Preview
Superior Court of California
ROBERT H. ZIMMERMAN, Bar No. 84345 County of Butte
SCHUERING ZIMMERMAN & DOYLE, LLP
400 University Avenu' 11/17/2020
Sacramento, California 95825-6502
(916) 567-0400
FAX: 568-0400
By Deputy
Electronically FILED
Attorneys for Defendant ENLOE MEDICAL CENTER
SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE
10 PATSY NEWTON, individually, HAROLD NO. 20CV01091
NEWTON, individually; SUZANNE
11 BOLDEN, individually, Assigned to the Honorable Judge
Tamara L. Mosbarger for All
12 Plaintiffs, Purposes
13 vs. EX PARTE APPLICATION FOR
ORDER SHORTENING TIME TO HEAR
14 ENLOE MEDICAL CENTER; and DOES 1 - MOTION FOR RECONSIDERATION OF
50, et al., RULING ON MOTION TO CONTINUE
15 TRIAL; MEMORANDUM IN SUPPORT;
Defendants. AND DECLARATI IN
16 ALAINA T. DICKENS; PROPOSED]
ORDER
17
Date: November 19, 2020
18 Time: 4:00 p.m.
Dept: 1
19 Date action filed: May 29, 2020
Trial date: December 14, 2020
20
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22 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD:
23 Defendant ENLOE MEDICAL CENTER, through its counsel, hereby applies ex parte
24 for an order shortening time for notice of hearing on Defendant’s Motion for
25 Reconsideration.
26 PLEASE TAKE NOTICE that on November 19, 2020, at 4:00 p.m. in Department 1 of
27 the Butte County Superior Court located at 1775 Concord Avenue, Chico, California,
28 defendant ENLOE MEDICAL CENTER, will move this Court for an Order Shortening time
01300606.WPD 1
EX PARTE APP FOR OST TO HEAR MOTION FOR RECONSIDERATION OF RULING ON MOTION TO
CONTINUE TRIAL
to hear its Motion for Reconsideration of Ruling on Motion to Continue Trial. This
application will be made on the grounds that the trial date is on December 14, 2020 and
trial has been set with preference by remote video conference. This motion is being
timely filed but due to the trial date must be heard on shortened time.
This application will be based on this application, the following memorandum of
points and authorities, request for judicial notice, the declaration of Alaina T. Dickens,
such oral and documentary evidence as may be presented at the time the application is
heard.
Dated: November 17, 2020
10 SCHUERING ZIMMERMAN & DOYLE, LLP
<
11
12 By
AVAINA T. DICKENS?
13 Attorneys for Defendant ENLOE
MEDICAL CENTER
14
15 MEMORANDUM OF POINTS AND AUTHORITIES
on December 14, 2020.
16 This is an elder abuse action scheduled to commence
17 Due to nature of this case, trial has been set with preference. The Complaint was filed
18 May 29, 2020; giving the parties only five months to conduct the necessary non-expert
19 discovery. Moreover, counsel for defendant Enloe Medical Center was not retained until
20 June 17, 2020. Given the proximity of the trial date defendant would be irreparably
21 harmed if its motion for reconsideration was not heard.
22 On August 12, 2020, Ms. Newton’s request for trial preference was granted over
On September 2, 2020, trial was set for December 14, 2020. On
23 defendant’s objection.
24 October 9, 2020, defendant moved to continue the trial date. On November 4, 2020, the
defendant’s motion to continue tral finding plaintiff was entitled to
25 court denied
26 preference under California Code of Civil Procedure section 36 and ordered trial would
27 proceed remotely by Zoom due to the COVID-19 pandemic.
28 Mt
01300606.WPD 2
EX PARTE APP FOR OST TO HEAR MOTION FOR RECONSIDERATION OF RULING ON MOTION TO
CONTINUE TRIAL
Il.
ARGUMENT
A. Good Causes Exists to Hear A Motion for Reconsideration of Ruling on Our
Motion to Continue Trial on Shortened Time
California Rules of Court, Rule 5.94, states in pertinent part:
(a) Order shortening time
The court, on its own motion or on application
for an order shortening time supported by a
declaration showing good cause, may prescribe
shorter times for the filing and service of papers
than the times specified in Code of Civil
Procedure section 1005.
10
11 As set forth in the attached declaration, the trial will occur on December 14, 2020.
12 A trial by remote video conference, especially in a case involving such complex issues
13 as here, will not be sufficient to satisfy the due process requirements guaranteed by the
14 California and United States constitutions and the legislatures.
15 This motion must be filed by November 19, 2020. As it was filed on November 17,
16 2020, it is timely. A hearing on this motion has been set for December 11, 2020. This
17 motion cannot be heard on regular time because of the proximity of the trial date. Trial
18 has been set with preference for December 14, 2020, an order shortening time for hearing
19 is defendant’s only avenue to relief.
20 IIL.
21 CONCLUSION
22 For the foregoing reasons, defendant Enloe Medical Center respectfully requests
23 the Court hear its motion for reconsideration of its motion to continue trial on shortened
24 time given the proximity of the trial date.
25 Dated: November 17, 2020 SCHUERING ZIMMERMAN & DOYLE, LLP
26 €
27 By
ALAINA T. DICKENS
28 Attorneys for Defendant ENLOE
MEDICAL CENTER
01300606.WPD 3
EX PARTE APP FOR OST TO HEAR MOTION FOR RECONSIDERATION OF RULING ON MOTION TO
CONTINUE TRIAL
DECLARATION OF ALAINA T. DICKENS
IN SUPPORT OF EX PARTE APPLICATION
FOR ORDER SHORTENING TIME FOR NOTICE OF MOTION
FOR RECONSIDERATION
1, ALAINA T. DICKENS, declare:
1 lam an attorney at law licensed to practice in the State of California. Iam
amember of the law firm of Schuering Zimmerman & Doyle, LLP, attorneys of record for
Defendant ENLOE MEDICAL CENTER.
2 In support of this application, I can state the following based upon personal
knowledge.
10 7 Attached to this application as Exhibit 1 are copies of Defendant ENLOE
i MEDICAL CENTER’s Motion for Reconsideration of Ruling on Motion to Continue Trial
12 together with supporting documents, which were filed and served on November 17, 2020.
13 4 The delay in hearing this matter after the normal time for service of the
14 above-described papers would cause a substantial hardship to Defendant ENLOE
15 MEDICAL CENTER because while its motion for reconsideration is being timely filed by
16 November 19, 2020, the motion would not be heard until December 11, 2020, on the eve
17 of trial, which has been set for December 14, 2020 with preference. Defendant has not
18 requested reconsideration on these issues previously.
19 5 Plaintiff's attorney is Sean R. Laird. His address and telephone number are:
1636.
20 The Law Firm of Sean R. Laird, 805 16" Street, Sacramento, CA 95814; 916-441-
21 6. On November 17, 2020 at 3:15 p.m., I attempted to notify plaintiff's attomey
22 by telephone, but was unable to speak with him. I left a message on the answering
23 machine and also sent notification by email that I would present to this Court on
24 Thursday, November 19, 2020 at 4:00 p.m. in Department 1, an application for an order
25 shortening time for hearing on defendant's motion for reconsideration of ruling on its
26 motion to continue trial.
27 Mf
28 MI
01300606.WPD 4
EX PARTE APP FOR OST TO HEAR MOTION FOR RECONSIDERATION OF RULING ON MOTION TO
CONTINUE TRIAL
I declare under penalty of perjury under the laws of the State of California that the
foregoing is true and correct, and if called to testify, | could competently do so. Executed
this 17th day of November, 2020, at Sacramento, California.
*
ALAINA T-DICKE
(WY,
NS
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01300606. WPD 5
EX PARTE APP FOR OST TO HEAR MOTION FOR RECONSIDERATION OF RULING ON MOTION TO
CONTINUE TRIAL
Proof of Service by Electronic Transmission - Civil
[Code of Civ. Proc. §§ 1010.6, 1011, 1013, 1013a, 2015.5; Cal. Rules of Court, rules
10.503, 2.100-2.119, 2.251; EMERGENCY RULE 12]
I, Lucia Ruiz, declare:
At the time of service, I was over 18 years of age and not a party to this action.
My business address is: 400 University Avenue, Sacramento, California 95825.
On November 17, 2020, I served the following documents:
EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR
MOTION FOR RECONSIDERATION OF RULING ON MOTION TO
CONTINUE TRIAL; MEMORANDUM IN SUPPORT; AND DECLARATION OF
ALAINA T. DICKENS; [PROPOSED] ORDER
10
11 by electronic service pursuant to Emergency Rule 12 of the California Rules of Court. I
12 served the documents by email to the addresses listed below. | did not receive, within
13 a reasonable time after the transmission, any electronic message or other indication
14 that the transmission was unsuccessful.
15 Attorney Representing Phone/Fax/E-Mail
16 Sean R. Laird Plaintiffs PHONE: 916-441-1636
The Law Firm of Sean R. FAX: 916-760-9002
17 Laird EMAIL:
805 16" Street eanlairdlaw@gmail.com
18 Sacramento, CA 95814
19
20 I declare under penalty of perjury, under the laws of the State of California, that
the foregoing is true and correct, and that this declaration was executed on
21
November 17, 2020, at Sacramento, California.
22
23
7
24 Lucia
1579-1219:
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EXHIBIT 1
ROBERT H. ZIMMERMAN, BAR No. 84345
SCHUERING ZIMMERMAN & DOYLE, LLP
400 University Avenu
Sacramento, California 95825-6502
(916) 567-0400
FAX: 568-0400
Attorneys for Defendant ENLOE MEDICAL CENTER
SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE
10 PATSY NEWTON, individually; HAROLD NO. 20CV01091
NEWTON, individually; SUZAN
i BOLDEN, individually, Assigned to the Honorable Judge
Tamara L. Mosbarger for All
12 Plaintiffs, Purposes
13 vs. NOTICE OF MOTION AND MOTION FOR
RECONSIDERATION OF RULING ON
14 ENLOE MEDICAL CENTER; and DOES 1 - MOTION TO CONTINUE TRIAL
50, et al.,
15 Date: December 11, 2020
Defendants. Time: :00 a.m.
16 Dept: 1
17 Action Filed: May 29, 2020
Trial Date: December 14, 2020
18
19 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:
20 PLEASE TAKE NOTICE THAT on December 11, 2020 at 9:00 a.m., in Department 1
21 of this Court located at 1775 Concord Avenue, Chico California, Defendant ENLOE
22 MEDICAL CENTER will move this Court for an Order granting its Motion for
23 Reconsideration of Ruling on Motion to Continue Trial. This motion will be made on the
24 grounds that the trial date is on December 14, 2020 and trial has been set with preference
25 by remote video conference.
26 This motion will be based on this Notice of Motion and Motion, the attached
27 Memorandum of Points and Authorities, the Request for Judicial Notice, the supporting
28 declarations, and any oral and documentary evidence that may be presented at the time
01300817.WPD 1
NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES, SET TWO
the motion is heard.
NOTICE IS FURTHER GIVEN of this Court’s tentative ruling procedures:
2.9 TENTATIVE RULINGS: The Court follows the tentative
ruling procedure set forth in CRC § 3.1308(a)(1): tentative
rulings on law and motion matters will be available on the
Court’s website at www.buttecourt.ca.gov and by telephone
at (530) 532-7022 by 3:00 p.m. on the court day preceding the
hearing. (Effective 7-1-89, as amended 7-1-03, as amended
7-1-04, as amended 7-1-05, as amended 1-1-07
Dated: November 17, 2020
SCHUERING ZIMMERMAN & DOYLE, LLP
c
10 By
ALAINA PDICKENS: SBN'S06006
11 Attorn s for Defendant ENLOE
MEDI L CENTER
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01300817.WPD 2
NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES, SET TWO
Proof of Service by Messenger - Civil
[Code of Civ. Proc. §§ 1011, 1013, 1013a, 2015.5]
I, Lucia Ruiz, declare:
At the time of service, I was over 18 years of age and not a party to this action. My
business address is: 400 University Avenue, Sacramento, California 95825.
On November 17, 2020, I served the following documents:
NOTICE OF MOTION AND MOTION F ‘OR RECONSIDERATION OF RULING ON MOTION TO
CONTINUE TRIAL; MEMORA NDUM OF POINTS AND AUTHOR ITIES; REQUES T FOR
JUDICIAL NOTICE; AND DECLARATION OF ALAINA T. DICKENS IN SUPPORT THEREOF
or
By messenger service: | served the documents by placing them in an envelope
g them to
10 package addressed to the persons at the addresses listed below and providin
11 a professional messenger service for service. (A declaration by the messenger must
12 accompany this Pro Service or be contained in the Declaration of Messenger below.)
of of
13 I served the documents on the persons below:
14 Attorney Representing Phone/Fax/E-Mail
15 Sean R. Laird Plaintiffs PHONE: 916-441-1636
The Law Firm of Sean R. FAX: 916-760-9002
16 Laird EMAIL:
805 16" Street eanlairdlaw@gmail.com
17 Sacramento, CA 95814
18
19 I declare under penalty of perjury, under the laws of the State of California, that the
20 foregoing is true and correct, and that this declaration was executed on November 17,
2020, at Sacramento, California.
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23 Lucia\Rui:
1579-1 95
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DECLARATION OF MESSENGER
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27 I personally delivered the envelope or package received from the declarant above
to the persons at the addresses listed above. (1) Fora party represented by an attorney,
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delivery was made to the attorney or at the attorney's office by leaving the documents in
anenvelope or package, which was clearly labeled to identify the attorney being serviced,
with a receptionist or an individual in charge of the office. (2) For a party, delivery was
made to the party or by leaving the documents al the party’s residence with some person
not less than 18 years of age between the hours of eight in the morning and six in the
evening.
At the time of service, I was over 18 years of age. | am not a party to the above-
referenced legal proceeding.
I served the envelope or package, as stated above, on November 17, 2020.
I declare under penalty of perjury, under the laws of the State of California, that the
foregoing is true and correct.
Date: Nel\=26
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11 lormAC Faris
(TYPE OR PRINT NAME OF DECLARANT) (SIGNANJRE OF D&CLARANT)
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ROBERT H. ZIMMERMAN, BAR No. 84345
SCHUERING ZIMMERMAN & DOYLE, LLP
400 University Aven
Sacramento, California 95825-6502
(916) 567-0400
FAX: 568-0400
Attomeys for Defendant ENLOE MEDICAL CENTER
SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE
10 PATSY NEWTON, individually; HAROLD NO. 20CV01091
NEWTON, individually; SUZANNE
11 BOLDEN, individually, Assigned to the Honorable Judge
Tamara L. Mosbarger for All
12 Plaintiffs, Purposes
13 vs. MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF MOTION
14 ENLOE MEDICAL CENTER; and DOES 1 - FOR RECONSIDERATION OF RULING
50, et al., ON MOTION TO CONTINUE TRIAL
15
Defendants. Date: December 11, 2020
16 Time: 9:00 a.m.
Dept: 1
17
Date action filed: May 29, 2020
18 Trial date: December 14, 2020
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01300629.WPD 1
DERATION OF
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR RECONSI
RULING ON MOTION TO CONTINUE TRIAL
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES
I. INTRODUCTION 11
Il. RECONSIDERATION IS APPROPRIATE TO ALLOW BRIEFING ON THE
FUNDAMENTAL ISSUE OF WHETHER TRIAL SHOULD BE REMOTE 12
Ill. | JURY TRIALS ARE INCONSISTENT WITH KEY ASPECTS OF CALIFORNIA
eee ee eee teeta ec ere cena oreles aieeelo orl soe e te eeeceeee
A Remote trials do not adequately protect the fundamental ht toa rial.
eee eee ee eee e eee eee e ee ene eae ets eel ee ete re ere orci oer
10 B. The parties will be deprived of their ri ht to conduct effective voir dire. .. 15
Judges cannot effectively manage tri is while supervising the technology.
11 sce e ete teeter cece eens ee eres ite girs
D. A jury may not deliberate remotely or return its verdict motel
17
12
13
IV. AREMOTE JURY TRIAL IS NOT FEASIBLE WITHOUT SUPPORT FROM THE
14 LE GIS LATURE AND JUDICIAL COUNCIL. ikely
A A remote jury trial will make obtaining a representative jury pool
15 because not all jurors have the same access to technology. .
B. The experience of other courts highlights the perils of remot jury
22
eee eee cence eee cece eee eee nett e eet e ee eenee
16 see eee tenet
c Remote options for conducting civi | jury trials should be vetted for feasibility
17 before being imposed on litigants. 24
18
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19 V. CONCLUSION
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01300629.WPD 2
DERATION OF
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR RECONSI
RULING ON MOTION TO CONTINUE TRIAL
TABLE OR AUTHORITIES
Page
CASES
California Correctional Peace Officers Assn. v. Virga
(2010) 181 Cal.App.4th 30, 47, fn. 15 12
Phillips v. Sprint PC.
(2012) 209 Cal.App.4th 758 13
California Crane School, Inc. v. National Com. for Certification of Crane Operators
(2014) 226 Cal.App.4th 1
Garcia v. Hejmadi
(1997) 58 Cal.App.4th 674 12
10 Glage v. Hawes Firearms Co.
(1990) 226 Cal.App.3d 314 14
it
Gravillis v. Coldwell Banker Residential Brokerage Co.
12 2006) 143 Cal.App.4th 761 12
13 Hasson v. Ford Motor Co.
(1982) 32 Cal.3d 388 14
14
Holley v. J & S Sweeping Co.
15 (1983) 143 Cal.App.3d 588 18
16 Johnson v. California 18
(2005) 545 U.S. 162
7
Johnston v. Co ris 12
18 (2005) 12 PCalApp.4th 553
19 Keener v. Jeld-Wen, Inc. 18
(2009) 46 Cal.4th 247
20
Kollander Const. v. Superior Court 12, 13
21 (2002) 98 Cal.App.4th 304
22 Le Francois v. Goel 13
(2005) 35 Cal.4th 1094, 1107, fn. 5.0 2.6 . eee cece eee t ete
23
Monarch Healthcare v. Superior Court 13
24 (2000) 78 Cal.App.4th 1282
25 Moore v. California State Bd. of Accountancy 24
(1992) 2 Cal.4th 999
26
People 18
27 (1988) 49 Cal.3d 502
28 People v. Booker 15
(2011) 51 Cal.4th 141
01300629.WPD
RECONSIDERATION OF
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
RULING ON MOTION TO CONTINUE TRIAL
People v. Burgener
(2003) 29 Cal.4th 833 19
People v. Engelman
2002) 28 Cal.4th 436 17
People v. Gutierre:
(2017) 2 Cal.5th 1150 22
People v. Harris
(1984) 36 Cal.3d 36 18
People v. Marshall
(1990) 50 Cal.3d 907 14
People v. Thomas 15
(2012) 53 Cal.4th 771
10 People v. Thornt 18
(1984) 155 Cal.App.3d 845
i
People v. Veamatahau 17
12 (2020) 9 Cal.5th 16
13 People v. Wheeler 18, 22
(1978) 22 Cal.3d 258
14
Unzueta v. ARopyan 18
15 (2019) 42 Cal.App.5th 199
16 Williams v. Illinois
(2012) 567 U.S. 50, 8 0 [132 S.Ct. 2221, 183 L.Ed.2d 89] (plur. opn.)........--+++ 17
17
Williams v. Superior Court 18
18 (1989) 49 Cal.3d 736
19
20 STATUTES 17
Code of Civil Procedure § 216, subd. (a)
21 12, 14
Code of Civil Procedure, § 1008, subd. (a)
22 14
Code of Civil Procedure, § 1013, subd. (a)
23 18
Code of Civil Procedure, § 204, subd. (a)
24 17
Code of Civil Procedure, § 216
25 17
Code of Civil Procedure, § 613.
26 18
Code of Civil Procedure, § 618
27 15
Code of Civil Procedure, §§ 190-237
28
01300629.WPD
DERATION OF
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR RECONSI
RULING ON MOTION TO CONTINUE TRIAL
RULES
Californai Rules of Court, Appendix I: Emergency Rules Relating to COVID-19, nule 3(a)( 3
2m
OTHER AUTHORITIES
CACI No. 5009 17
Anderson & Kumar, Digital divide persists even as lower-income Americans make gains
in tech adoption, FactTank: Pew Research Center (Ma) 7, 2019)
Anderson et al., 10% of Americans don't use the intemet. Who are they?, FactTank: Pew
Research Center (Apr. 22,
2019) [hereafter derson, 10% of Americ ans
10
Bannon & Adelstein, The Impact of Video Proceedings on Fairness and Access to Justice
11 in Court, Brennan Center of Justice (Sept. 10, 2020, f
21
13 CACI No. 116
to Justice
14 California Commission on Access to Justice, Remote Hearings and Access
During Covid-19 and Beyond, at pp. 7-8, Nat'l Center for State Courts
15 [as of Nov. 12, 2020]
16 and Access to Justice
California Commission on Access to Justice, Remote Hearings
17 During Covid-19 and Beyond, Na‘ t'l Center for State Courts
(last accessed Nov. 1T, 2020.
2020.
Central District of California, General Order No. 20-09 (Aug. 6, ders/
19
las,
20 of Nov. 12, 2020
Central District of California, General Order No. 20-
12 (Sept. 14, 2020 1-2
21
las
22 of Nov. 12, 2020
23 DeWitt, Detecting Deception During Vo ir Dire 15
¢ 2015) vol. 39, issue 1, American J. of Trial Advocacy 25
24 2019
Internet/Broadband Fact Sheet, PEW Research Center (June 12,oadban d/> [as of Nov. 12,
25 [as of Nov. 12, 2020 ”
San Bernardino County Superior Court, General Order of the Presiding Judge re Civil Jury
Trials (Sept. 9, 2020),p.
las
of Nov. 12, 2020
U.S. Constitution, 6th & 7th Amendments 14
10
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01300629.WPD 6
DERATION OF
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR RECONSI
RULING ON MOTION TO CONTINUE TRIAL
I. INTRODUCTION
Defendant Enloe Medical Center moves for reconsideration of the denial ofits motion
to continue trial. In its order denying that motion, the Court ruled that trial will proceed
primarily remotely by Zoom. Defendant seeks reconsideration to show that a remote jury
trial is inconsistent with key aspects of California law and is not feasible. Reconsideration
is appropriate because defendant first learned the Court was considering a remote trial
when it received the tentative order denying the motion and thus had no opportunity to brief
the issue.
A remote jury trial cannot, at least in this case and at this time, substitute for an
10 in-person trial. Because this case involves complex issues, an in-person trial is necessary
11 to comport with due process. Moreover, California statutes governing such critical matters
with
12 as jury voir dire, jury deliberations, and return of the jury's verdict cannot be reconciled
13 a fully remote jury trial.
14 The technology for a remote jury trial has not yet been developed to ensure jurors'
home life. Nor
15 undivi ded attention, especially amidst the distractions of the pandemic and
been developed to aid judges' essential supervision over the
16 has suitable training
are to be made, they
17 presentation of evidence and argument. If such fundamental changes
18 should come from the Legislature and Judicial Council.
ine the
19 Apart from their practical challenges, remote jury trials systematically underm
skew the jury pool
20 court's ability to obtain a representative jury pool. Remote jury trials
" A PEW research study
21 against disadvantaged groups. They exacerbate the "digital divide.
and high-speed
22 from last year showed that only 73% of American adults have home broadb
23 internet-a necessity for remote proceedings. And PEW also found a significant disparity in
older residents, and
24 who has access to home broadband intemet, with racial minorities,
such access. At
25 those with lower levels of education and income being less likely to have
, a remote jury
26 this time, without additional support from the Legislature or Judicial Council
27 trial will not be fair to the parties.
voir dire in
28 And remote jury trials create other problems. They foreclose meaningful
01300629.WPD 7
RECONSIDERATION OF
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR
RULING ON MOTION TO CONTINUE TRIAL
which court and counsel can effectively observe juror demeanor and body language. They
disrupt the orderly presentation of evidence through recurring technical glitches.
Even with the best equipment, training, and intentions, a court could not guarantee
that jurors will be able to fully perceive witnesses’ testimony-much less in a lengthy,
expert-intensive, and complex trial like this one. Trial judges cannot supervise jurors and
monitor the technology-while also ruling on objections and following the evidence-when
everyone is operating remotely. Many of these problems have already emerged in the few
remote trials that have occurred in Alameda County Superior Court. Those trials establish
that a fully remote jury trial cannot occur fairly in today's environment of dropped
10 connections and distracted jurors.
11 Videoconferencing technology may one day progress to the point that the Legislature
12 or Judicial Council could conclude that remote proceedings properly preserve the rights of
13 all parties and jurors. But that day is not today. For now, in-person trials (or at least their key
14 phases) remain essential.
15 Il. RECONSIDERATION IS APPROPRIATE TO ALLOW BRIEFING ON THE
FUNDAMENTAL ISSUE OF WHETHER TRIAL SHOULD BE REMOTE
16
An order may be reconsidered based on "new or different facts, circumstances or
17
law." (Code Civ. Proc., § 1008, subd. (a).) The party seeking reconsideration must offer a
18
"satisfactory explanation" for the failure to produce the new matter at an earlier time.
19
(Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690; California Correctional Peace Officers
20
Assn. v. Virga (2010) 181 Cal.App.4th 30, 47, fn. 15.)
21
New circumstances support reconsideration when the court has decided an issue
22
before the parties have briefed it and the court has considered it. (Gravillis v. Coldwell
23
Banker Residential Brokerage Co. (2006) 143 Cal.App.4th 761, 772-773 [trial court's reliance
24
on post-hearing objections to reverse its order, without notice or hearing, "constituted new
25
circumstances justifying reconsideration under section 1008"]; Johnston v. Corrigan (2005)
26
127 Cal.App.4th 553, 556 [new circumstances supported reconsideration when evidence
27
showed trial court failed to consider timely-filed memorandum of points and authorities in
28
its prior ruling]; Kollander Const. v. Superior Court (2002) 98 Cal.App.4th 304, 314
01300629.WPD 8
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR RECONSIDERATION OF
RULING ON MOTION TO CONTINUE TRIAL
[reconsideration proper based on new circumstances so that party could have "full and fair
hearing" to respond to new issues raised in post-hearing memorandum of points and
authorities and declaration], disapproved on other grounds by Le Francois v. Goel (2005) 35
Cal.4th 1094, 1107, fn. 5.)
"Parties should be given an opportunity to brief the new issues that arise after
trial
submission, 'so that the ensuing order does not issue like a "bolt from the blue out of the
judge's chambers." [Citations.]' (Citation) Indeed, a motion for reconsideration is the
appropriate response to the denial of that opportunity." (Kollander Const., supra, 98
Cal.App.4that p. 314, citing Monarch Healthcare v. Superior Court (2000) 78 Cal.App.4th 1282,
added.) Further, even without regard to the statutory grounds for
10 1286, emphasis
11 reconsideration, this Court has inherent authority to reconsider its interim orders at any time
12 onits own motion. (Le Francois, supra, 25 Cal.4th at p. 1107; Phillips v. Sprint PCS (2012) 209
13 Cal.App.4th 758, 768.)
14 Reconsideration is appropriate here because the Court decided the trial should be
15 remote without receiving briefing on that vital issue. Defendant's motion to continue trial
16 was heard on November 4. (See Declaration of Alaina T. Dickens in Support of Motion for
17 Reconsideration ("Dickens Decl.") 2.) Prior to that date, defendant was unaware the Court
18 was considering a remote jury trial. (Ibid.) For that reason, neither defendant's motion nor
19 plaintiffs' opposition addressed whether trial should be remote. (Ibid.)
20 The Court first raised the possibility of a remote jury trial in its November 4 tentative
21 ruling denying the motion to continue trial. (Dickens Decl. 3.) The tentative stated that "The
22 jury trial will proceed primarily remotely via Zoom due to the global COVID-19 pandemic."
23 (Dickens Decl. 3; Tentative Ruling Denying Motion to Continue Trial attached as Exh. Ato
24 Dickens Decl.) That tentative ruling was first available on November 3, 2020. (Dickens Decl.
25 3.) At the hearing, defendant objected to a remote jury trial. (Dickens Decl. 4; Transcript of
26 Proceedings attached as Exh. B to Dickens Decl.) However, defendant did not submit
27 briefing on that issue as it lacked the time and opportunity to do so. (Ibid.)
28 A motion for reconsideration is timely when made within ten days after service of
01300629.WPD 9
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR RECONSIDERATION OF
RULING ON MOTION TO CONTINUE TRIAL
written notice of entry of the adverse order. (Code Civ. Proc., § 1008, subd. (a).) Service by
mail of the notice extends that due date by five calendar days. (Code Civ. Proc., § 1013,
subd. (a).) Here, on November 4, the court clerk served written notice of the adverse order
by mail. (Dickens Decl. 5; Order after Hearing on Defendant's Motion to Continue Trial
attached as Exh. C to Dickens Decl.) This motion is thus timely because it has been made
before November 19.
Reconsideration is proper under these circumstances. The Court will benefit from
receiving briefing on issues that are both novel and critical.
Ill, REMOTE JURY TRIALS ARE INCONSISTENT
WITH KEY ASPECTS OF CALIFORNIA LAW.
10
11 A. Remote trials do not adequately protect the fundamental right to a fair trial.
12 “Trial by jury is an inviolate right and shall be secured to all... ." (Cal. Const., art. I,
13 § 16.) "Any deficiency that undermines the integrity of a trial," "introduces the taint of
14 fundamental unfaimess." (People v. Marshall (1990) 50 Cal.3d 907, 951; accord, Glage v.
15 Hawes Firearms Co. (1990) 226 Cal.App.3d 314, 322 ["civil litigants are no less entitled to a
16 fair trial than criminal defendants"].)
17 The most elementary and important duty of the jury is "to listen carefully during the
18 presentation of evidence at trial." (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 411.)
19 Unless the jury can perform that duty, the trial will not protect the litigants' constitutional
20 rights. (See id. at pp. 411, 415.) "Were the rule otherwise, litigants could be deprived of the
21 complete, thoughtful consideration of the merits of their cases to which they are
22 constitutionally entitled. (U.S. Const., 6th & 7th Amends.; Cal. Const., art. 1, § 16.)" (Hasson,
23 supra, 32 Cal.3d at p. 411.)
24 Trial procedures must reflect the promise that, notwithstanding technological and
25 human limitations, jurors can and will competently fulfill their solemn responsibility to
26 engage in their truth-finding mission. The barriers to keeping that promise are legion while
27 conducting a virtual trial. There will be inevitable technical glitches with computer
28 hardware, internet connectivity, and user error. No one doubts the utmost good faith and
01300629.WPD 10
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR RECONSIDERATION OF
RULING ON MOTION TO CONTINUE TRIAL
sincerest effort among all concerned. But even with the best equipment, training and
intentions, it simply is not possible to guarantee that jurors operating remotely will be
engaged throughout trial without distraction. It is also impossible to guarantee they will fully
perceive witnesses' testimony and demeanor.
This is a preference case, and the Court's desire to accommodate plaintiffs' interests
are understandable and admirable. But without due process and fairness guarantees, a
remote trial as envisioned by the Court threatens defendant's constitutional and statutory
rights.
B. The parties will be deprived of their right to conduct effective voir dire.
10 Voir dire is an essential element of every civil trial. Court and counsel must observe
11 the reactions-both verbal and non-verbal-of prospective jurors during questioning.
12 Conducting voir dire remotely would deprive the parties of a fair trial.
13 Itis doubtful that California law permits remote voir dire. The Trial Jury Selection and
of
14 Management Act (Code Civ. Proc., §§ 190-237), defines a" ‘Trial Jury Panel'" as "a group
15 prospective jurors assigned to a courtroom for the purpose of voir dire." (Id., § 194, subd.
16 (q), emphasis added.) "[T]he jury commissioner shall randomly select jurors for jury panels
17 to be sent to courtrooms for voir dire." (Id., § 219, subd. (a), emphasis added.)
18 Even if remote voir dire were lawful, it would be ineffective. Remote questioning will
19 not allow court and counsel to see more than a small portion of a person's body.
20 Videoconference participants show mostly their faces, preventing otherviewers from seeing
21 overall demeanor and body language, expressive use of hands, and so forth. (See People
22 v. Thomas (2012) 53 Cal.4th 771, 790 [trial judge's rulings on for-cause challenges are entitled
23 to deference because the trial judge has "the opportunity to observe the juror's demeanor"].)
24 And unless the video quality is nearly perfect, viewers will not fully capture a juror's
25 subtle facial expressions. (See People v. Booker (2011) 51 Cal.4th 141, 166-167 [emphasizing
26 "the opportunity to observe [a juror's] demeanor" to assess whether answers to voir dire
27 questions are "untruthful"]; DeWitt, Detecting Deception During Voir Dire (2015) vol. 39, issue
28 1, American J. of Trial Advocacy 25, 39 ["The face is an amazing source of information about
01300629.WPD 11
MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR RECONSIDERATION OF
RULING ON MOTION TO CONTINUE TRIAL
human behaviour, as it displays emotion, pain, and divulges brain function and pathology"].)
Cc. Judges cannot effectively manage trials while supervising the technology.
"Judges who preside over trials, especially jury trials, wear many hats and have
tion
numerous responsibilities." (California Crane School, Inc. v. National Com. for Certifica
s of
Preview
Superior Court of California ROBERT H. ZIMMERMAN, Bar No. 84345 County of Butte SCHUERING ZIMMERMAN & DOYLE, LLP 400 University Avenu' 11/17/2020 Sacramento, California 95825-6502 (916) 567-0400 FAX: 568-0400 By Deputy Electronically FILED Attorneys for Defendant ENLOE MEDICAL CENTER SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE 10 PATSY NEWTON, individually, HAROLD NO. 20CV01091 NEWTON, individually; SUZANNE 11 BOLDEN, individually, Assigned to the Honorable Judge Tamara L. Mosbarger for All 12 Plaintiffs, Purposes 13 vs. EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR 14 ENLOE MEDICAL CENTER; and DOES 1 - MOTION FOR RECONSIDERATION OF 50, et al., RULING ON MOTION TO CONTINUE 15 TRIAL; MEMORANDUM IN SUPPORT; Defendants. AND DECLARATI IN 16 ALAINA T. DICKENS; PROPOSED] ORDER 17 Date: November 19, 2020 18 Time: 4:00 p.m. Dept: 1 19 Date action filed: May 29, 2020 Trial date: December 14, 2020 20 21 22 TO ALL PARTIES AND TO THEIR ATTORNEYS OF RECORD: 23 Defendant ENLOE MEDICAL CENTER, through its counsel, hereby applies ex parte 24 for an order shortening time for notice of hearing on Defendant’s Motion for 25 Reconsideration. 26 PLEASE TAKE NOTICE that on November 19, 2020, at 4:00 p.m. in Department 1 of 27 the Butte County Superior Court located at 1775 Concord Avenue, Chico, California, 28 defendant ENLOE MEDICAL CENTER, will move this Court for an Order Shortening time 01300606.WPD 1 EX PARTE APP FOR OST TO HEAR MOTION FOR RECONSIDERATION OF RULING ON MOTION TO CONTINUE TRIAL to hear its Motion for Reconsideration of Ruling on Motion to Continue Trial. This application will be made on the grounds that the trial date is on December 14, 2020 and trial has been set with preference by remote video conference. This motion is being timely filed but due to the trial date must be heard on shortened time. This application will be based on this application, the following memorandum of points and authorities, request for judicial notice, the declaration of Alaina T. Dickens, such oral and documentary evidence as may be presented at the time the application is heard. Dated: November 17, 2020 10 SCHUERING ZIMMERMAN & DOYLE, LLP < 11 12 By AVAINA T. DICKENS? 13 Attorneys for Defendant ENLOE MEDICAL CENTER 14 15 MEMORANDUM OF POINTS AND AUTHORITIES on December 14, 2020. 16 This is an elder abuse action scheduled to commence 17 Due to nature of this case, trial has been set with preference. The Complaint was filed 18 May 29, 2020; giving the parties only five months to conduct the necessary non-expert 19 discovery. Moreover, counsel for defendant Enloe Medical Center was not retained until 20 June 17, 2020. Given the proximity of the trial date defendant would be irreparably 21 harmed if its motion for reconsideration was not heard. 22 On August 12, 2020, Ms. Newton’s request for trial preference was granted over On September 2, 2020, trial was set for December 14, 2020. On 23 defendant’s objection. 24 October 9, 2020, defendant moved to continue the trial date. On November 4, 2020, the defendant’s motion to continue tral finding plaintiff was entitled to 25 court denied 26 preference under California Code of Civil Procedure section 36 and ordered trial would 27 proceed remotely by Zoom due to the COVID-19 pandemic. 28 Mt 01300606.WPD 2 EX PARTE APP FOR OST TO HEAR MOTION FOR RECONSIDERATION OF RULING ON MOTION TO CONTINUE TRIAL Il. ARGUMENT A. Good Causes Exists to Hear A Motion for Reconsideration of Ruling on Our Motion to Continue Trial on Shortened Time California Rules of Court, Rule 5.94, states in pertinent part: (a) Order shortening time The court, on its own motion or on application for an order shortening time supported by a declaration showing good cause, may prescribe shorter times for the filing and service of papers than the times specified in Code of Civil Procedure section 1005. 10 11 As set forth in the attached declaration, the trial will occur on December 14, 2020. 12 A trial by remote video conference, especially in a case involving such complex issues 13 as here, will not be sufficient to satisfy the due process requirements guaranteed by the 14 California and United States constitutions and the legislatures. 15 This motion must be filed by November 19, 2020. As it was filed on November 17, 16 2020, it is timely. A hearing on this motion has been set for December 11, 2020. This 17 motion cannot be heard on regular time because of the proximity of the trial date. Trial 18 has been set with preference for December 14, 2020, an order shortening time for hearing 19 is defendant’s only avenue to relief. 20 IIL. 21 CONCLUSION 22 For the foregoing reasons, defendant Enloe Medical Center respectfully requests 23 the Court hear its motion for reconsideration of its motion to continue trial on shortened 24 time given the proximity of the trial date. 25 Dated: November 17, 2020 SCHUERING ZIMMERMAN & DOYLE, LLP 26 € 27 By ALAINA T. DICKENS 28 Attorneys for Defendant ENLOE MEDICAL CENTER 01300606.WPD 3 EX PARTE APP FOR OST TO HEAR MOTION FOR RECONSIDERATION OF RULING ON MOTION TO CONTINUE TRIAL DECLARATION OF ALAINA T. DICKENS IN SUPPORT OF EX PARTE APPLICATION FOR ORDER SHORTENING TIME FOR NOTICE OF MOTION FOR RECONSIDERATION 1, ALAINA T. DICKENS, declare: 1 lam an attorney at law licensed to practice in the State of California. Iam amember of the law firm of Schuering Zimmerman & Doyle, LLP, attorneys of record for Defendant ENLOE MEDICAL CENTER. 2 In support of this application, I can state the following based upon personal knowledge. 10 7 Attached to this application as Exhibit 1 are copies of Defendant ENLOE i MEDICAL CENTER’s Motion for Reconsideration of Ruling on Motion to Continue Trial 12 together with supporting documents, which were filed and served on November 17, 2020. 13 4 The delay in hearing this matter after the normal time for service of the 14 above-described papers would cause a substantial hardship to Defendant ENLOE 15 MEDICAL CENTER because while its motion for reconsideration is being timely filed by 16 November 19, 2020, the motion would not be heard until December 11, 2020, on the eve 17 of trial, which has been set for December 14, 2020 with preference. Defendant has not 18 requested reconsideration on these issues previously. 19 5 Plaintiff's attorney is Sean R. Laird. His address and telephone number are: 1636. 20 The Law Firm of Sean R. Laird, 805 16" Street, Sacramento, CA 95814; 916-441- 21 6. On November 17, 2020 at 3:15 p.m., I attempted to notify plaintiff's attomey 22 by telephone, but was unable to speak with him. I left a message on the answering 23 machine and also sent notification by email that I would present to this Court on 24 Thursday, November 19, 2020 at 4:00 p.m. in Department 1, an application for an order 25 shortening time for hearing on defendant's motion for reconsideration of ruling on its 26 motion to continue trial. 27 Mf 28 MI 01300606.WPD 4 EX PARTE APP FOR OST TO HEAR MOTION FOR RECONSIDERATION OF RULING ON MOTION TO CONTINUE TRIAL I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct, and if called to testify, | could competently do so. Executed this 17th day of November, 2020, at Sacramento, California. * ALAINA T-DICKE (WY, NS 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 01300606. WPD 5 EX PARTE APP FOR OST TO HEAR MOTION FOR RECONSIDERATION OF RULING ON MOTION TO CONTINUE TRIAL Proof of Service by Electronic Transmission - Civil [Code of Civ. Proc. §§ 1010.6, 1011, 1013, 1013a, 2015.5; Cal. Rules of Court, rules 10.503, 2.100-2.119, 2.251; EMERGENCY RULE 12] I, Lucia Ruiz, declare: At the time of service, I was over 18 years of age and not a party to this action. My business address is: 400 University Avenue, Sacramento, California 95825. On November 17, 2020, I served the following documents: EX PARTE APPLICATION FOR ORDER SHORTENING TIME TO HEAR MOTION FOR RECONSIDERATION OF RULING ON MOTION TO CONTINUE TRIAL; MEMORANDUM IN SUPPORT; AND DECLARATION OF ALAINA T. DICKENS; [PROPOSED] ORDER 10 11 by electronic service pursuant to Emergency Rule 12 of the California Rules of Court. I 12 served the documents by email to the addresses listed below. | did not receive, within 13 a reasonable time after the transmission, any electronic message or other indication 14 that the transmission was unsuccessful. 15 Attorney Representing Phone/Fax/E-Mail 16 Sean R. Laird Plaintiffs PHONE: 916-441-1636 The Law Firm of Sean R. FAX: 916-760-9002 17 Laird EMAIL: 805 16" Street eanlairdlaw@gmail.com 18 Sacramento, CA 95814 19 20 I declare under penalty of perjury, under the laws of the State of California, that the foregoing is true and correct, and that this declaration was executed on 21 November 17, 2020, at Sacramento, California. 22 23 7 24 Lucia 1579-1219: 25 26 27 28 EXHIBIT 1 ROBERT H. ZIMMERMAN, BAR No. 84345 SCHUERING ZIMMERMAN & DOYLE, LLP 400 University Avenu Sacramento, California 95825-6502 (916) 567-0400 FAX: 568-0400 Attorneys for Defendant ENLOE MEDICAL CENTER SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE 10 PATSY NEWTON, individually; HAROLD NO. 20CV01091 NEWTON, individually; SUZAN i BOLDEN, individually, Assigned to the Honorable Judge Tamara L. Mosbarger for All 12 Plaintiffs, Purposes 13 vs. NOTICE OF MOTION AND MOTION FOR RECONSIDERATION OF RULING ON 14 ENLOE MEDICAL CENTER; and DOES 1 - MOTION TO CONTINUE TRIAL 50, et al., 15 Date: December 11, 2020 Defendants. Time: :00 a.m. 16 Dept: 1 17 Action Filed: May 29, 2020 Trial Date: December 14, 2020 18 19 TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: 20 PLEASE TAKE NOTICE THAT on December 11, 2020 at 9:00 a.m., in Department 1 21 of this Court located at 1775 Concord Avenue, Chico California, Defendant ENLOE 22 MEDICAL CENTER will move this Court for an Order granting its Motion for 23 Reconsideration of Ruling on Motion to Continue Trial. This motion will be made on the 24 grounds that the trial date is on December 14, 2020 and trial has been set with preference 25 by remote video conference. 26 This motion will be based on this Notice of Motion and Motion, the attached 27 Memorandum of Points and Authorities, the Request for Judicial Notice, the supporting 28 declarations, and any oral and documentary evidence that may be presented at the time 01300817.WPD 1 NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES, SET TWO the motion is heard. NOTICE IS FURTHER GIVEN of this Court’s tentative ruling procedures: 2.9 TENTATIVE RULINGS: The Court follows the tentative ruling procedure set forth in CRC § 3.1308(a)(1): tentative rulings on law and motion matters will be available on the Court’s website at www.buttecourt.ca.gov and by telephone at (530) 532-7022 by 3:00 p.m. on the court day preceding the hearing. (Effective 7-1-89, as amended 7-1-03, as amended 7-1-04, as amended 7-1-05, as amended 1-1-07 Dated: November 17, 2020 SCHUERING ZIMMERMAN & DOYLE, LLP c 10 By ALAINA PDICKENS: SBN'S06006 11 Attorn s for Defendant ENLOE MEDI L CENTER 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 01300817.WPD 2 NOTICE OF MOTION AND MOTION TO COMPEL RESPONSES TO FORM INTERROGATORIES, SET TWO Proof of Service by Messenger - Civil [Code of Civ. Proc. §§ 1011, 1013, 1013a, 2015.5] I, Lucia Ruiz, declare: At the time of service, I was over 18 years of age and not a party to this action. My business address is: 400 University Avenue, Sacramento, California 95825. On November 17, 2020, I served the following documents: NOTICE OF MOTION AND MOTION F ‘OR RECONSIDERATION OF RULING ON MOTION TO CONTINUE TRIAL; MEMORA NDUM OF POINTS AND AUTHOR ITIES; REQUES T FOR JUDICIAL NOTICE; AND DECLARATION OF ALAINA T. DICKENS IN SUPPORT THEREOF or By messenger service: | served the documents by placing them in an envelope g them to 10 package addressed to the persons at the addresses listed below and providin 11 a professional messenger service for service. (A declaration by the messenger must 12 accompany this Pro Service or be contained in the Declaration of Messenger below.) of of 13 I served the documents on the persons below: 14 Attorney Representing Phone/Fax/E-Mail 15 Sean R. Laird Plaintiffs PHONE: 916-441-1636 The Law Firm of Sean R. FAX: 916-760-9002 16 Laird EMAIL: 805 16" Street eanlairdlaw@gmail.com 17 Sacramento, CA 95814 18 19 I declare under penalty of perjury, under the laws of the State of California, that the 20 foregoing is true and correct, and that this declaration was executed on November 17, 2020, at Sacramento, California. 21 22 23 Lucia\Rui: 1579-1 95 24 25 DECLARATION OF MESSENGER 26 27 I personally delivered the envelope or package received from the declarant above to the persons at the addresses listed above. (1) Fora party represented by an attorney, 28 delivery was made to the attorney or at the attorney's office by leaving the documents in anenvelope or package, which was clearly labeled to identify the attorney being serviced, with a receptionist or an individual in charge of the office. (2) For a party, delivery was made to the party or by leaving the documents al the party’s residence with some person not less than 18 years of age between the hours of eight in the morning and six in the evening. At the time of service, I was over 18 years of age. | am not a party to the above- referenced legal proceeding. I served the envelope or package, as stated above, on November 17, 2020. I declare under penalty of perjury, under the laws of the State of California, that the foregoing is true and correct. Date: Nel\=26 10 - 11 lormAC Faris (TYPE OR PRINT NAME OF DECLARANT) (SIGNANJRE OF D&CLARANT) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 ROBERT H. ZIMMERMAN, BAR No. 84345 SCHUERING ZIMMERMAN & DOYLE, LLP 400 University Aven Sacramento, California 95825-6502 (916) 567-0400 FAX: 568-0400 Attomeys for Defendant ENLOE MEDICAL CENTER SUPERIOR COURT OF CALIFORNIA, COUNTY OF BUTTE 10 PATSY NEWTON, individually; HAROLD NO. 20CV01091 NEWTON, individually; SUZANNE 11 BOLDEN, individually, Assigned to the Honorable Judge Tamara L. Mosbarger for All 12 Plaintiffs, Purposes 13 vs. MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION 14 ENLOE MEDICAL CENTER; and DOES 1 - FOR RECONSIDERATION OF RULING 50, et al., ON MOTION TO CONTINUE TRIAL 15 Defendants. Date: December 11, 2020 16 Time: 9:00 a.m. Dept: 1 17 Date action filed: May 29, 2020 18 Trial date: December 14, 2020 19 20 21 22 23 24 25 26 27 28 01300629.WPD 1 DERATION OF MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR RECONSI RULING ON MOTION TO CONTINUE TRIAL TABLE OF CONTENTS Page TABLE OF AUTHORITIES I. INTRODUCTION 11 Il. RECONSIDERATION IS APPROPRIATE TO ALLOW BRIEFING ON THE FUNDAMENTAL ISSUE OF WHETHER TRIAL SHOULD BE REMOTE 12 Ill. | JURY TRIALS ARE INCONSISTENT WITH KEY ASPECTS OF CALIFORNIA eee ee eee teeta ec ere cena oreles aieeelo orl soe e te eeeceeee A Remote trials do not adequately protect the fundamental ht toa rial. eee eee ee eee e eee eee e ee ene eae ets eel ee ete re ere orci oer 10 B. The parties will be deprived of their ri ht to conduct effective voir dire. .. 15 Judges cannot effectively manage tri is while supervising the technology. 11 sce e ete teeter cece eens ee eres ite girs D. A jury may not deliberate remotely or return its verdict motel 17 12 13 IV. AREMOTE JURY TRIAL IS NOT FEASIBLE WITHOUT SUPPORT FROM THE 14 LE GIS LATURE AND JUDICIAL COUNCIL. ikely A A remote jury trial will make obtaining a representative jury pool 15 because not all jurors have the same access to technology. . B. The experience of other courts highlights the perils of remot jury 22 eee eee cence eee cece eee eee nett e eet e ee eenee 16 see eee tenet c Remote options for conducting civi | jury trials should be vetted for feasibility 17 before being imposed on litigants. 24 18 25 19 V. CONCLUSION 20 21 22 23 24 25 26 27 28 01300629.WPD 2 DERATION OF MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR RECONSI RULING ON MOTION TO CONTINUE TRIAL TABLE OR AUTHORITIES Page CASES California Correctional Peace Officers Assn. v. Virga (2010) 181 Cal.App.4th 30, 47, fn. 15 12 Phillips v. Sprint PC. (2012) 209 Cal.App.4th 758 13 California Crane School, Inc. v. National Com. for Certification of Crane Operators (2014) 226 Cal.App.4th 1 Garcia v. Hejmadi (1997) 58 Cal.App.4th 674 12 10 Glage v. Hawes Firearms Co. (1990) 226 Cal.App.3d 314 14 it Gravillis v. Coldwell Banker Residential Brokerage Co. 12 2006) 143 Cal.App.4th 761 12 13 Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388 14 14 Holley v. J & S Sweeping Co. 15 (1983) 143 Cal.App.3d 588 18 16 Johnson v. California 18 (2005) 545 U.S. 162 7 Johnston v. Co ris 12 18 (2005) 12 PCalApp.4th 553 19 Keener v. Jeld-Wen, Inc. 18 (2009) 46 Cal.4th 247 20 Kollander Const. v. Superior Court 12, 13 21 (2002) 98 Cal.App.4th 304 22 Le Francois v. Goel 13 (2005) 35 Cal.4th 1094, 1107, fn. 5.0 2.6 . eee cece eee t ete 23 Monarch Healthcare v. Superior Court 13 24 (2000) 78 Cal.App.4th 1282 25 Moore v. California State Bd. of Accountancy 24 (1992) 2 Cal.4th 999 26 People 18 27 (1988) 49 Cal.3d 502 28 People v. Booker 15 (2011) 51 Cal.4th 141 01300629.WPD RECONSIDERATION OF MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR RULING ON MOTION TO CONTINUE TRIAL People v. Burgener (2003) 29 Cal.4th 833 19 People v. Engelman 2002) 28 Cal.4th 436 17 People v. Gutierre: (2017) 2 Cal.5th 1150 22 People v. Harris (1984) 36 Cal.3d 36 18 People v. Marshall (1990) 50 Cal.3d 907 14 People v. Thomas 15 (2012) 53 Cal.4th 771 10 People v. Thornt 18 (1984) 155 Cal.App.3d 845 i People v. Veamatahau 17 12 (2020) 9 Cal.5th 16 13 People v. Wheeler 18, 22 (1978) 22 Cal.3d 258 14 Unzueta v. ARopyan 18 15 (2019) 42 Cal.App.5th 199 16 Williams v. Illinois (2012) 567 U.S. 50, 8 0 [132 S.Ct. 2221, 183 L.Ed.2d 89] (plur. opn.)........--+++ 17 17 Williams v. Superior Court 18 18 (1989) 49 Cal.3d 736 19 20 STATUTES 17 Code of Civil Procedure § 216, subd. (a) 21 12, 14 Code of Civil Procedure, § 1008, subd. (a) 22 14 Code of Civil Procedure, § 1013, subd. (a) 23 18 Code of Civil Procedure, § 204, subd. (a) 24 17 Code of Civil Procedure, § 216 25 17 Code of Civil Procedure, § 613. 26 18 Code of Civil Procedure, § 618 27 15 Code of Civil Procedure, §§ 190-237 28 01300629.WPD DERATION OF MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR RECONSI RULING ON MOTION TO CONTINUE TRIAL RULES Californai Rules of Court, Appendix I: Emergency Rules Relating to COVID-19, nule 3(a)( 3 2m OTHER AUTHORITIES CACI No. 5009 17 Anderson & Kumar, Digital divide persists even as lower-income Americans make gains in tech adoption, FactTank: Pew Research Center (Ma) 7, 2019) Anderson et al., 10% of Americans don't use the intemet. Who are they?, FactTank: Pew Research Center (Apr. 22, 2019) [hereafter derson, 10% of Americ ans 10 Bannon & Adelstein, The Impact of Video Proceedings on Fairness and Access to Justice 11 in Court, Brennan Center of Justice (Sept. 10, 2020, f 21 13 CACI No. 116 to Justice 14 California Commission on Access to Justice, Remote Hearings and Access During Covid-19 and Beyond, at pp. 7-8, Nat'l Center for State Courts 15 [as of Nov. 12, 2020] 16 and Access to Justice California Commission on Access to Justice, Remote Hearings 17 During Covid-19 and Beyond, Na‘ t'l Center for State Courts (last accessed Nov. 1T, 2020. 2020. Central District of California, General Order No. 20-09 (Aug. 6, ders/ 19 las, 20 of Nov. 12, 2020 Central District of California, General Order No. 20- 12 (Sept. 14, 2020 1-2 21 las 22 of Nov. 12, 2020 23 DeWitt, Detecting Deception During Vo ir Dire 15 ¢ 2015) vol. 39, issue 1, American J. of Trial Advocacy 25 24 2019 Internet/Broadband Fact Sheet, PEW Research Center (June 12,oadban d/> [as of Nov. 12, 25 [as of Nov. 12, 2020 ” San Bernardino County Superior Court, General Order of the Presiding Judge re Civil Jury Trials (Sept. 9, 2020),p. las of Nov. 12, 2020 U.S. Constitution, 6th & 7th Amendments 14 10 i 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 01300629.WPD 6 DERATION OF MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR RECONSI RULING ON MOTION TO CONTINUE TRIAL I. INTRODUCTION Defendant Enloe Medical Center moves for reconsideration of the denial ofits motion to continue trial. In its order denying that motion, the Court ruled that trial will proceed primarily remotely by Zoom. Defendant seeks reconsideration to show that a remote jury trial is inconsistent with key aspects of California law and is not feasible. Reconsideration is appropriate because defendant first learned the Court was considering a remote trial when it received the tentative order denying the motion and thus had no opportunity to brief the issue. A remote jury trial cannot, at least in this case and at this time, substitute for an 10 in-person trial. Because this case involves complex issues, an in-person trial is necessary 11 to comport with due process. Moreover, California statutes governing such critical matters with 12 as jury voir dire, jury deliberations, and return of the jury's verdict cannot be reconciled 13 a fully remote jury trial. 14 The technology for a remote jury trial has not yet been developed to ensure jurors' home life. Nor 15 undivi ded attention, especially amidst the distractions of the pandemic and been developed to aid judges' essential supervision over the 16 has suitable training are to be made, they 17 presentation of evidence and argument. If such fundamental changes 18 should come from the Legislature and Judicial Council. ine the 19 Apart from their practical challenges, remote jury trials systematically underm skew the jury pool 20 court's ability to obtain a representative jury pool. Remote jury trials " A PEW research study 21 against disadvantaged groups. They exacerbate the "digital divide. and high-speed 22 from last year showed that only 73% of American adults have home broadb 23 internet-a necessity for remote proceedings. And PEW also found a significant disparity in older residents, and 24 who has access to home broadband intemet, with racial minorities, such access. At 25 those with lower levels of education and income being less likely to have , a remote jury 26 this time, without additional support from the Legislature or Judicial Council 27 trial will not be fair to the parties. voir dire in 28 And remote jury trials create other problems. They foreclose meaningful 01300629.WPD 7 RECONSIDERATION OF MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR RULING ON MOTION TO CONTINUE TRIAL which court and counsel can effectively observe juror demeanor and body language. They disrupt the orderly presentation of evidence through recurring technical glitches. Even with the best equipment, training, and intentions, a court could not guarantee that jurors will be able to fully perceive witnesses’ testimony-much less in a lengthy, expert-intensive, and complex trial like this one. Trial judges cannot supervise jurors and monitor the technology-while also ruling on objections and following the evidence-when everyone is operating remotely. Many of these problems have already emerged in the few remote trials that have occurred in Alameda County Superior Court. Those trials establish that a fully remote jury trial cannot occur fairly in today's environment of dropped 10 connections and distracted jurors. 11 Videoconferencing technology may one day progress to the point that the Legislature 12 or Judicial Council could conclude that remote proceedings properly preserve the rights of 13 all parties and jurors. But that day is not today. For now, in-person trials (or at least their key 14 phases) remain essential. 15 Il. RECONSIDERATION IS APPROPRIATE TO ALLOW BRIEFING ON THE FUNDAMENTAL ISSUE OF WHETHER TRIAL SHOULD BE REMOTE 16 An order may be reconsidered based on "new or different facts, circumstances or 17 law." (Code Civ. Proc., § 1008, subd. (a).) The party seeking reconsideration must offer a 18 "satisfactory explanation" for the failure to produce the new matter at an earlier time. 19 (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 690; California Correctional Peace Officers 20 Assn. v. Virga (2010) 181 Cal.App.4th 30, 47, fn. 15.) 21 New circumstances support reconsideration when the court has decided an issue 22 before the parties have briefed it and the court has considered it. (Gravillis v. Coldwell 23 Banker Residential Brokerage Co. (2006) 143 Cal.App.4th 761, 772-773 [trial court's reliance 24 on post-hearing objections to reverse its order, without notice or hearing, "constituted new 25 circumstances justifying reconsideration under section 1008"]; Johnston v. Corrigan (2005) 26 127 Cal.App.4th 553, 556 [new circumstances supported reconsideration when evidence 27 showed trial court failed to consider timely-filed memorandum of points and authorities in 28 its prior ruling]; Kollander Const. v. Superior Court (2002) 98 Cal.App.4th 304, 314 01300629.WPD 8 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR RECONSIDERATION OF RULING ON MOTION TO CONTINUE TRIAL [reconsideration proper based on new circumstances so that party could have "full and fair hearing" to respond to new issues raised in post-hearing memorandum of points and authorities and declaration], disapproved on other grounds by Le Francois v. Goel (2005) 35 Cal.4th 1094, 1107, fn. 5.) "Parties should be given an opportunity to brief the new issues that arise after trial submission, 'so that the ensuing order does not issue like a "bolt from the blue out of the judge's chambers." [Citations.]' (Citation) Indeed, a motion for reconsideration is the appropriate response to the denial of that opportunity." (Kollander Const., supra, 98 Cal.App.4that p. 314, citing Monarch Healthcare v. Superior Court (2000) 78 Cal.App.4th 1282, added.) Further, even without regard to the statutory grounds for 10 1286, emphasis 11 reconsideration, this Court has inherent authority to reconsider its interim orders at any time 12 onits own motion. (Le Francois, supra, 25 Cal.4th at p. 1107; Phillips v. Sprint PCS (2012) 209 13 Cal.App.4th 758, 768.) 14 Reconsideration is appropriate here because the Court decided the trial should be 15 remote without receiving briefing on that vital issue. Defendant's motion to continue trial 16 was heard on November 4. (See Declaration of Alaina T. Dickens in Support of Motion for 17 Reconsideration ("Dickens Decl.") 2.) Prior to that date, defendant was unaware the Court 18 was considering a remote jury trial. (Ibid.) For that reason, neither defendant's motion nor 19 plaintiffs' opposition addressed whether trial should be remote. (Ibid.) 20 The Court first raised the possibility of a remote jury trial in its November 4 tentative 21 ruling denying the motion to continue trial. (Dickens Decl. 3.) The tentative stated that "The 22 jury trial will proceed primarily remotely via Zoom due to the global COVID-19 pandemic." 23 (Dickens Decl. 3; Tentative Ruling Denying Motion to Continue Trial attached as Exh. Ato 24 Dickens Decl.) That tentative ruling was first available on November 3, 2020. (Dickens Decl. 25 3.) At the hearing, defendant objected to a remote jury trial. (Dickens Decl. 4; Transcript of 26 Proceedings attached as Exh. B to Dickens Decl.) However, defendant did not submit 27 briefing on that issue as it lacked the time and opportunity to do so. (Ibid.) 28 A motion for reconsideration is timely when made within ten days after service of 01300629.WPD 9 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR RECONSIDERATION OF RULING ON MOTION TO CONTINUE TRIAL written notice of entry of the adverse order. (Code Civ. Proc., § 1008, subd. (a).) Service by mail of the notice extends that due date by five calendar days. (Code Civ. Proc., § 1013, subd. (a).) Here, on November 4, the court clerk served written notice of the adverse order by mail. (Dickens Decl. 5; Order after Hearing on Defendant's Motion to Continue Trial attached as Exh. C to Dickens Decl.) This motion is thus timely because it has been made before November 19. Reconsideration is proper under these circumstances. The Court will benefit from receiving briefing on issues that are both novel and critical. Ill, REMOTE JURY TRIALS ARE INCONSISTENT WITH KEY ASPECTS OF CALIFORNIA LAW. 10 11 A. Remote trials do not adequately protect the fundamental right to a fair trial. 12 “Trial by jury is an inviolate right and shall be secured to all... ." (Cal. Const., art. I, 13 § 16.) "Any deficiency that undermines the integrity of a trial," "introduces the taint of 14 fundamental unfaimess." (People v. Marshall (1990) 50 Cal.3d 907, 951; accord, Glage v. 15 Hawes Firearms Co. (1990) 226 Cal.App.3d 314, 322 ["civil litigants are no less entitled to a 16 fair trial than criminal defendants"].) 17 The most elementary and important duty of the jury is "to listen carefully during the 18 presentation of evidence at trial." (Hasson v. Ford Motor Co. (1982) 32 Cal.3d 388, 411.) 19 Unless the jury can perform that duty, the trial will not protect the litigants' constitutional 20 rights. (See id. at pp. 411, 415.) "Were the rule otherwise, litigants could be deprived of the 21 complete, thoughtful consideration of the merits of their cases to which they are 22 constitutionally entitled. (U.S. Const., 6th & 7th Amends.; Cal. Const., art. 1, § 16.)" (Hasson, 23 supra, 32 Cal.3d at p. 411.) 24 Trial procedures must reflect the promise that, notwithstanding technological and 25 human limitations, jurors can and will competently fulfill their solemn responsibility to 26 engage in their truth-finding mission. The barriers to keeping that promise are legion while 27 conducting a virtual trial. There will be inevitable technical glitches with computer 28 hardware, internet connectivity, and user error. No one doubts the utmost good faith and 01300629.WPD 10 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR RECONSIDERATION OF RULING ON MOTION TO CONTINUE TRIAL sincerest effort among all concerned. But even with the best equipment, training and intentions, it simply is not possible to guarantee that jurors operating remotely will be engaged throughout trial without distraction. It is also impossible to guarantee they will fully perceive witnesses' testimony and demeanor. This is a preference case, and the Court's desire to accommodate plaintiffs' interests are understandable and admirable. But without due process and fairness guarantees, a remote trial as envisioned by the Court threatens defendant's constitutional and statutory rights. B. The parties will be deprived of their right to conduct effective voir dire. 10 Voir dire is an essential element of every civil trial. Court and counsel must observe 11 the reactions-both verbal and non-verbal-of prospective jurors during questioning. 12 Conducting voir dire remotely would deprive the parties of a fair trial. 13 Itis doubtful that California law permits remote voir dire. The Trial Jury Selection and of 14 Management Act (Code Civ. Proc., §§ 190-237), defines a" ‘Trial Jury Panel'" as "a group 15 prospective jurors assigned to a courtroom for the purpose of voir dire." (Id., § 194, subd. 16 (q), emphasis added.) "[T]he jury commissioner shall randomly select jurors for jury panels 17 to be sent to courtrooms for voir dire." (Id., § 219, subd. (a), emphasis added.) 18 Even if remote voir dire were lawful, it would be ineffective. Remote questioning will 19 not allow court and counsel to see more than a small portion of a person's body. 20 Videoconference participants show mostly their faces, preventing otherviewers from seeing 21 overall demeanor and body language, expressive use of hands, and so forth. (See People 22 v. Thomas (2012) 53 Cal.4th 771, 790 [trial judge's rulings on for-cause challenges are entitled 23 to deference because the trial judge has "the opportunity to observe the juror's demeanor"].) 24 And unless the video quality is nearly perfect, viewers will not fully capture a juror's 25 subtle facial expressions. (See People v. Booker (2011) 51 Cal.4th 141, 166-167 [emphasizing 26 "the opportunity to observe [a juror's] demeanor" to assess whether answers to voir dire 27 questions are "untruthful"]; DeWitt, Detecting Deception During Voir Dire (2015) vol. 39, issue 28 1, American J. of Trial Advocacy 25, 39 ["The face is an amazing source of information about 01300629.WPD 11 MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF MOTION FOR RECONSIDERATION OF RULING ON MOTION TO CONTINUE TRIAL human behaviour, as it displays emotion, pain, and divulges brain function and pathology"].) Cc. Judges cannot effectively manage trials while supervising the technology. "Judges who preside over trials, especially jury trials, wear many hats and have tion numerous responsibilities." (California Crane School, Inc. v. National Com. for Certifica s of