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Judges and Judiciary,
Civil Litigation

Apr. 21, 2020

When will civil litigation return to normal?

I hear the clamor at the courthouse doors: “I need this pandemic thing to end, at least in so far as it interferes with my litigation plan.” I also hear, “Even if you can’t put my entire case back on track, allow us to resume the parts that matter most to us right now.” While there is nobody in the Los Angeles legal community who wants to get back to normal more than I do, I need to provide context for my answer to these well-intended questions and concerns.

5 brazile kevin pro tease

Stanley Mosk Courthouse

Kevin C. Brazile

Presiding Judge, Los Angeles County Superior Court

For weeks now, the world has been operating under unprecedented health emergency conditions. The World Health Organization, the United States Centers for Disease Control and Prevention, the state of California, county and city of Los Angeles have recognized that the world, country, and state face a life-threatening pandemic caused by the COVID-19 virus. In response, Gov. Gavin Newsom on March 4 declared a state of emergency in California, which was followed on March 13 by President Donald J. Trump declaring a national emergency. Beginning on March 16, California counties, including Los Angeles, began issuing shelter-in-place or stay-at-home orders. On March 19, Gov. Newsom issued Executive Order N-33-20, requiring all Californians to stay home, subject to certain limited exemptions. The governor's stay-at-home directive was recently extended to May 15. Public Health agencies, including the CDC, the California Department of Public Health, and local county health departments have recommended increasingly stringent social distancing measures.

WHEN WILL WE GET BACK TO NORMAL?

I hear the clamor at the courthouse doors: "I need this pandemic thing to end, at least in so far as it interferes with my litigation plan." I also hear, "Even if you can't put my entire case back on track, allow us to resume the parts that matter most to us right now." While there is nobody in the Los Angeles legal community who wants to get back to normal more than I do, I need to provide context for my answer to these well-intended questions and concerns.

The continuous operation of our courts is essential for our constitutional form of government, for providing due process and protecting the public. These principles have been affirmed by both our governor and the chief justice of our State Supreme Court. However, courts are clearly places with elevated risks during this pandemic because they require gatherings of judicial officers, court staff, litigants, attorneys, witnesses, defendants, law enforcement, and juries in close proximity -- in numbers that challenge our ability to comply with current executive and local health orders regarding social distancing of at least six feet. As the battle against COVID-19 rages, it demands rigorous social distancing enforcement, limiting public access to courthouses, protecting persons in jail custody and managing the flow of the great majority of the thousands of judges, staff, litigants, attorneys, jurors, witnesses and others who normally use our courts daily.

In response to the COVID-19 crisis, beginning on March 20, the chief justice of California, the Honorable Tani Cantil-Sakauye, issued a series of advisory recommendations and orders to mitigate the effect of reduced staffing and court closures and to protect the health of judges, court staff, and court users. The most recent of these statewide actions included 11 Emergency Rules of Court on April 6 and a 12th on April 17. These actions have consistently followed a single strategy: close the courts to non-essential functions -- while protecting the integrity of non-essential cases.

As presiding judge, I have used the authority granted to me by statute (Government Code Section 68115), and by orders issued by the chief justice, to implement the superior court's responses to the state of emergency that follow this same strategy. My orders are posted on the court's website: www.lacourt.org.

One of the most significant of these actions closed the court to non-essential functions until May 12. See April 14 General Order. Under my March 17 and April 14 general orders, courthouses are closed to all but persons authorized under the general orders to attend essential functions, while telephonic assistance is provided to callers regarding urgent matters. By closing our civil courts to all but essential matters, we are enabling civil lawyers and their clients to prioritize their health and the health of their families and employees and to comply with safer-at-home and shelter-in-place directives. We also are allowing most of our court staff members to remain safer at home. In advance of the crisis, and during the past month or so, there has been no time or ability to obtain sufficient resources -- either personal or technological -- to convert the court's in-person courthouse operations to ones conducted exclusively through remote technology. To do so would require court staff to be at courthouses to serve parties with rulings and make entries into the court's case management system. Very few employees have the ability to perform this work remotely without secure laptops, in-home hardware and connections, and training. To promote social distancing, the court has removed as many court staff out of the courthouses as possible to prevent the spread of COVID-19. To the extent that we have undertaken significant efforts to develop remote capability during the Emergency Period, it has been in those areas -- criminal, juvenile, dependency and mental health -- that have constitutional and statutory deadlines and are enumerated as time-sensitive essential functions. See March 17 and April 14 General Orders. The court also has promoted telephonic appearance in emergency civil matters. See April 14 General Order.

Recognizing the potential impact on civil litigation during the Emergency Period, measures have been implemented to protect the integrity of civil cases while they are necessarily delayed. This strategy of managed delay is illustrated by the following:

• Extending the time periods provided in Sections 583.310 and 583.320 of the Code of Civil Procedure to bring an action to trial by no more than six months from the last date on which the statutory deadline otherwise would have expired. See Emergency California Rule of Court, Rule 10;

• Continuing all non-essential matters, with notice to be given to all parties of the specific time and date of the continuance in their cases. See April 14 General Order;

• Continuing all jury and non-jury civil trials to a date after June 22. See chief justice's March 23 statewide order and the presiding judge's March 23 General Order;

• When civil jury and non-jury trials resume after our targeted ramp-up date of June 22, all pretrial dates, such as discovery cut-off and motion hearings, will be governed by the new trial dates. See April 14 General Order. (For those cases where a discovery cut-off date was set before the Emergency Period began on March 17, the discovery cut-off date will remain, unless the party obtains an extension of the discovery cut-off date from the trial judge);

• Declaring that from April 17 to May 12, inclusive, be deemed a holiday/holidays for purposes of computing the time under Code of Civil Procedure Section 116.330(a) (which requires a small claims matter to be scheduled for hearing no earlier than 20 days but not more than 70 days from the date of the order directing the parties to appear at the hearing). See April 14 General Order;

• Recognizing that, in unlawful detainer cases (see California Emergency Rule of Court, Rule 1(d)) if the defendant has appeared in the action, the court may not set a trial date earlier than 60 days after a request for trial is made, unless the court finds that an earlier trial date is necessary to protect public health and safety. Under this same rule, any trial set in an unlawful detainer proceeding as of April 6 must be continued at least 60 days from the initial date of trial;

• Expedited petitions to approve compromise of disputed claims or pending action or disposition of proceeds of judgment for a minor or person with a disability pursuant to CRC 7.950.5. See April 14 General Order;

• Any party who is represented by counsel and appears in the action must accept electronic service of notices and documents, unless the party is self-represented. See Emergency CRC, Rule 12, effective April 17.

Put simply: Except for an ex parte application for an emergency order, most civil proceedings and hearings are not essential functions during a state of emergency because trial dates have and will be continued to a future date. Although civil law and motion dates are being delayed, these motions will be heard and considered at a later date before the trial dates. In other words, law and motion matters are being delayed in a manner that is consistent with the new trial dates for civil cases. In addition, where possible, telephonic appearances are allowed in civil cases in lieu of in-person appearance and after the June 22 ramp up, Webex video will be available for settlement conferences held at the Spring Street Courthouse

The extraordinary measures outlined above allow for managed delay in the civil courts and the protection of litigants, bench officers, court staff and the public, while the court is required to focus its scarce and limited resources on priority matters that are statutorily mandated and time-sensitive, in criminal, delinquency, dependency and mental health cases.

The ask that the court deploy limited resources away from the emergencies of the day and away from our intended June 22 ramp-up date (see below) to carve out a phase of the Emergency Period that allows for selected non-essential functions, such as civil law and motion, is not reasonable at this time given the state of emergency. However, I have established a COVID-19 Response Advisory Council, chaired by Supervising Judge of Civil Samantha Jessner, comprised of judges and many prominent representatives from various bar associations, including LACBA, ABOTA, ABTL, CAALA, ASCDC and others. This Advisory Council has been charged with making recommendations on the following by June 8) ways the court can better leverage technology to expand the use of remote participation in judicial proceedings; 2) identify legislative and rule changes needed to support the court's efforts during this Emergency Period and beyond; 3) ways to meet the requirements of social distancing during jury voir dire, jury selection and trials. We expect these advisory recommendations will include a fair and systematic approach to using technology to allow for remote handling of law and motion matters.

The court's COVID-19 Working Group, which is made up of judges and court administrators, will consider these recommendations together with the overall needs of the court and our plans for moving on to the ramp-up phase of the Emergency Period. We also plan to explore innovative and creative options for enhanced settlement procedures, such as Webex, after the ramp-up phase and beyond.

LOOKING AHEAD

Right now, teams of judges and staff are formulating plans for the restoration of services as the state of emergency is relaxed or lifted. As we look toward the future, we recognize our civil courts were busy before the state of emergency. They were also scheduled to be busy during the emergency, but cases had to be continued to protect the court users, court staff and judicial officers. There will be busy calendars in the period after the June 22 ramp up and most likely until the end of the state of emergency, which right now cannot be predicted with certainty. Once we fully re-open the courts there will be a huge backlog of hearings and trials, with priority being given to criminal and unlawful detainer trials. We expect that social distancing will continue after June 22, and to further protect the public and court staff may require smaller calendars and fewer motion hearing days.

Priority matters also are piling up elsewhere across the court, especially criminal trials which are currently suspended (see chief justice's March 30 statewide order) and those will necessarily impact the civil courts. Criminal cases with statutorily established speedy trial and preliminary hearing deadlines have been delayed since March 17. Court oversight of thousands of foster children will have to be reestablished, as it will in cases of conservatorships, civil guardianships and civil commitments. We are working on ways to safely seat a jury when the court resumes trials, but if the response rate to jury summonses remains low, criminal jury trials will have to take precedence, and this will limit the number of civil jury trials that can take place. In addition, there will be a large number of unlawful detainer cases due to the suspension of the processing of unlawful detainer cases ordered by the Judicial Council of California (see Emergency CRC, Rule 1) and local government orders.

It is likely that the anticipated wave of high-priority non-civil matters will consume much of the court's resources for months after reopening. Therefore, we are currently cross-training civil judges to ensure we have enough judges to handle non-civil, time-sensitive and urgent matters. Many of our civil staff already are cross-trained to support the need to handle priority matters in other case types.

We are well along in planning the post-emergency ramp up and that effort shows us clearly the limits to the courts' ability to bounce back. Civil judges may desire to set heavy calendars to deal with the backlog of hearings and trials, for instance, but social distancing measures likely will be required for some time, working against the desire for packed courtrooms and heavy calendars. Moreover, courtrooms cannot work faster than staff can handle the incoming motions and process the resulting orders. As many of you know, we recently expanded our civil research attorney staffing levels. However, we already have seen much of that additional capacity utilized to its fullest. It is unlikely that courtroom capacity will be able to expand to meet the backlog as quickly as lawyers may hope.

As a larger number of stacked and priority cases rest upon fewer resources, the return to normal in civil will not be rapid. So, to answer the question of when the court will get back to normal, I can only say ... "I don't know yet." We are certainly working toward the answer, and together we will get back to normal.

WHY NOT JUST DO LAW AND MOTION IN CIVIL?

One suggestion is to focus on a part of the civil backlog: law and motion. It is tempting to try to peel off some matters, perhaps in a small number of civil courtrooms, right now, to try to forestall the looming backlog. Telephonic hearings on law and motion are legal, after all; and everyone has a phone. But while such a program might be legal, it is not only infeasible, given current resources and demands; there is a possibility it would cause more problems than it solved.

For instance, court staff who are now safely teleworking from a remote location would be required to come into a courthouse. Many of these same court staff have been or will be redeployed to assist the public and others by serving as important telephonic and online customer service agents through new local courthouse calling centers. Furthermore, to allow court staff to work at home would require the expensive, in home installation, of software, hardware and/or equipment to securely connect them to the court's case management system. Moreover, allowing attorneys to appear remotely raises issues of equal access where those who are more disadvantaged, or are self-represented, may have less ability to keep up with better-funded parties during this challenging time.

Providing remote law and motion in approximately 65 individual calendar courts would require re-creating some sort of master calendar system. Such a monumental task would be unreasonable for a civil leadership team focused on managing under the current orders and planning for restoration of services in about eight weeks. It would also be an unmanageable strategy for handling the 35,000 plus unlimited individual calendar court civil cases on the court's docket. Furthermore, there are another 36,000 plus personal injury cases handled by five personal injury courts, and another 18,000 cases assigned to merely two limited civil courts. There are also approximately 40,000 limited civil collections cases assigned to two judges. (Three judges assigned to the Mosk Courthouse handle writs and receivers cases and 10 complex civil judges are assigned to the temporarily closed Spring Street Courthouse.

It may very well be that remote appearances become widespread in the civil courts, perhaps combined with courthouse-based hearings under social distancing rules. The visions of public officials and public health experts alike are coalescing around an extended period of social distancing. Whether that period lasts two months, six or 18 months, our efforts will be focused on an orderly and manageable ramp up of services and functions across the entire court. Obviously, we cannot and will not delay all non-essential functions indefinitely.

WE CONTINUE TO SUPPORT MANAGED DELAY

In the meantime, the responses of California public officials have been remarkably consistent: social distancing is necessary to save lives. As to the California trial courts, there is also a consistent response, from the Governor, to the Chief Justice and our own court: focus on essential functions and support the managed delay of non-essential matters. That continues to be our approach and we will remain on that course until elected officials and public health professionals advise otherwise. I ask for your patience and support as we continue to provide statutorily mandated, essential services at this unprecedented time. 

#357292

Ben Armistead

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