Rights & Resources for the Elderly During the Pandemic
As Bob Dylan wrote in his famous song: “The Times, They Are A Changin’.” No truer words have been spoken in these unusual and uncertain times. During this pandemic we have heard increasing whispers that we should all expect a “new normal.” What does the “new normal” look like? Only time will tell.
According to the Center for Disease Control, the elder population (those aged 65 or older) are considered one of the most “at risk” groups during this COVID-19 pandemic. Yet, many times these are the same individuals that need the most assistance and/or are considered the most vulnerable within our court system.
So what rights, resources and options do elders have during these changing times? “It depends.” Each of the San Francisco Bay Area Superior Courts have implemented their own set of Emergency Local Rules to guide attorneys who represent elders in various proceedings. This article focuses on the current procedural options for those who practice in Contra Costa County Superior Court. The resources and information outlined below may change, so it is recommended that you review the most current local rule before you prepare your documents and file them with the court.
Pursuant to the Second Amended Emergency Local Rules-Civil (implemented May 5, 2020), Rule 4 titled “Filing of Papers,” subsections (a) and (b), provides as follows:
a. Acceptance of Filings
Effective Monday, April 6, 2020, the Court will permit filings each day via drop box, excluding weekends and Court holidays. Two separate drop boxes will be provided at the Main Street entrance to the Wakefield Taylor Building, at 725 Court St., Martinez.
One designated drop box will be for Civil Ex Parte matters as identified in Local Rule 3.47 and Civil Restraining Orders, which are defined to include the following:
iii. Requests for Elder or Dependent Abuse Restraining Orders pursuant to Welfare and Institutions Code §15657.03.
b. Procedure for obtaining Civil Restraining Orders
i. Completed paperwork for all Civil Restraining Orders will be accepted via drop box at the Main Street entrance to the Wakefield Taylor Building, 725 Court St., Martinez, each court day between 9:00 AM and 10:30 AM. The completed Requests for Restraining Orders will then be reviewed by a judicial officer. If approved, the orders will be issued, filed with the court and a hearing date will be assigned.
iii. Endorsed filed copies of issued Restraining Orders will be available for pick up at 1:00 PM outside of the Peter Spinetta Family Law Center, 751 Pine St., Martinez, on the same day that they were submitted to the Court. Litigants and attorneys are reminded to stay a safe distance (at least 6 feet) away from each other and court staff at the time of distribution of these Orders.
The court will be vacating all restraining order hearings set for hearing prior to June 15, 2020, but will automatically extend all temporary restraining orders that were scheduled during the court closure for an additional ninety (90) days to ensure the safety of the protected party.
Unlawful Detainers (Evictions)
The Second Amended Emergency Local Rules-Civil (implemented May 5, 2020), Rule 4 titled “Filing of Papers,” subsection (d), provides as follows:
d. Procedures for Unlawful Detainer matters
i. Under Rule 1(b) of the Judicial Council Emergency Rules, the Court may not issue a summons for new unlawful detainer complaints except if the Court finds, in its discretion and on the record, that the unlawful detainer action is “necessary to protect public health and safety.” [Emphases added.]
ii. Under Rule 1(c) of the Judicial Council Emergency Rules, the Court may only enter a default judgment in an unlawful detainer action for failure to appear if the action is necessary to protect the public health and safety and the defendant has not appeared in the action within the time provided by law, including by any applicable executive order.
iii. The submission of any unlawful detainer complaint, default judgment, or other unlawful detainer filing which argues necessity based on protecting public health and safety, including matters involving violence or threats of violence, must be accompanied by: 1) a declaration under oath stating specific facts showing such necessity; and 2) a proposed order permitting the filing on the basis of such necessity.
The effect of this Rule is that the Court has temporarily suspended any eviction actions unless the eviction is necessary to protect public health and safety. If it does, then the court requires additional proof to satisfy that element. Again, the court is using precaution in temporarily suspending this specific action, unless absolutely necessary.
Financial Elder Abuse
The first issue you must decide before filing a financial elder abuse case is whether it will be filed as a Civil Case or a Probate Case. As described above, if filed in as a Civil Case, then the Second Amended Emergency Local Rules-Civil apply, specifically Rule 4 titled “Filing of Papers,” subsection (e). It states as follows:
e. All other Civil filings
i. Drop Box. All other Civil filings will be accepted via a separate drop box at the Main Street entrance to the Wakefield Taylor Building, 725 Court St., Martinez, each court day between 9:00 AM and 3:00 PM. All such submissions shall include any necessary filing fee, as well as copies of any papers submitted and a self-addressed stamped envelope so that endorsed filed copies can be returned by mail.
More importantly, subsection “c” of Rule 4 of the Second Amended Emergency Local Rules-Civil reminds practitioners that if they are submitting an ex parte matter, the request must present special issues that require immediate court attention. Rule 4(c) states:
i. Given the limited Court services available during this emergency, parties are directed to only submit Ex Parte matters that truly present special issues that require immediate court attention. When possible, parties shall participate in a meaningful meet and confer process before any Ex Parte matter is submitted to the Court.
For Probate Cases, the Emergency Local Rules-Probate (Amended) apply. Rule 2, section (b) states:
b. Type of Filings Accepted
Documents that may be filed are limited to the following:
i. Limited ex parte petitions that meet both emergent requirements and include written consents and waivers of notice by all parties for the following:
a. Appointment of counsel for Limited Conservatorship;
b. Appointment of Temporary Conservator or Temporary Guardian ;
c. Extension of Temporary Conservatorship, Guardianship or Special Letters of Administration;
d. Order for MD/Psych to complete Capacity Declaration;
e. Request MND Medical Powers from counsel who have been previously appointed by the court;
l. Appointment of Guardian ad Litem.
ii. General Petitions.
General Petitions may be filed and will be set for hearing in 60 to 90 days, allowing for notice and publication. Notices are advised to include language that interested persons should check the online tentative ruling for the respective probate department to see examiner notes and if the hearing is continued.
Finally, the CCCBA and the court have hosted several Zoom town hall meetings featuring Judges Baskin and Austin where they have reviewed these rules and answered attorneys’ questions. Consult the CCCBA calendar for future meeting announcements so you can keep updated and be ready to assist your elderly clients in “these changin’ times.”