Civil Division Update (2016)

The Civil Division is fortunate to have Judge Steven Austin (re)join us in January 2017, fresh from his two-year Presiding Judge assignment. He will assume responsibility for Judge Jill Fannin’s caseload, who will begin her Presiding Judge assignment. Otherwise, judicial assignments in Civil will remain the same – Judges Barry Goode, Complex Litigation, George Spanos, Judy Craddick (Supervising) and Ed Weil (50/50 split between Probate and Civil). The active caseload of the general civil judges is about 1,000 cases each. New limited and unlimited filings have remained fairly stable for the past few years.

Our Alternative Dispute Resolution Program administered by Magda Lopez – Mediation, Arbitration, Neutral Case Evaluation and “first day of trial” Settlement Mentor – is very active and successful. Settlements at mediation and the Settlement Mentor Programs far exceed 50%. A reminder about the Settlement Mentor program: The process is different from mediation and is not confidential (See Local Rule 3.203). The Settlement Mentor may share information learned from the parties (including settlement positions) with the judge handling the case and obtain input from the judge. Information between the parties and attorneys is, however, confidential.

Unfortunately, the Discovery Facilitator Program is not as robust as it was initially because of lack of available attorney volunteers. All of us yearn for funding so we can return to the day when we had a full-time Discovery Commissioner. We are grateful to the Bar for establishing the Discovery Facilitator Program a few years ago to fill the gap when budget cuts caused us to lose Commissioner Judith Sanders. However, discovery disputes can be very time-consuming (many requiring more than the four hours which Local Rule 3.301(a)(3) provides) and volunteers cannot afford the time and/or income loss to handle more than one or two matters a year. When a repeat assignment to a Discovery Facilitator is requested on the same case, because of this shortage, the procedure utilized is to issue an Order to Show Cause (OSC) why a Discovery Referee should not be appointed under Code of Civil Procedure (CCP) 639. At the OSC, we are able to evaluate the nature and extent of the dispute and if it appears to be unresolvable, the attorneys can mutually agree on the referee to be appointed, or that selection will be made by the judge. If anyone can spare up to four hours a couple of times a year, please sign up as a Discovery Facilitator by calling (925) 608-2714 or email ADRDiscoveryFacilitator@contracosta.courts.ca.gov.

As many of you are aware, there were several legislative changes in 2016 which affect civil practice. Some important ones are:

• Demurrers (CCP 430.41) are not heard without “meet and confer and declaration” filed with the Court, and the complaint cannot be amended more than three times absent showing defect can be cured.
• If you wish to get your cases to trial sooner than in the regular course, you might consider stipulating to an Expedited Jury Trial. Effective 7/1/16 Expedited Jury Trials (See CCP 630.01, et seq.) are mandatory in limited jurisdiction cases (with certain opt-out exceptions), but counsel may stipulate to basically whatever parameters they wish to expedite an unlimited trial and get the case resolved sooner.
• CCP 437c permits a party to file a Motion for Summary Judgment which does not completely dispose of a cause of action. Be sure to note that a motion under 437c(t) must be filed a minimum of 120 days before trial.
• CCP 998 clarifies that parties are only able to recover expert witness costs incurred after 998 offer is made, not pre-offer costs.

Some miscellaneous but important items:

• The Court has new phone numbers. The Court’s auto attendant number is (925) 608-1000. To reach each department, dial (925) 608-11 plus the department number. In the future, you will be able to communicate with each department by email.
• Our plans for electronic filing are still that—“plans.” The timeline is indeterminate because of funding.
• We do have a successfully operating “take a number” system in the Civil Clerk’s Office, which attorneys and litigants find timesaving and helpful.
• Also attorneys are reminded that they need to bring their own Court Reporter to trials and all other appearances for which they wish a verbatim record (See Local Rules 2.51 and 3.12), and for trials, the Court Reporter is required to use “Real Time Reporting.”

As always, we are very grateful to the CCCBA and those attorneys who give generously of their time in putting together and implementing educational and other programs, and especially to members of our Bar who volunteer innumerable hours serving as mediators, arbitrators, settlement mentors, discovery facilitators and judges pro tem for the benefit of the entire community, your clients and the Court.