• Andrew Domer

California Judicial Council adopts emergency rules regarding COVID-19

California’s Judicial Council has adopted rules to address the COVID-19 pandemic shut downs, including extending the statute of limitations, suspending evictions and foreclosures, and allowing greater discretion to hold trials remotely and perform/compel depositions remotely.

The rules were adopted after an Executive Order gave the courts special authority to address the pandemic, with the most notable civil rule change being the tolling of the statute of limitations for civil actions and foreclosures. The tolling is set go from April 6, 2020, and last until 90 days after the Governor declares that the state of emergency related to the pandemic is lifted – or the Judicial Council amends or repeals.

New York Governor Andrew Cuomo had already tolled all time limitations in legal proceedings until April 19, 2020, with another similar tolling expected soon, whereas other states such as Texas, have left the choice of suspension of the limitations periods to the local courts. In light of differing federal and state actions involving limitations periods (and the moving target date for returning “back to normal”), California companies and litigants need still pay close pay close attention to choice of law provisions in contracts, identifying federal limitations periods, and understanding when and how federal courts borrow state limitations periods for federal claims. While most courts retain authority to equitably toll limitations periods, parties are always well advised to explore entering into a tolling agreement together to help resolve any mutual ambiguity.

In California now, the rules no doubt help provide consistency among the various Superior Courts that had previously responded with similar, yet differing, court rules. For example, the Los Angeles Superior Court had already on its own extended the period of time in which a civil action must be brought to trial under CCP section 583.10 (the five-year statute) by 30 days. However, the rules set forth by the California Judicial Council this week extend both the three-year [CCP section 583.320] and the five-year statutes by a period of six months from the original deadline date.

Various Superior Courts have also continued trial dates for cases with current or upcoming dates, with the the LA Superior Court for example continuing all cases with trial dates between March 23 and May 23, while also suspending all trials set through June 22. Rather than applying blanket continuances statewide, these rules instead sought to help facilitate trial activity in courtrooms and remote access for depositions.

Specifically, the rules now allow the courts to require that proceedings be held remotely (criminal cases require Defendant’s consent, civil cases do not). Conducting proceedings remotely includes, but is not limited to, the use of video, audio, and telephonic means for remote appearances; the electronic exchange and authentication of documentary evidence; e-filing and e-service; the use of remote interpreting; and the use of remote reporting and electronic recording to make the official record of an action or proceeding. Additionally, a party or nonparty deponent is not required to be present with the deposition officer at the time of the deposition, and can at his/her election or the election of the deposing party, appear “through remote electronic means” – as widely defined above to include video or telephone.

These two “remote access” rules could jump-start existing litigation that was stalled either in the middle of discovery, or on the courtroom doorsteps. The last few weeks had seen oral depositions come to a near halt, with the refusal of witnesses or court reporters to appear in the same room as 3+ parties and violate social distancing measures in the process. Now, the deposing party can demand the deposition take place remotely, and the deponent (or the adverse party) cannot rely on the social distancing measures to avoid or delay depositions. If the deposing party chooses remote, the witness must of course be compelled for that remote deposition. Conversely, the deposing party cannot compel the witness to attend a deposition in-person, as the witness now has the option to choose remote accessibility.

While these rules will have an immediate effect, the suspension of all entry of default judgments on unlawful detainers[1], as well as the staying of all judicial foreclosures (and tolling of the associated statutes of limitations), will obviously be felt most immediately by landlords and tenants in California, both residential and commercial. As it relates to the court’s calendar and the parties’ ability to plan and prepare for anticipated litigation costs, the effects of the general statute of limitations extension and the suspension of evictions and foreclosures will likely be felt in due time, when the tolling expires (whenever that is). While courts and litigators have seen an understandable reduction in the amount of claims being brought over the past month, and while that reduction should now continue for at least 90 days, California may see a flood of claims filed as soon as the Shelter-in-Place order is lifted.

This flood may also be exacerbated by an onslaught of insurance claims, breach of contract claims, and a million other direct and indirect consequences of the pandemic. Yet, with the backlog of priority cases and five-year cases, it remains to be seen how fast the wheels of justice will begin to move once restarted. While these new rules are meant to provide some semblance of guidance and consistency for the California litigation community, we can expect additional rules and guidance as the battle against COVID-19 continues and evolves.