Judicial Council issues emergency rules for civil practice during COVID-19 pandemic

The following is an update on recent California legislative developments that may be of interest:

On April 6, the Judicial Council of California issued eleven Emergency Rules meant to address issues raised by the COVID-19 pandemic.  A copy these Emergency Rules can be found here. These Emergency Rules, which take effect immediately, significantly modify procedural and substantive rights of parties in California state court.  A summary of these Emergency Rules as they affect civil practice are summarized below.

Emergency Rule 1. Unlawful detainers

In this emergency rule, the Judicial Council more or less bans unlawful detainer actions, residential or commercial, statewide.  Under this Emergency Rule, no court can issue a summons in an unlawful detainer action or enter a default in an unlawful detainer action unless the court finds it necessary to “protect public health and safety.” 

Ironically, the only unlawful detainer actions that may proceed are ones where the summons was issued before April 6 and the defendant has appeared.  In these cases, trial may not be set until 60 days after a request for trial is made, or if trial is set, it must be continued 60 days from the initial trial date.  An exception again exists if “necessary to protect public health and safety.”

This emergency rule will remain in effect until 90 days after the Governor declares the end of the State of Emergency or the rule is revised.  Accordingly, this prohibition on unlawful detainer judgments is likely to be in place for a very significant period of time. 

Emergency Rule 2. Judicial foreclosures—suspension of actions

This emergency rule applies to any judicial action for foreclosure on a mortgage or deed of trust, including any action for a deficiency judgment, until 90 days after the Governor declares the end of the State of Emergency or the rule is revised.  The emergency rule automatically stays the action unless the “action is required to further the public health and safety.”  Any statute of limitation relating to a judicial foreclosure is tolled, and any period for exercising a right of redemption or other right is “extended.”

This emergency rule, by its language, does not appear apply to actions to foreclose on personal property or on a judgment lien on real or personal property. 

The emergency rule also does not state if the entire case is stayed or just the causes of action for judicial foreclosure.  It is likely that this issue will need to be resolved on a case-by-case basis for any mixed action which includes causes of action for judicial foreclosure.

Emergency Rule 3. Use of technology for remote appearances

This emergency rule allows courts to conduct judicial proceedings by remote means and to require parties to participate in remote proceedings by phone, video, or other method.  This emergency rule appears to encompass any type of proceeding up to a bench trial.  The emergency rule provides a large amount of discretion to the court as to how the remote proceeding will proceed.  This emergency rule will remain in effect until 90 days after the Governor declares the end of the State of Emergency or the rule is revised. 

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

This emergency rule provides that any restraining or protective order that “is set to expire during the state of emergency related to the COVID-19 pandemic must be automatically extended for up to 90 days from the date of expiration to enable a protected party to seek a renewal of the restraining order.”  The emergency rule provides that courts must provide some method for parties to file ex parte requests for a temporary restraining order, with an electronic dropbox being the preferred method.  Finally, the emergency rule provides that service of a temporary restraining order need not be made on a party who appeared at the hearing through any remote means.

For practitioners with clients subject to a temporary restraining order that was set to expire, this emergency rule does not appear to provide any discretion for the court not to renew the temporary restraining order under the normal grounds for doing so (mootness, changed circumstances, etc.).  As the emergency rule does not facially preclude a motion to lift or vacate an injunction, that remedy appears to remain an option for parties seeking to have an injunction lifted.

Emergency Rule 9. Tolls the statutes of limitations for civil causes of action

This emergency rule tolls the statutes of limitation for civil causes of action “from April 6, 2020, until 90 days after the Governor declares that the state of emergency related to the COVID-19 pandemic is lifted.” 

It should be noted that, to the extent a cause of action may have normally expired shortly before April 6, 2020, it may have been tolled past April 6 under emergency orders issued by local county orders or prior emergency order by the California Supreme Court.

Finally, there is little guidance as to whether this extension would also apply in federal diversity actions or as to statutes of repose.  Practitioners facing statute of limitations deadlines should thus tread carefully to ensure this emergency rule applies to the claims at issue.

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

This emergency rule extends California Code of Civil Procedure section 583.310’s five-year deadline to bring a case to trial by six months, for a total of five years and six months.  This six-month extension applies to all cases pending as of April 6, 2020, whether the five-year period is about to expire or the case was filed as recently as April 6. 

This emergency rule also extends California Code of Civil Procedure section 583.320’s three-year deadline to bring a case where a new trial was ordered to trial by six months, to three years and six months.  Again, this extension applies to all cases pending as of April 6, 2020, whether the three-year period is about to expire or the case was filed on April 6.

Emergency Rule 11. Depositions through remote electronic means

This emergency rule waives the requirement of California Code of Civil Procedure section 2025.310(a) and (b), and California Rule of Court 3.1010(c) and (d), requiring party and non-party deponents to be present in the same room as the deposition officer.  Under this emergency rule, the party taking the deposition or the party being deposed may elect to have the deposition officer take the record remotely.  This emergency rule will remain in effect until 90 days after the Governor declares the end of the State of Emergency or the rule is revised.

These materials were written by Bernard Kornberg of Severson & Werson in San Francisco (bjk@severson.com).  Editorial contributions were provided by Kyra Andrassy of Smiley Wang-Ekvall, LLP, in Costa Mesa (kandrassy@swelawfirm.com).  Mr. Kornberg and Ms. Andrassy are members of the Insolvency Law Committee.