Some attorneys find JCCP court assignment decisions opaque

Judicial Council Coordinated Proceedings are becoming an increasingly prominent feature of California's litigation landscape. However, some attorneys say that the process for determining which cases receive this designation and which court oversees them remains unclear.

"You don't always get very detailed rulings on some of these things," said Jay L. Bhimani, a product liability and mass torts defense lawyer. "I mean, you get a written order, typically from the chair of the Judicial Council of California, that assigns a coordination trial judge and identifies the cases that'll be within the JCCP, at least at the outset. But it typically just says, 'We've looked at this, we have jurisdiction to decide this, here's where it's going.'

"In my experience you don't get a very long detailed written order on it, so you're sometimes left guessing as to what the panel's reasons are. Sometimes they're obvious, and other times it's more supposition than anything," said Bhimani, who is co-chair of Dechert LLP's product liability and mass torts practice.

The Judicial Council maintains that the process is clear. The rules are spelled out in California Court Rule 3.530, said Public Affairs Director Cathal Conneely. Chief Justice Patricia Guerrero oversees a team of attorneys in the Judicial Council's Legal Services Unit that decides which cases get that designation, and where in the state they are sent.

Factors guiding their decisions include the number of similar complaints, the current stage of litigation, efficient use of court resources, locations of witnesses and evidence, convenience for the parties, principal places of business for the parties, and the locations of counsel and the ease of travel.

And some lawyers agree that the process works well.

"My experience over nearly 40 years is they've gotten it right when they look at the factors they need to consider," said Paul R. Kiesel, a plaintiffs-side product liability and mass torts lawyer who heads Kiesel Law in Beverly Hills. "What they look to is, what court has the resources it can offer for a JCCP assignment?"

The Judicial Council declined to make available for an interview anyone from the Legal Services Unit who might shed more light on the process. What is clear is that the stakes of their decisions are increasing high.

The number of petitions to the state for Judicial Council Coordinate Proceedings has generally increased in recent years, with 397 petitions considered since 2018 - surpassing the previous six-year period by 138 petitions, according to logs provided by the Judicial Council. The number of petitions dipped from 57 to 48 from 2021 to 2022, then to 45 in 2023, but the number had already reached 45 for 2024 as of this September.
Attorneys handling mass torts say that their cases are increasingly more high-profile and involve more complex and novel legal issues.

Among the coordination proceedings in California that Bhimani has litigated is a set of product lawsuits claiming that the heartburn medication Zantac caused cancer. In re: Ranitidine Cases, JCCP 5150 (Alameda Super. Ct., filed Jan. 12, 2021).

He pointed out as an example of the increasing prominence of JCCPs in California the many and very large cases resulting from California's devasting wildfires.

"That's a somewhat obvious example, but in other instances, there are industries that have a particular presence, for example, in California, or a mass tort litigation where many of the plaintiffs were in California. Those sorts of things have led to at least a few or a handful of very prominent examples of JCCPs in the state," he said.

Most JCCP-designated litigation gets sent to a complex court, of which there are few in the state. There are two complex court judges each in Alameda, San Clara and San Francisco counties. Orange County has three. Los Angeles is the juggernaut, with seven.

Drawing a particular county can be both a blessing and a curse, some attorneys say. They know the judge and then ... they know the judge.
Ultimately, successful placement depends on the judge who ends up taking on the proceedings, Robert Kum of Duane Morris LLP & Affiliates said.

"The reality is that some judges seem to enjoy it more than others and so they don't mind sitting in trial for a month or two," Kum said.

Often the result is presiding judges handing proceedings to the best judge for the job, without any lobbying necessary by judges who may be interested in the case.

"What are the chances he's already going to send the case to the judge who's already got 10 of the cases, you know? It would be weird to all of a sudden send it to a brand-new judge," Kum said.

Bhimani noted, "We've had instances where the [Judicial Council] panel has not followed the recommendation of a particular court.

"If a court says, 'I think ABC belongs in another county,' for example, we've seen instances where the panel disagreed and has sent it to a different county or has kept it in the court where a judge has said, 'I recommend that it be sent elsewhere,'" he said.

"I think a lot of times it's not entirely obvious to folks on both sides of the V that ultimately where they end up isn't where either party would have anticipated it would end up at the outset, when the petition was originally filed," Bhimani continued.

Anastasia K. Mazzella of Kabateck LLP said frequent judge turnover in coordination proceedings can also present a hurdle to case progress.
"We might cycle through judges because JCCP litigation often lasts many years, so there's that, which is not always great, but it is what it is," she said.

Richard J. Simons of Furtado Jaspovice & Simons in Castro Valley agreed that judge reassignments are common. Simons is co-liaison counsel for clergy abuse plaintiffs in Northern California. In re: Northern California Clergy Cases, JCCP 5108 (Alameda Super. Ct., filed July 1, 2020).

"We are on our third coordination trial judge," Simons said, noting that the proceedings have passed through the hands of Judge Winifred Y. Smith, who retired in 2021, and Judge Evelio Grillo, who retired in March this year, currently resting with Judge Noël Wise - who is awaiting U.S. Senate confirmation to a seat on the federal bench.

But most lawyers who regularly handle mass torts say they are ultimately pleased with the system.

"I think it's a great process for mass tort litigation," Mazzella said.

Kiesel agreed that, despite the occasional uncertainty, the system works.

"There have certainly been occasions over the years I've not been thrilled with whatever decisions have come out," Kiesel said. "I've never been unhappy with the factors as to where the court has decided to place the case. It has always, at least in my experience, been a reasonable determination as to where the case should be centered."