Computation of Time in the California Code of Civil Procedure

 

By Michael Reiter, Attorney at Law

Computation of time is very important in any California lawsuit.  Litigants, attorneys and support staff should be aware of how to calendar important dates and deadlines.   The answer can generally be found in the California Code of Civil Procedure section 12, Computation of Time.  That section reads, as of the date of this post:

“The time in which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last day is a holiday, and then it is also excluded.”   This section is probably going to stay in effect for awhile, it was originally enacted 140 years ago  in 1872.

California Code of Civil Procedure section 12 is modified by section 12a, which was added in 1933, and as of this writing, last amended in 2007.  It reads, as of the date of this post:

(a) if the last day for the performance of any act provided or required by law to be performed with a specified period of time is a holiday, then that period is hereby extended to and including the next day that is not a holiday.  For purposes of this section, “holiday” means all day on Saturdays, all holidays specified in Section 135 and, to the extent proved in Section 12b, all days that by terms of Section 12b are required to be considered as holidays.

(b) This section applies to Sections 659, 659a, and 921, and to all other provisions of law providing or requiring an act to be performed on a particular day or within a specified period of time, whether expressed in this or any other code or statute, ordinance, rule, or regulation.

California Code of Civil Procedure section 135 reads, as of the date of this post:

   Every full day designated as a holiday by Section 6700 of the Government Code, including that Thursday of November declared by the President to be Thanksgiving Day, is a judicial holiday, except September 9, known as “Admission Day,” and any other day appointed by the President, but not by the Governor, for a public fast, thanksgiving, or holiday.  If a judicial holiday falls on Saturday or Sunday, the Judicial Council may designate an alternative day for observance of the holiday.  Every Saturday and the day after Thanksgiving Day is a judicial holiday.  Officers and employees of the courts shall observe only the judicial holidays established pursuant to this section.

This section was added in 1985, and last amended in 2001.  Government Code section 6700 reads, as of the date of this post:

The holidays in this state are:

(a) Every Sunday.

(b) January 1st.

(c) The third Monday in January, known as “Dr. Martin Luther King, Jr. Day.”

(d) February 12th, known as “Lincoln Day.”

(e) The third Monday in February.

(f) March 31st known as “Cesar Chavez Day.”

(g) The last Monday in May.

(h) July 4th.

(i) The first Monday in September.

(j) September 9th, known as “Admission Day.”

(k) The second Monday in October, known as “Columbus Day.”

(l) November 11th, known as “Veterans Day.”

(m) December 25th.

(n) Good Friday from 12 noon until 3 p.m.

(o) Every day appointed by the President or Governor for a public fast, thanksgiving, or holiday.

Except for the Thursday in November appointed as Thanksgiving Day, this subdivision and subdivisions (c) and (f) shall not apply to a city, county, or district unless made applicable by charter, or by ordinance or resolution of the governing body thereof.

If the provisions of this section are in conflict with the provisions of a memorandum of understanding reached pursuant to Chapter 12 (commencing with Section 3560) of Division 4 of Title 1, the memorandum of understanding shall be controlling without further legislative action, except that if those provisions of a memorandum of understanding require the expenditure of funds, the provisions shall not become effective unless approved by the Legislature in the annual Budget Act

 

California Code of Civil Procedure sections 659 and 659a pertain to motions for new trials, and section 921 has to do with continuance of an attachment after an appeal by levying party.

The computation of time continues with California Code of Civil Procedure section 12b, which reads as of the date of this posting:

If any city, county, state or public office, other than a branch office, is closed for the whole of any day, insofar as the business of that office is concerned, that day shall be considered as a holiday for the purposes of computing time under Sections 12 and 12a.

California Code of Civil Procedure section 12b was added by the legislature in 1951.

California Code of Civil Procedure section 12c reads, at the time of this posting:

(a) Where any law requires an act to be performed no later than a specified number of days before a hearing date, the last day to perform that act shall be determined by counting backward form the hearing date, excluding the day of the hearing as provided in Section 12.

(b) Any additional days added to the specified number of days because of a particular method of service shall be computed by counting backward form the day determined in accordance with subdivision (a).

This section was added by the statutes of 2010, A.B. 2119.  I was curious to see the legislative history of this bill.  It was introduced on February 18, 2010 by Assemblymember Van Tran, a Republican from Orange County.  The bill, as introduced, is exactly as shown in the chaptered version shown above.  According to a biography I found online, he was the managing partner of a law firm before being elected to the Assembly.

No votes were cast against A.B. 2119.  The bill was sponsored by the State Bar of California Committee on Administration of Justice.   The bill was supported by the California Judges Association CompuLaw, LLC, Consumer Attorneys of California, the Judicial Council of California, and the San Francisco Association for Docket Calendar & Court Services.

Why was this law needed?  According to the Senate Committee Analysis dated June 9, 2010:

California law provides deadlines for notice to be given of hearings on certain motions and deadlines for service and filing of motions, oppositions, and replies thereon. Prior to 2004, the Code of Civil Procedure calculated by calendar days the service of specified moving, supporting, and opposing papers regarding motions and other hearings, the deadline for the completion of discovery proceedings prior to trial, and the deadline for a demand for the exchange of information concerning expert witnesses prior to trial. AB 3078 (Assembly Judiciary Committee, Chapter 171, Statutes of 2004) and AB 3081 (Committee on Judiciary, Chapter 182, Statutes of 2004), among other things, revised those deadlines by referring to court days rather than calendar days. This bill would further clarify the method for calculating these deadlines by providing that they would be calculated by counting backward from the date of the scheduled hearing and would exclude the hearing date.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Milligan, Beswick, Levine & Knox, LLP
A: 1447 Ford St. #201
      Redlands, CA 92374
T: (909) 296-6708

 

Gophers Can Cause Trip and Falls

By Michael Reiter, Attorney at Law.

I went out for another walk today, in the late afternoon.  I love to see California native wildlife, like a California Pocket Gopher

I am a big fan of California wildlife, particularly Pocket Gophers, though not as much as my late friend Emma.  I had never seen a living pocket gopher before, but this individual poked his head up a few times, and I was able to get a picture of his head.  Unfortunately, I only had an iPhone to take a picture, and it was from about six feet away.

Gophers can cause damage to lawns.  They can also damage parks.  When I was a Deputy City Attorney for the City of San Bernardino, I defended a lawsuit involving an AYSO coach who allegedly tripped and fell in a field in Wildwood Park.  Because the case involved a public entity, the plaintiff had to plead and prove a dangerous condition of  public property cause of action, but with a private landowner, the standard is typically negligence.  The case also involved cross-complaints against the City’s pest controller contractor and the American Youth Soccer Organization.  If I recall correctly, the American Youth Soccer Organization, Inc. picked up the City’s defense under an express indemnification clause in a field use agreement.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Michael Reiter, Attorney at Law

A: 300 E. State St. Suite 517
Redlands CA 92373-5235
T: (909) 296-6708

W: http://michaelreiterlaw.com

How To Fill Out Central District of California Form CV-01A – Summons

By Michael Reiter, Attorney at Law

Litigation in the United States District Court, Central District of California requires litigants and their attorneys to adhere to the Federal Rules of Civil Procedure, the Local Rules and General Orders, as well as unwritten rules.  While there are a number of reasons to be in Federal Court (federal question, diversity), most of my practice in the Central District of California relates to violations of Federal civil rights under 42 United States Code section 1983, though I have appeared in other cases as well.  Here are the rules to follow for completing the form Summons.

Federal Rule of Civil Procedure Rule 4 reads:

Rule 4. Summons

(a) Contents; Amendments.

(1) Contents.

A summons must:

(A) name the court and the parties;

(B) be directed to the defendant;

(C) state the name and address of the plaintiff’s attorney or — if unrepresented — of the plaintiff;

(D) state the time within which the defendant must appear and defend;

(E) notify the defendant that a failure to appear and defend will result in a default judgment against the defendant for the relief demanded in the complaint;

(F) be signed by the clerk; and

(G) bear the court’s seal.

(2) Amendments.

The court may permit a summons to be amended.

(b) Issuance.

On or after filing the complaint, the plaintiff may present a summons to the clerk for signature and seal. If the summons is properly completed, the clerk must sign, seal, and issue it to the plaintiff for service on the defendant. A summons — or a copy of a summons that is addressed to multiple defendants — must be issued for each defendant to be served.

Statement of Interested Parties

As of the date of this writing, the Local Rules say:

The summons shall be prepared by the attorney upon forms supplied by the Clerk.  Central District of California Local Rule L.R. 4-1.

United States District Court Central District of California Form CV-01A is dated October 2011.  A fillable (but not saveable) PDF is available at the Central District of California’s website under “Forms.”

First, fill out the section that says “Name & Address” in the upper left hand corner. Local Rule 11-3.8 states:

(a) The name, California bar number, office address (or residence address if no office is maintained), the telephone and facsimile numbers, and the e-mail address of the attorney or a party appearing pro se presenting the document shall be placed commencing with line 1 at the left margin. The e-mail address shall be placed immediately beneath the name of the attorney. Immediately beneath, the party on whose behalf the document is presented shall be identified. All this information shall be single spaced. When a document is presented, the information set forth in this paragraph shall be supplied for each attorney or party appearing pro se who joins in the presentation of that document.

Next, fill out the caption.  The caption on the Summons should read exactly as it does on the Complaint.  The Deputy Clerk will check the Summons against the Complaint.  What happens if the room on the mandatory form is not long enough to put in all the information found in the Complaint?  Add an Attachment, on pleading paper and otherwise compliant with the local rules showing the additional information and affix it to the original Summons and the copies of the Summons.

Next, if the Complaint has already been filed without a Summons issuing, put the case number under the heading “CASE NUMBER.”

Next, add the days of service as appropriate, check the appropriate box for complaint, amended complaint, counterclaim, or cross claim, and the name and address of the attorney or pro se litigant.  The Clerk will date the Summons, sign and affix the seal to the original, and stamp the copies.

As an initiating document, the summons must be issued by the Clerk (either in person or by express delivery/mailing with a self-addressed stamped return envelope.)  Pursuant to General Order 10-07, you are required to email an issued copy of the summons in PDF format “by close of business the following day,” and pursuant to Local Rule 3.2 “within 24 hours.”  Choose the shorter of the two.

The Summons will not be filed at the time of issuance, so there is no need for blue backing and hole punching, as required by L.R. 11.5.  However, there should be an original and as many copies as there are defendants.

A: 300 E. State St. Suite 517
      Redlands, CA 92373-5235
T: (909) 296-6708

W: http://michaelreiterlaw.com