2019 motion statistics for an individual calendar civil court

At the Stanley Mosk Courthouse, in downtown Los Angeles, the individual calendar (IC) departments -- there are 42 -- carry a case inventory that on average exceeds 500 civil cases. That statistic, however, includes inactive cases -- for instance, cases stayed by a pending arbitration, stayed by the defendant's bankruptcy, or subject to an interim appeal. (Cases removed to federal court are deemed "completed" and removed from the active docket unless remanded within 90 days. LASC Local Rule 3.22.) IC judges, therefore, have a caseload of about 475 active cases. Each IC judge receives 35 to 45 new cases each month, with the expectation that about the same number of older cases have been disposed of in the prior month. New cases are assigned to the IC judges randomly.

The caseload covers the gamut of civil actions but excludes personal injury cases. Personal injury cases are supervised by "hub courts" until ready for trial, and are then assigned for trial to an open courtroom anywhere in the County. However, if the hub court deems a personal injury action to be complicated, the case is re-assigned to an IC department. Residential unlawful detainer actions are handled in UD departments, but other real property disputes including commercial UDs, lender foreclosure actions, and habitability claims are assigned to an IC court. Class actions are assigned to the complex panel, but PAGA representative actions are assigned to IC judges.

At the end of each year, for the past seven years, I have counted the number and type of motions that were decided in Department 15 during the daily law & motion calendar. From that data I prepared a tabulation to report the number of frequently-filed motions heard in each month and for the entire year, and at the end of each year I prepared an article to share highlights with the bench and bar.

The number of motions, and to some extent the types of motions, are determined by the types of civil cases that predominate in an IC judge's case inventory. Lunchroom wisdom is that 30% to 35% of an IC judge's caseload in the Mosk Courthouse are employment cases -- that term includes cases alleging discrimination/harassment under the Fair Employment and Housing Act (Gov. Code 12940, 12923 and related provisions) and also cases alleging "wage theft" under the Labor Code -- and that another 10% of the caseload are motor vehicle warranty claims brought under the Song-Beverly Act (Civil Code 1747 et seq.) and related statutes.

For last year's article (Los Angeles Daily Journal, January 6) I did an actual count and arrived at these percentages for my case inventory: employment cases were 25.2% of my inventory, and vehicle warranty cases another 10.3%. Assuming that the IC judges at the Mosk Courthouse carry an average 500 case inventory, with 30% and 10% of those cases being, respectively, employment and vehicle warranty cases, the average judge has in his/her inventory 150 employment cases and 50 vehicle warranty cases.

This article examines the motion statistics in my department over the seven-year period 2013 through 2018. The data does not permit exact comparisons year to year because the case inventory in any given year may differ to some degree as to case type, complexity and number. The data also does not tell the extent to which the motion practice in Department 15 is typical of all IC departments. That said, there should be broad comparability in cases assigned to the IC courts because new cases are assigned randomly across the IC panel and personal injury (and mass tort) cases are assigned outside the IC courts. The average caseload per IC court, moreover, has remained within the range of 425-525 cases over the past seven years. The available data, when arrayed over a seven-year period, therefore, permits some conclusions about law & motion practice in the IC courts in the Mosk Courthouse.

The most significant change in the motion practice has been the dramatic reduction, since 2015, in hearings to decide demurrers, motions to strike and motions for judgment on the pleadings (JOPs). These motions are counted together because all are a non-evidentiary challenge to a plaintiff's complaint. In my statistical tabulation, the term "demurrer" embraces all three motions. (When a demurrer and motion to strike are filed concurrently the two motions are counted as one demurrer.) Demurrers, of course, can vary significantly in complexity. The work-up time that is required for ruling on a demurrer, therefore, cannot be determined from counting the number of demurrers that are decided.

That said, the number of demurrer hearings has dropped almost 50% in my courtroom in the last four years. As the tabulation shows, demurrers peaked at 208 hearings in the year 2015 (for an average of 17 demurrer hearings per month) but have remained at about half that number in the four years since. Last year saw an uptick to 116 demurrer hearings from the 110 demurrer hearings in 2018, not a statistically significant difference.

I explain the 50% drop in demurrer hearings, continuing over four years, to the Legislature's enactment of CCP sections 430.41 (for demurrers), 435.5 (for motions to strike) and 439 (for JOP motions). Section 430.41 became effective in 2016; the other two statutes in the following year. These statutes require a moving party before filing a pleading motion to "meet and confer in person or by telephone" with the plaintiff's counsel "for the purpose of determining whether an agreement may be reached that would resolve the objections to be raised in the [demurrer or motion]."

Although these statutes have succeeded remarkably in reducing demurrers, they are scheduled to sunset on Jan. 1, 2021, unless extended in the Legislature before then. Some thought, therefore, should be given as to why these seemingly simple provisions have had such an outsized effect in reducing demurrer hearings.

The legislation, in my view, is effective because it requires opposing counsel to conduct a meet and confer "in person or by telephone" before a demurrer can be filed. The personal contact between counsel is essential, for it requires the communicating attorneys to respond to each other in real time, assuring, to some degree, that each counsel will be familiar with the facts and able to discuss intelligently the allegations to which a demurrer might be directed. If any agreement is reached through the meet and confer process, the plaintiff can file an amended complaint that may obviate the need for a demurrer, or that may narrow the scope of the demurrer that is filed; or defense counsel may decide that filing a demurrer is not that important. The "in person or by telephone" meeting requirement, moreover, occurs at the beginning of the litigation, at the time when counsel are most disposed to respond to reasonable requests with cooperation.

Very likely it is the weaker demurrers that fall by the wayside. But, so what? The elimination of any demurrers, based on the consent of counsel, will result in a savings in legal fees for the clients. For some cases, notably for employment, vehicle warranty and habitability cases, the applicable statutes permit a prevailing plaintiff (but not a prevailing defendant) to recover his/her reasonable legal fees. That being so, defense counsel should avoid unnecessary motions that will increase legal fees a plaintiff will incur. Counsel should thank the Legislature for this mandated "in person or by telephone meet and confer" procedure because it has provided counsel with an opportunity to talk through their differences rather than having them decided by motion in a courtroom.

These new procedural statutes that have perhaps fostered early and fruitful contact between opposing counsel, and certainly have dramatically reduced the number of demurrers that must be decided, put me in mind of the "nudge" principle -- a concept from behavioral economics. Nudge theory suggests that individual and group decision making can be influenced by small suggestions and positive reinforcements. Economists suggest that well-placed "nudges" can reduce bad conduct (in the economics world called "market failure"), save money, encourage desirable actions and increase the efficiency of resource use. See "Nudge: Improving Decisions about Health, Wealth, and Happiness," by Richard H. Thaler and Cass R. Sunstein. A seemingly minor procedural change that requires counsel -- before invoking judicial intervention -- to meet and confer in person is a nudge toward informed and rational behavior, and merits approval, support and enforcement from the bar and bench.

If readers of this article have any comments about the efficacy of these procedural statutes, please let me know by emailing your comments to my clerk (ktapper @lacourt.org). I will pass on your comments to the California Judges Association for consideration by the Legislature and the Judicial Council.

Summary Judgment/Summary Adjudication Motions. In an employment action that likely will go the trial it is common practice for the defendant employer to set a motion for summary judgment/adjudication just before the motion cut-off 30 days before the trial date. Of the 42 SJ motions heard last year, 23 were filed in FEHA employment cases.

Motions to Compel Arbitration. Last year of the total of 24 motions to compel arbitration that were heard, 15 were filed in employment cases. For most employment cases, however, there is not an employment contract containing a compulsory arbitration provision. Other cases in which motions to compel arbitration may be filed include contractual terms that require arbitration arise in commercial lease disputes, in elder abuse claims against assisted living facilities, and in medical malpractice claims.

Motions for Attorney Fees. The number of motions seeking attorney's fees is understated in the tabulation. Nearly every discovery motion seeks attorney's fees as a sanction (usually not granted), and every SLAPP motion is accompanied by an attorney's fee motion under CCP 425.16(c)(1). This Court decided 12 fee motions in 2018 wherein a prevailing party sought reasonable attorney fees and costs as allowed either under a remedial statute or a contract provision.

Attorney fees motions require the court to make a lodestar analysis (a reasonable hourly rate x a reasonable number of hours for necessary tasks x a multiplier, if appropriate). To apply this standard, a trial court may expect that a party's motion will be supported by contemporaneous time records. Unless a prevailing party can provide the number of hours required for the representation, a judge will be unable to calculate a reasonable number of hours. Counsel should recognize, in any event, that any statute or contract that provides the prevailing party shall recover his/her reasonable attorney fees is a "nudge" to encourage efficient litigation conduct from both sides.

Motions to Tax Costs. The court decided 10 motions to tax costs, granting most at least in part. Motions to tax costs in most cases are determined under statute (CCP 1033.5 and, if there was a statutory offer, by CCP 998). The amounts at stake in motions to tax are typically small, and the legal fees that are incurred to make and defend against the motions almost always exceed the disputed costs. The Legislature could reasonably impose a "nudge" in the form of an in-person meet and confer as condition to bringing a motion to tax costs. Savings in attorney fees, judicial time and annoyance could be realized if counsel would discuss in person the need for a motion to tax before it is filed.

Anti-SLAPP Motions. Nine special motions to strike under CCP Section 425.16 (known as SLAPP motions) were heard last year. The average number of SLAPP motions have been four to eight in the past several years. There has been some interest in asking the Legislature to extend the "in person meet and confer procedure" as a pre-condition to filing a SLAPP motion. This could make sense because SLAPP motions, like demurrers, raise challenges at the outset of litigation and at a time when the plaintiff's counsel may benefit from an opposing point of view. A defendant that prevails in a SLAPP motion is, moreover, entitled to recover reasonable attorney fees (CCP 425.16(c)(1), suggesting that a plaintiff's counsel, after hearing from the defense lawyer, may want to review the risks with the client.

Discovery Motions. Though discovery motions are the most frequently filed motion, their statistical significance is doubtful. Discovery motions are often filed in batches as the moving party seeks to compel a response to multiple sets of discovery instruments. This practice exaggerates the count for discovery motions. For instance, the 226 discovery motions counted in the past year were filed in fewer than 60 cases (an estimate).

Concluding Observations. My analysis focuses on motions that appear repeatedly on the law & motion calendar, and, therefore, does not include trial motions or post-trial motions (other than for attorney fees or to tax costs). My analysis, furthermore, does not include some frequent but usually routine motions, for instance, to amend pleadings, continue hearings and trials, permit attorney withdrawals or vacate defaults. It does not include CCP 585 prove-ups to obtain a default judgment.

Excluding routine motions, however, the total number of noticed non-trial motions shown on the tabulation for the year 2019 is 426. Assuming that the workload in Department 15 is typical, the daily time required of an IC judge to manage an average caseload by working-up and ruling on pre-trial motions (often including the preparation of a written tentative rulings) is substantial and unremitting. This work could not be discharged without the assistance of the capable and hard-working research attorneys employed by our court. Before last year one research attorney was assigned for every two IC judges, but commencing in 2019 our court provided an assigned research attorney for every IC judge.

Four years ago, the pressure of the law & motion calendar, in addition to an active trial calendar, prompted our Court to inaugurate a reservation system to obtain motion hearing dates in the IC departments. The reservation system is intended to permit a judge to balance the workload for motions that require extensive work-up. The court in 2019 also inaugurated mandatory e-filing for the civil departments. Most departments, including mine, require counsel to provide a courtesy copy of any motion papers that are e-filed. This permits quicker availability, sorting and comparing of motions that must be decided on a deadline. E-filing, however, has not seemed to have had any effect on the number of motions that are filed. 