Julie Goren asked:




Effective January 1, 2011, Section 12c will be added to the California Code of Civil Procedure. A result of State Bar-sponsored legislation (AB 2119 (Tran)), Section 12c finally eliminates an ambiguity which has long-plagued those charged with calculating the last day to serve hearing-related documents. All practitioners will need to calendar in accordance with the new section. In jurisdictions where hearing dates are available on short notice, however, practitioners must be particularly careful to avoid a rather dangerous pitfall which could lead to malpractice. This article explains the ambiguity and the Section 12c solution, warns about the pitfall, and suggests ways to avoid its consequences.

The Ambiguity

Calculating the last day to serve notice of motion and supporting papers often requires counting a combination of calendar days and court days. For example, under Section 1005(b) (all references are to the Code of Civil Procedure), if served by hand, notice of motion and supporting papers must be served at least 16 court days before the hearing. That period is extended if service is by any other means — another five calendar days for mail service within California, or two calendar days for fax service or overnight delivery. Thus, service by mail requires counting a combination of 16 court days and five calendar days. Section 437c, governing deadlines for motions for summary judgment and summary adjudication, requires 75 calendar days’ notice, adding two court days for fax service and overnight delivery.

Quite often, the result of a deadline calculation will be affected by: (1) the direction in which the days are counted (forward from the service date versus backward from the hearing date), and/or (2) the order in which the two distinct sets of days are counted (first calendar days, then court days versus first court days, then calendar days). Generally, the calculations will differ when a weekend (consisting of non-court days) immediately precedes the hearing date or immediately follows the service date. Thus, calculations relating to hearings scheduled on Mondays, Tuesdays following Monday holidays, or Fridays will vary depending on the counting method.

This is best explained by example. Assume you have a September 7, 2010, hearing date (a Tuesday following the Labor Day holiday) for a motion to compel discovery responses, which you intend to serve by mail. If you calculate the last day to serve notice by counting backward from the hearing date 16 court days plus five calendar days, you will land on August 6. If you switch the order, and instead count backward from the hearing date five calendar days plus 16 court days, you will land on August 11 — a five-day difference. If you were to count forward from August 11, 16 court days, and then five calendar days, you would land right on the hearing date; if you counted forward from August 6, 16 court days, and then five calendar days, you would land on the Saturday preceding the hearing. Here lies the ambiguity — which method of counting is correct, or put another way, what is the last day to serve the notice?

The Section 12c Solution

As of January 1, 2011, the correct method will be to count backward from the hearing date the number of days specified in the applicable code, e.g., 16 court days or 75 calendar days, and then to continue counting backward to add the extra days. Section 12c provides:

(a) Where any law requires an act to be performed no later than a specified number of days before a hearing date, the last day to perform that act shall be determined by counting backward from the hearing date, excluding the day of the hearing as provided by Section 12.

(b) Any additional days added to the specified number of days because of a particular method of service shall be computed by counting backward from the day determined in accordance with subdivision (a).

Section 12c unquestionably brings much-needed certainty to this particular issue. Once a hearing date is set, and the moving papers are served by a particular method, it will be easy for the parties and the court to determine whether notice was timely. This method of counting makes sense — once a hearing date is set, it is logical to count backward from the hearing date and to add the extra days at the end. But, what about selecting the hearing date in the first place?

The Lingering Pitfall

In some courts, the litigant selects the hearing date (e.g., Los Angeles, San Mateo, Sacramento); in others, the court assigns the hearing date. In either case, the moving party will select, or request that the court assign, what they believe is the earliest possible hearing date. How does the moving party determine that date? By counting forward from the service date.

For example, assume it is Monday, January 10, 2011, and you have just put the finishing touches on your motion. The only tasks remaining are to select the earliest possible hearing date, add it to your moving papers, and mail them. So, you count forward from January 10, 2011, 16 court days and five calendar days, landing on February 7, 2011. If February 7 is available, you will select it as your hearing date, and mail your papers on January 10, 2011.

Unfortunately, you will not have given sufficient notice. Under Section 12c, moving papers for a Monday, February 7, 2011, hearing would have had to be mailed on or before Friday, January 7, 2011 — three days before the motion was even ready!

The problem is that the factors necessitating Section 12c still linger. Selecting a hearing date by counting forward from a Monday or a Tuesday service date will always result in inadequate notice under the Section 12c counting methodology when service is by mail. Other methods of service on other days of the week can also be problematic. For example, if you count forward from Thursday, September 15, 2011, to determine the first available hearing date after service by overnight delivery (16 court days plus two calendar days), you would select an October 11, 2011 hearing date. But, if you count backward from October 11, 16 court days plus two calendar days, you would find that service would have had to be made one day earlier, on Wednesday, September 14.

So, how can you avoid this pitfall? Here are a few options.

After you count forward to pick a hearing date, always count backward to make sure you have time to serve by the method you selected. If there is insufficient time, move the hearing date out a day or two, and then count backward again to see if that works, adjust again as necessary, etc. Unfortunately, this may be rather time-consuming. In applying the first option, as soon as you discover that you are unable to serve by the method you selected, switch to a method which takes less time, e.g., instead of serving by mail, serve by fax or electronic service (if you have the requisite agreements) or by overnight delivery. But, you still must count backward again to make sure that the alternate service method works. Always build in a safety cushion by moving your hearing date out by a given number of days. But how much is enough? How much is too much? Could an unnecessary delay in obtaining the requested relief adversely affect your client’s interests? Avoid the issue entirely by serving motions only by hand. But, this would not only waste money, it would often be impractical or simply impossible.

The best solution does not yet exist, but is hopefully in the works — an automated rules-based calendaring program with a “Select My Hearing Date” feature. Ideally, the end user would simply need to enter the proposed service date and the source of the deadline (e.g., Section 1005(b) or Section 437c), and the program would instantly generate an accurate list identifying the first available hearing date for each service method. The user would then select the hearing date, and serve the papers by the method which ensures adequate notice.

Now that’s certainty.

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