Impact Of Emergency Court Rules In Light Of COVID-19 On Litigation In California

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Impact of Emergency Court Rules in Light Of COVID-19 on
Litigation in California

The COVID-19 pandemic has had a significant impact on the already overburdened California court system, which has been forced to balance the timely administration of justice and certain rights afforded by law, with compliance with shelter-in-place and social distancing requirements as well as the health and safety of the court staff and the public.

Presiding judges of state courts throughout California implemented their own temporary relief measures, such as limiting court access, declaring court holidays, and extending time for trials, among many other changes to court operations after receiving approval from California Chief Justice Tani G. Cantil-Sakauye.

The Chief Justice also issued her own guidance and statewide orders, resulting in the modification of court operations and procedures. On March 23, the Chief Justice issued an order that, among other things and subject to certain restrictions, suspended and continued jury trials throughout the state for 60 days; extended the time period to begin trials; and broadly permitted local superior courts to adopt rules to address COVID-19 through a streamlined process.  The March 23 order was clarified and updated with a March 30 order.

On March 28, Governor Gavin Newsom signed Executive Order N-38-20, authorizing the Chief Justice and the Judicial Council to take emergency actions to address critical issues facing courts in light of COVID-19. Pursuant to the California Constitution, the Judicial Council is the policymaking body responsible for ensuring the consistent, independent, impartial, and accessible administration of justice in California. In her role as the chair of the Judicial Council of California, the Chief Justice already has called two telephonic emergency Judicial Council meetings.

On April 6, the Judicial Council approved 11 Emergency Rules to ensure California courts can comply with government restrictions designed to protect the public health and safety during the pandemic while protecting the constitutional due process rights of parties in both criminal and civil proceedings. For civil cases, the most notable rules are the following:

  1. Unlawful Detainers:  Suspending the issuance of a summons or the entry of default in unlawful detainer cases except as needed for the health and safety reasons; and continuing all such trials at least 60 days (Emergency Rule 1);
  2. Judicial Foreclosures:  Suspending judicial foreclosure actions except as needed to further public health and safety, including any action for a deficiency judgment; tolling any applicable statute of limitation period for filing any new foreclosure action; and extending time periods by which a party must exercise any rights, including rights of redemption (Emergency Rule 2);
  3. Remote Proceedings:  Allowing courts to require judicial proceedings and court operations to be conducted remotely through video or telephone where available technology exists, including remote appearances, electronic exchange of documents or e-service, and remote reporting (Emergency Rule 3);
  4. Emergency, Temporary or Protective Orders: Extending the timeframes for specified temporary restraining orders set to expire during the state of emergency related to COVID-19; and providing means for ex parte requests for temporary restraining orders (Emergency Rule 8);
  5. Statute of Limitations/Time to Bring Case to Trial: Tolling the statutes of limitations governing civil causes of action from April 6; extending the time to bring an action to trial, including where new trials have been granted, by six months for cases filed prior to April 6 (Emergency Rules 9 and 10); and
  6. Depositions: Allowing electronic depositions where the deponent and court reporter are not in the same room (Emergency Rule 11).

These rules went into effect April 6 and unless otherwise set forth in the text of the rule remain in effect for 90 days after the Governor lifts the state of emergency, or until modified, repealed by the Judicial Council.

Although temporary, these emergency rules likely will have significant lasting impacts on lawsuits for months, and possibly years, after the rules are no longer in effect.

For example, it is well known that the California judicial system is already underfunded and overloaded. In some counties, judges have a limited amount of time to spend reviewing motion papers, hearings are being pushed out for months longer than required under statute, and trials are not being set for several years after a case is filed. While necessary, the temporary suspension of civil trials will only exacerbate these issues for both pending and future cases.

In addition, the potential ramifications of the 90-day statute of limitations tolling period set forth in Emergency Rule 9 on claims with shorter limitations periods is unclear. For instance, challenges brought under the California Environmental Quality Act (CEQA), must typically be filed within 30-days after the lead agency posts a notice of determination. This short limitations period reflects the Legislature’s recognition that legal challenges to development projects must be brought promptly to avoid unduly prejudicing needed development. This new emergency rule appears to triple that 30-day limitations period after the emergency order is lifted. If applied to CEQA cases, or other claims that have short limitations periods, Emergency Rule 9 may undermine the legislative intent behind the shorter timeframe.

Other rules may create future efficiencies as courts and attorneys, who have been reluctant to try using technology for depositions, mediations, hearings and trials due to practical difficulties may be more inclined to use certain technology going forward.  If such technology were used regularly, either by agreement or permanent enactment of the rules allowing for its use, lawyers, parties and third-parties may not need to travel to court or the locale of a deposition or mediation to participate in person but could do so remotely.

Given the impact of these rules and how quickly they were enacted in light of the state of emergency, the Judicial Council may need to revisit some of them to address unintended consequences. And, as COVID-19 events continue to develop, the Judicial Council may need to issue additional rules to assist the courts to continue balancing due process and access to justice with government regulations and public safety.

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