If you have signed up dozens of individual cases naming the same defendant, you may want to have their cases coordinated for pre-trial proceedings
Requesting the transfer of hundreds of cases from one county to another to be heard by a single judge is a matter requiring considerable planning. It requires streamlining pre-trial procedures and making other substantive agreements with committees of lawyers who are at considerable odds. Sounds crazy. Sounds complicated. Sounds like an administrative and organizational nightmare. And, sounds like it could be magical for the litigants involved. Welcome to civil coordination in California!
What is civil coordination?
Civil coordination is the mechanism through which two or more (more often dozens, if not hundreds) of civil actions pending in different courts and counties which share common questions of fact or law are transferred to one venue, before one judge, for pre-trial coordinated proceedings. Created and administrated by the Judicial Council of California, the policymaking body of California, these proceedings are officially termed Judicial Council Coordination Proceedings (“JCCP”).
The seven-factor test
In considering the idea of seeking coordination, one should be guided by the legislative intent behind the procedure, found in sections 403, 404, and 404.1 of the Code of Civil Procedure as well as in California Rules of Court, rule 3.500 et seq.
Two or more similar actions (some of which may even name the same Defendant(s)), will not necessarily constitute a JCCP. Coordination is proper only if it furthers the ends of justice pursuant to to the facts of consideration set forth in section 404.1 of the Code of Civil Procedure. In making that determination, the Motion Judge will primarily consider seven factors: (a) if the common question of fact or law predominates, meaning significant if not critical to the litigation’s claims and defenses; (b) the convenience of the parties, witnesses, and counsel; (c) the relative development of the actions and the work product of counsel; (d) the efficient use of judicial resources;(e) the calendar of the courts; (f) the disadvantage of duplicative and inconsistent rulings, orders, or judgments; (g) and the likelihood of settlement without further litigation if coordination is denied. (Code Civ. Proc., § 404.1.)
The Seven factors are paramount. Caselaw, here, has remarkably little importance.
Coordination is not consolidation or a class action
Consolidated actions originally filed in the same county are substantively merged and taken through trial together. The same is true for class action. Coordinated cases maintain their individual status; each case is worked up and tried individually. This is an essential distinction, especially when considering whether or not coordination is the vehicle for you and your client, who might, and with good reason, have strong feelings about his or action maintaining its own individuality and damages. (While there is a small chance that the JCCP Judge could order certain coordinated actions to be consolidated later down the road, that is atypical. (See Code Civ. Proc., § 1048).)
What to know before coordination is sought
Warning: Coordination is a beast! A coordination request is a tall order. In seeking coordination, you’re asking the State to move dozens (and often hundreds) of properly filed cases from their original jurisdiction, essentially usurping the process, procedure, and authority of multiple county courts, in order to dedicate the resources of a single county judge to all of those cases. As a result, any request must absolutely hit every aspect of the analysis demanded by factors set forth in section 404.1. A coordination request filed with anything other than near-perfect procedural and substantive compliance will almost certainly be denied. And while many (this writer included) would argue that judicial resources are ultimately preserved through the creation of a JCCP, the demands on litigants and lawyers are equally significant. There’s a reason that the creation of a new JCCP is rare. It is a “big ask” from the Judicial Council and a “big task” for the attorneys leading the charge.
A JCCP warrants a very specific set of factual circumstances and a team of lawyers ready, willing and able to engage in a play that will require years of dedication. The short- and long-term labor and commitment involved, as well as the complexity of administering the bureaucracy of coordinating proceedings, should not be underestimated. From organizing the perpetually moving parts of individual actions, to writing a brief that complies with procedure-heavy statutory guidelines and persuasively lays out a detailed 7-factor legal analysis, to juggling a framework of committees comprised of lawyers from both sides of the bench tasked with working together, to maintaining a master compensation matrix that will be digested with a fine-tooth comb by a Special Master – civil coordination is truly a beast.
Why should coordination be sought?
To put it crudely – more bang for everyone’s buck. Especially your clients. Firstly, coordination may certainly push the Defendant into a settlement posture. For a Defendant, a JCCP is a proverbial brightly flashing billboard that all but invites the filing of complaints – so disastrous for the Defendant’s viability. That danger makes settlement much more palatable. But even before settlement, there is great potential benefit for firms and clients. The most basic? Efficiency.
Streamlined procedure and substantive agreements means that the parties will not have to engage in the same discovery disputes dozens or hundreds of times. Taking a deposition once rather than dozens of times is an extraordinary cost reduction. So is retaining an expert to provide an opinion that can be used in several cases rather than in each and every case.
Such cost reduction is especially important to those cases whose damages are not as significant. With coordination, you can successfully compensate clients whose cases might not otherwise be valuable enough to work up. A single judge intimately familiar with all JCCP cases will produce consistent rulings. Consistent rulings prevent gamesmanship. Efficiency wins.
Efficiency and significant cost reduction are reason enough. But if all goes well, coordination could trigger a global settlement. Where your inventory of cases includes several if not many low value cases such that costs erode potential client compensation, a global settlement precludes the majority of client absorbed costs, resulting in higher reward for them and for you. This is a hugely important incentive to forge ahead if coordination is even on the table.
Convinced? Here’s how to proceed:
A written brief requesting coordination may be either submitted as a Petition to the Chairperson of the Judicial Council or filed as a direct motion in the court in which the lead action is currently pending. There are three routes available to submitting that written brief. All must comply with a similar list of procedural requirements and present a cohesive substantive argument that reflects an understanding of the actions sought to be coordinated as well as the statutory legislative intent. No one route is better or faster than another, so the key here is to quickly figure out which route is your route, and then to make sure you cross every “t” and dot every “i” of the procedural guidelines thereof. Which route is available to you depends on whether the cases sought to be coordinated are “complex” as defined under Rule 3.400. (See, infra.) Here is a breakdown:
Route 1: Submit a petition to the Judicial Council.
This route requires that “all parties Plaintiff” in the lead case provide expression permission to coordinate – even if it is a multi-Plaintiff case. If one plaintiff refuses, this route is not for you. (Instead, see Route 3).
In response to a procedurally sound petition, the Chief Justice, with the help of a coordinating attorney, will assign a Motion Judge to decide the merits of the petition. More often than not, the Motion Judge is either a retired judge or an actively serving judge who presides in the county wherein the actions would most likely be transferred for coordinated proceedings. If the petition is granted, the Chief Justice will assign a trial judge who will preside over the coordinated pre-trial proceedings of the JCCP.
Take this route if the cases sought for coordination are “complex” as that term is defined under section 19 of the Standards of Judicial Administration and California Rules of Court, rule 3.400. Here, employ Code of Civil Procedure sections 404, 404.1, and California Rules of Court, rule 3.521.
Route 2: File a direct motion in the court in which the “lead action” is filed.
Take this route if the cases sought for coordination are declared “not complex” or “concededly not-complex.” Here, employ Code of Civil Procedure sections 403, 404, 404.1. The Presiding Judge of the County will assign the trial judge if the motion is granted.
Route 3: File a motion in the court in which the “lead action” is filed, asking for permission to submit a petition to the Judicial Council.
Take this route if the cases sought to be coordinated are “complex” but where one of the plaintiffs in a multi-plaintiff case refuses to provide express permission for the coordination.
The most ideal time to coordinate is when you have several cases near to their inception or in initial stages of discovery. A few should already be in motion, with several depositions taken and dispositive motions resolved. These will allow you to argue that coordination will reduce or preclude repetitious and costly discovery disputes – a key consideration for the judge’s determination.
If one of the actions has an “imminent” trial date, the judge is statutorily authorized to summarily deny coordination until a later, more appropriate time. If possible, explicitly exclude that case from your coordination efforts. Argue that such a case would not benefit from coordination given its advanced litigation stage, and that to transfer such a case would not serve legislative intent behind coordination. Typically, the court will be disinclined to transfer such a case into a newly created JCCP.
Engaging the 7-factor test
Be sure your brief reflects an awareness of the lens through which the judge is considering and shall ultimately determine the request before him. Go beyond satisfying statutory request – demonstrate that coordination will honor legislative intent. It is imperative that your analysis emphasize judicial efficiency. Tell the judge the magic words he needs to hear: Coordination will reduce costs to the litigants, drastically minimize repetitious efforts with respect to depositions and document productions, avoid duplicative disputes, reduce inconsistent pre-trial, dispositive and in limine rulings. and, of course, that the resources of the judiciary will be conserved.
Choosing a lead case
The primary consideration for lead case is venue. Don’t choose a “lead case” filed in Orange County, if your written request to the court or Judicial Council asks that the JCCP be assigned to Alameda County. If you want the JCCP to be assigned to Alameda County, use a case already filed in Alameda as your “lead case.”
Choose the county that is most advantageous to your clients – provided that you can demonstrate that it serves the convenience of the court. The scope of consideration with respect to venue relies predominantly in manpower and available resources in the given county. Geographic proximity of counsel, experts, and evidence is outside the scope of consideration. The Motion Judge will also consider whether a county has the bandwidth, financial resources, administrative structure in place, courtroom space, and experience managing coordination proceedings to bring cases to an efficient and timely resolution. Some counties simply are not set up to handle the administration of hundreds of coordinated cases, or their judges are otherwise strapped. Other counties have several judges who are dedicated to presiding in JCCPs. If you can, seek out the resources available to your preferred court before filing.
A huge benefit of seeking coordination is that you are leading the charge. This gives you the best opportunity to land an advantageous and favorable venue. As the moving party, you also stand in considerable power with respect to landing a spot as Plaintiffs’ Liaison Counsel, a role which comes with its own rewards. The committee itself will be critical with respect to crafting procedure, process and other substantive governing agreements for the JCCP.
Hard work pays off
The hard work and commitment required to create a JCCP are significant, and wrangling and strife along the way as you craft streamlined procedures and substantive agreements with opposing counsel are par for the course. But all that pales in comparison to the positive consequences coordination promises for included cases. No client or attorney ever complained about swift and low-cost litigation and lucrative resolution. When the unique circumstance where coordination is prudent presents itself, embrace the battle and slay the beast.
Anya Fuchs currently serves as “of counsel” for Pearce Lewis LLP in San Francisco, a preeminent boutique plaintiffs’ civil litigation and mass tort law firm. Anya’s 20-plus years in civil litigation practice has been devoted to representing plaintiffs who have been severely or catastrophically injured by the negligent and reckless conduct of corporate product manufacturers. She has, throughout that time, remained committed to the labor of her love of trial and appellate writing. She has served as an Adjunct Professor of Legal Research & Writing and continues to guest lecture on Appellate Advocacy at her alma mater University of San Francisco School of Law. Anya, born and raised in Berkeley, comes from a long line of academics, educators, and writers. She currently lives in Oakland with her husband and their 10-year-old son.
2024 by the author.
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