Supervising Judge Hurwitz’s May 13, 2020 Announcement

Editorial note: The following is a lengthy announcement by Orange County’s Family Law Supervising Judge, Lon Hurwitz. While the text of the announcement is unchanged, we did make formatting changes to make the text more readable. We also provide a link to the Administrative Order referenced below.

Attached to this Message, please find Judge Nakamura’s Administrative Order No. 20/15 Mandating Remote Hearings in all Family Law Matters; and the DV Protocols for In-Court DV Proceedings designed for Pro Per DV cases signed by Judge Henson and Commissioner Watson.

By way of explanation and anticipated questions from the Bar, allow me to address certain issues:

The Administrative Order Mandating Remote Hearings

I believe that the Preface and Background sections of the Order are self-explanatory. Counsel should be aware that the Mandatory provisions apply to those matters SELECTED BY EACH JUDICIAL OFFICER, IN THEIR DISCRETION, which shall be set for Hearing. It DOES NOT mandate that all matters currently pending be set.

The criteria for selection of what will be heard will be those matters that can be heard in a total of 2 hours or less, with some leeway, within reason, for the Judicial Officer to exceed that 2 hours in his/her discretion. This means that we will not be able to hear most matters involving 2 attorneys. It also means that any matter selected for Hearing that involves counsel cannot exceed 2 hours, with an understanding that another few minutes can be allocated if it will finally resolve the matter. IT DOES NOT MEAN THAT A 2 HOUR HEARING CAN BECOME A 4 HOUR HEARING.

If that happens, the Judicial Officers have been encouraged to declare a Mistrial. But because of this Administrative Order, and the time limits imposed, the selection of which cases will be heard is left to the SOLE DISCRETION of the Trial/Hearing Judicial Officer.

COUNSEL WILL NOT BE ABLE TO ADVOCATE FOR THEIR MATTER TO BE HEARD; AND THE COURT WILL NOT ENTERTAIN OR GRANT AN EX PARTE BASED SOLELY ON AN ARGUMENT THAT A PARTICULAR NON-EMERGENCY MATTER MUST BE HEARD.

The manner and method of the Remote Proceeding will be determined by each Judicial Officer in their discretion. Judicial Officers may use Teams, WebEx, Court Call, or Conference Call applications for the remote proceedings. Much will depend on what matters each individual Judicial Officer wishes to set.

By example, some of our Judicial Officers wish to conduct the previously set Status Conferences set in June remotely, because they believe that many of the matters that were trailed/continued now have different facts / circumstances as a result of the situation; so they wish to see how things have changed and give folks an opportunity to amend pleadings, file documents, update Declarations, etc. Those might be done telephonically or via Court Call.

Some Judicial Officers have set Status Conferences with accompanying VSC settings and they may want to do those remotely via Web Ex. Some Judicial Officers may want to advance the scheduled Status Conference and set a Remote Hearing via Teams or Web Ex.

As a result of the discretion referenced above, Counsel need do nothing. If a case is selected in which you represent a Party, you will be advised. If you do not believe that the matter can be tried in 2 hours, please advise the Clerk so that the Judicial Officer can reconsider the selection and perhaps select a different matter to be heard instead. If your matter is selected, you will be given the Protocols for the Remote Hearing, including how to submit evidence and how to access the Remote Hearing Application that will be used.

We have set up Sharepoint folders for the receipt and consideration of evidence; and the Department will provide you with the time parameters for the submission of evidence. All documents submitted for filing but not yet filed on the case selected will be pulled from the queue based on a case number search and filed/scanned into ELF before the Hearing.

It is probable that matters involving lawyers on both sides will not be selected for Hearing at this time. The reason for this is that, depending upon the matter under consideration, it is more likely than not that the matter will involve more than one issue; or more than a simple issue, and cannot reasonably be heard in 2 hours. While we understand the frustration of the Bar on this point, the reality is that we have a backlog of about 10,000 matters and we must move through these as quickly as possible. A day long Hearing, taking 6 hours, resolves 1 matter. Those same 6 hours could have resolved 3 two hour matters.

The Criminal backlog is severe. As a result, many Judicial Officers in non-criminal assignments will be reassigned to deal with the Criminal backlog. We are therefore losing Judge Ospino to the Criminal Panel. His cases will have to be distributed to the rest of our Panel; placing an even greater strain on the time issues to get our backlog handled.

The Courtrooms in Harbor, West, and North are being taken to deal with the Criminal backlog. So Commissioner Wilson, Judge De La Cruz, and Judge Gaffney will, more than likely, have to be working offsite.

I have been advised that we will lose virtually all of our Bailiffs to the Criminal Courts. The operation of a Family Court with Parties, Counsel, Experts, Court Staff, and Judicial Officers present in a Courtroom without a law enforcement presence is not something which Judge Nakamura, or I, am willing to do, for all of the reasons which we know, all too well, about.

The primary bases, therefore, for the mandatory remote hearings plan are the loss of bailiffs in virtually all Family Law Inventory Courts, and the ever increasing backlog of cases which will not allow us to wait until the Criminal Backlog is handled. The logical choice is, therefore, remote hearings which will not require bailiffs and which therefore lets us get started on the backlog.

And while remote hearings are the current logical choice, they will take longer for a number of reasons; Interpreters will have to interpret “consecutively” as opposed to “simultaneously”, meaning that they cannot interpret as the person is speaking-they must wait until the person is finished speaking and then translate. People will not be able to interrupt or talk over each other, and when that happens, the Judicial Officer will have to interrupt and stop the proceedings because the Court Reporter will be working remotely and may not be able to observe who is talking.

And there will be a variety of technical issues which we will have to sort through, as this will be an evolving endeavor.

Unfortunately, the effect of all of this will be significant delays for longer Hearings. How long you ask? We do not anticipate getting thru our backlogs before the end of the summer. And that assumes that additional Judicial Officers will not be taken for the Criminal Backlog; and additional Court Reporters/Staff will not be taken to service Criminal Matters.

So to the extent that you want to know when your Long Cause matter can be heard, the answer, at this time, is “we don’t know”. Much will depend on your Judicial Officer’s selection of those matters that can be heard in 2 hours or less and how quickly he/she can whittle down their backlog; and the extent to which priority matters (DV, EI’s) interfere in that endeavor.

It is conceivable, and quite likely, that your non-emergency long cause matters won’t be heard until next year.

DV’s in L11 and L63

DV’s that do not involve counsel (Pro Per on each side) will be taken In-Court using the Protocols set forth in the attached Memo signed by Judge Henson and Commissioner Watson.

Attorney cases in these Courts will not yet be heard so that we can get thru the backlog of approximately 500 Pro Per matters. Each case being set by the 2 DV Courts will take no more than 20 to 30 minutes. Hearings involving Counsel will be set once we get thru the Pro Per backlog.

DCSS Matters

Commissioners Coleman and Kasch are developing independent Protocols for DCSS cases in conjunction with the private bar and DCSS. As DCSS cases are governed Federal and State Statute independent of other Family Code Statutes, separate Protocols for those cases are necessary. More to come on those Protocols when they are finalized.

Alternatives to Delays in Matters being Heard

1. We will accept Stipulations to submit on documents / pleadings / declarations already filed provided there is a Stip to waive the provisions of Family Code section 217;
2. We will accept Stipulations to “Reifflerize” and submit on Decs rather than testimony, provided there is a signed waiver within the Stip of the provisions of Family Code section 217;
3. You can take advantage of our excellent VSC Program by contacting Dan Boehm;
4. You can Stip to go to a Private Judge;
5. You can take advantage of a VSC set by your Judicial Officer on the same day as the Status Conference if that has been done by your Judge/Commissioner;
6. You can engage in discussions between yourselves and perhaps submit partial Stips that significantly narrow issues so that your Judicial Officer can re-examine the time requirements to hear your matter;

It is my understanding that the folks at Human Options are willing to do Mediations on financial issues.

Court Services

1. Emergency Investigations will be available remotely;
2. Custody Mediations will be available remotely;
3. CCI’s WILL NOT BE AVAILABLE;
4. We have made significant progress processing many of the 1600 backlogged Judgments and are almost caught up;
5. We are now processing much of the 9,000 plus backlog of submitted documents and filing them. The date of filing will be the operative date; not the date of submission, by Statute.

This is a lot to take in. I wish we had better news for you. Unfortunately, the situation in the Criminal Courts is driving the bus; and until that is resolved, there is not a whole bunch we can do.

Please consider the above 7 options to waiting for a Hearing date. The sooner we can clear the backlog, the sooner we can get back to better serving your clients.

Many thanks for your patience and understanding; and to those of you who have volunteered to help us get cases settled through your great work as TJ’s; and for your excellent leadership in Dan Monarch and Dan Boehm.

My Best to all of You, your Families, and your Staffs.

Lon Hurwitz