Proposed Local Rules Draft Two, July 10, 2002
Proposed Rule 1. Judge Shopping
The court does not approve of “Judge Shopping” and specifically prohibits it. It shall not be permissible to refile any matter for the purpose of obtaining a different Judge or Commissioner. Whenever a matter has been heard by or been set before a Judge or Commissioner and thereafter the same or essentially the same claims, involving the same or essentially the same parties, are alleged in another action, the later filed action shall be assigned, unless the Presiding Judge for good cause orders otherwise, to the Judge or Commissioner to whom the first filed matter had theretofore been assigned.
It shall be the duty of every counsel in such later filed action referred to in Proposed Rule One to immediately to bring the fact of such other action to the attention of the Court. Counsel shall give such notice at the earliest opportunity which shall be at the time such pleading is filed, upon their first appearance, or as soon thereafter as they discover the facts. Such notice shall be given in a written pleading designated as a “Notice of Related Case” as provided in below.
Related Cases.
(1) Definition. A civil case may be ordered related to other case(s), including Probate and Domestic (Family Law) cases, by the Court when it appears that the cases:
a. Arise from the same or substantially identical transactions, happenings or events; or
b. Require a determination of the same or substantially identical questions of law and/or fact; or
c. Are likely for other good reasons to require substantial duplication of labor if heard by different judges.
d. Are the same or substantially similar to a prior case in the Superior Court that has been dismissed, either with or without prejudice.
(2) Notice. It is the obligation of counsel to file and serve upon all parties of record a Notice of Related Case(s) when the cases are related as defined in paragraph (1) above.
a. This notice must be filed not later than 15 days after assignment of a case or not later than 15 days after such facts become known to counsel.
b. This notice must set forth facts as to why any pending case or case previously disposed, irrespective of date of filing, is related as defined above.
c. This notice is not required under the circumstances set forth in paragraph (5) below.
(3) Opposition. Any party who wishes to oppose a Notice of Related Case(s), must, within 10 days of the service of a Notice of Related Case(s), file directly in Department One of the Metropolitan Division and serve on all parties of record a brief pleading which shall set forth the reasons why one or more of such cases is not a related case or why other good cause exists for the Court not to make a transfer of a particular case to or from a particular Judge or Commissioner.
(4) Ruling on Notice of Related Case(s).
a. Each Notice of Related Case(s) shall be filed in Department One of the Metropolitan Division and ruled upon without a hearing by the judge therein presiding, unless all of the cases proposed to be related are pending in the same Division, other than the Metropolitan Division.
b. If all of the cases proposed to be related are pending in the same Division, other than the Metropolitan Division, the Notice of Related Case(s) shall be filed in the department designated by the Supervising Judge of that Division, and shall be ruled upon, without a hearing, by the judge therein presiding.
c. If cases are ordered related, they will be assigned to the department where the case with the lowest case number has been assigned, unless the Court, for good cause, determines otherwise.
(5) When Notice of Related Case(s) is not required.
a. The notice described in sub-paragraph (f)(2) above is not required when all the cases to be related are assigned to the same Judge or Commissioner.
Proposed Rules 1 and 2 are meant to close a loophole in Code of Civil Procedure §1008. A party is bound by §1008 when they request the court to grant the same relief as requested in a prior motion; however, a party can subvert the intent of §1008 by simply requesting similar relief or by requesting relief in a different form. As examples:
Paula files for a Domestic Violence Prevention Act (DVPA) restraining order against Robert. In Robert’s reply, he requests restraining orders against Paula. The matter is heard and determined. Neither party appeals. Robert then files for a DVPA restraining order against Paula. When the matter is determined, the new orders supercede the prior orders.
Peter moves for a modification of child support from $500/month to $400/month, but the motion is denied. A month later, he moves for a modification of child support from $500/month to $410/month, but his motion is again denied. A month later, he moves for a modification of child support from $500/month to $390/month, and the motion is granted.
Los Angeles County has a similar rule to Proposed Rules 1 and 2:
7.3 ASSIGNMENT OF I/C CASES
(a) Proportionate Assignment. A pro rata share of all cases filed in or transferred to any district shall be assigned for all purposes to each civil bench officer assigned to hear I/C cases in that district. (Rule 7.3(a) amended and effective 1/1/2000.)
(b) Regulation of Case Assignment. The Clerk of the Superior Court (Clerk) shall take all reasonably appropriate steps, including a system of random use of case numbers, to ensure that neither any party nor any counsel will be able to anticipate case assignment. The name of the judge to whom the case is assigned will be designated by the Clerk on the Summons and the original Complaint.
(c) Notice of Case Assignment. At the time that the Summons is issued the Clerk will also assign a status conference date and attach a Status Conference Questionnaire and a Notice of Case Assignment which shall indicate (1) the name of the Judge to whom the case has been assigned, (2) that Rules have been issued by the Court which will apply to the case, (3) that such Rules have been published as Chapter Seven of the Local Rules of this Court, (4) that such Rules will be strictly enforced and all counsel will be expected to be familiar with them and (5) that it shall be the duty of each plaintiff (and cross-complainant) to serve a copy of the Notice, the status conference questionnaire and the date of the status conference along with the complaint (and cross-complaint).
(d) Improper Refiling. It shall not be permissible to dismiss and thereafter refile any case for the purpose of obtaining a different Judge. Whenever a case is dismissed by a party or by the Court prior to judgment and thereafter the same or essentially the same claims, involving the same or essentially the same parties, are alleged in another action, the later filed action shall be assigned, unless the Presiding Judge for good cause orders otherwise, to the Judge to whom the first filed case had theretofore been assigned.
(e) Duty of Counsel. It shall be the duty of every counsel in such later filed action referred to in paragraph (d) above immediately to bring the fact of such dismissal and refiling to the attention of the Court. Counsel for plaintiff or cross-complainant (if the earlier action is renewed in a cross-complaint) shall give such notice at the time such pleading is filed. Counsel for all other parties shall give such notice upon their appearance, or as soon thereafter as they discover the facts. Such notice shall be given in a written pleading designated as a “Notice of Related Case” as provided in paragraph (f) below.
(f) Related Cases.
(1) Definition. A civil case may be ordered related to other case(s), including Probate and Domestic (Family Law) cases, by the Court when it appears that the cases:
a) Arise from the same or substantially identical transactions, happenings or events; or
b) Require a determination of the same or substantially identical questions of law and/or fact; or
c) Are likely for other good reasons to require substantial duplication of labor if heard by different judges.
d) Are the same or substantially similar to a prior case in the Superior Court that has been dismissed, either with or without prejudice.
(2) Notice. It is the obligation of counsel to file and serve upon all parties of record a Notice of Related Case(s) when the cases are related as defined in paragraph (1) above.
a) This notice must be filed not later than 15 days after assignment of a case or not later than 15 days after such facts become known to counsel.
b) This notice must set forth facts as to why any pending case or case previously disposed, irrespective of date of filing, is related as defined above.
c) This notice is not required under the circumstances set forth in paragraph (5) below.
(3) Opposition. Any party who wishes to oppose a Notice of Related Case(s), must, within 10 days of the service of a Notice of Related Case(s), file directly in Department One and serve on all parties of record a brief pleading which shall set forth the reasons why one or more of such cases is not a related case or why other good cause exists for the Court not to make a transfer of a particular case to or from a particular Judge.
(4) Ruling on Notice of Related Case(s). a) Each Notice of Related Case(s) shall be filed in Department One of the Central District and ruled upon without a hearing by the judge therein presiding, unless all of the cases proposed to be related are pending in the same district, other than the Central District.
b) If all of the cases proposed to be related are pending in the same district, other than the Central District, the Notice of Related Case(s) shall be filed in the department designated by the Supervising Judge of that district, and shall be ruled upon, without a hearing, by the judge therein presiding.
c) If cases are ordered related, they will be assigned to the department where the case with the lowest case number has been assigned, unless the Court, for good cause, determines otherwise. (Rule 7.3(f)(4) amended and effective 1/1/2000.)
(5) When Notice of Related Case(s) is not required.
a) The notice described in sub-paragraph (f)(2) above is not required when all the cases to be related are assigned to the same department.
b) When notice of related cases is not required pursuant to this sub-paragraph, motions to consolidate must be filed in accordance with LASCR, Rule 7.3(g) below.
Proposed Rule 3. Sanctions for Abuse of In Propria Persona
Those opposed by a party appearing in propria persona shall not be free to misuse the judicial process based on their opponent’s form of representation.
(1) Mandatory Sanctions for Discovery Abuse
When the award of attorney fees is mandated by Civil Discovery Act of 1986, including those attorney fees mandated by Code of Civil Procedure §§2017, 2019, 2024, 2025, 2028, 2030, 2031, 2032, 2033, and 2034, but the prevailing party is not entitled to attorney fees by virtue of appearing in propria persona, the court shall determine the reasonable value of attorney fees that would have been incurred had the prevailing party employed the services of counsel, and then order those fees payable to the Kern County Library General Fund.
(2) Discretionary Sanctions
When the award of attorney fees is discretionary, the court may determine the reasonable value of attorney fees that would have been incurred had the prevailing party employed the services of counsel, and then order those fees payable to the Kern County Library General Fund.
Proposed Rule 3 is meant to close a loophole in the Civil Discovery Act which was explained in Kravitz v. Superior Court (Milner) (2001), 91 Cal.App.4th 1015:
“When one party attempts to use the discovery process as a financial bludgeon or an obfuscation tool, the most readily identifiable cost to the other party is the attorney's fees incurred in response to the abuser's acts or omissions. Where no fees are incurred, the abuser gets one free bite--because issue, evidence, and terminating sanctions must all be preceded by the abuser's disobedience of an order compelling him to do that which he should have done in the first instance.”
The Civil Discovery Act loophole is easily shown by example:
Paul appears in pro per against Rita, who is represented by counsel. Paul serves form interrogatories on Rita through her attorney, but Rita does not respond. Paul writes a letter to Rita’s attorney requesting that she respond to the discovery request, but again, she does not respond. After several more letters and a few phone calls, Paul files a motion to compel answers. The court grants the motion and orders Rita to answer within ten days. Paul is not entitled to attorney fees. Rita answers within the time allotted, but her answers are incomplete and evasive. After multiple informal attempts to resolve the discovery dispute, Paul brings a second motion to compel. He again prevails, but is again not entitled to attorney fees. Rita provides additional answers. After even more informal attempts to obtain discovery, Paul brings a third motion to compel. Rita prevails because the motion was brought within 45 days of the date set for trial, so Paul is ordered to pay Rita attorney’s fees. Rita has been rewarded for refusing to respond to a valid discovery request.
Some attorneys as a matter of course simply refuse to respond to discovery requests made by parties appearing in pro per. There is no real danger in refusing to answer, since at most the court can award the incidental costs of bringing the motion. Generally, these costs are only court fees and the cost of postage which totals around twenty-five dollars.
This problem is exacerbated when a party is represented by a friend or relative. If we assume in the above example that Rita’s counsel does not charge her for his services, the award of attorney fees will be an unjustifiable windfall to either Rita or her counsel.