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2018 Newsflash! Civil Litigation

2018 NewsFlash Civil Litigators

Mediation Clients Must Be Notified in Writing of Confidentiality Restrictions

There’s a new requirement for attorneys representing clients in mediation. As soon as reasonably possible before a client agrees to participate in a mediation consultation or session (or as soon as reasonably possible after being retained by a client who has already agreed to participate in a mediation consultation or session), the attorney must provide the client with a printed disclosure that explains the confidentiality restrictions related to mediation. The attorney must also obtain a signed acknowledgment from the client stating that he or she has read and understands the confidentiality restrictions. Attorneys representing mediation participants in a class or representative action, however, are exempt from this new disclosure rule. Although failure to comply with this new law cannot be used to set aside an agreement following mediation, any document relating to an attorney’s compliance with the disclosure requirements could be used in an attorney disciplinary proceeding (so long as the document does not disclose anything said or done during the mediation). See Evid C §§1122, 1129 (amended and added by Stats 2018, ch 350, effective January 1, 2019).

On mediation confidentiality, check out CEB’s California Trial Objections §32.6A.

New Evening Hours for Personal Service

Personal service can now interrupt dinnertime. The hours during which a notice or other paper in a civil action may be personally served on a party, attorney, or person 18 years or older at the party’s residence have been expanded from 8 a.m. to 6 pm to 8 am to 8 pm. See CCP §1011 (amended by Stats 2018, ch 212, effective January 1, 2019).

No Disclosing a Person’s Immigration Status in Open Court

Don’t even think about disclosing a person’s immigration status in open court without reviewing newly added Evid C §351.3. This new law prohibits parties and attorneys from disclosing a person’s immigration status in open court without that person’s consent, unless that person’s immigration status is necessary to prove an element of a claim or affirmative defense or the judge determines during an in camera hearing that the evidence is admissible. See Evid C §351.3 (added by Stats 2018, ch 12, effective May 17, 2018).

It’s Getting Easier to Compel Further Discovery Responses

Good news for parties demanding more information. Courts are now authorized to permit parties seeking augmented responses to submit a concise outline consisting of each discovery request and each disputed response in lieu of a separate statement (which normally requires moving parties to include six categories of information) as part of a motion to compel further discovery responses. See CCP §§2030.290, 2030.300, and 2030.310 (amended by Stats 2018, ch 317, effective January 1, 2020

On motions to compel discovery, turn to CEB’s California Civil Discovery Practice §§15.30-15.58.

Where the Residue in Class Action Awards Goes

Heads up for class action litigators—there are new rules on the distribution of residue from a class action award. Before entry of judgment in a class action, the parties must calculate the amount that will be payable to all class members and set a date when the court will be notified of the amount actually paid. If there is unpaid residue as of that date, the court must direct the defendant to pay the unpaid residue plus interest to certain recipients, including nonprofit organizations. See CCP §§382.4, 384, 384.5 (added and amended by Stats 2018, ch 45, effective June 27, 2018).

Small Claims Court Interpreters Must Be Certified

Small claims court interpreters are no longer exempt from the requirement that they be court certified in the language they interpret. See Govt C §68560.5 (amended by Stats 2018, ch 852, effective January 1, 2019).

On interpreters and translators, turn to CEB’s California Trial Practice: Civil Procedure During Trial §§11.28-11.43.

Clarification on Taxpayer Standing to Sue Local Agencies

Taxpayers (including residents and corporations) that have paid or are liable to pay certain taxes within one year before filing the action have standing to bring suit against local agencies to prevent illegal expenditure or waste. Residents include persons who live, work, own property, or attend school in the jurisdiction of the local agency. Local agencies include cities, towns, counties, districts, public authorities, or any other political subdivision in the state. See CCP §526a (amended by Stats 2018, ch 319, effective January 1, 2019).

More Time for Court to Rule on Motions for New Trial or to Vacate

The time for a court to rule on a motion for new trial or motion to vacate was extended from 60 to 75 days after notice of entry of judgment is mailed by the clerk or served by the moving party, whichever is earlier. Litigators take note: If the trial judge fails to rule on the motion within the new 75-day period, the motion is deemed denied. See CCP §§660, 663a (amended by Stats 2018 ch 317, effective January 1, 2019). Once such a motion is deemed denied, the court has no further jurisdiction to grant the motion. See Garibotti v Hinkle (2015) 243 CA4th 470, 480.

For more on these motions, see California Trial Practice: Civil Procedure During Trial §§25.56, 25.77.

Civil Litigation

Further information can be found in the books cited above, all of which are available in the OnLAW Library:

OnLAW Litigation Library