Kevin And Don Respond To Being Self Loathing

Looking back at their journey from the Stonewall Democratic Club to Log Cabin Republicans, they claim it was one that was actually started by the democrats. After being told that marriage as not a priority on the agenda in 1995, they became disillusioned with the DEMS. For a decade they felt like they did not belong until they met the republicans of the Log Cabin Republican Club and discovered they too shared a dream of marriage equality. This blog is now a digital time capsule of their time as Republicans and moderated by a friend and supporter.

Sunday, October 15, 2006



New Law on Filing Deadlines Results in Ambiguities
Focus Column
By Kevin Norte

AB3078, approved by Gov. Arnold Schwarzenegger on July 15, 2004, amends, in part, Section 1005 of the Code of Civil Procedure effective for motions made on or after Jan. 1. Attorneys need to be aware of this change in the law - and some resulting ambiguities.

Existing law provides for the deadlines, by reference to calendar days, for service of specified moving, supporting and opposing papers regarding motions and other hearings, as well as the deadline for the completion of discovery proceedings before trial and the deadline for demands involving the exchange of information concerning expert witnesses before trial.

The newly enacted statute revises those deadlines by referring to court days while leaving intact the references to calendar days for mailings, rather than just referring to calendar days or court days. AB3078 also makes other related changes.

The new rules to remember are that, unless an order shortening time is obtained, motions, demurrers and preliminary injunctions (where no temporary restraining order is issued) made on or after Jan. 1 must be filed at least 16 court days before the hearing. Oppositions must be filed nine court days before the hearing, and replies must be filed five court days before the hearing.

These amendments provide no benefit to parties who make motions before the effective date because amendments of this type are prospective and can only affect a notice of a hearing to be held after the effective date. See Civil Code Section 3 cf. Strauch v. Superior Court, 107 Cal.App.3d 45 (1980); De Miglio v. Superior Court, 115 Cal.App.3d 973 (1981).

The only motion that can be filed nine court days before the hearing is a motion to strike a demurrer. Code of Civil Procedure Section 435(b)(3).

AB3078 incorporates further changes to the Civil Discovery Act, set forth in AB3081 (effective July 1, 2005), which also was signed by the governor. AB3081, however, does not affect the operative date of the revisions to Code of Civil Procedure Section 1005(b).

Under Code of Civil Procedure Section 1005.5, a motion is deemed to have been made, and to be pending before the court for all purposes, on due service and the filing of the notice of motion. Cromwell v. Cummings, 65 Cal.App.4th Supp. 10 (1998).

Under Code of Civil Procedure Section 12, the notice period is computed by excluding the day that service was made (the date of mailing, for example) and includes the last day, unless it is a holiday - in which case it is also excluded. Lamanna v. Vognar, 17 Cal.App.4th Supp. 4 (1993) (three-day-weekend rule).

According to Government Code Section 6806, "[a] day is the period of time between any midnight and the midnight following." In computing days, "fractions are not counted but are deemed entire days." People v. Harvey, 193 Cal.App.3d 767 (1987).

For oppositions, Section 1005(b) requires service and filing "at least nine court days" before the hearing; therefore, the problem with the prior statute's 10th day's falling on a weekend is resolved. Before the change, the papers must be filed on the last day the court is open for business before the 10th day (See Steele v. Bartlett, 18 Cal.2d 573 (1941) (permitting "an extension would be to nullify legislative intent that an act must be performed more than a designated number of days before the event specified.") The same holds true for replies.

What has not changed is the requirement that proofs of service of the moving papers shall be filed no later than five calendar days before the hearing. State Rule of Court 317(c).

There are some delivery exceptions to the state's new 16-court-day plus either 2-5-10-20 additional calendar days for fax, express, mail in-state, mail out-of-state and mail out-of-country minimum-notice requirements. While not inclusive, the main requirements are at least 75 days' notice for summary judgment/adjudications (Code of Civil Procedure Section 437(a)) and 45 days' notice for discretionary dismissal motions based on delay in prosecution (Code of Civil Procedure Section 373 (a).

There remains the issue of notice regarding protective orders related to discovery motions. Whether sought affirmatively or in response to a discovery motion, these types of motions are subject to the Code of Civil Procedure Section 1005 notice provisions because protective orders may be issued only "pursuant to a motion." Code of Civil Procedure Sections 2017(c) and 2019(c).

Local rules related to motions and demurrers are pre-empted by state Rule of Court 981.1(a), and any local rule concerning these fields is null and void. Of course, the exception to this rule is the "local local rule" that the time and place of the filing, and the service of a motion in limine, shall be at the discretion of the trial judge. State Rule of Court 312(d)

It is questionable whether the five-calendar-day reply rule on motions to certify or decertify a class or amend or modify an order certifying a class under state Rule of Court 1854(c) remains valid, because that term is shorter than the legislated five-court-day rule for replies. See Laborers' International Union v. El Dorado Landscape Co., 208 Cal.App.3d 993 (1989).

Under a similar analysis, state Rule of Court 313(i) conflicts with the Code of Civil Procedure. While the Rule of Court states that, "to the extent practicable, all supporting memorandum, declarations, and affidavits must be attached to the motion," Code of Civil Procedure Section 1005(b) states that "all moving and supporting papers much be filed at least 16 court days before the hearing."

A temporary restraining order can remain in effect for up to 15 calendar days, unless the court permits a 22-calendar-day period for good cause shown. Code of Civil Procedure Sections 513.010(a) and 527(d)(1).

Under the revised Section 1005, a defendant is entitled to 16 court days' notice on a motion for a preliminary injunction, and, therefore, if good cause is not shown, the temporary restraining order would dissolve before the motion for a preliminary injunction's being heard. Further, even if good cause is shown, the plaintiff may face detrimental timing issues if he or she is not careful.

There are also some exceptions to the notice rules in the event of a natural disaster (earthquake, fire or flood, for example) and civil unrest (including riots and terrorist attacks). If a branch court in a particular county is closed during such an event, it is not a considered holiday. If, however, all the courthouses where the document can be filed (that is, in an entire county) are closed, then the day would count as a court holiday in that county. Bennett v. Suncloud, 56 Cal.App.4th 91 (1997).

Thirteen 13 holidays cannot be included in the counting of court days when filing motions with the court.

It does make a difference whether one first counts 16 court days or first the five calendar days, or whether one counts backward from the hearing date or forward from the date of the proof of service, because the sequence determines how many noncourt days are included or excluded in a particular count.

No published state case has been found discussing priority of applying a count of mixed calendar and court days. Hence, a resolution of the question here is one of statutory interpretation.

Legislative interpretation begins by examination of the language of the statute, giving the words their ordinary meaning and considering them in the context of the statutory framework. Barnes v. Department of Corrections, 74 Cal.App.4th 126 (1999).

Also, Section 1013(a) provides no precedent for counting under Section 1005, because Section 1013 uses different language from Section 1005 amendments, using "increased" and "before the hearing."

Section 1013(a) states, "[A]ny period of notice ... shall be extended five calendar days, upon service by mail." So Section 1013 presents no problem as to what kind of days to extend and where to count them (since they match old Section 1005's use of calendar days, without mixing day types).

One logical interpretation of the amended Section 1005 is to follow the sequence in which it reads - that is, 16 court days, increasing by five calendar days "before the hearing" for mailing, such that the calendar days fall on the later dates.

On the other hand, the rule leaves enough ambiguity that, arguably, the five calendar days could be counted as the earlier days. To demonstrate the differences, below are some applied hypothetical scenarios.

On a computer calculator, CalDays (at, calculating notice starting with calendar days for a notice date of Nov. 30, 2005, the earliest allowed hearing date was Dec. 28, 2005. However, calculating notice starting with court days, the earliest hearing date was Dec. 27, 2005.

As another example, counting manually for an Nov. 30, 2005, hearing date, counting backward and starting with calendar days gives a service date of Nov. 1, 2005. In contrast, for an Nov. 30, 2005, hearing date, counting backward and starting with court days gives a service date of Oct. 29, 2005.

Of course, if there is opposition on the merits, then issues of proper notice are waived. Defects in motion service are waived where an opposition was filed addressing the merits. Carlton v. Quint, 77 Cal.App.4th 690 (2000), modified 2000 C.D.O.S. 928.

At this juncture, whether court days are counted before counting calendar days is open to interpretation and susceptible to vigorous debate among some in the legal community. The use of CalDays should be encouraged, but it is just one tool in the process of deciding whether a motion was timely made or not.

Kevin Norte, a court research attorney, is a member of the State Bar's Committee on the Administration of Justice.


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