Getting to Court in the Wake of the COVID-19 Pandemic

Maria Bellafronto

Between March 23 and April 17, Governor Gavin Newsom signed Executive Orders authorizing California’s Chief Justice Tani G. Cantil-Sakauye and the Judicial Council to take emergency action to address critical issues facing the courts in light of COVID-19. Twelve (12) “Emergency Rules” were enacted in order to ensure compliance with shelter-in-place and social distancing requirements, and to protect the health and safety of the court staff and the public. After receiving authority from the state’s Chief Justice, presiding judges of state courts throughout California implemented their own temporary relief measures and changes to their court operations, such as limiting court access, declaring court holidays, and extending time for trials.

The Emergency Rules seek to maximize options for conducting court business remotely, including allowing courts to require judicial proceedings and court operations to be conducted remotely through video or telephone, permitting depositions to be conducted through electronic means, and mandating electronic service for represented parties. The Emergency Rules will remain in place until revoked or amended by the Judicial Council, or until the end of the 90-day grace period after Governor Newsom declares the end of the COVID-19 state of emergency.  The key provisions of the Emergency Rules related to civil cases are outlined below:

  1. Unlawful Detainers:  Suspending the issuance of a summons or the entry of default in unlawful detainer cases except as needed for the health and safety reasons; and continuing all such trials at least 60 days (Emergency Rule 1).
  2. Judicial Foreclosures:  Suspending judicial foreclosure actions except as needed to further public health and safety, including any action for a deficiency judgment; tolling any applicable statute of limitation period for filing any new foreclosure action; and extending time periods by which a party must exercise any rights, including rights of redemption (Emergency Rule 2).
  3. Remote Proceedings:  Allowing courts to require judicial proceedings and court operations to be conducted remotely through video or telephone where available technology exists, including remote appearances, electronic exchange of documents or e-service, and remote reporting (Emergency Rule 3). These changes will create future efficiencies as courts and attorneys, who may have been reluctant to try using technology for depositions, mediations, hearings and trials due to practical difficulties, may be more inclined to use certain technology going forward.
  4. Emergency, Temporary or Protective Orders:  Extending the timeframes for specified temporary restraining orders set to expire during the state of emergency related to COVID-19; and providing means for ex parte requests for temporary restraining orders (Emergency Rule 8).
  5. Statute of Limitations/Time to Bring Case to Trial:  Tolling the statutes of limitations governing civil causes of action from April 6; extending the time to bring an action to trial, including where new trials have been granted, by six months for cases filed prior to April 6 (Emergency Rules 9 and 10). Litigants on both sides of a dispute should carefully review the applicable statute(s) of limitation in their case and determine the new deadline under these new emergency rules.
  6. Depositions: Allowing electronic depositions where the deponent and court reporter are not in the same room (Emergency Rule 11). Attorneys in our office are successfully using Zoom to conduct depositions remotely, to keep their cases moving forward.
  7. Electronic Service:  Requiring represented parties to accept electronic service of legal documents, rather than insisting on service by mail. (Emergency Rule 12).

If you would like to review the complete list of rules, they can be found at California Judicial Counsel Emergency Rules.

The California court system was overburdened before this pandemic. Although necessary for the public’s protection, we expect one of the impacts of the shutdown is that it will take longer to get a final resolution through trial and/or to obtain provisional remedies (such as, injunctions, writs of attachments, or other “emergency” relief, civil in nature).  

As an example, unlawful detainer cases which are “summary proceedings” normally require a trial to commence within 21 days of the filing of a “trial readiness statement.” Once the stay on unlawful detainer proceedings is lifted, we expect commercial evictions will take a back seat to residential cases – meaning commercial landlords may not be able to secure evictions until late this year or early next year. For many commercial landlords, this could dramatically impact their businesses. 

In addition, the potential ramifications of the stay on a litigant’s ability to obtain a writ of attachment or seek emergency injunctive relief, set forth in Emergency Rule 8, is not clear, but we know it will be difficult (if not impossible) to obtain “ex parte” relief upon 24 hours’ notice, as before.

There is no question that many commercial disputes will arise as a direct result of the COVID-19 pandemic, including parties seeking refunds on canceled events, landlords pursuing evictions due to defaulting tenants, foreclosures, contract cancellations, and the list goes on.

Hopkins & Carley continues to provide advice to clients on many of these issues. Undoubtedly, the Courts will eventually be called upon to decide key legal issues that will be at the heart of many of the disputes that arise, including, whether performance was truly impossible because of the pandemic, whether force majeure clauses are enforceable, and whether certain defenses such as “frustration of purpose” or “legal impracticability” are available. For a deeper dive into these defenses please read our recent alert, “Force Majeure and Other Contract Performance Questions.”

Litigants seeking to avoid the delays associated with proceeding through the court system should consider alternative dispute resolution (“ADR”), such as mediations and arbitrations with third-party agencies such as JAMS or ADR Services, Inc. These agencies may provide a good option for dispute resolution, whether it is virtually, or in person when the shelter in place orders are lifted.

Our firm continues to monitor the Emergency Orders affecting litigation and intends to provide updates and more guidance if needed. If you have any questions regarding any of the orders or how the COVID-19 pandemic is affecting litigation, please feel free to contact our litigation group. To stay up-to-date with all of the latest legal issues regarding COVID-19 please visit the Hopkins & Carley COVID-19 Resources page.

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