Gerald L. Sauer
Partner Sauer & Wagner LLP
litigation, intellectual property, business law
1801 Century Park E Ste 1150
Los Angeles , CA 90067-2331
Phone: (310) 712-8102
Fax: (310) 712-8108
Email: gsauer@swattys.com
UC Hastings
Gerald Sauer is a founding partner at Sauer & Wagner LLP in Los Angeles. He has been litigating for 34 years, and specializes in intellectual property and business law. He can be reached at (310) 712-8102 or by email at gsauer@swattys.com
The coronavirus pandemic has changed virtually everything we know about the practice of law. Attorneys now interact with their clients via Zoom conferences rather than in person. Documents are filed remotely, not hand-delivered. Trials now include remote jury selection, video attendance, masks and social distancing. Civil matters, already substantially backlogged, have moved into the slow lane.
This article examines statutory changes enacted during and in response to the pandemic, as well as procedural changes implemented by trial and appellate courts to help keep the justice system operating during this unprecedented time.
Urgency Measures
In September, the California Legislature enacted changes to the California Code of Civil Procedure and California Government Code to address challenges presented by COVID-19. The new laws, made necessary by the pandemic, are scheduled to expire after the pandemic has been declared over. However, as courts and attorneys integrate new processes into their vernacular, a number of these changes could become permanent fixtures of the California legal system even if no longer legally mandated.
Senate Bill 1146 codifies procedural changes that were put into place by the California Judicial Council on March 4, when California's shelter-in-place order was issued. It establishes procedures for electronic service and remote depositions, and it extends certain civil deadlines for the duration of the COVID-19 emergency plus 180 days after the emergency ends, in the interest of public safety. Assembly Bill 3366 creates uniformity in how the state declares emergency orders affecting the courts and empowers the chief justice of the California Supreme Court to issue such orders without having to wait for the governor's permission or for individual courts to request orders.
Signed into law by Gov. Gavin Newsom in September, both laws took effect immediately: "This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the California Constitution and shall go into immediate effect."
The laws are overseen by trial and appellate courts throughout the state, which are responsible for reviewing local conditions and issuing guidance and rulings on their implementation.
Document Service and Filings
Before the pandemic closed courthouses and confined lawyers to their houses, trial courts had discretion to adopt rules regarding electronic filing of documents, but unless a court ordered electronic service on a party or the party expressly consented to receive electronic service for the action, documents had to be served by mail, express mail, overnight delivery, or facsimile transmission.
Although electronic transmission of documents has been commonplace for years, California civil litigation practice has been slow to catch up. In counties without mandatory electronic service procedures, litigants have not been required to accept service of papers electronically. Notices and documents such as interrogatories and document requests have been served in paper form unless the other parties expressly consented to electronic service.
On March 18, the California Supreme Court amended Rule 2 of the California Supreme Court Rules regarding electronic filing. It mandated that "henceforth and until further notice, all documents (including briefs) must be filed electronically on the 'TrueFiling' platform, and paper copies should not be submitted." A carve-out was provided under rule 4(a) for pro per parties and trial courts, and under Rule 6 any party can seek to be excused from mandatory electronic filing.
The Judicial Council adopted Emergency Rule 12, which required parties represented by counsel to accept electronic service of notices and other documents -- as long as the serving party first confirmed the appropriate electronic service address for counsel being served. Rule 12 likewise required parties, represented by counsel, to electronically serve other parties who requested and provided an address for such service.
SB 1146 codifies the emergency rule by amending CCP Section 1010.6 for cases filed after Jan. 1, 2019. Any party who is represented by counsel and has already appeared in an action may elect to accept service electronically or elect to serve other represented parties electronically. In other words, the law now requires any represented party to accept electronic service of documents. Represented parties must serve documents electronically if the other party requests electronic service and provides notice of the rule. Self-represented parties may, but are not required to, register for electronic filing. If they elect to register for TrueFiling, they must comply with this rule and the requirements of TrueFiling.
Even as the new Section 1010.6 streamlines procedures and allows more work to be done remotely, lawyers and law firms will still need to process incoming paper mail received from self-represented parties.
Remote Appearances
SB 1146 also codifies Emergency Rule 11, which allows remote -- rather than face-to-face -- depositions and makes the physical presence of parties or attorneys of record optional at depositions.
The rule, which allows court reporters to participate in depositions remotely such as by videoconferencing, is codified in amended CCP Section 2025.310. The party noticing a deposition, or the deponent, may elect to have the court reporter attend the deposition remotely, and the reporter need not be physically present to swear in a deponent.
The court reporter, parties to the case, and their lawyers may now participate in the deposition remotely, and witnesses may testify via videoconference. Subject to the court's protective orders under CCP Section 2025.420, the revised statute allows any party or attorney of record to attend the deposition in person. This could result in a conflict between a witness who wants to socially distance and a party or attorney who wants to be in the room with them. However, the odds of a judge requiring a deponent, who wants to socially distance, to appear in person with any other parties or attorneys are extremely small as long as the COVID-19 pandemic continues.
In addition to protecting people's health, remote depositions will eliminate attorney travel time and increase accessibility by letting parties who live far from the deposition site participate or observe in real time.
Remote appearances, however, raise a host of new concerns, including technical challenges and platform compatibility. Attorneys must consider how parties and witnesses will appear on remote technology, including: lighting, audio, background and dress. Close attention to these details could enhance on-screen presence and credibility. Attorneys must also ensure that the transmission platform for the court, such as Los Angeles County's LACourtConnect, will support their mode of presentation.
Extensions of Time
The new laws codify Judicial Council emergency rules that toll statutes of limitations and extend time for bringing civil actions to trial. It extends deadlines on discovery, disclosure of experts, mandatory settlement conferences, and serving documents.
SB 1146 amends CCP Section 599 to automatically continue all pretrial deadlines and trial dates during the COVID-19 state of emergency and 180 days thereafter. Unless otherwise ordered by a court or agreed to by the parties, a continuance or postponement of a trial date extends any deadlines that have not already passed as of March 19, 2020, applicable to discovery, including the exchange of expert witness information, mandatory settlement conferences, and summary judgment motions in the same matter. The deadlines extend for the same length of the continuance or postponement.
AB 3366 amends Government Code Section 68115 to provide that a date or dates on which an emergency condition substantially interfered with the public's ability to file papers in a court or prevented a court from conducting proceedings or accepting petitions filed pursuant to certain sections of the Welfare and Institutions Code will be deemed a holiday for purposes of computing the time for filing papers. The law extends the time period to bring an action to trial, as well as the duration of any temporary restraining order that would otherwise expire because an emergency condition prevented the court from conducting proceedings to determine whether a permanent order should be entered. In both cases, the extension will be for "the fewest days necessary under the circumstances of the emergency, as determined by the Chairperson of the Judicial Council." Other changes to Section 68115 extend time periods under the Penal Code for holding preliminary examinations and trials.
Jury Selection
Along with remote depositions and witness testimony, courts are dealing with remote jury selection and even video or telephonic jury attendance at trials in order to safeguard public health. The process of questioning prospective jurors is considerably more challenging when they are not physically present, and the constraints of courtroom attendance no longer ensure their undivided focus and attention during a trial. In a recent Los Angeles case, a mistrial was sought after an attorney reported that jurors appeared to sleep, exercise or leave the room at times during voir dire.
It is still unclear how jury trials will be conducted across the state, but for jurors who are expected to be physically present, masks and physical distancing will be required. Additional protections, such as plexiglass barriers, may also be mandated by individual courts.
At the same time as the coronavirus has delayed trials, forced participants to attend remotely, and upended the jury selection process, significant changes have been made to the composition of the jury pool. Effective Jan. 1, 2022, SB 592 will expand the list of potential jurors so that it is more representative of the population. Instead of using just voter registration and driver's license lists, courts will now be required to draw jury candidates from everyone who files state income tax returns, including those who claim the earned-income credit.
AB 3070, also effective in 2022, will limit the removal of prospective jurors without cause. It shifts the burden of proof for peremptory challenges in order to address discrimination based on race, ethnicity, religion or other category. Instead of requiring proof of an attorney's intentional bias when striking a prospective juror, the law will require the attorney to provide a reason for the exclusion and ask the judge to determine if a reasonable person would view the juror's membership in a protected class as a factor in the use of the challenge.
Conclusion
Laws governing remote court appearances, electronic filings and extended deadlines have actually been in effect for some time; we're just now seeing them in statutory garb. California attorneys have had to learn about and work with technology since early in the year.
As the coronavirus pandemic comes to an end in the next year or so, we can expect to see a move toward court reopenings and a concomitant move to end the reliance on technology. But don't expect e-filings and Zoom hearings to go away any time soon. Along with frustrations and technical glitches, we've seen increases in efficiency and effectiveness that bode well for a technologically enhanced legal future.