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.
For 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 concludes.
For 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.