BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
AB 2119 (Tran)
As Introduced
Hearing Date: June 10, 2010
Fiscal: No
Urgency: No
TW:jd
SUBJECT
Civil Procedure: Deadlines: Computation
DESCRIPTION
This bill, sponsored by the State Bar of California Committee on
Administration of Justice, would add to the Code of Civil
Procedure a definitive method of calculating specified action
deadlines, including the service and court filing of specified
motions, oppositions, and replies, as they pertain to court
hearings.
BACKGROUND
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.
(more)
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CHANGES TO EXISTING LAW
Existing law 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 Civ. Proc. Sec. 12.)
Existing law provides that the time for service and filing of
moving and supporting papers is at least 16 court days before
the hearing. (Code Civ. Proc. Sec. 1005(b).)
Existing law provides that notice of a motion for summary
judgment and supporting papers shall be served at least 75 days
before the hearing. (Code Civ. Proc. Sec. 437c.)
This bill would provide that, when calculating service and
filing deadlines of motions, oppositions, and replies, the
deadline will be counted backward from the hearing date,
excluding the day of the hearing.
This bill would provide that additional days added to the
deadline because of a particular method of service shall be
computed by counting backward from the deadline date.
COMMENT
1. Stated need for the bill
The author writes:
This bill clarifies the method of counting days in situations
where a statute requires that a certain act (such as service
of a brief) be done a specified number of days before a
hearing date.
This bill provides that where the law requires that an act be
performed no later than a specified number of days before a
hearing date, the last day to perform that act will be
determined by counting backward from the hearing date,
excluding the day of the hearing. The bill further provides
that any additional days that need to be added because of a
particular method of service will be computed by continuing to
count backward.
2. Existing statutes do not specify the method of counting
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deadlines relating to hearing dates
Existing law does not specify how a litigant should count -
backward from or forward to a hearing date - in order to
determine the last day to file and serve court papers. The
court in Dahms v. Downtown Pomona Property & Business
Improvement (2009) 174 Cal.App.4th 708, 715 counted days
backward from a hearing to determine the proper deadline for
serving notice of the hearing. On the other hand, the court in
Barefield v. Washington Mutual Bank (2006) 136 Cal.App.4th 299,
303 suggested that days should be counted forward to the hearing
date. Barefield dealt with deadlines pertaining to a hearing
on a motion for summary judgment. Typically with a motion for
summary judgment, moving parties request a hearing date from the
court that is at least 75 days from the date on which the moving
party will file and personally serve the motion. To determine
the hearing date, the moving party counts forward 75 days. The
method of counting becomes even more difficult when counting
"court days" (see Code of Civ. Proc. Sec. 437c) as well as
"calendar days" (see Code of Civ. Proc. Sec. 1005).
The sponsor of this bill, the State Bar of California Committee
on Administration of Justice, reports "at least one situation
where a party lost substantive rights because the party counted
backward from the hearing date, but the court counted forward
from the service date, which made service untimely." As the
Judicial Council of California, a supporter of this bill, points
out, "AB 2119 rectifies this problem by providing a bright line
rule for counting time for service, providing clarity for both
litigants and the courts."
In order to definitively resolve the issue of counting deadlines
pertaining to court hearings, this bill would specify that these
deadlines will be determined by counting backward from the
hearing date. This means that when the hearing date is unknown
(i.e., a motion for summary judgment), the hearing date will
first need to be determined by counting forward 75 days from the
projected filing and service date. The filing and service
deadline then will need to be verified by counting backward from
the potential hearing date, excluding from the count the date of
the hearing, to make certain the filing and service deadlines do
not fall on a holiday and conforms to Code of Civil Procedure
Section 12.
Support : California Judges Association; CompuLaw, LLC; Consumer
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Attorneys of California; Judicial Council of California;
Judicial Council of California; San Francisco Association for
Docket Calendar & Court Services
Opposition : None Known
HISTORY
Source : State Bar of California Committee on Administration of
Justice
Related Pending Legislation : None Known
Prior Legislation : See Background.
Prior Vote :
Assembly Judiciary Committee (Ayes 10, Noes 0)
Assembly Floor (Ayes 76, Noes 0)
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