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Apr 23 Attorney Articles, Recovery Resources

Emergency Court Rules During COVID-19 Restrictions Explained

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On April 6, the Judicial Council of California enacted eleven emergency rules for court proceedings throughout California in response to the COVID-19 (coronavirus) pandemic.  For the past several weeks, the individual state courts have been issuing various emergency orders to address court operations in the face of county, state, and federal restrictions on movement and gatherings.  Last Monday, the Judicial Council began to tackle some of the novel issues created by this “new normal.”

Note that San Diego Superior Court is temporarily closed (except for emergency matters) through April 30.  Despite this and other court closures, cases continue to proceed with the resources currently available.

Notably, the Judicial Council’s emergency rules have:

  • Effectively banned unlawful detainer actions until 90 days after the Governor lifts the state of emergency
  • Extended the statute of limitations for civil matters until 90 days after the Governor lifts the state of emergency
  • Extended the five-year limit for bringing a case to trial by six months
  • Allows for remote depositions

Below is a summary of all emergency rules.  (The complete set of rules may be found here.)  Unless otherwise noted, the following rules all remain in effect until 90 days after the Governor lifts the state of emergency, or the rule is amended or repealed by the Judicial Council.

Emergency rule 1.  Unlawful detainers

One of the most drastic rules comes from the realm of unlawful detainers (“UD”).  While evictions based on failure to pay rent have been suspended since March 25, 2020, this emergency rule prevents even the issuance of a summons in a UD action for any reason unless the court finds it necessary to protect public health and safety.  This emergency rule effectively prohibits both residential and commercial UD actions.  Further, this rule also applies to defaults and default judgments.  However, if a defendant has appeared in an action and a trial date has been set, the trial is continued for at least 60 days.

Emergency rule 2.  Judicial foreclosures—suspension of actions

All foreclosure actions, including deficiency judgments, are stayed, unless required to further public health and safety.  Additionally, the statute of limitations is tolled and the period for exercising any right of redemption or petitioning the court pertaining to such a right is also extended.

Emergency rule 3.  Use of technology for remote appearances

Courts may require proceedings and court operations be conducted remotely.  In criminal matters, the defendant must consent to conduct remote proceedings (see emergency rule 5).

Emergency rule 4.  Emergency Bail Schedule

This rule enacts a statewide Emergency Bail Schedule, which sets bail for all misdemeanor and low-level felony offenses at $0.  For the offenses excepted, the countywide bail schedule remains in effect, including any enhancements.  Under this rule, courts still have the ability to deny bail as authorized by the California Constitution, or reduce the amount of bail listed in the countywide bail schedule.

Bail for misdemeanor probation violations is also set at $0.  Felony probation, parole, post-release community supervision, or mandatory supervision violations are set in accordance with countywide bail schedule.

Emergency rule 5.  Personal appearance waivers of defendants during health emergency

Defendants can waive personal appearance and agree to appear remotely.  Defendants can also consent to waive appearance at all and permit counsel to appear on his or her behalf for all criminal proceedings except for murder with special circumstances and cases where the defendant is currently incarcerated in state prison.  When the defendant appears remotely, counsel does not have to be present with him or her if the technology used for remote access allows for private attorney-client communications.

Emergency rule 6.  Emergency orders; juvenile dependency proceedings

Rule 6 requires that all essential matters be prioritized in accordance with existing statutory time requirements.

Foster Care.  Foster care hearings can proceed via remote technology and court reports must be served and accepted electronically.  Moreover, courts are permitted to make any statutorily required findings by written stipulation when appearances are waived.  If a hearing cannot occur, it may be continued for up to 60 days.  Any previously authorized visitation must continue and may be suspended only upon a finding of detriment.  The manner of visitation will proceed in a way which ensures the needs of the family are met.

Emergency rule 7.  Emergency orders; juvenile delinquency proceedings

Detention hearings are now permitted to proceed to up to 7 days from when the minor is taken into custody.  Remote proceedings are also permissible.  The court should prioritize hearings pertaining to psychotropic medication applications, emergency medical requests, petitions for reentry of a nonminor dependent, for any request for a warrant for a child, and a probable cause determination for a child who has been detained but not yet had a detention hearing.

Further, the court may continue hearings for non-detained children until after the state of emergency has been lifted.  Permanency hearings must be made within 12 months of the date children are placed into foster care.  Lastly, remediation services for children who have been found incompetent may also be tolled.

Emergency rule 8.  Emergency orders: temporary restraining or protective orders

Emergency protective orders related to domestic violence, abuse (including elder abuse), or abduction which were issued or set to expire during the state of emergency remain in effect for 30 days from the date of issuance.  Temporary restraining orders (“TROs”) or gun violence protective orders must remain in effect for up to 90 days from the date of issuance.  Criminal protective orders are automatically extended for up to 90 days, or until the matter can be heard, whichever is first.  All restraining and protective orders which have been enacted as a result of a hearing must remain in effect for up to 90 days from date of expiration.  Any court-modified orders must be sent to the Department of Justice.  Courts must also provide protected parties with a way to file ex parte requests to obtain and renew TROs.

Amended effective April 20, 2020.

Emergency rule 9.  Toll the statutes of limitations for civil causes of action

The Judicial Council has also tolled the statutes of limitations for all civil actions from April 6, 2020 until 90 days after the Governor lifts the state of emergency.

Emergency rule 10.  Extensions of time in which to bring a civil action to trial

The requirement all civil actions be brought to trial within 5 years is extended to 5 years and 6 months.  If you’ve been granted a new trial, the requirement the new trial be brought within 3 years has been extended to 3 years and 6 months.

Emergency rule 11.  Depositions through remote electronic means

Lastly, the Judicial Council indicated deponents are not required to be present with the deposition officer/court reporter.  However, nothing in this emergency rule requires a lawyer be physically remote from his or her client during a deposition, it only pertains to the deposition officer and the deponent.

Emergency rule 12.  Electronic service

As for electronic service, represented parties who have appeared in a civil action (including Family and Probate Law) must accept e-service of documents if requested by another party.  The serving party has a duty to confirm the appropriate e-mail or other electronic service address for service.  E-service on self-represented parties is only allowed with the written consent of that party.  Confidential documents must be served via encrypted methods.  E-service is deemed completed at the time the transmission was sent.

Adopted effective April 17, 2020.

Emergency rule 13.  Effective date for requests to modify support

This emergency rule applies to all requests to modify or terminate child, spousal, partner, or family support (notwithstanding Family Code sections 3591, 3603, 3653, and 4333).  For purposes of this rule, “request” refers to Request for Order (form FL-300), Notice of Motion (Governmental) (form FL-680), or other papers requesting modification.

An order modifying or terminating support may be made effective on the date the request is mailed/served on the other party, unless the order is made retroactive due to the unemployment of either party.  If a copy of the request and supporting papers are served on the other party, but have not yet been filed with the court, the serving party must subsequently serve another copy of the papers after they have been filed.  The subsequent filing is not required if the moving party is a local child support agency and the unfiled request has a valid court date and time listed on the request.

This rule does not restrict the court’s discretion in ordering a later effective date or limit the court’s discretion/alter rule 5.92 or 5.260 regarding which moving papers are required to request modification.

Adopted effective April 20, 2020.

Although there are still issues which need to be addressed, the Judicial Council is proactively taking steps to assist the legal community surrounding these unprecedented circumstances.  Please check back frequently, as we will be closely monitoring the Judicial Council’s response to the COVID-19 pandemic.

This article was originally published on April 13, 2020, and updated on April 23, 2020.