(CN) — Open for business or closed like it’s Sunday: the divergent ways in which San Francisco and San Diego courts have dealt with the pandemic can perhaps best be encapsulated in the clashing positions taken by their leaders.
“One of the first questions I’m always asked is whether we’re closed. And I’m going to tell you, ‘We are open for business,’” Presiding Judge Garrett Wong told San Francisco lawyers over a video call last month.
“San Francisco Superior Court is doing it,” said the judge, “working the court with limited resources, staff, and personnel, but we’re committed to our duty to providing the essential services that the public must rely upon to maintain public safety and emergency relief.”
A week later San Diego’s Presiding Judge Lorna Alksne had a completely different message for the local bar association.
“We are closed. We are closed like a Sunday every day. We’re only doing essential services and emergency services,” she said. “I know there’s a lot of talk around the state that ‘this court is doing this, and this court is doing that, and why aren’t you doing it like this court?’ Every court is differently situated.”
Many courts in California sent their employees home on March 17th without a scheduled return. But San Francisco Superior kept its doors open whereas anyone approaching the entrance to San Diego Superior was met by a phalanx of security officials preventing entry.
California Chief Justice Tani Cantil-Sakauye empowered the 58 individual superior courts to take other unprecedented actions to avoid becoming vectors for the coronavirus. Those actions included prioritizing criminal matters, extending timelines in criminal and civil cases, and conducting hearings by phone and video whenever possible.
The Judicial Council approved the emergency measures at a meeting in late March. The technology committee chair, Justice Marsha Slough, said the extensions were not carte blanche for courts to be closed.
“The trial courts need as best they can to open to provide relief, to function not as shuttered business offices but rather function as true beacons of justice during real times of crisis,” she said.
Cantil-Sakauye shared Slough’s opinion. “I concur,” she said. “We are courts, and we are open in crisis.”
‘Open for Business’
San Francisco responded by keeping 25 percent of its courtrooms open and extending deadlines for filing discovery responses and motions in civil cases. Criminal arraignments and bail hearings are being handled by video, and the court started holding preliminary criminal hearings two weeks ago.
The court never stopped docketing its new civil filings. New cases and other filings were delivered in paper form through a drop box near the court’s entrance and could also be sent electronically. And those filings have been docketed and made public.
Wong, the presiding judge, is currently conducting civil hearings on his law and motion calendar through the telephonic system CourtCall. “I’m handling everything remotely,” Wong said.
Scott Lawson, a partner at the San Francisco employment law firm Lawson + Lawson LLP, said the court seems to have deftly pivoted its operations in the wake of an unprecedented pandemic.
“To me it’s an astonishingly complex set of challenges that they’re facing and I think their response has been very rapid as each of these orders comes down. They’ve not wasted any time,” Lawson said, adding that so far he’s not felt stymied by the closure, though trial dates have been vacated and deadlines pushed back.
“I think the court has done a good job of responding to this super complicated crisis but there are things that are inherent in the Covid-19 problem that create impediments to normal litigation,” he said. “The court has been open to various ways of making it easier for people to practice.”
In contrast to San Francisco, the San Diego court went dark in mid-March and has remained shuttered, suspending all but the most urgent matters. No new filings have been docketed since that time, other than those with special contingencies. As a result, virtually all new civil matters received by the court over the last eight weeks have not been made public.
As with all other courts, criminal matters are given priority. Its civil department is handling only emergency writs and restraining orders. “In civil we’re doing elder abuse restraining orders, civil harassment orders, gun violence restraining orders,” Alksne told the San Diego Bar Association in a court update, hosted in late April on Zoom.
She suggested that judges could not sign orders because the court would no longer be on holiday, a designation that extends, or tolls, filing deadlines. “Once we start signing orders,” said the judge, “we’re not on holiday and tolling does not apply.”
In the meantime, the court is building a staggering backlog. The court currently has 6,453 pending civil cases that will have to be re-set, along with 1,943 small claims cases, 9,063 family law cases, and 412 cases in probate.
In addition, since the court was shut down on March 17th, the court has received an additional 7,400 e-filings that are sitting in its civil e-filing queue, according to the court clerk. That number does not include the large number of paper documents mailed to the court.
Tech Back Story
The court remains a predominantly paper court, using the antiquated software that California first contracted for around the turn of the century, called the Court Case Management System.
Only two courts in California still use the old software for their civil case management, Orange County Superior and San Diego Superior. Lawyers are currently able to send their filings into those two courts but their documents then sit in limbo.
Officials in both courts acknowledge that new filings are being received but not stamped or docketed. And while the two courts lag on their filing software, they appear to also lag on the hardware and related technologies that have allowed courts elsewhere in California to remain open for business.
That shortcoming has caused an extraordinary coming together of plaintiff and defense lawyers in San Diego who, realizing their cases will likely not be resolved for years to come, have put together a program called Resolve Law San Diego.
It is a volunteer-run dispute resolution program, where parties can stipulate to have their cases heard before a panel of retired judges and lawyers.
“The idea is to have as many areas of civil litigation represented because we’re all suffering,” said Amy Martel, a partner with the San Diego personal injury firm Chihak & Martel. “We can all sit back and say, ‘this is awful,’ but what can we do about it?”
Meanwhile, back at superior court, public information officer Emily Cox conceded that her court is not docketing new filings. “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,” she said by email.
Signs of Life
But she also said the engine of the court is revving back up.
“Throughout the court’s closure since mid-March, we’ve been operating with about 30-40% of staff working either remotely or on-site on a day-to-day basis. We’ve been working to increase remote work options and have added multiple services,” said Cox. “We estimate 40% of the staff who are working are doing so remotely — around 200 people.”
Alksne, the presiding judge in San Diego, has now said the court will be closed until Memorial Day weekend. But even then the court will only do a “soft reopening.”
“It’s going to be a very different court than when we closed in March,” head clerk Michael Roddy told lawyers on a Zoom call last week. He said this means having as few people entering the courthouse as possible and using drop boxes at courthouse entrances for new filings, a system already employed by courts like San Francisco, Sacramento and a host of other courts around California.
Meanwhile, local attorneys are grappling with a court that has effectively pressed pause and that will not be back up to normal speed for months to come. Deepening the pall over any recovery is California’s enormous budget shortfall of $52 billion, in the wake of the state shutdown.
That shortfall will inevitably spread into the court budget for next year.
Nothing We Can Do
“The state courthouse is completely shut down here so we’re basically operating extra-judicially right now,” said David Casey, managing partner with Casey Gerry Schenk Francavilla Blatt & Penfield, LLP, one of the top personal injury law firms in San Diego.
“In San Diego we can continue to file documents but we are basically in a court holiday until the 22nd. But there are literally no clerks down there and no judges at the courthouse. Until there’s a re-opening there’s nothing we can do.”
The closure has hobbled even the simplest of court functions, like getting a signature on a stipulated judgment or settlement. One plaintiff lawyer said this has hit vulnerable San Diego residents especially hard.
“There are lot of peoples’ lives that are devastatingly impacted by this,” the lawyer said. “All you need is a court signature to get that money and you can’t get that signature, so people are held up from getting money they need. There’s a lot of pieces to closing a case, for a check to be cut, and people are waiting to get 10, 20, 30 thousand dollars which makes a huge difference for people’s pockets right now.”
At the root of the court’s struggles, said lawyers in San Diego, are its continuing technological weaknesses.
“I think there’s a technology problem,” attorney Casey said. “There’s been such huge demand for things like cameras and computers and that type of thing, and that combined with the impact of the coronavirus there’s been a problem getting the product right now.”
Martel, who helped set up the mediation alternative Resolve Law San Diego, said the court has ordered the necessary equipment to conduct remote proceedings.
“They have ordered all the technology for the civil courtrooms but it won’t be available until August. I wish we had more room for innovation and progress with the court during this time. I don’t think it’s because the court doesn’t care, but was caught off guard. It’s definitely been a shocker for the court.”
Both Casey and Martel said cooperation among members of the local bar, as well as understanding from the judges, has helped alleviate some anxiety about the closure.
“The court in San Diego has gone to extraordinary lengths to communicate with the bar and the presiding judge has done a terrific job,” Casey said.
“They respect our business,” Martel said. “If you asked them on a personal level I’m sure they’d say they’re very concerned. They’re doing the best they can.”