The Judicial Council of
California met on April 6, 2020 to adopt a series of emergency court rules. Emergency Rule 9 tolls civil statutes of limitations (SOL)—including those found in CEQA—from
April 6, 2020 to 90 days after the Governor lifts the state of emergency.
When a statute of limitation
is tolled, the limitations period stops running and begins to run
again when the tolling event has concluded. (See Woods v. Young (1991) 53 Cal.3d 315, 326, fn. 3 [“Tolling may be
analogized to a clock that is stopped and then restarted. Whatever period of
time that remained when the clock is stopped is available when the clock is restarted,
that is, when the tolling period has ended.”].) This means, once the COVID-19
suspension is lifted via Governor proclamation (proclamation), careful
calculation will be required ensure that procedural mishaps do not occur. For
projects approved prior to the issuance of Emergency Rule 9, the statute of
limitations period will include the days prior to April 6th, then
the remaining days after the tolling period expires.
example: If an NOE (with a 35-day
CEQA statute of limitations) was issued on March 10th and the
Governor lifts the state of emergency on June 2nd, the statute of
limitations will run on September 9th. This credits the 26 days
leading up to April 6th against
the 35 day SOL, accounts for the 90 days following the June 2nd lifting
of the state of emergency and the remaining 9 days of the 35 non-tolled days.
For projects approved after
the proclamation, but before the 90-day suspension expires, the statute of
limitations will not begin until the remaining portion of the 90-day period
example: If the Governor issues
the proclamation on June 2nd, and an agency approves a project and
posts an NOD (with a 30-day CEQA statute of limitations) on June 4th,
the statute of limitations will run on September 30th. This accounts
for the remaining 88 days of the 90-day suspension plus the ordinary 30-day statute of limitations.
The Governor must lift the
state of emergency via proclamation at the “earliest possible date that
conditions warrant”. (See Gov. Code 8629.)
As of April 27, 2020, there have been 43,784 confirmed cases in California, with many more asymptomatic and low-grade cases
evading identification. It has been speculated that the number of cases in California
will reach their peak this month, although the country’s total cases are not expected to peak until (at least) the end of the
month, with additional infections and
deaths projected through the summer. In short, no one knows when cases will
decline to the level that the Governor will issue a proclamation restarting the
clock on civil statutes of limitations.