On January 1, 2005, the notice of motion period set forth in Code of Civil Procedure section 1005, subdivision (b), was changed from 21 calendar days to 16 court days. That seemingly innocuous amendment created tremendous uncertainty with respect to calculating the last day to serve moving papers when service was by mail, fax or overnight delivery. Six years later, on January 1, 2011, the confusion ended with the enactment of section 12c (all section references are to the Code of Civil Procedure) ... but a new, much less obvious problem now lurks. Check the details about CACI jury instructions in 2021 over the internet or contact a lawyer for the details.

The January 2005 amendment to section 1005, subdivision (b), based the notice period on court days instead of calendar days. It left untouched the provisions relating to the amount of time which must be added when service is by mail (five calendar days within California), or by fax or overnight delivery (two calendar days). As a result, calculating the last day to serve moving papers by mail, fax or overnight delivery requires counting a combination of court days and calendar days; i.e., 16 court days plus five calendar days for mail service within California, and 16 court days plus two calendar days if service is by fax or overnight delivery.

Unaware that there could be more than one way to apply the statute, the drafters did not foresee that the parties and the court might reach different conclusions as to the last day to serve notice. In fact, different results will be reached depending upon: (1) the direction in which the days are counted (forward from the service date versus backward from the hearing date), and/or (2) the order in which the two distinct sets of days are counted (first calendar days, then court days versus first court days, then calendar days). Generally, calculations involving service by mail will differ when a weekend immediately precedes the hearing date or immediately follows the service date. Thus, calculations relating to hearings scheduled on Mondays, Tuesdays following Monday holidays, and Fridays will vary depending on the counting method. This is best explained by example.

Assume you have a September 6, 2011, hearing date (the Tuesday after Labor Day) for a motion you intend to serve by mail. If you calculate the last day to serve notice by counting backward from the hearing date 16 court days plus five calendar days, you will find that August 5 is the last day to serve notice. If, however, you switch the order of the sets of days, counting backward from the hearing date first five calendar days and then 16 court days, the deadline falls on August 10 - a five-day difference.

Alternatively, if you were to switch the direction in which you count, counting forward from a proposed August 10 sendee date first 16 court days and then five calendar days, you would land right on the hearing date, seemingly indicating timely notice. But, if you switch the direction and the order, counting forward from August 10 first five calendar days and then 16 court days, you would land on September 7, one day after the hearing, indicating too little notice. Counting forward from a proposed August 5 service date results in either a September 1 or a September 6 hearing date, indicating that the September 6 hearing date is certainly far enough out, but could the hearing date be as early as September 1 if notice is served on August 5?

Although one should always err on the side of giving more as opposed to less notice, which method of counting is correct? The question was finally answered on January 1, 2011, with the enactment of section 12c.