by Will Cooper
Life is increasingly moving online in the COVID-19 pandemic, and the latest Emergency Rules from the Judicial Council of California, effective April 17, reflect that. One of those rules, which applies to all general civil cases and proceedings under the Family and Probate Codes, puts a temporary end to the age-old practice of litigators literally pushing paper at each other, by requiring electronic service in most civil cases. Lawyers practicing in California should be prepared to serve most documents electronically for the foreseeable future and—counterintuitively—to build extra time into their litigation plans as a result.
Electronic service required. Rule 12 requires any party represented by counsel who has already appeared in an action (1) to accept electronic service of any notice or document that may otherwise be served by mail or fax and (2) to serve other parties electronically upon request.[1] Documents served electronically by 11:59 p.m. on a court day are deemed served that day, and documents served on weekends or holidays are deemed served the next court day. Confidential or sealed documents “must be served through encrypted methods to ensure the documents are not improperly disclosed.”
Effect on deadlines. Although electronic service is near-instant, Rule 12 will actually require building in more time for motions and other deadlines. The rule incorporates CCP 1010.6(a)(4), which with limited exceptions extends by two days all statutory or rule-based deadlines calculated by “any period or on a date certain after the service of a document.”[2] So, for example, a civil motion, which must ordinarily be served and filed at least 16 court days before the noticed hearing date, will instead be due 18 days prior. With hearing dates hard to come by and even harder to keep these days, lawyers who don’t heed this change could end up missing out on the opportunity to have a crucial motion heard for who knows how long. Counsel who want to keep their cases moving should seek a stipulation to treat electronic service the same way as personal service for purposes of calculating deadlines.
The rule will remain in effect until 90 days after Governor Newsom lifts the COVID-19 state of emergency.
[1] Electronic service on pro se parties is permitted with written consent, but not required.
[2] CCP 1010.6(a)(4) does not apply to notices of motions for a new trial, to vacate a judgment under CCP 663a, or to appeal a judgment.