On May 29, 2020, the California Judicial Council adopted amendments to its controversial Emergency Rule 9 to provide fixed dates for the tolling of civil statutes of limitations, thereby replacing the indeterminate tolling previously provided for by the rule.  While the amended Emergency Rule 9 provides welcome certainty, many believe it goes too far in extending CEQA and other short statutes of limitations in the land use litigation context – most of which are short by legislative design, and range from 30 to 90 days – by a period of 119 days (from April 6 through August 3, 2020).

The Council’s previous Emergency Rule 9, part of eleven (11) emergency rules adopted on April 6, 2020, pursuant to Governor Gavin Newsom March 27, 2020 Executive Order N‑38‑20 addressing the COVID-19 pandemic, tolled all civil statutes of limitation commencing April 6, 2020 until a date 90 days after the Governor declared the COVID state of emergency lifted.  Shortly thereafter, commenters raised concerns about the rule’s application to CEQA’s short (generally 30 or 35 days) statutes of limitations, the essence of which was that the emergency should not result in the tripling of such intentionally short limitations periods even after the state of emergency has been lifted.  Following initially proposed revisions, followed by further comments focusing on the indeterminacy of the tolling period resulting from its being tied to a state of emergency of unknown length, and the adverse effects such uncertainty would have on construction financing and homebuilding, the Council’s internal committees further revised Rule 9 to the form ultimately adopted on May 29, 2020.

In its now-effective amended form, Rule 9:

• Tolls from April 6 to October 1, 2020, the statutes of limitations and repose for civil causes of action that exceed 180 days.
• Tolls from April 6 to August 3, 2020, the statutes of limitation and repose for civil causes of action that are 180 days or less.

The rule thus affects a number of land use litigation-related limitations periods, including CEQA’s statutes of limitations (which range from 30 to 180 days) (Pub. Resources Code, § 21167(a)-(d)); the Planning and Zoning Law’s 90-day statute of limitations for challenging general plan, specific plan, zoning, and permit decisions (Gov. Code, § 65009(c)(1)); and the Subdivision Map Act’s 90-day statute of limitations for challenging subdivision-related decisions.  (Gov. Code, § 66499.37.)

For those interested in delving further into the rule’s origins and rationales, as well as the comments on the various amendment proposals, the relevant Circulating Order Memorandum to the Judicial Council (Circulating Order Number C0-20-09) can be found here.