The vast network of courts in California have reacted to the pandemic in starkly different ways. Nowhere is the fault line wider and more visible than in Southern California.
(CN) — A wholly reasonable request during normal times, Carlos Tavares is pushing for the right to walk into the shiny new $556 million downtown San Diego courthouse and file the lawsuits piling up and gathering dust on his desk.
Hell, Tavares would even swap the state-of-the-art facility for the asbestos-riddled old courthouse on Broadway if it meant getting motions time-stamped, securing case numbers and starting discovery for his clients.
“San Diego County Superior Court is not open,” Tavares said. “All of the citizens of San Diego who have to file in state court are without their rights; you don’t have rights if you don’t have access to a courtroom.”
Like most states, the coronavirus pandemic has shattered day-to-day functions at California courts and forced presiding judges to take unprecedented emergency action. Chief Justice Tani Cantil-Sakauye has empowered the 58 individual superior courts to make their own decisions and do things like suspend jury trials, prioritize criminal matters, utilize videoconferencing and suspend civil proceedings to greatly reduce in-person court appearances.
Now over a month into the emergency, the varied approaches have shaped an uneven system where 40 million Californians’ levels of judicial access hinges mostly on where they live: some courts have adapted while others have resigned themselves to shutting out the public.
Los Angeles Hums Along
A large portion of the state’s courts are only accepting and or processing matters like domestic temporary restraining orders, gun violence restraining orders and ex parte emergency relief. But in Los Angeles parties can still e-file the normal range of new civil lawsuits, and the clerk’s staff continues to docket the new filings at its normal pace.
Operating with just a quarter of its usual staff, Los Angeles Superior Court has shown that it is nonetheless practicable to continue providing public access at its 38 courthouses during the pandemic.
The nation’s largest trial court, which serves a population of more than 10 million, is not hearing law and motion matters during the emergency, but it has continued to provide public access to new e-filings and court hearings.
The court has worked with the media by giving reporters access to criminal hearings and by providing the press with the ability to review new e-filings as soon as they are received, before docketing or what is variously called “processing” or “acceptance.”
Last week, the court also started a new video appearance project to help with arraignments and it continues to handle certain dependency and delinquency hearings remotely. The various efforts by court officials demonstrate the enormous court’s surprising agility as well as its foresight, all of which will likely help with the calendaring nightmare that lurks around the corner, when the sprawling set of courthouses reopen.
“I want to express my gratitude and respect to all the dedicated essential court, law enforcement and justice partner employees who have spent many hours over the past two weeks to organize, test and launch this ambitious, county-wide video appearance project,” said Presiding Judge Kevin Brazile in a statement.
Orange Falls Behind
The access fault line is widest and most visible among the counties of Southern California. While the state’s busiest court has kept its new filings and hearings open to public scrutiny, its neighbors have gone dark.
Where LA and other major courts including San Francisco, Santa Clara and Fresno have continued processing new complaints with downsized staffs, people looking to file in Orange County and San Diego are out of luck.
Lawyers can currently file electronically as required in Orange County Superior, but complaints are not being docketed or assigned case numbers, meaning the cases are effectively sealed until the clerks go back to work. And this week the court extended its closure through May 22.
The Orange County court, which serves 3 million people, has for years fought to defend a no-access-before-process policy. One result is that civil documents and summonses filed during the closure cannot be seen or reported.
They sit in a “queue” and will not be stamped until the emergency order lifts. The growing backlog has been compounded by the fact that over a month into the closure, most employees have not been given the OK to work from home.
The court, which sent employees home on March 13, more than six weeks ago, is still working on ways to get clerks and other vital staff back to work.
“We are working out logistics of remote work for every class of employee of the court at this time, as we are preparing for the eventual reopening of the court, when conditions allow,” said public information officer Kostas Kalaitzidis in an email last week. “These actions are a preparation only, as we do not have actual dates of reopening.”
During an Orange County Bar Association meeting earlier this month, Presiding Judge Kirk Nakamura told the assembled litigators that his court lacks the ability to have everyone work from home, and also lacks the technical support to conduct hearings by videoconference.
He added that civil judges will be assigned to handle a backlog of criminal matters, with the obvious effect of delaying civil hearings. The presiding judge also discussed the possibility of hiring temporary judges to help with discovery motions.
Brother Court San Diego
In neighboring San Diego County the situation is much the same, where civil matters deemed non-emergency are also on hold until at least May 22. The court serves 3.3 million people in California’s second largest county by population.
“Cases that aren’t talking about criminal rights, family matters and things relating to residency, those cases have to be put on the backburner,” said San Diego area attorney Phillip Stephan. “You can file cases, but the court’s not going to look at it. Right now all e-filings and in-person filings are suspended and it’s just creating a backlog.”
A spokesperson for San Diego Superior Court confirmed Stephan’s description of the current process in a statement to Courthouse News.
“So while lawyers may still be able to send in the documents, the court isn’t accepting / opening / processing them at this time and they will be honored for the date the court reopens,” said Emily Cox, the court’s public information officer.
Without the clerks, the court’s civil department has come to resemble a post office sorting facility.
Presiding Judge Lorna Alksne told attorneys last week via Zoom the civil department continues to receive approximately 1,000 pieces of mail daily. According to a lawyer on the call, the court has pegged May 25 as the tentative “soft reopening date.”
Once clerks begin the daunting task of unearthing and processing the mountain of complaints and pleadings piled high in the new courthouse, Alksne said the documents will be file stamped the day the court opens.
In response to the building backlogs at the superior courts, the state Supreme Court has extended the statutes of limitations for civil cases from April 6 until 90 days after the governor lifts the statewide emergency declaration.
Stephan, an associate practicing general civil litigation at Neil Dymott, said San Diego Superior will also try to address its mammoth backlog through “civil triage” and a new website function that will enable attorneys to ask for short remote hearings. He says the firm was in the middle of a medical malpractice trial when the closure was announced and that he hasn’t been back to his office since mid-March.
Regarding the long-term closure of the courthouse, Stephan said, “I never expected this kind of thing to happen during my lifetime.”
‘A Ton of Stuff Could Be Done’
Courts that have stopped docketing civil cases are not only taking away public access, but harming the litigants themselves, says Tavares, managing attorney for San Diego-based Antonyan Miranda.
Without a case number or court-issued summons, Tavares points out cases can’t be served and attorneys can’t pursue discovery.
Tavares, who handles cases in San Diego, Orange and LA counties, implored Judge Alksne to send the judges and clerks back to work even in a limited capacity.
“There is a ton of stuff that could be done [at San Diego Superior] without the public having to step one foot in that courthouse; yet none of that is being done and none of that requires new technology. Not to mention we just got a brand new courthouse built.”
Others are giving the presiding judges the benefit of the doubt, including Stephan and Mary-Beth-Moylan, associate dean at University of the Pacific’s McGeorge School of Law.
Moylan said each of the courts faces different staffing realities and noted the presiding judges are attempting to remedy processing delays by extending filing deadlines. She added that at least litigants in counties like San Diego and Orange are facing the same hurdles, despite the clear inconvenience.
“They can complain but I don’t think they have an actionable complaint,” Moylan said.
But for Tavares, the courthouse closures and justice are inextricably linked.
“We have no constitutional rights and no legal rights if we do not have access to a court. The way you get access to a court is filing a lawsuit.”