2017 NewsFlash! Key Statutory Developments For Civil Litigators
Sanctions for bad faith are broader and extended indefinitely.
The Legislature has amended CCP §128.5 again. The automatic repealer in previous versions of the section is gone; the trial court’s authority to impose sanctions for bad faith actions and tactics has been extended indefinitely. And the reach has also been broadened: Sanction orders are now available in any civil case filed on or after January 1, 2015, including judicial arbitrations, and trial courts are now authorized to impose sanctions for any actions and tactics made in bad faith that are frivolous or intended solely to cause unnecessary delay. Various conditions and procedures on the sanctions ordered by the court are now specified in CCP §128.5(f). See CCP §128.5 (amended by Stats 2017, ch 169, effective August 7, 2017). For a discussion of attorney fees awarded as sanctions, turn to CEB’s California Attorney Fee Awards, chap 6.
Informal discovery conferences get a major push.
At least for the next five years, trial courts may conduct an informal conference between the parties in civil actions to try to work out their discovery disputes. The new statute specifies how to initiate the informal conference and authorizes the court to toll the deadline for filing a discovery motion or make any other appropriate discovery order. The statute automatically repeals on January 1, 2023, unless the Legislature changes that. See CCP §2016.080 (added by Stats 2017, ch 189, effective January 1, 2018). For more on resolving discovery disputes, check out CEB’s California Civil Discovery Practice, chap 15.
You can’t file a motion to strike or for judgment on the pleadings unless you meet and confer first.
In another effort to get the parties to work things out, the Legislature has added meet and confer requirements for motions to strike and motions for judgment on the pleadings. Before a party may file one of these motions, it must meet and confer with the party that filed the pleading and try to resolve their objections or claims. The new sections will automatically repeal on January 1, 2021, unless the Legislature changes that. See CCP §§435.5, 439 (added by Stats 2017, ch 273, effective January 1, 2018). For all you need to know about moving to strike or for judgment on the pleadings, check out CEB’s California Civil Procedure Before Trial, chaps 24 and 27.
Cost recovery has moved into the 21st century! Soon you can recover costs for electronic exhibits.
The Legislature is realizing that going high tech is just another cost of litigation. Under a new law, a prevailing party may now recover costs associated with the electronic presentation of exhibits, including the costs of rental equipment and electronic formatting. As always, these costs are only allowed “if they were reasonably helpful to aid the trier of fact.” See CCP §1033.5 (amended by Stats 2017, ch 583, effective January 1, 2018). For more on cost recovery, turn to CEB’s California Trial Practice: Civil Procedure During Trial, chap 27.
All California courts get the green light for electronic filing and service.
The Orange County Superior Court pilot project on electronic filing and service is over and now all superior courts may, by local rule, require electronic filing and service of documents in civil actions. The conditions on electronic service (e.g., signatures, timing of filing, etc.) were also amended. The new law authorizes proof of electronic service to be filed with the court as specified. See CCP §§664.5, 1010.6, 1011, 1020 (amended by Stats 2017, ch 319, effective January 1, 2018), and CCP §1013b (added by Stats 2017, ch 319, effective January 1, 2018). Electronic filing and service is discussed in CEB’s California Civil Procedure Before Trial, chap 18.
Service of process will soon reach mail drop services.
If a person’s only known address is a private mailbox with a commercial mail receiving agency (CMRA), also known as a mail drop service, a new law will permit service of process by leaving a copy of the summons and complaint with the CMRA as specified under Bus & P C §17538.5. And once is enough: Service of process is effected on the first delivery attempt. See CCP §415.20 (amended by Stats 2017, ch 129, effective January 1, 2018). Everything to know about serving a summons is covered in CEB’s California Civil Procedure Before Trial, chap 17.
Providing legal services to a marijuana business won’t make the attorney-client privilege go up in smoke.
The existing exception from the attorney-client privilege for situations in which the lawyer’s services were sought to help commit a crime will not apply to legal services that comply with state or local laws on medicinal or adult-use cannabis. See Evid C §956 (amended by Stats 2017, ch 530, effective Jan. 1, 2018). For details on the attorney-client privilege, turn to CEB’s California Trial Objections, chap 34 and Jefferson's California Evidence Benchbook, chap 42. And to keep up with this fast-changing area of cannabis law, check out CEB’s MJ Law Hub.