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Judges and Judiciary

Jan. 8, 2019

Nudge statutes and demurrer filings at Stanley Mosk Courthouse

For the past six years (2013-2018), I have counted the number and type of motions that were heard in Department 15. I then prepared a tabulation to report the number of frequently filed motions heard in each month and for the entire year.

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Each of Stanley Mosk Courthouse's 41 individual calendar departments carries a case inventory exceeding 500 civil cases. Removing inactive cases, this drops to about 475 active cases. Each 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 previous month. New cases are assigned randomly.

The caseload covers the gamut of civil disputes, but excludes personal injury cases, which are supervised by "hub courts" until ready for trial, and are then assigned for trial to an open courtroom anywhere in the county. If the hub court deems a personal injury action to be complex, the case is reassigned to an IC department. Residential unlawful detainer actions are handled in UD departments, but other real property disputes are assigned to an IC court. Class actions are assigned to the complex panel, but Private Attorneys General cases are assigned to IC judges.

For the past six years (2013-2018), I have counted the number and type of motions that were heard in Department 15. I then prepared a tabulation to report the number of frequently filed motions heard in each month and for the entire year. The number, and to some extent types, of motions are determined by the types of civil cases that predominate a court's inventory. This article focuses on employment cases and vehicle warranty claims. Lunchroom wisdom is that 30-35 percent of an IC judge's caseload are employment cases and another 10 percent are motor vehicle warranty claims brought under the Song-Beverly Act and related statutes. I tested this by reviewing my computer-generated case inventory: I had 457 active cases, of which 115 cases (25.2 percent) were Fair Employment and Housing Act claims and 47 cases (10.3 percent) were vehicle warranty claims. I also allocated the employment claims between two categories, finding that there were 78 cases alleging FEHA-type employment discrimination/harassment claims and 37 cases alleging wage and hour violations, including six PAGA cases.

My assumption is that on average 30 percent of an IC judge's inventory are employment cases and another 10 percent are vehicle warranty cases. That means 40 percent are filed under statutes that provide a prevailing plaintiff shall recover reasonable fees and costs.

My data does not permit exact comparisons year over year because the case inventory in any given year may differ to some degree as to case type, complexity and number. It also does not tell the extent to which the data is typical of all IC departments. Yet there should be broad typicality since new cases are assigned randomly. The average caseload, moreover, has remained within the 425-525 range over the past six years. When arrayed over a six-year period, therefore, the data permits some conclusions about law and motion practice.

Demurrers, Motions to Strike and Motions for Judgment on the Pleadings

Demurrers, strike motions and judgments on the pleadings are counted together, as all are challenges to a plaintiff's complaint. In this article, 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, vary in complexity. The work-up time required for ruling on a demurrer, therefore, cannot be determined from counting the number of demurrer hearings.

That said, the number of demurrer hearings has dropped almost 50 percent in my courtroom in the last three years. Demurrer hearings peaked in 2015 at 208 (for an average of 17 demurrer hearings per month); there were only 110 demurrer hearings last year (for an average of nine demurrer hearings per month). That, in my view, can only be attributed to recent legislation that requires the moving counsel, before filing a demurrer, 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." This requirement, adopted in 2016 and expanded in 2017, is contained in Code of Civil Procedure Sections 430.41 for demurrers, 435.5 for motions to strike, and 439 for motions for judgment on the pleadings.

Why is this legislation effective? It requires opposing counsel to conduct a meet and confer "in person or by telephone" before a demurrer can be filed. That means attorneys must 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. A written objection sent to opposing counsel is easily ignored and, if read at all, does not require an effort by the pleader to explain to an opposing attorney the sufficiency of the challenged allegations. If any agreement is reached through this new process, the plaintiff can file an amended complaint that may obviate the need for a demurrer, or that may narrow the scope of a demurrer; or defense counsel may decide a demurrer is not important. Moreover, this process occurs at the beginning of the litigation when counsel are most disposed to respond to reasonable requests for cooperation. It also encourages further communications between counsel over the course of the litigation, opening the way for settlement discussions.

This new procedural step has fostered early and often fruitful contact between opposing counsel, and has dramatically reduced the number of demurrers that must be heard. It reminds me 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 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 minor procedural change that requires counsel to meet and confer in person is a nudge toward informed and rational behavior, and merits approval, support and enforcement from our judges.

A new law taking effect in 2019 may reduce demurrers in FEHA-type actions. Government Code 12923(b), in complementing the FEHA statute, provides: "A single incident of harassing conduct is sufficient to create a triable issue as to the existence of a hostile work environment if the conduct unreasonably interfered with the plaintiff's work performance or created an intimidating, hostile, or offensive working environment." A pleading under this statute will likely be sufficient to defeat a demurrer.

Summary Judgment/ Summary Adjudication Motions

SJ/SA motions are the woolly mammoths of the motion world -- a bundle of legal briefs, evidentiary declarations, etc. And this beast must be dispatched quickly because the motion is usually set for hearing just before the motion cutoff 30 days before trial. CCP 438(e). Unless the motion can be decided on the date set by the moving party, the trial will have to be continued.

Department 15 decided 27 SJ/SA motions in 2018 -- about two per month; however, there were five heard in two months and none heard in two months. Reviewing the data over a six-year period, one can observe that there has been a drop in SJ/SA motions of about 25 percent (from about 40 per year to about 30 per year). This differential likely relates to the variances in case inventories in the different years, as I cannot identify any procedural change that would cause this. Of the 27 motions, 10 (37 percent) were challenges to FEHA-type claims, and 17 were filed in cases not containing employment claims.

In addition to the easy-to-meet standard in Government Code 12923(b), subsection (a), "affirms [legislative] approval of the standard set forth by Justice Ruth Bader Ginsberg that 'the plaintiff need not prove that his or her tangible productivity has declined ... It suffices to prove that a reasonable person subjected to the discriminatory conduct would find ... that the harassment so altered the working conditions as to make it more difficult to do the job.'" This presumption is intended to discourage motions seeking summary adjudication against hostile work environment claims. Indeed, subsection (e) states: "Harassment cases are rarely appropriate for disposition on summary judgment." However, because most FEHA complaints include causes of action that are not covered by this presumption, the volume of motions seeking the summary adjudication of claims other than for hostile work environment likely will not decrease due to Section 12923.

Motions to Compel Arbitration

Last year a total of 16 motions to compel arbitration were presented, 10 of them in employment cases. However, while two-thirds of the arbitration motions were in employment cases, arbitration provisions are not involved in the vast majority of actions alleging either FEHA-type claims or wage and hour violations. Other cases raising motions to compel arbitration arise from contracts presented in commercial lease disputes and, increasingly, elder abuse claims and medical provider malpractice claims.

Motions for Attorney Fees

The number of motions seeking attorney fees is understated. Nearly every discovery motion seeks fees as a sanction (usually not granted), and every SLAPP motion (four in 2018) is accompanied by an attorney fees motion. My court decided 20 fee motions in 2018 wherein a prevailing party sought reasonable fees and costs as allowed either under a remedial statute or a contract provision.

Both employment claims and vehicle warranty claims provide that a prevailing plaintiff shall recover reasonable attorney fees and costs. These 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 plaintiff's motion will be supported by time records and show that the litigation was efficiently staffed. Unless a prevailing party can provide the number of hours devoted to prosecuting the action, the court will be unable to calculate a reasonable number of hours. A claim entitling a plaintiff to recover fees should encourage defendants to take actions to keep plaintiff's fees at a minimum, for instance, by deferring marginal demurrers and avoiding discovery motions. This is a recommendation I give to counsel in employment and vehicle warranty cases at the initial status conference.

Counsel should recognize that any statute or contract that provides the prevailing party shall recover reasonable fees is a "nudge" to encourage efficient litigation conduct.

Motions to Tax Costs

In 2018, my department decided 19 motions to tax costs, granting most, in part due to over-claiming by the party prevailing in the litigation. 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 limitations imposed by 1033.5 are to a discretionary degree liberalized if a statute or a contract provides for the recovery of "legal costs." 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 impose a reasonable "nudge" in the form of an in-person meet and confer as condition to bringing a motion to tax costs. Substantial savings in fees and time could be realized by doing this.

Discovery Motions

Though discovery motions are the most frequently filed motion, their statistical significance is problematic. 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 170 discovery motions counted in 2018 were filed by only 62 parties; in one case, a single plaintiff scheduled 21 discovery motions against three non-responding defendants for hearing on the same day. The preparation time to decide discovery motions, at least in Department 15, is minimal, unless the responding party is able to justify objections based on privilege or privacy. (Also my standard for counting discovery statutes has changed, which may explain the variances shown in the tabulation for discovery motions.)

Concluding Observations

My analysis focuses on motions that appear repeatedly on the law and motion calendar, and, therefore, does not include trial motions or post-trial motions (other than for attorney fees or to tax costs). My analysis also does not include some frequent but usually routine motions, for instance, to amend pleadings, continue hearings and trials, permit attorney withdrawals or vacate defaults.

Excluding routine motions, the total number of noticed non-trial motions decided in the year 2018 in Department 15 was 401. Assuming this workload is typical, the daily time required to manage an active caseload of about 475 cases, by working-up and ruling on pre-trial motions (often including the preparation of a written tentative rulings), is substantial and continuous. This work could not be discharged without the assistance of hard-working research attorneys. In the past, the court has provided one research attorney for every two IC judges. Commencing in 2019, however, our court will provide every IC judge with an assigned research attorney.

Three years ago, the pressure of the law and motion calendar, in addition to an active trial calendar, prompted our court to inaugurate a reservation system to obtain motion hearing dates. Department 15 opted out of the reservation system, permitting attorneys to obtain the earliest hearing dates, but many judges prefer a system that permits them adequate time to prepare a thorough work-up for scheduled motions, thus requiring a reservation system to balance the workload. The future will see further changes as our court inaugurated mandatory e-filing for civil case motions and other pleadings effective Jan. 2. Will e-filing significantly affect =motion practice? We will know this time next year.

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Ben Armistead

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