Electronic Service with E-Filing - Inconsistency Warning!

Electronic Service with E-Filing – Inconsistency Warning!

Updated on February 13, 2019

As you have probably heard by now, at the start of 2019 the Los Angeles County Superior Court now requires mandatory electronic filing for all filings in civil matters.  Unfortunately, that still means for filings you still have to go through an attorney service (at least for now). I have a feeling that once we get through the initial growing pains (there are many currently) the system will begin to better mirror PACER which the Federal Court System uses and seems to work quite well.  The key difference is PACER does not require you to use a third party and it allows easier cheap access to previously filed documents.

In any event, the big new question is – with e-filing can we attorneys now utilize electronic service?  The short answer is – it is not terribly clear.  There are two rules at issue.

First, California Code of Civil Procedure section 1010.6(a)(2)A)(ii) provides that for cases filed on or after January 1, 2019, electronic service is not authorized unless a party or “other person” has “expressly consented” to electronic service in that action or the court has ordered electronic service. “Express consent” is accomplished either by serving a notice on all other parties and filing it with the court, or by “manifesting affirmative consent through electronic means with the court or the court’s electronic filing service provider, and concurrently providing the party’s electronic address with that consent for the purpose of receiving electronic service. The act of electronic filing shall not be construed as express consent.” 

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The last sentence is important to reiterate “The act of electronic filing shall not be construed as express consent.”  

Second,  there is California Rules of Court rule 2.251, which provides that electronic service is permitted when consented to by the parties.  And, one of the ways to give that consent is:

(B) Electronically filing any document with the court. The act of electronic filing is evidence that the party agrees to accept service at the electronic service address the party has furnished to the court under rule 2.256(a)(4). This subparagraph (B) does not apply to self-represented parties; they must affirmatively consent to electronic service under subparagraph (A).

In other words, it says the exact opposite of California Code of Civil Procedure section 1010.6(a)(2)A)(ii) which says electronic filing is not enough to consent to electronic service.   Clearly, these two sources are inconsistent.   California Code of Civil Procedure section 1010.6(a)(2)A)(ii) post dates Rule 2.251.  Accordingly, we think it is safer not to assume consent to electronic service.

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Electronic filings have been a long time coming – now let us hope we take the next leap into the modern world without so many hurdles to electronic service. 

Schorr Law maintains an extremely active litigation practice throughout California. We have extensive experience with civil procedure and know the nuances of rules through constant court exposure.  For help with your matter, please do not hesitate to contact us today.

By Zachary Schorr, esq.