Bail, Evictions, Remote Hearings and Depositions and Statutes of Limitation Rule Changes

The California Judicial Council, the rule-making arm of the California court system, adopted several important statewide rules at an emergency meeting Monday. Most notably, the Council issued rules that set bail at $0 for most misdemeanor and lower-level felony offenses, effectively stopped all evictions other than those necessary to protect public health and safety, issued rules promoting remote hearings and depositions, and tolled statutes of limitations in civil matters. The rules are designed to last throughout the COVID-19 pandemic.

In total, the Council approved 11 temporary emergency rules. Among the actions the Council approved, to go into effect immediately, are:

• Suspend the entry of defaults in eviction cases
• Suspend judicial foreclosures
• Allow courts to require judicial proceedings and court operations to be conducted remotely, with the defendant’s consent in criminal proceedings
• Adopt a statewide emergency bail schedule that sets bail at $0 for most misdemeanor and lower-level felony offenses
• Allow defendants to appear via counsel or remote technologies for pretrial criminal hearings
• Prioritize hearings and orders in juvenile justice proceedings and set a structure for remote hearings and continuances
• Extend the timeframes for specified temporary restraining orders and gun violence restraining orders
• Extend the statutes of limitations governing civil actions and
• Allow remote depositions and electronic recordings in civil cases

The rules apply during the Governor’s shelter-at home order, as well as for 90 days after California’s state of emergency is lifted, or until the rules are amended or repealed by the Council.

Emergency Unlawful Detainer Rule
On March 16, Gov. Gavin Newsom issued Executive Order N-28-20, which intended to help address the COVID-19 crisis by providing an extended answer period to, and banning the enforcement of evictions for, residential tenants who have suffered pandemic–related income loss and meet certain other requirements. The Council expanded on the Governor’s Order, calling it insufficient assistance to tenants and courts. The new rule is applicable to all courts and to all eviction cases, whether they are based on a tenant’s missed rent payment or another reason.

Before this new rule was adopted, some courts had halted unlawful detainer matters while others continued to process them. As a result, numerous cities across the State were forced to take emergency action to protect their renters from eviction. This new rule will alleviate the need for cities and counties to adopt individualized approaches.

In short, the new rule:

• Prohibits a court from issuing a summons after a landlord files an eviction case, unless necessary to protect the public.
• Prohibits a court from entering an automatic default judgment against the tenant because the tenant failed to file a response, unless the eviction is necessary to protect the public and the tenant failed to respond as required by law (including the Governor’s March 16 order).

Emergency Bail Rule
Setting bail at $0 for most misdemeanor and lower-level felony offenses means most people in pretrial custody will be released. The purpose of reducing bail is to “safely reduce jail populations” to curb the spread of COVID-19 among arrestees and law enforcement. Certain violent charges will remain at the current bail schedule. The rule names 13 felony violations that are exempt to the rule in which a judge can still use the current county bail schedule, and references their State constitutional authority to deny bail under certain circumstances.

The rule comes amid reports of falling crime as many people stay home, and a growing nationwide movement to end money bail. As with the emergency unlawful detainer rule, this rule will provide uniformity, as many courts were grappling with various approaches to reduce jail populations.

The statewide order will apply to those currently in jail awaiting trial and those facing charges going forward, and gives counties until April 13 to apply the new bail schedule to every accused person arrested and currently held in pretrial custody.

Emergency Civil Rules — Use of Technology to Conduct Proceedings Remotely
Chief Justice Tani Cantil-Sakauye issued an order on March 30 suspending any rule in the California Rules of Court to the extent such rule would prevent a court from using technology to conduct judicial proceedings and court operations remotely, consistent with Newsom’s Executive Order N-38-20, which also provides for the suspension of related statutes that impose limitations on the subject of these emergency orders.

Judicial Council Emergency Rule 3 takes it one step further, intending to suspend any rule in the California Rules of Court and any statute to the extent that the rules and statutes are inconsistent with, or limit a court’s ability to, require that judicial proceedings and court operations be conducted remotely. The rule provides courts with broad authority to require the use of technology to conduct proceedings remotely, including using video, audio and telephonic means for remote appearances; requiring the electronic exchange and authentication of documentary evidence; requiring e-filing and e-service; and using remote interpreting, remote reporting and electronic recording to make the official record of an action or proceeding.

Emergency Civil Rules — Tolling of Statute of Limitations
Emergency Rule 9 tolls the statutes of limitation for all civil causes of action from April 6, 2020, to 90 days after the state of emergency related to the COVID-19 pandemic is lifted.

Emergency Civil Rules — Extension of the ‘5-Year Rule’
For all civil actions filed on or before April 6, 2020, the following deadlines are increased by 6 months:

• The 5 years in which to bring the actions to trial under Code of Civil Procedure section 583.310, and
• The 3 years in which to bring a new trial of the actions under Code of Civil Procedure section 583.320.

Emergency Civil Rules—Remote Depositions Authorized
Emergency Rule 11 allows a party or nonparty deponent, at their election or the election of the deposing party, to appear at a deposition remotely through electronic means. This rule temporarily supersedes current law that requires a party deponent to attend a deposition in person and to appear remotely only with the permission of the court upon a finding of good cause.

So, stated another way, this rule eliminates the need to obtain court permission to allow the deponent and the deposition officer to not be in the same physical room during the deposition. It doesn’t appear the intent of the rule is to require that a deposition be taken remotely even if the party taking the deposition does not agree.

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