Applying New California Rules to Your Real Estate Litigation Practice

Several new California procedural rules went into effect on January 1, 2016. While we are several months into the new year, litigators may need a reminder of these new rules.  The list below summarizes several of the notable new rules.

• Pleading Stage
  • New California Code of Procedure section 430.41(a)(2) mandates that the parties meet and confer at least five days before filing a demurrer (California’s motion to dismiss). If the parties fail to meet and confer, the demurring party may submit a declaration to the court explaining why the meet and confer did not happen, and the demurring party is granted an automatic 30-day extension.
  • If a party decides to amend rather than oppose a demurrer, California Code of Civil Procedure 472(a) requires that the amended pleading be filed no later than the date for filing an opposition to the demurrer. Prior to this change, a party could file the amended pleading on the eve of the hearing.
• Summary Judgment/Summary Adjudication Motions
  • The court is only required to rule upon objections to evidence that it deems material to the motion, under California Code of Civil Procedure section 437c(q). Any evidentiary objection not ruled on by the court is preserved for appellate review.
  • Parties may bring a motion to summarily adjudicate an issue that does not completely dispose of a cause of action, affirmative defense, or duty, under California Code of Civil Procedure section 437c(t). But before filing this type of motion, the parties must submit a joint stipulation stating the issues to be adjudicated, and a declaration from each stipulating party explaining that the motion will further the interest of judicial economy by decreasing trial time or significantly increasing the likelihood of settlement.  Within 15 days of filing the stipulation, the court will notify the stipulating parties as to whether the motion may be filed.  Given that on top of this, section 437c requires a 75-day notice period and that such a motion be heard 30 days before trial, litigators will need to plan ahead if they seek to file this type of motion.
• Voidable Transfers
  • The “Uniform Fraudulent Transfer Act” is now the “Uniform Voidable Transactions Act,” found at California Civil Code section 3439. Section 3439.08(g) clarifies that the standard of proof on proving a claim or defense is “preponderance of the evidence.”