Another non-conference-day PFR ruling shows Supreme Court interest in pandemic trial practices
For the second week in a row, the Supreme Court uncharacteristically ruled on a petition for review on a Friday, a non-conference day. And, like last week’s decision, yesterday’s order signaled the court’s interest in having the Courts of Appeal opine about trial procedures during the COVID-19 pandemic.
The latest order came in Wells Fargo Bank, National Association v. Superior Court. Saying that the superior court had “ordered the parties and their counsel to participate in a potential ‘super-spreader’ event,” the petition for review stated these issues:
1. During the current pandemic, may a trial court compel participation in a large in-person trial—with 20 or more persons in the courtroom—in a civil case in which there is no calendar preference and no exigency requiring an immediate trial?
2. If such a trial is permissible, may the trial court, in an effort to comply with social-distancing requirements, exclude from the courtroom parties to the litigation, in violation of Evidence Code section 777 and of the due process requirements of the state and federal constitutions?
Following the Fourth District, Division One, Court of Appeal’s summarily denial of a writ petition, the Supreme Court granted review and transferred the case back to the appellate court with directions to issue an order to show cause why relief should not be granted. The Supreme Court also kept in place a stay of trial proceedings it had issued three days after the petition for review was filed.
Wells Fargo's attorneys moved the trial court, unsuccessfully, to continue a San Diego trial at the outset of the pandemic, and petitioned the Court of Appeal, again unsuccessfully, for a writ. Now the Supreme Court has granted review on the question:
"During the current pandemic, may a trial court compel participation in a large in-person trial—with 20 or more persons in the courtroom—in a civil case in which there is no calendar preference and no exigency requiring an immediate trial?"
Skimming the petition, it strikes me as calling for a legislative remedy, i.e., new rules for trial procedure for the foreseeable future.
As for a judicial remedy, I have an easy solution: Stipulate to a pro tem judge. Phase 1 of this trial is for declaratory relief, meaning, no jury. Send this out to a JAMS or ADR facility and have a socially-distanced or even a Zoom trial according to preference.
We just did this for a trial, and is working great so far. Let me know if you need the forms.