Here are a few new 2016 laws for litigators:
Amendments on the Eve of Hearing – C.C.P. §472
To further curtail abuse with last minute amendments, section 472 to prohibit the filing of amendments on the eve of hearings on demurrers. Under the revised statute, a party now may only amend without leave of court if it files its amendment before the date that any opposition to demurrer is due. (The parties may stipulate to filing of an amended pleading on a later date.)
This amendment goes with the new demurrer meet and confer law C.C.P. § 430.41.
Demurrers – C.C.P. § 430.41 added to require demurring party to attempt to meet and confer prior to filing demurrer and file meet and confer declaration with demurrer; limits on subsequent demurrers; limits amendments to pleadings after demurrer. This does not apply to unlawful detainer actions.
Notice of Deposition – C.C.P. § 2025.220(a)(8) added to require disclosure of contractual relationships between deposing party/third party financing case and court reporting agency or requirement that attorney use a particular reporting agency. This may have an impact on insurance defense counsel who have deals with certain court reporting agencies.
Motions for Summary Judgments and MSA’s – C.C.P. §437c speaks of “material fact” to emphasize that only material facts are to be raised and disputed. Now California Rules of Court Rule 3.1350 (a) adds a definition of what is a material fact. “”Material facts” are facts that relate to the cause of action, claim for damages, issue of duty, or affirmative defense that is the subject of the motion and that could make a difference in the disposition of the motion.”. The law also is revised and renumbered the section allowing parties to stipulate to an MSA not disposing of an entire cause of action.
More MSJ/MSA rules changes and additions in C.C.P. §437c.
A new section 437c(q) added to clarify that a court is only required to rule upon objections to evidence that it deems material to the given summary judgment or summary adjudication motion; any evidentiary objection not ruled on by the court shall be preserved for appellate review.
Also, Section 473c(t) added making permanent California’s previous partial summary judgment/adjudication statute Under the “new” section 437c(t), parties to California litigation can again bring a motion to summarily adjudicate an issue that does not completely dispose of a cause of action, affirmative defense, or issue of duty. Procedurally, the §437c(t) that took effect January 1, 2016 is the same as the old §437c(s) that lapsed a year ago.
Under new section 437c(t) the party seeking to bring such partial summary adjudication must first seek leave of the court to file the motion, provide a joint stipulation that the motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement. See § 437c(t)(1)(A)(i-ii) Other rules are also required. Within 15 days of receipt of the stipulation, the court must notify the parties as to whether the motion may be heard. If the court chooses, in its discretion, not to permit the motion be filed, the stipulating parties may request—and the court must then conduct—an informal conference to permit further evaluation of the notice. See § 437c(t)(3)
Section 437c and Rulings on Evidentiary Objections
Section 437c requires the court to consider all evidence submitted in support of a summary judgment motion, except evidence to which it sustains evidentiary objections. See § 437c(c). Parties must make any such objections on or before the summary judgment hearing; if they do not do so, the objections are deemed waived. See § 437c(a)(5).
Evidentiary objections in summary judgment proceedings are one of the most time-consuming pretrial matters they face. Citing the legislature noted cases such as Reid v. Google, Inc. 50 Cal.4th 512, 532 (2010).) where “the moving papers in support of a summary judgment totaled 1,056 pages, plaintiff’s opposition was nearly three times as long and included 47 objections to evidence, and the defendant’s reply included 764 objections to evidence.” Nazir v. United Airlines, Inc., 178 Cal.App.4th 243, 249, 250-251 and 254 (2009).
Consequently, in 2010 the California Supreme Court held that while the law requires all evidence be considered unless an objection is sustained, section 437c “does not mandate that, in the absence of express rulings, the underlying objections are waived on appeal.” Reid v. Google, Inc., 50 Cal. 4th at 526. Rather, “if the trial court fails to rule expressly on specific evidentiary objections, it is presumed that the objections have be overruled, the trial court considered the evidence in ruling on the merits of the summary judgment motion, and the objections are preserved on appeal.” Id. at 527.
The amended 437c recognizes the reality of court practice and to codify the Reid v. Google decision. Now, California courts are required to rule only on objections to evidence which are material to a given summary judgment or summary adjudication motion. Or, the Court will “rule only on those objections to evidence that it deems material to its disposition of the motion.” And, any evidentiary objection not ruled on by the court “for purposes of the motion shall be preserved for appellate review.” See § 437c(q).
However, written evidentiary objections are still required or be deemed waived pursuant to §437c(a)(5) even if the new section 437c(q) effectively codifies the courts’ ability largely to ignore and/or not rule upon much of what is submitted.
Expedited Jury Trials – Expedited Jury Trial Act divided into two separate sections, one for Voluntary EJT’s and one, effective 7/1/16, for Mandatory EJT’s in certain limited cases. Voluntary EJT section remains as before except that the time limit to put on a case is increased from three hours to five hours. See Code of Civil Procedure sections 630.01–630.12 and in rules 3.1545–3.1552 of the California Rules of Court
C.C.P. § 998 – revised to limit recovery for both sides to post-offer costs. Now the defense does not have an incentive to delay service of its §998 offer to force plaintiff to incur expert costs. Now both plaintiffs and defendants may recover only expert witness costs incurred after a section 998 settlement offer has been made.
Telephone Appearances – C.R.C., Rule 3.670 revised timing of notice of intent to appear telephonically for regular motions and ex parte hearings.
Memorandum of Costs – C.R.C., Rule 3.1700(a)(1) revised so time runs from service by clerk as opposed to mailing.
JUDICIAL COUNCIL FORM CHANGES
Form POS-040 “Proof of Service-Civil” – Revised
Form CIV-020 “Notice of Intent to Appear By Telephone” – Revised
Added Fresno, Santa Barbara, and Tulare.