California Procedures: Chapter 2

Introduction

 

Tab Text

Chapter 2:

 

Filing and Service

 

First Read:

 

•  LBTN Ch 2

 

Introduction

 

With few exceptions, all parties who have appeared in a lawsuit (interested parties) must be served with a copy of each document being filed with the court.  Additionally, certain documents not filed with the court (e.g., discovery documents) must be served on all parties.  This chapter deals with the various methods of serving documents on parties and filing documents with the court after the summons and complaint are served.  (We emphasize after the summons and complaint are served, because service of the summons and complaint is entirely different.)   It also covers calendaring deadlines -- how to determine the deadline by which a document must be filed and/or served.

 

 

Lecture Notes

 

Tab Text

Original documents typically filed with court with proof of service, and copies served on parties same day original filed.  Documents sent to court via attorney service, messenger, mail, fax, or in some courts, electronically.  All docs filed with court physically (not digitally) must be in proper format, e.g., footers, proof of service, 2-hole punched at top in correct place, or clerk can reject them.

 

Discovery docs not filed with the court (e.g., don’t file notice of deposition, interrogatories, requests for admission, requests to produce, or any responses to discovery).  Court doesn’t get involved in discovery unless parties have dispute, e.g., motion to compel further answers, motion for protective order, etc.

 

 

Allowable methods of service after summons and complaint are served:

 

•     hand delivery

•     mail

•     fax (but only if parties agree accept fax service and confirm agreement in writing)

•     express mail

•     overnight delivery

•     electronic service (allowed or required by court order or agreement of the parties; any party may express agreement by serving notice that they agree, a represented party who eFiles a document is deemed to have agreed to eService, but a self-represented party who eFiles is not deemed to have consented.)

 

Of the above methods of service, only hand delivery results in immediate delivery to the recipient. So that the recipient is not prejudiced by the delay in receiving the document, certain time periods are extended depending on how the document is served.

 

(1) C.C.P. § 1013 extends time for recipient to respond to various documents* depending upon service method.  If document served:

 

•    by mail to recipient within CA - add 5 days to response time

•    by mail to recipient outside CA - add 10 days to response time

• by fax, express mail or overnight delivery - add 2 COURT days to response time [court day is generally day courts are open for business, i.e., days other than weekends and court holidays, but including “limited service days,” on which court can be closed].

 

*Read C.C.P. § 1013 and 1010.6: note that there are time frames which are expressly excluded from the application of the section, i.e., time is not always extended.  There are also exceptions in other statutes and rules. 

 

Examples of application of C.C.P. § 1013: 

 

C.C.P. provides that party served with interrogatories has 30 days from service to serve response. 

 

•     If rogs served personally, response must be served w/in 30 days after service of the rogs.  If rogs served by mail to person w/in CA, response to rogs must be served w/in 35 days after rogs were mailed (30 + 5).

•     If rogs served by mail to recipient outside CA, response to rogs must be served w/in 40 days after rogs were mailed (30 + 10).

•     If rogs served by fax, express mail or overnight delivery, response to rogs must be served w/in 30 + 2 COURT days after rogs were served. 

 

(2) C.C.P. § 1005(b) increases notice of motion period for regular motions and C.C.P. § 437c increases time for motions for summary judgment and summary adjudication. C.C.P. § 1005(b) requires 16 court days advance notice of motion, plus extra time depending upon service method (5 for mail w/in CA, 10 for mail outside CA but in U.S., 2 days if via fax, express mail, overnight delivery).  C.C.P. § 437c requires 75 days advance notice of motion for summary judgment and summary adjudication, plus extra time depending upon service method (5 for mail w/in CA, 10 for mail outside CA but in U.S., 2 COURT days if via fax, express mail, overnight delivery. 

 

Neither C.C.P. § 1005(b) nor C.C.P. § 437c specifies how the extra days are to be counted, e.g., are the extra days counted closest to the service date or closest to the hearing date?  Which direction do you count, forward from service date or backward from hearing date?

 

Question is now answered (effective Jan. 1, 2011) in C.C.P. § 12c:  Count backward from hearing date, counting notice of motion period first, and continuing backward to add extra days.

 

Note difference between C.C.P. § 1013, C.C.P. § 437c, and C.C.P. § 1005(b) = extra 2 COURT days under §1013 and § 437c vs. extra 2 days under § 1005(b).

 

(3) C.C.P. § 1010.6 and C.R.C., Rule 2.260 (electronic service) increase time for recipient to respond and notice of motion period. When electronic service is used to serve notice of motion, 2 COURT days must be added to the notice of motion period.  When a document requiring or allowing a response within a specific period is served electronically, 2 COURT days are added to the recipient’s response time.  Note, however, that C.C.P. § 1010.6 and C.R.C., Rule 2.260 do not extend all deadlines, and are only allowed where ordered by the court or where agreed upon by the parties. 

 

Correct calendaring requires:

 

•     Knowing how to count days. When calculating the time within which an act is to be performed, you exclude the first day, and include the last day.  (C.R.C., Rule 1.10(a))  Thus, if something is served on April 1, and a response is due within 30 days, you start counting on April 2 as the first day, and find that the 30th day (the due date) is May 1.

 

•     Knowing CA court holidays.  Referring to a calendar showing federal holidays only is a mistake!  California celebrates Lincoln’s Birthday, Cesar Chavez Day, and the day after Thanksgiving, which are not federal holidays!

 

•     Knowing what to do when a deadline falls on a holiday.  C.R.C., Rule 1.10(a) provides that if the last day to perform an act which must be performed within a specified period of time (e.g., responding to discovery within 30 days) falls on a weekend or legal holiday, the period in which to perform is extended to the next court day.  [If due date for response to interrogatories falls on Saturday or Sunday, then due date extended to following Monday (unless Monday = holiday, in which case due Tuesday if Tuesday isn’t legal holiday).]

 

•     Knowing how to adjust for the method of service and determine the “last day.”  When determining the last day to respond to a document not personally served, the “last day” is determined by counting the number of days allotted pursuant to the applicable code section or rule, and then immediately adding any applicable extension of time.  Only if that last day falls on a weekend or holiday do you adjust the deadline.

 

 

All documents served on the other party must have proof of service form attached (whether or not document is filed with court).  Various optional proof of service forms available through Judicial Council.  Many firms have own forms.

 

Whatever form/type of proof of service is used, must accurately state what was served, method of service, and on whom/where/when served.  Multi-party cases have more requirements relating to proof of service.

 

 

 

 

Application

 

Tab Text

Application #1

 

It is June 4, 2013.  You have just been personally served with a set of interrogatories.   What date should you calendar as the date the response must be served?  

 

 

Application #2

 

It is June 6, 2013.  You have just been served by fax with a set of interrogatories.   What date should you calendar as the date the response is due?  

 

 

Application #3

 

You are working in a law office in Oakland, CA.  Your employer tells you she is working on a motion, which will be heard on April 25, 2012.  The attorney for the opposing party is located in San Diego, CA.  Your employer wants to avoid the cost of personally serving the attorney in San Diego, but is concerned that she won=t have it finished on time.  She asks you to advise her of the following:

 

A.   What's the last day she can serve it personally?

B.    What's the last day she can serve it by fax?

C.    What's the last day she can serve it by mail?

D.   What's the last day she can serve it electronically?

 

 

 

 

 

 

Application Answers

 

Tab Text

Answer to Application #1

 

July 5, 2013. 30 days after June 4 is July 4. Remember C.R.C., Rule 1.10(a): If the last day to perform an act which must be performed within a specified period of time (e.g., responding to discovery within 30 days) falls on weekend or legal holiday, the period in which to perform is extended to the next court day. The next court day is July 5, 2013.

 

 

Answer to Application #2

 

July 9, 2013. 30 days after June 6 is Saturday July 6. Immediately count two more court days to July 9. The fact that the 30th day of June fell on a weekend is irrelevant because the "last day" is 30 days plus two court days.

 

 

Answer to Application #3

 

A. Just count backward 16 court days from April 25 to April 3, 2013.

B. You already know that 16 court days before April 25 is April 3. Count backward 2 more days, and you land on April 1. Since it is Cesar Chavez Day, you must continue going backward to the next court day, which is Friday, March 29, 2013.

C. You already know that 16 court days before April 25 is April 3. Count backwards another 5 days to Friday, March 29, 2013.

D. You already know that 16 court days before April 25, 2013 is April 3. Just count backward another 2 court days to Friday, March 29, 2013.

 

 

 

 

 

Chapter Review

 

Tab Text

A.        What are the two key differences between C.C.P. § 1005(b) and C.C.P. § 1013?

 

B.         Assume you have a motion hearing date, and you are counting backward from the hearing date to determine the last day to serve by fax. Assume further that the 16th court day falls on a Tuesday, and therefore, the 2 extra days for fax service falls on a Sunday. Question: When calculating the last day to serve your notice, do you increase the amount of notice by choosing Friday, or do you decrease the amount of notice by choosing  Monday?

 

C.         What are the special rules relating to proofs of service in multi-party cases?

 

D.        What are the prerequisites for serving a document by fax?

 

E.         What are the six prerequisites for filing a document by fax?

 

F.         Does C.C.P. § 1013 always apply to extend the period in which a party must perform a particular act when service was by mail?  

 

 

 

Chapter Review Answers

 

Tab Text

A.        (1) C.C.P. § 1005(b) deals only with motions, while C.C.P. § 1013 deals with deadlines for other documents, including discovery.  (2) C.C.P. § 1005(b) adds 2 calendar days for service by fax, express mail or overnight delivery, while C.C.P. § 1013 adds 2 court days for service by fax, express mail or overnight delivery.

 

B.        You should calculate the last day to serve as Friday. You may give more notice than is required, but you may not give less notice than is required. Serving on Monday would give you 16 court plus only 1 extra day, when 16 court plus 2 extra days are required. 

 

C.         (1)       C.R.C., Rule 1.21(c) requires the proof of service to state which party or parties each of   the attorneys is representing.  (2) C.R.C., Rule 3.254 requires the first named plaintiff in a multi-party case to maintain a current list of the parties and their service addresses, and to furnish a copy of the list on request to any party or the court. 

 

D.        (1)       Before serving a document by fax, the parties must agree to accept service by fax, and confirm that agreement in writing.  (2) The party serving by fax must be sure that the extra days added for service by fax under C.C.P. § 1005(b) or C.C.P. § 1013, as applicable, do not exceed any deadlines.

 

E.         (1) The documents must comply with C.R.C., Rule 2.100-2.119.  (2) Exhibits have to be reduced to 8 2 x 11.  (3) By fax must appear immediately below the title of the document being faxed.  (4) The documents must be accompanied by a Facsimile Transmission Cover Sheet (Judicial Council Form No. MC-005).  (C.R.C., Rule 2.304(b)).  (5) A fax filing fee must be paid.  (6) Local rules must be checked and followed.

 

F.         Absolutely not.  Read the statute.  By its express language, it does not apply to deadlines for filing notice of intention to move for new trial, notice of intention to move to vacate judgment pursuant to Section 663a, or notice of appeal.  There are also other statutes which specifically state that extensions are inapplicable (e.g., READ C.R.C., Rule 3.1312.) 

 

 

 

 

 

Chapter Quiz

 

Tab Text

 

Click here for the Chapter Quiz.

 

This is the tool you will use to evaluate whether you are ready to proceed to the next Chapter.

 

 

 

Edited July 10, 2013