Did All Service of Process Just Go Electronic?

Posted April 22, 2020 in Legislation

By Chad Barger, CALSPro Legislative Chairman

I want to address a haunting headline that many of us read last week; “The Judicial Council Mandates Electronic Service of Documents in Most Civil Cases.” At first glance, you would think all service of process in California just went electronic. However, that is not the case. Since the Governor issued the stay at home orders back on March 19, 2020, the Governor, the Chief Justice, the Administrative office of the Courts and the Judicial Council have been looking for ways to keep the California judicial system working. Both plaintiff firms and defense firms are understandably desperate to get cases moving, get cases settled and paid, and on the defense side, properly represent clients with motions, etc. Both sides believe that a small percentage of lawyers are refusing to stipulate pursuant to CCP 1010.6 for electronic service, thereby keeping cases bottled up. So, representatives of the bar and bench discussed ways to address the issue.

Last Friday, April 17, 2020, the Judicial Council approved temporary emergency rule #12, which mandates electronic service of documents in most civil cases. The council states that it did not circulate this proposed emergency rule for comment due to the urgent nature of the pandemic and need to protect litigants’ rights while considering the health and safety of parties, counsel, and the public. Please note, this order is only for secondary services and not primary jurisdictional documents, like summons and complaints.

CALSPro and process servers throughout the state were lucky enough to have our lobbyist, Mike Belote, involved in the discussions. At one point, proposed language appeared to permit All service of process be done electronically, during this emergency. This language might very well have moved forward until Mr. Belote expressed the importance of clarifying that the language should not apply to jurisdictional documents, such as summons and complaints. He pointed out the potential can of worms this would most assuredly open and the potential challenges that would be brought, effectively tying up the court system. At that point, the group agreed to focus the language in the order on service upon represented parties after appearance, after courts obtain jurisdiction over parties.

I point this out to show CALSPro members and potential members the value of membership. Without CALSPro and our active legislative team and lobbyist, electronic service of primary documents LIKELY would have been added to this rule with enormous repercussions for courts, and of course, for CALSPro members. With executive and temporary orders being issued daily, your membership is more important than ever. Had CALSPro’ s lobbyist, Mike Belote, not had a seat at the table, things could have been much worse. I would like to personally thank Mike Belote for his efforts and dedication to preserving our profession.

Emergency Rule #12
The Judicial Council by circulating order approved temporary emergency rule #12, requiring attorneys to electronically serve and receive notices and documents in all general civil actions and family and probate proceedings if requested to do so by the other party. The rule will stay in effect through 90 days after the Governor declares that the state of emergency related to the COVID-19 pandemic is lifted, or when amended or repealed by the council.

While electronic service is already permitted, parties must consent to such delivery unless a court has ordered it. Attorneys have reported that during this pandemic, some parties refuse to agree to electronic service and insist on serving and being served by mail. The new temporary rule makes it mandatory for represented parties but only voluntary for self-represented litigants.

Among the civil actions not covered under this new service rule (because they are not general civil cases defined in California Rules of Court, rule 1.6) are small claims proceedings; unlawful detainer proceedings; and petitions to prevent civil harassment, elder abuse, and workplace violence. The rule doesn’t cover these actions because they often involve self-represented litigants. But parties in exempt cases can still agree to accept electronic service.

The rule does not apply in cases where parties are already required by court order or local court rule to provide or accept notices and documents by electronic service and is not intended to prohibit electronic service in cases not addressed by this rule. https://newsroom.courts.ca.gov/news/judicial-council-mandates-electronic-service-of-documents-in-most-civil-cases

Your Legislative team has continued to work diligently for you during these tumultuous times. Many of us are working from home or with a limited staff at the office. This temporary reality has made all of us rethink what is important to us and what we can do without. My hope is the stay at home orders will be lifted soon and we can return to whatever our new normal will be. Hopefully, with a little more respect and care for our fellow man.

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