On May 6, MCBA sponsored a Town Hall Forum with Presiding Judge Andrew Sweet and Assistant Presiding Judge James Chou. MCBA President Susan Feder welcomed the (Zoom) capacity audience and acted as the moderator.

Judge Sweet started off the Town Hall with well wishes for all of us and noted that the judges genuinely miss us all. He acknowledged the critical role Judge Chou has played in keeping the Court running and said that doing so involves difficult balancing of everyone’s health and safety with maintaining court functions. He summed up the state of the Court as, “As good as it could be under the circumstances.” President Feder then began asking questions members had submitted ahead of time, which MCBA had consolidated and organized.

As of today, the latest Administrative Order, AO 20-07, was issued on April 28. Would you summarize what the current order provides, and how it should be read in conjunction with the prior AOs?

Judge Sweet started off the substantive discussion by outlining the governing structure for the courts during the state of emergency. The Administrative Orders provide this governing structure and derive their authority from three sources: Government Code section 68115, which gives California’s Chief Justice emergency authority, which is limited to 30 days at a time; Emergency Orders from the Chief Justice and the Governor; and Emergency Rules of Court from the California Judicial Council.

Only the Presiding Judge can issue orders closing the courthouse. Judge Sweet’s Administrative Orders do that, while outlining a structure for deferring non-essential matters and how to hear essential matters while the courts are otherwise closed. Judge Sweet stressed that the implementation of the orders is changing frequently, often by the hour, as public health officials, the governor and others issue new rules and guidance.

Could the Court provide an easy to understand summary on its website of all of the AOs read together for the benefit of self-represented litigants?

Judge Sweet does not think there is a way to put an easy-to-understand summary that covers all circumstances on the Court’s website and said that it is very difficult to communicate specifics on each type of case. That being said, the Court has gone to extraordinary lengths to inform people of the status of their matters, including through direct outreach from the Court. One example of that is since the start of remote restraining order hearings, court staff calls all self-represented parties about the hearings, going so far as to help educate them on how to use Zoom for the hearings.

What is deemed an “essential” matter vs. a “non-essential” matter pursuant to the AOs? Are any civil matters other than restraining orders and Ex Parte Applications deemed “essential”? Has the Court defined “other essential matters” as referenced in AO7, Paragraph 3?

The Administrative Orders define essential matters specifically and narrowly. They are:

  • In-custody arraignments;
  • Preliminary hearings where time is not waived;
  • Sentencing hearings where time is not waived;
  • Restraining order hearings;
  • Any ex parte application where there is a real emergency—the application should make the case why it is a real emergency and the judges will make a determination on that question first—if they decide it is not a real emergency, they will not grant the application;
  • Juvenile dependency hearings;
  • Juvenile delinquency hearings;
  • Writs of habeas corpus.

Everything else is non-essential. This means that for civil matters, only restraining orders and ex parte applications are essential. The “other essential” category in the Administrative Orders did not envision defining further essential categories but is intended for true emergencies that don’t fall into existing categories—at the Court’s discretion in any given instance. The Court is regularly looking for ways to increase the number and types of matters it is moving forward and is developing a strategy to hear more matters in a safe way in compliance with health directives. Expect news about civil law and motion matters, settlement conferences, and other areas going forward. Now that the Court has remote video capability, it hopes to expand use of it. The Court is working on it but the logistics and other considerations make the expansion difficult and slow.

What is the process for filing papers with the Court during the month of May? What happens to pleadings/motions that are mailed to the Clerk’s office? Can papers be sent via fax or email? If so, which is the preferred method of submitting filings to the Court?

As for filings, Judge Chou said that the process has been the same since the Court first closed. Every day is officially a court holiday. The Court is accepting documents through either of two methods only: mail and dropboxes. One dropbox sits in front of room 113 and another is on the court floor near the elevators. Non-essential filings are being stamped “received” and placed in the order they are received for filing upon reopening of the Court. You cannot file via fax or email. Judge Chou said that there are a couple of very limited exceptions—matters in the MarinHealth Medical Center (i.e., the former Marin General) mental health division and certain conservatorship filings. He also noted that ex parte filings are required to use a dropbox, and responses are required to be filed via email and that this information is on the Court’s website. He reminded everyone that the Court does not have full staff at the courthouse and for those who are there, social distancing is required.

Is the Court taking any action on papers submitted for non-essential matters? Is there any advantage to submitting papers in non-essential matters now, such as obtaining priority by date of filing? Is the Court accepting new civil cases during the month of May?

The Court cannot give a definitive answer. Prior to the current reopening date of May 27, filings are being stamped simply, “Received,” and then held in the order received. The Court is not yet sure what it’s going to look like when they file everything upon reopening—everything may be filed all on the same day depending on volume and the Court will decide what gets priority. Filings received later may get priority if it allows a matter to proceed. The Court has just authorized staff to go through filings to see what can be processed now, say, without any type of hearing, such as proposed stipulations, requests to remove from calendar, offers to compromise, requests for dismissals, etc. Judge Chou said that he is going to authorize actual filing of these matters to the extent feasible.

Will all deadlines in civil cases that occur during the Court closure period now fall on the first date that is no longer a Court Holiday? If not, how will deadlines be computed after the State of Emergency is declared lifted?

The Court considers deadlines to still be running during closure. You should try to meet all deadlines. If you cannot, you should do your best to agree on extensions with the other parties. That being said, the Court will make accommodations for those who could not meet deadlines and will start calendaring when the Court reopens.

For litigants conducting discovery during this period, are there any deadlines, or will deadlines only begin to run after the Court Holiday period?

Same answer as above. The Court expects parties to continue with discovery and meet all deadlines but will consider extending them if there’s a reason you couldn’t meet them. But you will have to request an extension.

Is special treatment being afforded to Petitions for a Court Order Approving Settlement? What is the process to have these petitions heard in an expedited manner?

Further to what was said above regarding filings, the Court is trying to get orders approving settlements processed. Put a cover page on your filing saying what it is to make it easier for the clerks to identify. The clerks are determining whether each filing should be forwarded to a judge and a cover page will facilitate that.

Are we closer to implementing electronic filing than we were before? Any update?

The pandemic has certainly highlighted the need for a modern case management system. The Court is closer than last time the judges addressed the bar. But the pandemic has ironically set progress back because the judges obviously had to turn all of their energy to dealing with the pandemic. E-filing is still a long way off.

For cases with trial dates before June 1, how will they be rescheduled? Will they receive priority over cases with later trial dates? For cases with trial dates after June 1, will they automatically be rescheduled, or will some proceed as scheduled?

Trial dates before June 1 have been automatically rescheduled 8 weeks to the day later. For dates after June 1, they remain as set. The Court has not yet determined how priority will be determined. Criminal matters will undoubtedly take precedence. Some Presiding Judges in other counties are saying civil court is out of business until the criminal backlog is done but that is not going to be Marin’s approach. As of April 30, Marin had 244 criminal trials set. In only 20 has time not been waived. Criminal matters resolve before trial at a high rate just like civil trials and that rate may be even higher rate as a result of the pandemic. Some criminal matters will go to trial and take precedence over civil.

Many different considerations may factor into the scheduling of civil matters and all may be extended if the court closure is extended. Scheduling will depend on the length of trial, the parties’ wishes, whether it is a bench or jury trial, the significance of the case and more. Jury trials pose a particular challenge for proper social distancing and the Court is struggling with how to enable jury trials. It may only be able to try one case at a time. It may need to bring in fewer potential jurors. Trials might even need to be held somewhere else. Are remote trials a possibility? The Court does not have answers yet.

Assuming a June 1 reopening date, how long do you anticipate the typical delay will be in civil trial dates? Are you considering ordering more mandatory settlement conferences, or making available the option of voluntary settlement conferences (as is being done in SF)? If counsel with mediation training and experience are available to help conduct voluntary settlement conferences after Court reopens, is this something the Court would consider exploring? Might these conferences be conducted remotely using video technology such as Zoom?

As you can surmise from the preceding answer, the Court has no way to estimate a typical delay. The Court has not discussed ordering more MSCs yet but will consider it. It is working on a voluntary settlement conference program, including holding remote video settlement conferences. The Court welcomes any assistance for VSCs. Trained mediators who are interested in helping out should contact Susan Feder or Mee Mee Wong. The Court took the opportunity to comment that increased use of technology will be part of our lives permanently. Right now, the Chief Justice has authorized only limited use but that may change.

Do the current rules require mandatory acceptance of service by email?

The short answer is yes. Emergency Rule 12 requires acceptance of electronic service but the Court has authority not to require it. Parties with counsel are mandated to use it once an email address has been validated. For self-represented parties, e-service is permitted only with the party’s permission. These requirements sunset 90 days after the end of the state of emergency. They may become permanent but no one knows yet.

Is there a requirement that a party must agree to a remote video deposition if the other party notices it in that manner while the Court is still closed under an emergency order?

Emergency Rule 11 addresses this by stating that it is no longer a requirement that the deponent be physically present for a deposition. Either side can opt for a deponent to appear virtually; Code of Civil Procedure limitations still apply. See the Court’s answer regarding discovery during closure for the rest of the answer.

Internationally, the use of virtual courtrooms has been in place for some time. Do you see this as a possibility for the future? What concerns do you have for virtual hearing of motions, petitions and eventually, trials?

It is a theoretical possibility for Marin. Judge Sweet has conducted some hearings and sees that it can work. But the Court has a lot of work to do before this could happen on a greater scale. It has taken four to five weeks of around-the-clock work to get three courtrooms up and running for remote Zoom hearings. Preliminary hearings with witnesses are the most complicated task being done remotely now. It is inevitable that some hearings will be virtual but it is probably a long way off for trials in particular.

Do you see any need for revisions to the current “Civil Discovery Facilitator” program? Does the Court review the reports provided by the facilitator, and if so, are they helpful? Is there a need for a “Demurrer Facilitator Program” such as the one in place in Sonoma County?

The Court thinks the discovery facilitator program is working well and does not need any changes. The Court is always open to considering other programs and would love to see a demurrer facilitator program. Any program requires a certain bandwidth from both the Court and MCBA volunteers. It takes lots of effort to get something like this going and certainly won’t be happening during the state of emergency.

Do you have suggestions for changes that should be made to the “Modest Means Mediation” program currently in effect? MCBA will be revisiting this program, and welcomes your suggestions.

President Feder noted that the modest means mediation program welcomes the judges’ input. The Court commented that it is a great program and one that will be even more important now: Unfortunately, many more litigants will be in a “modest means” position. Could mediators perhaps give an additional hour or two? Or a sliding scale for additional work? More publicity for the program would be helpful.

Are there any anticipated changes to the Bench or Court staff, or new Judicial Assignments that you can share with us? Will some Civil judges need to be reassigned to the Criminal Department to handle the backlog there?

The Court has nothing to announce. It does not think any reassignment to criminal court is needed. Judge Simmons was going to be reassigned to civil (from her criminal assignment, not from probate) on April 1 but that has not happened.

What is your greatest concern for the future of the Court and the judicial process?

Before the pandemic, the Court was in great shape. Now the greatest concern is everything that’s happening right now and the Court’s ability to serve the community and do its job to provide justice. Reintegrating all of its services requires balancing safety and access. Judge Chou commented that we are taking a historic process and jamming it into new frontiers that are frightening. Every day, the Court is asking how it’s going to do something, even issues such as the safe use of the elevators. Everyone needs to embrace change and be flexible.

What advice would you most like to give to Marin County attorneys that will help both the Court and their clients?

Remain patient. The civil bar has been very patient waiting for the holiday rule to be lifted. Please know that the judges understand the difficulties everyone is facing. Open your hearts to resolution. This is a good time to resolve cases however you can. Consider the prospect of bench trials.

Judges Sweet and Chou ended the program by expressing appreciation for the opportunity to address our membership and thanked MCBA for suggesting and facilitating this Town Hall.