captcha Image

Connect With Us
Bar Association
(209) 948-0125
Lawyer Referral Service
(209) 948-4620
Email
Address
6 S. El Dorado Street
Suite 315
Stockton, CA 95202
Attorney Resources

Website Contents © San Joaquin County Bar Association
Unauthorized duplication or reposting of the contents of this site in any form is strictly prohibited.

Legal Website Design by Brentwood Visual