Covid-19 Coronavirus Update: Force Majeure and California Emergency Rules Affecting the Courts and Construction Defect and Real Estate Litigation

The corona virus continues to impact the court and the legal system in far-reaching and widespread ways. A number of these impacts are addressed below: 

Force Majeure

Force Majeure is a legal concept that essentially excuses a party from having to perform according to the terms of a contract that they would otherwise be bound to perform due to a super-intervening force. Force Majeure is derived from the Latin term “vis major”, which is essentially a “superior force”. The legal concept includes acts of god, but also other events, such as war, or the necessities of war, which enable a party to the contract who is prevented from performing to terminate the contract. For example, a shipping contract that is prevented by wartime attacks on shipping lanes. Certainly, the current coronavirus pandemic could be interpreted to fall within the definition of force majeure and the theory could serve as a legal basis to terminate a contract. A party to a contract could use force majeure to attempt to cancel a contract, or it could be a defense to a breach of contract claim where the breaching party asserts that they were prevented from performing by external events. Whether the current pandemic will be seen in this light by the courts remains to be seen, but no doubt, the theory will be tested, applied, used as a defense or to attack contracts, and should be considered by anyone who’s contractual obligations are prevented by the pandemic, if in fact the pandemic is having a direct and interfering effect on the ability to perform a contract. The legal impact of force majeure could be quite far-reaching and could affect construction defect and real estate litigation cases in the near future. 

California Civil Statutes of Limitation Tolled

Under Emergency Rule No. 9 related to the Covid-19 pandemic, all civil statutes of limitation in California are tolled from April 6, 2020, until 90 days after the Governor declared that the state of emergency related to the Covid-19 pandemic is lifted. This means that all civil statutes of limitation have been tolled for the time being. And while the urgency of filing an action in order to avoid the statute of limitations has been addressed, there will be tremendous backlogs of cases filed when the order is lifted and the place each case has in line to be heard and decided and proceed to trial will depend on when it is filed, with earlier filed cases having priority. Therefore, it is vital that cases and claims be filed as soon as possible to establish your place in the queue. When cases are later assigned trial dates, the cases with the lower case numbers, that is cases filed earlier, will be assigned trial dates first. Given the growing backlog of cases, and the new time frames for processing cases in the California state courts, construction defect and real estate litigation cases, which tend to be complex, should be filed as soon as the claim is known and discovered. The matter can be mediated and settled. The insurance and policy limits can be determined and the claim triggered. Adjusters and attorneys representing contractors, subcontractors and developers can be named and joined in the case and brought to a resolution. Plus, you will be among the cases ahead of the backlog. The strategy for resolving cases remains the same: proceed with the action, have the court assign a trial date, which is the outer time limit, and work within the time limit to settle, mediate and resolve. Currently, the process can be conducted remotely, safely and efficiently without any health or safety risk. When the emergency rules are lifted, there will be a tremendous backlog of cases, and the best strategy is to be ahead of the curve, be proactive and know and protect your rights. A consultation with an experienced construction defect and real estate litigator is the best place to start to gain an understanding of your rights, and the best strategy to protect those rights in the new coronavirus legal landscape. 

Electronic Service

Under Emergency Rule No. 12, a party represented by counsel, who has appeared in the action or proceeding, must accept electronic service and a party represented by counsel must upon request must serve the requesting party with any notice of document that may be served by mail, express mail, overnight delivery or fax. Electronic service on elf-represented parties is permitted only with the consent of that party, confirmed in writing. The written consent to accept electronic service may be exchanged electronically. 

Timothy Norton now conducts litigation, mediation, settlement conferences, meetings and depositions remotely and electronically for efficiency and safety. Protecting your real estate investment from construction defects and real estate fraud and non-disclosure is now more important, safe and efficient than ever. 

With 34 years of experience protecting rights and investments in real property, representing clients in construction defect and real estate litigation, with $190m in jury verdict awards, $70m in punitive damage awards and millions more in settlement, Norton & Associates is your Los Angeles construction defect and real estate litigation attorney

Protect your investment: Call or email today for a case evaluation and consultation. 310.706.4134 or info@constructiondefect.com

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