BILL ANALYSIS
AB 2119
Page 1
Date of Hearing: March 23, 2010
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 2119 (Tran) - As Introduced: February 18, 2010
PROPOSED CONSENT
SUBJECT : CIVIL PROCEDURE: DEADLINES: COMPUTATION
KEY ISSUE : IN ORDER TO REMOVE ANY AMBIGUITY ABOUT WHAT METHOD
SHOULD BE USED TO COUNT THE NUMBER OF DAYS BEFORE A HEARING,
SHOULD THE CODE OF CIVIL PROCEDURE CLARIFY THAT THE LAST DAY TO
PERFORM ANY ACT REQUIRED TO BE PERFORMED A SPECIFIED NUMBER OF
DAYS BEFORE A HEARING DATE SHALL BE DETERMINED BY COUNTING
BACKWARD FROM THE HEARING DATE?
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
SYNOPSIS
This non-controversial bill would clarify the method of counting
days in situations where a statute requires that a certain act,
such as service of papers, be completed a specified number of
days before a hearing. This bill provides that the last day to
perform any such required act shall be determined by counting
backward from the hearing date, excluding the day of the hearing
itself. In addition, this bill specifies that any additional
days added to the specified number of days before a hearing
because of a particular method of service shall be computed by
counting backward from the day also determined using the
prescribed method. This bill essentially codifies the method
already practiced by most lawyers and courts in counting days
before a hearing. This bill is sponsored by the State Bar,
which believes that by providing a bright line rule for counting
days before a hearing, this bill would increase clarity and
consistency that benefits both litigants and the courts. This
bill has no known opposition.
SUMMARY : Prescribes a bright line rule for counting the number
of days before a hearing date. Specifically, this bill :
1)Provides that where any law requires an act to be performed no
later than a specified number of days before a hearing date,
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the last day to perform that act shall be determined by
counting backward from the hearing date, excluding the day of
the hearing.
2)Provides that any additional days added to the specified
number of days because of a particular method of service shall
be computed by counting backward from the day determined in
accordance with the method specified above.
EXISTING LAW includes several statutes that require service a
specified number of days before a hearing, and allows various
periods for notice or service to be extended based on counting
of calendar days and court days, as defined. For example, the
Code of Civil Procedure:
1)Requires moving and supporting papers to be served at least 16
court days before the hearing, excludes Saturdays, Sundays,
and certain holidays from the definition of "court days", and
requires the 16-day period of notice before the hearing to be
increased by a specified number of calendar days, depending on
the method of service. (Code of Civil Procedure Section
1005.)
2)Requires notice of a motion for summary judgment and
supporting papers to be served at least 75 calendar days
before the hearing, and increases the 75-day period either by
a specified number of calendar days if served by mail or by
two court days if served by fax, express mail, or overnight
delivery. (Code of Civil Procedure Section 437c.)
3)Provides that 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. (Code of Civil Procedure Section 12.)
COMMENTS : This non-controversial bill, sponsored by the State
Bar of California's Committee on Administration of Justice,
would clarify the method of counting days in situations where a
statute requires that a certain act, such as service of papers,
be completed a specified number of days before a hearing. This
bill essentially codifies the method already practiced by most
lawyers and courts, which is to count backward from the hearing
date, excluding the day of the hearing itself. In addition,
this bill specifies that any additional days added to the
specified number of days before a hearing because of a
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particular method of service shall be computed by counting
backward from the day also determined using the prescribed
method.
The sponsor believes this bill is necessary to offer clarity and
consistency because of the possibility that a party could lose
substantive rights if it employs a different counting method
than that used by the court hearing the case. The sponsor
reports that, in addition to comments of concern that the law is
not clear, it is aware of at least one case in which a party
failed to timely serve important documents because of such a
discrepancy and lost substantive rights as a result. In support
of the bill, the sponsor writes:
Clarity and consistency are needed because
[determination of a key deadline date] may differ,
depending on whether the days are counted backward
from the hearing date or forward from the service
date, and if the period of time includes a combination
of "court" days and "calendar" days. It also makes a
difference whether any additional days for service are
added closest to the hearing date or closest to the
service date. The number of non-court days excluded
from a particular count can differ, depending on their
placement in the sequence.
Calculating the last day for service before a hearing
is an everyday occurrence in civil litigation.
Something as basic as counting days before a hearing
should be free from ambiguity and the purpose of this
bill is to provide clarity and consistency in this
regard.
Split Authority Under Case Law. The author contends that there
is no definitive authority on the proper method of counting days
under all possible circumstances, and that to the extent there
is any case law, the authority is split. For example, in Dahms
v. Downtown Pomona Property (2009), the California Court of
Appeal for the 2nd District stated in a footnote that the notice
requirement CCP 1005 can be satisfied by counting 16 days
backwards from the hearing date, excluding the date of the
hearing itself. (173 Cal.App.4th 1201, 1207, n.3.) In
contrast, the Court of Appeal for the 3rd District in Barefield
v. Washington Mutual Bank (2006) held that "increasing a 75-day
period by two court days implies the addition occurs at the end
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of the 75-day period instead of at the beginning." (136
Cal.App.4th 299, 303.)
This bill would help to resolve the split in authority under
California case law and by providing a bright line rule for
counting time for service, would eliminate any ambiguity for
litigants as well as for the courts. For this reason, the bill
is supported by both the Consumer Attorneys and the Judicial
Council.
REGISTERED SUPPORT / OPPOSITION :
Support
Committee on Administration of Justice, State Bar of California
(sponsor)
Judicial Council of California
Consumer Attorneys of California
Opposition
None on file
Analysis Prepared by : Anthony Lew / JUD. / (916) 319-2334