What the ‘endemic’ means for the courts

The courts have taken action in response to Gov. Gavin Newsom's plan for California to move from the pandemic phase of COVID-19 to the new "endemic" phase. On February 25, Newsom signed Executive Order N-04-22, causing many of his pandemic emergency orders to expire. Some orders expired that day while others will slowly phase out. Notably for the courts, the last group of orders under Executive Order N-38-20, which instilled in the courts the power to take emergency action and issue emergency rules, is set to expire on June 30.

Chief Justice Tani Cantil-Sakauye is fully embracing Newsom's endemic phase and seeks to transition the courts to "a semblance of pre-COVID-19 California." On March 3, based on the changed circumstances in California, the chief justice ordered the following emergency orders to be rescinded effective April 30:

• Allow courts to immediately adopt proposed local rules or amendments that address the impact of the pandemic without advance circulation for 45 days of public comment

• Allow courts to extend time to hold a preliminary hearing in a criminal case from 10 days to 30 days.

• Allow courts to extend time to bring civil cases to trial by up to 60 days.

• Suspend any California Rule of Court that prevents using technology to conduct judicial proceedings and court operations remotely.

Given the lack of certainty that goes along with this pandemic, the chief justice explicitly stated that she reserved the authority to modify this order to address any changing circumstances. She also called for the Judicial Council's internal committees to develop and propose a plan for retiring any emergency rules still in effect.

The emergency orders were issued as tools to allow the courts to function while struggling through the many challenges that COVID-19 posed on our justice system. While three orders will fully expire, one of the four rules was enacted into statute by the California Legislature in 2021. Senate Bill 241 enacted Code of Civil Procedure 367.75, which as of January 1 authorizes parties to appear remotely and the court to conduct conferences, hearings, proceedings, and trials in civil cases through the use of remote technology. The bill has specific protections to ensure that the court shall not require a party to appear through remote technology and also imposes on courts the duty to ensure that the technology in the courtroom enables all parties to fully participate in the proceeding. As an added protection, self-represented parties may appear remotely only if they choose to do so. This legislation was given a short sunset and is set to expire July 1, 2023, unless extended or deleted. Senator Tom Umberg, author of SB 241, has introduced SB 848 to delete the sunset provision. The bill's first stop is the Senate Judiciary Committee, which the author chairs.

In response to the chief justice's call for a plan on the remaining emergency rules still in effect, the Judicial Council intends to take further action and is meeting today. First, the chairs of the Judicial Council's six internal committees recommend a June 30 sunset for emergency rules 3 (use of technology for remote appearances), 5 (personal appearance waivers of defendants during health emergency), 6 (emergency orders: juvenile dependency proceedings), 7 (emergency orders: juvenile dependency proceedings), 8 (emergency orders: temporary restraining or protective orders), and 13 (effective date for requests to modify support). Second, the council recommends a June 30 sunset for emergency rules 9 (tolling statutes of limitations for civil causes of action) and 10 (extensions of time in which to bring a civil action to trial), although they note that the effect of the tolling of the statute of limitations may be extended beyond the date of the sunset.

Of the 13 total rules, the rules not listed above have previously been acted upon. The council amended emergency rule 1 (unlawful detailers) and emergency rule 2 (suspension of judicial foreclosures), effective September 1, 2020, in anticipation of the Legislature enacting statutes to address evictions during the pandemic. The Legislature did enact a series of bills to take a comprehensive approach at the housing issue facing landlords and tenants through the pandemic. Rule 4, which enacted an emergency bail schedule, was repealed on June 20, 2020. Rules 11 and 12 authorized depositions through remote means and electronic service and were repealed effective November 13, 2020, as SB 1146 was approved by the governor and went into effect on September 18, 2020, to make these authorizations permanent.

The Judicial Council has made clear that the proposed sunsets of the eight emergency rules do not nullify the actions that were authorized under the rules when they were in effect. This is particularly true for rules 9 and 10, which toll statutes of limitations and extend the time to bring a civil action to trial.

Emergency rule 9 tolled the statutes of limitation and repose for causes of action that exceed 180 days from April 6, 2020, until October 1, 2020, and tolled statutes of limitation that are 180 days or less from April 6, 2020, until August 3, 2020. The Judicial Council clarifies in the rule that the "sunset does not nullify the effect of the tolling of the statutes of limitation and repose under this rule." Thus, this tolling can go beyond the date of the sunset depending on the facts of the case. For some cases, the tolling will stay within the sunset date if the cause of action expires before the June 30 sunset. For example, if a cause of action had a four-year statute of limitations that accrued February 15, 2017, was tolled by the emergency rule from April 6, 2020, until October 1, 2020, it expired in August 2021 rather than February 2021. For other cases where the cause of action first accrues later, the tolling may effectively go beyond the sunset. For example, if the cause of action subject to a four-year statute of limitations accrued on February 15, 2020, and was tolled from April 6, 2020, to October 1, 2020, that statute of limitation would expire in August 2024 rather than February 2024 -- two years after the proposed June 30, 2022, sunset date.

The same structure applies to rule 10, which extends the time to bring an action to trial by six months for a total time of five years and six months. If a litigant's five years and six months has not run prior to the June 30, 2022, sunset date, they do not lose the extra six months to bring their case to trial.

Emergency rules 3 and 5 regarding technology in criminal proceedings were useful in minimizing the spread of COVID-19 and increasing efficiencies in criminal court calendars. Now that these rules are expiring without any statutory framework in place, the Judicial Council has expressed an interest in working with the Legislature and stakeholders to enact statutory authorization for remote criminal proceedings similar to the framework enacted for civil proceedings in SB 241.

The Judicial Council meets Friday from 9 a.m. to 4 p.m. to formally approve and finalize their recommendations. 