Colusa County Superior Court Local Rules (revised and effective July 1, 2015) — Section 5: Miscellaneous Rules - Civil

Requirement

SECTION 5 MISCELLANEOUS RULES - CIVIL RULE 5.01 ATTORNEY FEES IN CIVIL ACTIONS OR PROCEEDINGS (A) In actions on promissory notes and contracts providing for the payment of attorney fees, whenever a prevailing party is entitled to the recovery of reasonable attorney fees, the following schedule shall be considered by the court, in its discretion, in awarding attorney fees: (1) DEFAULT ACTION Exclusive of costs and interest, (a) Twenty-five percent (25%) of the first two thousand dollars ($2,000) awarded as damages; (b) Twenty percent (20%) of the next four thousand dollars ($4,000); (c) Fifteen percent (15%) of the next four thousand dollars ($4,000); (d) Ten percent (10%) of the next ten thousand dollars ($10,000); (e) Five percent (5%) of the next thirty thousand dollars ($30,000); and (f) Two percent (2%) of amounts in excess of the first fifty thousand dollars ($50,000). (2) CONTESTED ACTION The same amount as computed under paragraph (A)(1), increased by such compensation computed on an hourly or per-day basis for any additional research, general preparation, trial or other services as may be allowed by the court. (B) Where a defendant is the prevailing party, the fees will be fixed by reasonable compensation computed on an hourly or per-day basis for research, general preparation, trial or other services rendered. (C) Where a prevailing party is entitled to the recovery of reasonable attorney fees in an otherwise appropriate clerk's judgment, the clerk shall include attorney fees computed pursuant to the fee schedule contained in this Rule. (D) In any case where a party claims fees in excess of those allowed by this Rule, application for attorney fees shall be made to the court, supported by declarations setting forth the factual basis for the claimed attorney fees. The fees will thereupon be fixed by the court. (Adopted, effective 7/1/92) RULE 5.02 ATTORNEY FEES IN RESIDENTIAL UNLAWFUL DETAINER ACTIONS In actions for residential unlawful detainer, the attorney fees awarded by the Court will not, under normal circumstances, exceed three hundred dollars ($300) in cases by default where the defendant has filed no answer pursuant to Code of Civil Procedure Section 1170, or four hundred dollars ($400) in cases uncontested at trial where the defendant has filed an answer. (Adopted, effective 7/1/92) RULE 5.03 ATTORNEY FEES IN CASES INVOLVING MINORS OR INCOMPETENT PERSONS (A) On any application for approval of a compromise under Code of Civil Procedure Section 372 or Probate Code Section 3500, the attorney fees hereafter set forth shall be considered reasonable under normal circumstances. In computing fees on the basis of the amount of the judgment, special damages allotted to the parents and the costs paid or incurred by any attorney shall be first deducted therefrom. (1) Settlement without the commencement of a court trial: twenty-five percent (25%). (2) Recovery of judgment or obtaining settlement after court trial has commenced: thirty-three and one-third percent (33 1/3%). (3) Settlement after filing appellant's opening brief on appeal: forty percent (40%). (B) In cases involving unusual circumstances or conditions, the foregoing fees shall be subject to variation by the Court to meet such circumstances or conditions. (Adopted, effective 7/1/92) RULE 5.04 COMPROMISE OF CLAIM OF MINOR OR INCOMPETENT PERSON (A) PETITIONS TO COMPROMISE A petition for court approval of a compromise pursuant to Code of Civil Procedure Section 372, Probate Code Section 2504, or Probate Code Section 3500, shall be made using Judicial Council Form MC-350, Petition to Approve Compromise of Claim. All petitioners shall also submit a completed Judicial Council Form MC- 351, Order Approving Compromise of Claim. (B) ORDER TO DEPOSIT MONEY If the petition seeks to have settlement proceeds deposited into a blocked account, the petitioner must also file a completed Judicial Council Form MC-355, Order to Deposit Money Into Blocked Account. If the court approves the deposit into a blocked account, the petitioner must deliver three (3) copies of the order and three (3) copies of Judicial Council Form MC-356, Receipt and Acknowledgement of Order for the Deposit of Money Into Blocked Account, to each depository in which funds are deposited. (C) WITHDRAWAL OF FUNDS Requests for withdrawal of funds deposited into a blocked account must be made using Judicial Council Form MC-357, Petition for Withdrawal of Funds From Blocked Account. Petitioners must also submit a completed Judicial Council Form MC-358, Order for Withdrawal of Funds From Blocked Account. Except as otherwise ordered by the court for good cause shown, where the attorney for the petitioner was allowed fees at the time of settlement, no attorney fees incidental to securing such order will be awarded. (D) PRESENCE OF PETITIONER AND MINOR OR INCOMPETENT PERSON AT HEARING The presence of the petitioner and minor or incompetent person at the hearing on petition for approval of compromise shall be required, unless, in advance of the hearing, good cause is shown to the court by letter request seeking to excuse that person's attendance. The court shall consider as factors in weighing such a letter request, without limitation, the following: (1) Amount of settlement; (2) Policy limits; (3) Extent of injury and need for future medical care related to injury; (4) Extent of residual (including cosmetic and psychological); (5) Liability; (6) Travel distance for minor and guardian, including consideration of any disability making travel difficult; (7) Interruption of education. Note: Generally, where petitioner is not represented by counsel, an appearance will be required. (E) FILING FEE In any case in which the filing fee was waived, it shall be ordered paid out of the settlement proceeds by court order before orders approving compromise and deposit are filed. (Amended, effective 1/1/03) RULE 5.05 FORM OF JUDGMENT In drafting forms of judgment for the trial judge to sign, counsel shall: (A) Clearly show the full names of the parties for whom, and against whom, the judgment is rendered, including their capacities as plaintiffs, defendants, cross-complainants and cross-defendants; (B) Refer to such full names as they appear in the pleadings, or obtain an order amending the pleadings in respect to such names; and (C) Unless costs have already been awarded in a specific amount, leave a blank space for insertion of any costs, as follows: "and costs in the sum of $________________." (Adopted, effective 7/1/92) RULE 5.06 RESERVED RULE 5.07 APPEAL FROM DECISION OF LABOR COMMISSIONER UNDER LABOR CODE SECTION 98.2 (A) Any party filing a Notice of Appeal of the order, decision or award of the Labor Commissioner pursuant to Labor Code §98.2, shall file with the clerk of the Court: (1) A copy of the complaint and any answer filed with the Labor Commissioner; and (2) A complete copy of the order, decision, or award of the Labor Commissioner, which shall include a summary of the hearing and the reasons for the decision if provided by the Labor Commissioner; and (3) A declaration of proof of service of a copy of the Notice of Appeal upon the Labor Commissioner. (B) Any employer filing an appeal shall, in addition to the foregoing, post an appeal bond and provide notice to the other parties and the Labor Commissioner in compliance with Labor Code §98.2(b). (C) The clerk shall only set the matter for hearing de novo upon the filing of the papers prescribed in paragraphs (A) and (B). (D) The Notice of Appeal filed pursuant to Labor Code §98.2 shall be treated as the first paper for the purpose of determining the filing fee. (Amended, effective 7/1/01) RULE 5.08 SETTLEMENT CONFERENCE (A) In connection with the settlement conference, all parties shall comply with the requirements of California Rules of Court, Rule 3.1380, and in addition to which, at the conference the parties shall: (1) Be prepared to make a bona fide settlement offer; (2) Have in attendance all principals or clients, unless excused from attendance in advance, for good cause shown, and after notice to all other parties that such request to be excused will be made; (3) Produce memoranda of items of any special damages claimed; and (4) Have available any and all medical reports (if a personal injury is claimed), depositions, photographs, records, diagrams, maps, bills, contracts, memoranda and other documents pertinent to settlement of the case. (B) A settlement conference statement shall be filed five (5) days before the date of the settlement conference. (C) It is the responsibility of the parties to notify the clerk whether the case has or has not settled, in advance of said conference. (Amended, effective 1/1/07) RULE 5.09 SANCTIONS A violation of these Rules of Court constitutes a violation of a lawful court order, as that term is used in Code of Civil Procedure Section 177.5, and may subject the party and/or counsel to sanctions thereunder, and as otherwise provided by law. In addition to sanctions authorized in the Code of Civil Procedure, each court adopts and incorporates herein by this reference as though fully set forth at length California Rules of Court, Rule 2.30, pertaining to Superior Courts. Any request for money sanctions must be made upon advance notice, in writing, unless on the court's own motion, in which case notice need not be in writing. (Amended, effective 1/1/07) RULE 5.10 RESERVED RULE 5.11 SMALL CLAIMS SETTINGS Small claims calendars shall be established on a regularly scheduled basis (Code of Civil Procedure Section 116.250). (Amended, effective 7/1/97) RULE 5.12 DEFAULT PROVE-UPS (A) Except in cases concerning which the clerk may enter judgment without review by a judicial officer (California Code of Civil Procedure Section 585(a)), it is the general policy of the court that prove-up applications and evidence in support thereof be presented in written form, unless prohibited by law (Code of Civil Procedure Section 585(c)). (B) Affidavits and declarations presented in support of a prove-up application shall comply with the requirements of Code of Civil Procedure Sections 585 and 585.5. (C) For purposes of default prove-ups, as to the issue of damages, competent evidence must be presented. As to the issues of liability, the failure of the adverse party to answer is deemed an admission, except as to matter which was alleged in the complaint in conclusory form. As to that matter, only, the failure of the adverse party to answer is not deemed an admission and competent evidence must be presented. Affidavits and declarations must show, affirmatively, that the affiant or declarant is competent to state those things that appear therein. Generally, the court will use the same standard for assessing the quality and sufficiency of the evidence as would be applied in a contested proceeding. (Code of Civil Procedure Section 585(d)). (Amended, effective 1/1/07) RULE 5.13 FACSIMILE FILING This Rule is adopted in accordance with the provisions of California Rules of Court, Rule 2.300 et seq. and applies to civil, probate, and family law proceedings, with the exception that wills, codicils, bonds or undertakings shall not be filed by facsimile transmission. A document that is to be issued by the court (including, but not limited to, a summons, letters of administration, letters testamentary, and a writ of execution) shall not be sent to the court by facsimile transmission. (A) DEFINITIONS As used in this Rule, unless the context requires otherwise: (a) “Facsimile transmission” means the transmission of a copy of a document by a system that encodes a document into electrical signals, transmits such electrical signals over a telephone line, and reconstructs the signals to print a duplicate of the original document at the receiving end. (b) “File” or “filing” means the facsimile transmission of a document to a fax filing agency for filing with the court. (c) “Fax” is an abbreviation for “facsimile” and refers, as indicated by the context, to facsimile transmission or to a document so transmitted. (d) “Fax filing agency” means an entity that receives documents by fax for processing and filing with the trial courts. An attorney or law office may act as a fax filing agency for the attorney, the law office or others. (B) COMPLIANCE WITH CRC RULES 2.100-2.119 AND THE LOCAL RULES OF COURT (a) A fax document shall comply with California Rules of Court, Rule 2.100 through 2.119 and all applicable Rules of this Court. (b) An exhibit that exceeds 8½ by 11 inches shall be reduced to 8½ by 11 inches before it is transmitted. The court may require the party to file the original of an exhibit that has been filed by fax. (c) Any document which contains an exhibit which cannot be accurately transmitted by fax shall not be filed by fax. (C) NO DIRECT TRANSMISSION FOR FILING Facsimile produced documents may not be transmitted for filing directly to any fax machine owned or operated by the court or the clerk’s office. In order to be filed with the court, all facsimile produced documents must be presented for filing at the filing window. All requested fees must be paid at the time of filing. (D) QUALITY OF FACSIMILE PRODUCED DOCUMENTS In order to be filed with the court, all facsimile produced documents must be produced on plain eight-pound bond paper by laser printer or better quality technique, and in terms of legibility, quality of paper and permanence must be of equal or better quality than non-facsimile produced documents. (E) FAX FILING AGENCY A party may transmit a document by fax to a fax filing agency for filing with the trial courts. The fax filing agency acts as the agent of the filing party and not as an agent of the court. (F) DUTIES OF THE FAX FILING AGENCY A fax filing agency that receives documents for filing shall: (1) Prepare the documents so that the documents comply with California Rules of Court, Rule 2.100 through 2.119 and any other requirements for filing with this court. (2) Take the documents to the court. (3) Ensure that the words “By fax” are included on the first page immediately below the title of the document. (4) File the document with the court. (5) Pay any applicable filing fee. (G) REQUIREMENTS FOR ADVANCE ARRANGEMENTS A fax filing agency shall not be required to accept papers for filing unless appropriate arrangements for payment of filing fees and service charges have been made by the transmitting agency before the papers are transmitted to the fax filing agency. (H) CONFIDENTIALITY A fax filing agency shall keep all documents transmitted to it confidential except as provided in these Rules. (I) RESERVED (J) SIGNATURES (1) A party who files a signed document by fax represents that the original physically signed document is in his or her possession or control. (2) Notwithstanding any provision of law to the contrary, including Evidence Code sections 255 and 260, a signature produced by facsimile transmission will be treated as an original. (3) Within fifteen (15) days after service of a signed facsimile filing, any other party may serve a demand for production of the original physically signed document. The demand shall not be filed with the court. Failure to serve a demand is a waiver of the right to demand production of the physically signed original. (4) If a demand for production of the original physically signed document is made, the filing party shall arrange a meeting at which the original physically signed document can be examined. (K) NOTATION OF FACSIMILE FILING Each facsimile filing shall include the words “By fax” or “By facsimile” on the first page immediately below the title of the document. If a party is represented by an attorney, the attorney shall also include his or her facsimile machine telephone number, designated as a “fax” number, as part of the attorney’s name, address, State Bar membership number, and telephone number on the document. (Amended, effective 7/1/15, previously amended, effective 1/1/07)