Four years of motion statistics for a Stanley Mosk individual calendar courtroom

This article presents the motion statistics in an individual calendar (IC) department (my courtroom) for the past four years - years massively affected by the Covid-19 pandemic - for the purpose of suggesting how the pandemic and other factors have affected and changed motion practice in civil litigation.

The Stanley Mosk Courthouse, in downtown Los Angeles, has 42 departments devoted to handling civil cases from filing to disposition. There are additional 35 IC courtrooms in the branch courts. In an IC courtroom, motions are heard on a law and motion calendar each morning, after which the judge is available to conduct trials.

As an IC judge, my practice is to tabulate the number and type of pre-trial motions that are decided in my courtroom, focusing on the more complex and time-consuming motions that appear with some regularity on the law and motion calendar, and from that exercise to prepare comments that can be shared in this newspaper.

There is no assurance that my motion tabulations are typical of other IC judges. However, given that my annual motion statistics are broadly consistent year after year, that is some indication that my motion statistics are representative for IC courtrooms in the Mosk Courthouse. The variety in the case inventories in the branch courts may differ from those at Mosk - where about 30% of all cases are employment law disputes and another 10% are vehicle warranty cases.

The pandemic's impacts on pre-trial motions and case inventories

The Los Angeles courthouses, subject to exceptions, were closed by state emergency orders from March 16 to June 22, 2020 - a total of 68 court days. When the civil departments were re-opened on June 22, proceedings were conducted differently. There were, of course, masking requirements and the installation of plexiglass partitions in the courtrooms. Those measures were temporary. Other courtroom improvements augured lasting changes in motion and trial practices.

A large screen was installed on the front wall in every courtroom, and desktop monitors and keyboards were provided at bench and staff desks, and the counsel table was equipped with video projection capability. IT equipment was installed so that motion hearings could be conducted over a video/audio conferencing platform. In my courtroom 90% of pre-trial motion proceedings (as well as status conferences) are now conducted through remote conferencing (over LASC CourtConnect). This will continue.

The motion statistics show a precipitous drop in motions decided in the first half of 2020 - as expected because the courts were closed for three months. But there was a dramatic resurgence in motions in the second half of 2020 - reflecting that the litigation bar during the Covid shutdown stayed busy from home offices in preparing motions that they e-filed for hearing dates in the second half of the year. The statistics show that the number of motions heard in 2021, the second Covid year, returned to pre-pandemic numbers - indicating again, that trial lawyers, despite Covid limitations, remained busy.

However, what has increased are IC case inventories, and, with that, pre-trial motions in the IC departments. The average number of cases per IC judge dramatically but predictably increased during the pandemic. The inventory increased because few cases were ready for trial in the first two years of the pandemic, and due to that there was a reduction in the number of settlements that predictably occur when a judge and counsel commit to a firm trial date. The civil courts are now engaged in whittling down that bulge.

Although the number of civil cases in the inventory of each IC judge is too high - now averaging more than 650 cases per IC judge, even higher for IC judges in branch courts - there are some cases that do not require much law and motion time. For instance, as shown in the statistics above, motions to compel arbitration are filed in about 25 cases per year. Most of those motions are granted, resulting in a stay of the action in the trial court until the arbitration is completed. Arbitrations routinely take two years to complete, so an IC judge's inventory likely includes about 50-60 cases that are in arbitration but stayed in the trial court. There are another 50 to 60 cases per year that will be disposed of by the plaintiff filing a default and default prove-up under CCP section 585.

The number of active cases per IC judge, however, remains too high, even recognizing that certain cases in a judge's inventory will not require significant law and motion time. Each IC judge receives about 50 new cases each month, with the expectation that the judge will dispose of about the same number of old cases during the month.

There have been legislative changes to the Code of Civil Procedure which have or will reduce the number of particular motions filed in civil litigation.

In-person or telephonic meet and confer obligations for pleading motions:

"Pleading motions" are motions that challenge the sufficiency of a complaint, namely demurrers, motions to strike and motions for judgment on the pleadings. The Legislature's enactment (effective in 2016 and 2017 before the pandemic) of Code of Civil Procedure sections 430.41, 435.5 and 439 to require opposing counsel to meet and confer in-person or telephonically before filing such motions has dramatically reduced the number of pleading motions.

My motion statistics reflected an increase in the number of pleading challenges year by year, spiking at 208 motions in the year 2015, but plummeting once the in-person or telephonic meet and confer statutes took effect. The number of such motions appears to have now stabilized at 80 to 90 per year. Why? Because when experienced litigators talk to each other at the inception of a case, they often learn facts about the dispute that their clients didn't tell them (or didn't know about). This may prompt a plaintiff to amend the complaint or a defendant to drop a prospective demurrer. When litigators comply with the meet and confer statutes the result is: defective complaints are usually amended to fix deficiencies; and weak demurrers are usually not filed. Either way the pleading challenge does not materialize on an IC judge's law and motion calendar.

Judges should enforce this in-person or telephonic meet and confer requirement to weed out weak motions. (Judges can postpone the hearing on a pleading motion to enforce the requirement.) Some defense counsel seek to circumvent this in-person/telephonic requirement by emailing a request that plaintiff's counsel call back to schedule a meeting (anticipating that the request will be ignored). The Judicial Council even issued for optional use its form CIV-140 to permit the moving party's attorney to check a box stating the parties exchanged emails without having a meeting. The Judicial Council should amend its form to track the statutory language. My tentative rulings encourage the in-person/telephonic meet & confer requirements by identifying by name the defense counsel to applaud/chide his or her compliance with the statutes.

Discovery motions should decline in number

Discovery motions are the most frequently filed motion, averaging more than 150 motions per year, but the filings of typical discovery motions may fall dramatically in 2024 as the new disclosure requirements under Code of Civil Procedure section 2016.090 will kick-in for cases filed after Jan. 1.

Effective Jan. 1, 2024, any party appearing in most civil actions can serve a demand that another party "provide to the other parties an initial disclosure" to include (1) the names and contact information "of all persons likely to have discoverable information, along with the subjects of that discoverable information that the disclosing party may use to support the claims or defenses, or that is relevant to the subject matter of the action"; and (2) a copy or description by category and location of all documents including electronically stored documents in its possession, custody or control that may be used "to support its claims or defenses." The initial disclosure is to occur within 60 days after demand unless extended by a written stipulation. The disclosure requirements apply to all information in a party's possession, custody or control unless it will be used "solely for impeachment" or is the opinion of a trial expert or a retained consultant. A party's responses are to be verified. A party's disclosure obligation may be enforced by the court on its own motion or the motion of any party.

There is no automatic right to an update of the initial disclosure. However, a party after the initial disclosure may propound a supplemental demand to elicit any later-acquired information bearing upon the disclosure previously made. A party may propound such supplemental demand twice before the initial setting of the trial date and once more after the initial setting of the trial date, subject to other time limits on discovery proceedings. A trial judge, for good cause, may allow "one additional supplemental demand." Code of Civil Procedure section 2016.090(3).

The new disclosure requirements are modelled after the Federal Rules of Civil Procedure, specifically FRCP Rule 26(a), but California's amendments are broader. CCP section 2019.090 requires counsel to disclose witnesses and documents that are relevant to the case, even if those witnesses and documents will not be used by that party to prosecute its case and even if detrimental to its case.

There should be, in the future, a falloff in the number of the traditional discovery motions - those that draw objections based on vagueness, burden, lack of relevance, etc. The new discovery framework reduces uncertainty by requiring the counsel who drafted the complaint or defense to identify witnesses and produce documents that are relevant to his or her pleading, coupled with the possibility that, if there is not a good faith disclosure, the responding party may be precluded from offering evidence to prove the claim or defense. Also, at present, discovery motions are filed in clusters - separate motions to compel being filed to contest responses given to form interrogatories, special interrogatories, requests for documents, and requests for admission. While the traditional discovery instruments are not banished, the multiple motions to compel further responses probably will be superseded by the filing of single motions to argue that an opponent's initial/supplemental disclosures based on the relevance standard were incomplete.

Number of jury and bench trials over the past four years

An IC judge, besides processing pre-trial motions, will also be conducting trials and in that capacity making evidentiary rulings and deciding trial and post-trial motions. Trial issues are beyond the scope of this article. However, in order to provide data about the impact of the pandemic on the work of the civil courts, the number of trials, both jury and bench, that were conducted in my IC department are provided. Before the pandemic the average number of trials in my IC courtroom, both jury and bench, was between 22 and 26 trials per year. The trial output over the past four years has been: