Wednesday, December 29, 2004
Is It ambigious???
AB3078 amends, in part, Section 1005 of the Code of Civil Procedure effective for motions made on or after Jan. 1. This author believes that this change in the law may result in some perceived ambiguities.
Existing law provides for the deadlines, by reference to calendar days, for service of specified moving, supporting and opposing papers regarding motions and other hearings, as well as the deadline for the completion of discovery proceedings before trial and the deadline for demands involving the exchange of information concerning expert witnesses before trial.
The newly enacted statute revises those deadlines by referring to court days while leaving intact the references to calendar days for mailings, rather than just referring to calendar days or court days. AB3078 also makes other related changes. The new rules to remember are that, unless an order shortening time is obtained, motions, demurrers and preliminary injunctions (where no temporary restraining order is issued) made on or after Jan. 1 must be filed at least 16 court days before the hearing. Oppositions must be filed nine court days before the hearing, and replies must be filed five court days before the hearing amendments provide no benefit to parties who make motions before the effective date because amendments of this type are prospective and can only affect a notice of a hearing to be held after the effective date. See Civil Code Section 3 cf. Strauss v. Superior Court, 107 Cal.App.3d 45 (1980); De Miglio v. Superior Court, 115 Cal.App.3d 973 (1981). Under Code of Civil Procedure Section 1005.5, a motion is deemed to have been made, and to be pending before the court for all purposes, on due service and the filing of the notice of motion. Cromwell v. Cummings, 65 Cal.App.4th Supp. 10 (1998). For oppositions, Section 1005(b) requires service and filing "at least nine court days" before the hearing; therefore, the problem with the prior statute's 10th day's falling on a weekend is resolved. Before the change, the papers must be filed on the last day the court is open for business before the 10th day (See Steele v. Bartlett, 18 Cal.2d 573 (1941) (permitting "an extension would be to nullify legislative intent that an act must be performed more than a designated number of days before the event specified.") The same holds true for replies.
It does make a difference whether one first counts 16 court days or first the five calendar days, or whether one counts backward from the hearing date or forward from the date of the proof of service, because the sequence determines how many noncourt days are included or excluded in a particular count.No published state case has been found discussing priority of applying a count of mixed calendar and court days. Hence, a resolution of the question here is one of statutory interpretation.
Legislative interpretation begins by examination of the language of the statute, giving the words their ordinary meaning and considering them in the context of the statutory framework. Barnes v. Department of Corrections, 74 Cal.App.4th 126 (1999).Also, Section 1013(a) provides no precedent for counting under Section 1005, because Section 1013 uses different language from Section 1005 amendments, using "increased" and "before the hearing."Section 1013(a) states, "[A]ny period of notice ... shall be extended five calendar days, upon service by mail." So Section 1013 presents no problem as to what kind of days to extend and where to count them (since they match old Section 1005's use of calendar days, without mixing day types).
The most logical interpretation of the amended Section 1005 is to follow the sequence in which it reads - that is, 16 court days, immediately preceding the hearing increasing by five calendar days "before the hearing" for mailing so that those dates are the farthest from the hearing, such that the calendar days fall on the earlier dates. On the other hand, some of my colleagues argue that the rule leaves enough ambiguity that, arguably, the five calendar days could be counted as the later days. To demonstrate the differences, below are some applied hypothetical scenarios. Calculating notice starting with calendar days for a notice date of Nov. 30, 2005, the earliest allowed hearing date was Dec. 28, 2005. However, calculating notice starting with court days, the earliest hearing date was Dec. 27, 2005.As another example, for an Nov. 30, 2005, hearing date, counting backward and starting with calendar days gives a service date of Nov. 1, 2005. In contrast, for an Nov. 30, 2005, hearing date, counting backward and starting with court days gives a service date of Oct. 29, 2005.Of course, if there is opposition on the merits, then issues of proper notice are waived. Defects in motion service are waived where an opposition was filed addressing the merits. Carlton v. Quint, 77 Cal.App.4th 690 (2000), modified 2000 C.D.O.S. 928.
At this juncture, I think that it is clear that the court days are the days immediately preceding the hearing date. Others beg to differ. One thing is certain, whether court days are counted before counting calendar days might be open to interpretation and susceptible to debate among some in the legal community.
Existing law provides for the deadlines, by reference to calendar days, for service of specified moving, supporting and opposing papers regarding motions and other hearings, as well as the deadline for the completion of discovery proceedings before trial and the deadline for demands involving the exchange of information concerning expert witnesses before trial.
The newly enacted statute revises those deadlines by referring to court days while leaving intact the references to calendar days for mailings, rather than just referring to calendar days or court days. AB3078 also makes other related changes. The new rules to remember are that, unless an order shortening time is obtained, motions, demurrers and preliminary injunctions (where no temporary restraining order is issued) made on or after Jan. 1 must be filed at least 16 court days before the hearing. Oppositions must be filed nine court days before the hearing, and replies must be filed five court days before the hearing amendments provide no benefit to parties who make motions before the effective date because amendments of this type are prospective and can only affect a notice of a hearing to be held after the effective date. See Civil Code Section 3 cf. Strauss v. Superior Court, 107 Cal.App.3d 45 (1980); De Miglio v. Superior Court, 115 Cal.App.3d 973 (1981). Under Code of Civil Procedure Section 1005.5, a motion is deemed to have been made, and to be pending before the court for all purposes, on due service and the filing of the notice of motion. Cromwell v. Cummings, 65 Cal.App.4th Supp. 10 (1998). For oppositions, Section 1005(b) requires service and filing "at least nine court days" before the hearing; therefore, the problem with the prior statute's 10th day's falling on a weekend is resolved. Before the change, the papers must be filed on the last day the court is open for business before the 10th day (See Steele v. Bartlett, 18 Cal.2d 573 (1941) (permitting "an extension would be to nullify legislative intent that an act must be performed more than a designated number of days before the event specified.") The same holds true for replies.
It does make a difference whether one first counts 16 court days or first the five calendar days, or whether one counts backward from the hearing date or forward from the date of the proof of service, because the sequence determines how many noncourt days are included or excluded in a particular count.No published state case has been found discussing priority of applying a count of mixed calendar and court days. Hence, a resolution of the question here is one of statutory interpretation.
Legislative interpretation begins by examination of the language of the statute, giving the words their ordinary meaning and considering them in the context of the statutory framework. Barnes v. Department of Corrections, 74 Cal.App.4th 126 (1999).Also, Section 1013(a) provides no precedent for counting under Section 1005, because Section 1013 uses different language from Section 1005 amendments, using "increased" and "before the hearing."Section 1013(a) states, "[A]ny period of notice ... shall be extended five calendar days, upon service by mail." So Section 1013 presents no problem as to what kind of days to extend and where to count them (since they match old Section 1005's use of calendar days, without mixing day types).
The most logical interpretation of the amended Section 1005 is to follow the sequence in which it reads - that is, 16 court days, immediately preceding the hearing increasing by five calendar days "before the hearing" for mailing so that those dates are the farthest from the hearing, such that the calendar days fall on the earlier dates. On the other hand, some of my colleagues argue that the rule leaves enough ambiguity that, arguably, the five calendar days could be counted as the later days. To demonstrate the differences, below are some applied hypothetical scenarios. Calculating notice starting with calendar days for a notice date of Nov. 30, 2005, the earliest allowed hearing date was Dec. 28, 2005. However, calculating notice starting with court days, the earliest hearing date was Dec. 27, 2005.As another example, for an Nov. 30, 2005, hearing date, counting backward and starting with calendar days gives a service date of Nov. 1, 2005. In contrast, for an Nov. 30, 2005, hearing date, counting backward and starting with court days gives a service date of Oct. 29, 2005.Of course, if there is opposition on the merits, then issues of proper notice are waived. Defects in motion service are waived where an opposition was filed addressing the merits. Carlton v. Quint, 77 Cal.App.4th 690 (2000), modified 2000 C.D.O.S. 928.
At this juncture, I think that it is clear that the court days are the days immediately preceding the hearing date. Others beg to differ. One thing is certain, whether court days are counted before counting calendar days might be open to interpretation and susceptible to debate among some in the legal community.
