Breaking News: Emergency Rules of the California Rules of Court Effective April 6, 2020 Impact All Forms of Litigation

The rules will remain in place until revoked or amended by the Judicial Council or until the end of a 90-day period after the Governor declares the end of the COVID-19 state of emergency. These new rules could dramatically impact pending litigation and potential legal claims of all types, as discussed below.

The Emergency Rules contain eleven new rules. Businesses and individuals with pending cases of any type, as well as potential legal claims should be particularly aware of four of these new rules: Rules Nos. 3, 9, 10, and 11, discussed further below.

Emergency Rule No. 3: Use of technology for remote appearances.

To comply with Shelter In Place Orders and promote social distancing protocols, courts must conduct judicial proceedings and court operations remotely. Conducting proceedings remotely includes, but is not limited to the following: (1) the use of video, audio, and telephonic means for remote appearances; (2) the electronic exchange and authentication of documentary evidence; (3) e-filing and e-service; and (4) the use of remote reporting and electronic recording for official records of an action or proceeding. While telephonic appearances have been permitted in most courts previously, this new rule mandates their use during the period of emergency.

Emergency Rule No. 9: Toll the statutes of limitations for civil causes of action.

Notwithstanding any other law, the statutes of limitation for civil causes of action are tolled from April 6, 2020, until 90 days after the Governor declares the state of emergency for COVID-19 is lifted. 

This emergency rule has a wide-ranging impact both for plaintiffs and defendants in civil cases. For plaintiffs, this new rule provides flexibility in that those bringing civil claims will have several months beyond the current statute of limitations or filing deadline to file their complaints. For defendants, the new rule extends the time period during which they may face legal action for alleged violations of law, providing uncertainty in some circumstances. Importantly, for defendants, the tolling of applicable statutes of limitations affects any civil defense based on the expiration of the applicable statute. The extension of the statute of limitations in civil causes of action also means civil litigation becomes more expensive for both sides of a dispute because the matter has a potentially longer shelf life.

Litigants on both sides of a dispute should carefully review the applicable statute(s) of limitation in their case and determine the new deadline under this emergency rule. There may also be litigation regarding whether the Judicial Council, rather than the legislature, had the authority to extend the statutes of limitations.

Emergency Rule No. 10: Extensions of time in which to bring a civil action to trial.

Similar to Emergency Rule No. 9, this new rule has significant impact on both plaintiffs and defendants in civil actions. Normally, the deadline for a plaintiff to bring a civil action to trial is five years from the commencement of the action. Under this emergency rule, for all civil actions filed on or before April 6, 2020, the time in which to bring the action to trial is extended by six months for a total time of five years and six months. And for all civil actions filed on or before April 6, 2020, if a new trial is granted in the action, the three years provided in Code of Civil Procedure section 583.320 in which the action must again be brought to trial is extended by six months, for a total time of three years and six months.

Similar to the new rule tolling applicable statutes of limitation in civil actions, this emergency rule extends the life of a civil case. This may result in additional time, expense and burden on the litigants, as well as the judicial system. In addition, extending the trial deadline in civil cases impacts a defendant’s ability to seek dismissal within five years of the filing of a complaint. A defendant must now wait an extra six months to bring such a motion seeking mandatory dismissal. For plaintiffs, the new rule is favorable because it provides plaintiffs with additional time to investigate and prosecute civil claims before bringing them to trial.

As with the new rule extending statutes of limitation, litigants on both sides of a civil action should carefully examine how this emergency rule impacts the time to bring the case to trial or re-trial in a case where a new trial has been granted.

Emergency Rule No. 11: Depositions through remote electronic means.

Under the emergency rules, deponents are required to appear remotely for depositions. Similar to Emergency Rule No. 3, this new rule promotes social distancing protocols. A party or nonparty deponent, at their election or the election of the deposing party, is not required to be present with the deposition officer at the time of the deposition. While telephonic depositions have been used by some litigants previously, this new rule mandates their use during the period covering the emergency rules to reduce the spread of COVID-19.

The Emergency Rules can be found in their entirety at the link here.