Both the Legislature and the Courts have been busy making changes that affect motions and proceedings in the law and motion departments. This column will highlight some of the more significant cases and statutes that may impact law and motion practice. My usual disclaimer applies. These are the views of one judge, and do not necessarily reflect the views of the Sacramento Superior Court or any its judges (other than the writer). Nothing herein is to be construed as a local rule.

The Legislature has enacted new statutes that will require attorneys to modify their forms and office procedures. Some of these changes will take place on January 1, 2005, while others will not be effective until the following July. Unless otherwise indicated, assume that the changes will be effective January 1, 2005.

Code of Civil Procedure section 1005 has been amended to utilize court days instead of calendar dates for determining the notice period for motions and the time to file opposition and replies. Except where it is otherwise specified (e.g.: CCP section 437c, party residing out of state, etc.), all moving papers in law and motion matters must be filed at served at least 16 court days before the noticed date of the hearing. This deadline is increased if the respondent resides out of state or out of the country. Opposition papers must be filed and served nine court days before the hearing, and reply papers must be filed and served at least five court days before the hearing. Make sure that you note these changes, since moving papers that are not filed in accordance with these guidelines will normally cause the matter to be dropped for insufficient notice. Opposing and reply papers not filed nine and five court days, respectively, before the hearing run the risk of being deemed late and not considered.

From one judge’s perspective, this is a welcome change since it gives the court more time to consider the papers before having to post a tentative ruling. Since the court must post a tentative ruling the court day before the hearing, reply papers that were filed five calendar days before the hearing left too little time for consideration, especially if the filing took place the Friday before a holiday weekend.

Newly minted Civil Code section 3294.5 has been enacted to make the state Public Benefit Fund a partner in all cases in which the attorney seeks and receives a punitive damage award. In all lawsuits filed after August 16, 2004, all punitive damages award must be split with this state public benefit fund. The Legislature deemed a fair apportionment to be 25% for your client and 75% to the state. The good news is that the attorney will receive attorney’s fees of 25% of the state Public Benefit Fund’s share. The jury cannot be told of this arrangement. This has application to those law and motion default matters in which punitive damages are proved up and awarded.

Numerous discovery disputes involve issues of privilege. The federal government has enacted a regulation that substantially changes what we recognize as matters covered by the attorney-client privilege. 17 CFR 205.3 provides that a lawyer practicing before the SEC represents the issuer of the securities and not individual corporate employees. The lawyer has an affirmative duty to report any material violations of the securities laws by the corporate employees to the issuer’s chief legal officer or to both the issuer’s chief legal officer and its chief executive officer “forthwith.” The impact on matters that occur in state court is unknown at this time, but definitely is something that counsel who represent issuers of securities regulated by the SEC need to be aware of.

Evidence Code section 1550.1 as been added to the Secondary Evidence Rule (which was called the Best Evidence rule when I was in Law School) to make reproductions of microphotographs of documents in possession of a law enforcement agency admissible as if they were original documents.

There must be some kind of unpublished law that provides as soon as lawyers and judges get familiar with the proper citation of statutes, their confidence must be shaken by changing the numbers. Just when I knew what was covered by 2031 and 2034, along comes the Legislature and plays a cruel joke. Effective July 1, 2005, the numbers of all discovery statutes will be changed. Get used to citing 2016.010 et seq. This is simply a renumbering and re-codification. According to the Legislative Counsel’s digest, “This bill would also declare that nothing therein is intended to substantively change the law of civil discovery.” (AB 3081, Legislative Counsel’s Digest.)

The new discovery codification does have some specific clarifications. For example, new CCP section 2016.060 provides that when the last day to complete an act falls on a Saturday, Sunday of holiday, the “time limit is expended until the next court date closer to the trial date,” (AB 3078). One application of this statute would be that when the 45th day falls on one of these days, a motion to compel further responses would be timely if filed on the next court date closer to the trial. AB 3078 also includes in CCP section 2016.060 a similar provision for time limits for responding to discovery.

The Legislature also closed a gap in the law that has led to catastrophic results. Duran v. St. Luke’s Hospital (2003) 114 Cal. App. 4th 457, is the sort of case that causes heart palpitations in all plaintiffs’ lawyers. This cases involved allegations of medical malpractice that resulted in the death of an infant. The complaint was ordered dismissed by the Law and Motion judge in San Francisco (albeit very reluctantly) because the filing fee tendered was $3.00 short. Two days prior to the expiration of the statute of limitations, the complaint was sent by federal express to the court with a check for a filing fee in the amount of $203. Because the filing fee was $206, the clerk refused the file it. By the time the attorney was notified and tendered the remaining $3.00, the statute of limitations had expired. The Court of Appeal noted that this was “a harsh but unavoidable result.” To cure this problem (although too late to do the Durans or their attorney any good), Code of Civil Procedure section 411.20 has been amended to provide that if the incorrect amount is tendered for the filing fee, the clerk is required to give notice of such to the party who has 20 days to pay the proper amount. Assuming all of this is done, the document will be deemed filed on receipt. If the proper amount is not received within 20 days, then the clerk will void the filing, and this party will meet the same fate as the plaintiff in the Duran case.

There were also some cases of interest involving issues that sometime arise in law and motion proceedings. In Kulshrestha v. First Union Commercial Corp. (2004) 33 Cal.4th 601, the California Supreme Court upheld the striking of a crucial declaration that resulting in summary judgment being imposed against the party who had submitted the declaration. The problem was that the declaration was executed outside the state of California and did not contain the jurat required by Code of Civil Procedure section 2015.5 (“under the laws of the state of California”).

In Olmstead v. Arthur J. Gallagher & Co. (2004) 32 Cal.4th 804, the California Supreme Court finally put to rest any assertion that Code of Civil Procedure section 128.5 does not mean what it says, i.e., it does not apply to any conduct arising from a claim initiated after December 31, 1994. CCP 128.5 should never be cited as authority for sanctions, unless the case was filed before December 31, 1994, and has gone up on appeal a time or two before being bounced back.

Not that I had any doubt in the matter (since I so ruled a number of times before this case came out) it is now settled that a special motion to strike under Code of Civil Procedure section 425.16 (anti-SLAPP motion) can be filed against a malicious prosecution claim. Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728. However, do not expect the protection of section 425.16 if your client is making extortion threats concerning litigation. That sort of conduct does not arise from the exercise of the rights of fee expression or petition within the meaning of section 425.16(b)(1). Flatley v. Mauro (2004) 121 Cal.App.4th 1523.

I was tempted to keep the Supreme Court’s decision in Vineyard Springs Estates v. Superior Court (2004) 120 Cal.App.4th 633, to myself. However, my better side prevailed so I have included it. Any doubt whether a judge in ruling on a summary judgment motion could simply say that he/she was relying only on admissible evidence or had to rule on each objection to evidence (compare Biljac Associates v. First Interstate Bank, 218 Cal. App. 3d 1410, 1419-1420 to Sambrano v. City of San Diego (2001) 94 Cal.App.4th 225, 235-238) has now been resolved in favor of the later. Even though an appellate court’s review of a summary judgment motion is de novo, the Court of Appeal for the Third Appellate District has ruled in Vineyard Springs Estates that the trial court has a mandatory duty to rule on evidentiary objections. This duty may be enforced by a petition for a writ of mandate filed in the appellate court seeking an order to compel the trial court to rule on evidentiary objections.

Attorneys need to redraft their fee agreements used in personal injury cases. Fletcher v. Davis (2004) 33 Cal.4th 61, holds that a charging lien on the recovery operates as a security interest, which means that the attorney has acquired an interest potentially adverse to his/her client. Rule 3-300 of the Rules of Professional Conduct of the State Bar requires that the attorney secure the written consent of the client before creating an adverse interest between them. Since a charging lien is an adverse interest, the failure to secure the written consent in compliance with Rule 3-300 prevented the lien from being perfected.

Similarly, a client’s consent is required by Rule 2-200 before an attorney could recover on agreement with another lawyer to divide contingent fees generated from success in the lawsuit. Chambers v. Kay (2002) 29 Cal.4th 142. However, the Court did hold that the attorney could obtain quantum meruit recovery from the contingent fee awarded in the case for the reasonable value of that attorney’s services.

Happy Holidays to all while digesting these changes in the law for the coming year.

November / December 2004