COUDERT BROTHERS v. COUNTY OF LOS ANGELES (1993)

We reverse an order directing Coudert Brothers to pay $1,500 in sanctions.

FACTS

In 1986, Montrose Chemical Corporation and Stauffer Chemical Company sued 12 insurance companies to resolve an environmental contamination coverage dispute.   Travelers Indemnity Company, one of the defendant insurers, is represented by Coudert Brothers.   This is hard-fought complex litigation involving a lot of money and it has been assigned to one judge for all purposes since 1987 and to the present trial judge since 1988.

At a March 22, 1991, status conference, Montrose stated its intent to move for an extension of the five-year period within which to bring these cases to trial.  (Code Civ.Proc., § 583.310.) ¹  As reflected in the reporter's transcript and minute order of that date, the court made the following order:  “Montrose's motion to extend the five year date is set for April 12, 1991 at 10:00 a.m. in this department not to exceed 7 pages․   Insurer[s'] response is ․ not to exceed 7 pages.   No reply.”

In support of its motion, Montrose filed an 8–page memorandum of points and authorities, a 6–page declaration and 32 pages of exhibits to show the extent of discovery conducted to date (32 sets of interrogatories by one side, 37 by the other, plus a similar number of document requests and requests for admissions, and about 150 depositions).   In opposition, Coudert filed on behalf of all 12 insurers (not just Travelers) a 7–page memorandum of points and authorities and, under separate cover, a 27–page declaration by attorney Douglas L. Hallett.   To show the delay in bringing the case to trial was not the fault of the defendants (and that they ought not to be deprived of their rights under the five-year statute), Hallett provided a motion-by-motion history of the litigation, supported by copies of the papers previously filed for dozens of motions and endless discovery disputes, a total of more than 1,500 pages.

On April 12, the trial court granted Montrose's motion to extend the five-year period (the propriety of that ruling is not challenged on this appeal) and then chastised Hallet:  “Mr. Hallett, your declaration filed in connection with this motion on the five-year time ․ I didn't weigh it for pounds, about eight and a half inches of paper, almost entirely a review of proceedings which this court has heard.   The direction of the court was to limit the papers to seven pages.   That was a court order.”   A subsequently issued minute order directed Coudert to show cause why sanctions should not be imposed under section 177.5 for a violation of the page limitation order and directed that Coudert's response to the order to show cause was not to exceed 15 pages “without further exhibit or appendix․”

Following a hearing on the order to show cause, the trial court ordered Coudert to pay $1,500 in sanctions to the County of Los Angeles, finding it had filed “voluminous appendices consisting of earlier proceedings had in this Court on this case and fully known to the Court without the burden of eight and one-half inches of paper, and that this filing of appendices violated the Court's order for limited pages, and further that counsel for Travelers has been previously instructed on March 22, 1991 and on other dates to desist from improper and voluminous filings which only burden the record, the Court finds no good faith in the filing of these appendices.”   Coudert appeals from that order.

DISCUSSION

 Coudert contends it did not violate the trial court's order and that, therefore, it was an abuse of discretion to impose sanctions.   For several reasons, we agree.

I.

There was no reason for Coudert to believe this page limitation order differed from the usual rules or from the trial court's earlier orders, all of which limited only memoranda of points and authorities, not declarations or exhibits.   Section 13 of rule 801 of the Los Angeles Superior Court Rules commands that “[n]o trial brief or memorandum of points and authorities shall exceed 15 pages in length except by permission of the trial judge” and paragraph 118 of the Los Angeles Superior Court's Law and Discovery Policy Manual adopts the same rule (it is quoted verbatim).   Both provisions have always been understood to mean what they say—the page limitation applies to memoranda, not to evidence.   Indeed, Montrose understood the order to apply only to its memorandum (it filed 38 additional pages) and the record shows that all of the trial court's prior page limitation orders were applied only to memoranda.   It follows necessarily that no one would have understood the order at issue in this case to include a restriction on the amount of evidence to be presented by either side.²

II.

 The nature of the motion required an evidence-based opposition.   To succeed on a motion to extend the five-year period, a plaintiff must present proof that it was impossible, impracticable or futile to bring the case to trial within the statutory period.  (Lane v. Newport Bldg. Corp. (1986) 176 Cal.App.3d 870, 873–874, 222 Cal.Rptr. 443;  Bank of America v. Superior Court (1988) 200 Cal.App.3d 1000, 1013–1014, fn. 8, 246 Cal.Rptr. 521.)   To defeat the motion, a defendant's goal is to persuade the court that the plaintiff has not exercised reasonable diligence in prosecuting its case (Moran v. Superior Court (1983) 35 Cal.3d 229, 238, 197 Cal.Rptr. 546, 673 P.2d 216) or that case-specific circumstances existing throughout the five-year period do not reasonably justify suspension of the five-year rule (Hughes v. Kimble (1992) 5 Cal.App.4th 59, 66–67, 6 Cal.Rptr.2d 616;  Baccus v. Superior Court (1989) 207 Cal.App.3d 1526, 1532–1533, 255 Cal.Rptr. 781).  Accordingly, this is a fact-specific, evidence-based motion which must be supported and opposed by proof.   And although a trial court always retains the power to exclude redundant and irrelevant evidence (Evid.Code, §§ 350, 352), it does not have the power to sanction a party for offering the proof it believes is necessary to support its position—and equally necessary to make a record sufficient to preserve its position for appeal.  (§ 177.5 [sanctions may be imposed for a violation of a court order “done without good cause or substantial justification” but the power to impose sanctions “shall not apply to advocacy of counsel before the court”].)

III.

 There were less onerous means to deal with the burden of too many exhibits.   First, we are unaware of any requirement obligating any court to read every paper submitted to it, without regard to relevance.   The trial court could simply have ignored the exhibits.   Second, if the problem was storage, counsel could have been ordered to substitute copies of just the face pages of each exhibit (all of which were copies of previously filed documents) to be placed in the file.   But counsel should not be penalized for following the recommendation of the Los Angeles County Law and Discovery Policy Manual (¶ 170) that references to materials contained in court files be supported with additional copies, “on the possibility that the file cannot be located in time for the hearing.”

IV.

Finally, there is the question of reasonableness.   The 15–page rule was adopted by a majority of the judges of the Los Angeles Superior Court (§ 575.1, subd. (a)) and it is, therefore, a presumptively reasonable limitation subject to adjustment upon application by any party unable to sufficiently condense its argument.   Accordingly, we question whether an individual trial judge has the right to impose more stringent limitations.

 Clearly, a trial court has the abstract power to make whatever orders are necessary to fairly and efficiently handle its cases, particularly where (as here) a case is so complex that it could not reasonably be managed without procedures fashioned to its peculiar requirements.   But just as local rules usually must be consistent with the California Rules of Court, which in turn usually must be consistent with our statutes (Cal. Const., art VI, § 6;  and see generally 2 Witkin, Cal.Procedure (3d ed. 1985) Courts, § 316, p. 331), we think individual trial courts ought not to adopt rules more restrictive than a local rule.   The potential for arbitrary limitations is substantial.

 To state the obvious, well written and carefully edited memoranda are preferred by all judges.   Similarly, an argument focusing on the key issue, without detours down irrelevant roads, is better than a shotgun approach.  (See United States v. Keplinger (7th Cir.1985) 776 F.2d 678, 683 [excess verbiage makes it far more likely that meritorious arguments will be lost amid the mass of detail].)  But editing takes time (and thus costs money) and a lawyer has no way to know, at the time the papers are drafted, which issue will grab the court's attention.   Moreover, a failure to raise an argument in the trial court may foreclose an issue on appeal.  (In re Marriage of Modnick (1983) 33 Cal.3d 897, 913, fn. 15, 191 Cal.Rptr. 629, 663 P.2d 187.)

There is also the issue of legibility.   In this case, the papers were reasonably easy to read.   There are lots of headings, a sufficient amount of white space and standard size type was used.   There was no effort to circumvent the page limitation by slipping an argument into a declaration (Ford Motor Co. v. Lyons (App.1987) 137 Wis.2d 397, 405 N.W.2d 354, 360, fn. 2) or into lengthy single-spaced footnotes (Semrad v. Edina Realty, Inc. (Minn.App.1991) 470 N.W.2d 135, 147–148).   Regulation size type faces were used (cf., EDC, Inc. v. Navistar Intern. Transp. Corp. (7th Cir.1990) 915 F.2d 1082, 1083) and the papers do not suggest “the lawyers wrote what they wanted and told the word processing department to jigger the formatting controls until the brief had been reduced to [the permitted number of] pages.”  (Westinghouse Elec. Corp. v. N.L.R.B. (7th Cir.1987) 809 F.2d 419, 425, fn. *.)

 Although we do not hold that a trial court can never reduce the 15–page limitation, we do recommend restraint.   There is much truth to the adage that documents are frequently long because there was insufficient time to make them short.   And some very good lawyers are simply rotten writers.   But most lawyers do the best they can to follow the rules and to effectively represent their clients and we believe non-discovery monetary sanctions in amounts reportable to the State Bar (Bus. & Prof.Code, § 6068, subd. (o)(3)) should be imposed against lawyers only in cases of egregious abuse.   This was not such a case.

V.

None of the parties have appeared on this appeal (Coudert is here on its own behalf, as the sanctioned party) and the only respondent's brief was filed by County Counsel on behalf of the Superior Court and the County of Los Angeles, the beneficiary of the sanction order under section 177.5.   At oral argument, County Counsel asked us to clarify his standing to appear under these circumstances.   We decline, because his standing has not been questioned in this case (as far as we can tell, it does not appear to have been questioned in any other case) ³ —and the issue has not been briefed.   Accordingly, while we have some concern about sanctions as a revenue raising endeavor for the County, we do not reach this issue.

DISPOSITION

The judgment is reversed.   Coudert Brothers is to recover its costs from the County of Los Angeles.

I respectfully dissent.   The record persuades me that the trial court's main concern was with needless repetition, not mere length, and that the seven-page limit was the means to accomplish that purpose.   I feel Coudert was adequately put on notice that the page limitation was meant to preclude exactly what Coudert ended up doing—inundating the trial court with paper for paper's sake.   The majority, while questioning “whether an individual trial judge has the right to impose more stringent requirements” than the local 15–page rule, concedes that a “trial court always retains the power to exclude redundant and irrelevant evidence.”  (Emphasis added.)   If so, it certainly has the power to order in advance that such evidence not be presented.

Coudert's opposition to the motion to extend the five-year period, although technically exceeding the seven-page limit, put Coudert in a no-harm, no-foul situation.   Had Coudert quit there, this case would not be before us.   But Coudert decorated its opposition with nearly eight and one-half inches of documentary exhibits, most of which the trial court characterized as repetitious.

On the date it set the sanctions hearing, the trial court stated orally, “․ Mr. Hallett, your declaration filed in connection with this motion on the five-year time presence [sic] for this court, I didn't weigh it for pounds, about eight and a half inches of paper, almost entirely a review of proceedings which this court has heard.  [¶] The direction of the court was to limit the papers to seven pages.   That was a court order.”  (Emphasis added.)

The trial court imposed sanctions of $1,500 after finding “that the filing of voluminous appendices consisting of earlier proceedings had in this Court on this case and fully known to the Court without the burden of eight and one-half inches of paper, and that this filing of appendices violated the Court's order for limited pages, and further that counsel for Travelers has been previously instructed on March 22, 1991 and on other dates to desist from improper and voluminous filings which only burden the record, the Court finds no good faith in the filing of these appendices.”   In its opening brief on appeal, Coudert refers to the admonitions and does not dispute that they were given by the court.

Coudert argues, and the majority accepts, that the sanctions order was improper because the trial court “Never Before Indicated [It] Interpreted Page–Limitation Orders To Apply To Anything Other Than Memoranda of Points and Authorities,” with which limitation Coudert complied.   Other counsel had, over the years, and this time, filed papers complying with page limitations only as to points and authorities.   Since the trial court did not punish them, Coudert argues, it is plain the seven-page limitation was not meant for declarations, exhibits, and other documents.

At the March 22, 1991, hearing, when the court set the seven-page limit, it directed the following remark to Mr. Hallett:  “I'm more concerned with the number of papers, to use the words of counsel, the barrage that this court does independently find to be abuses.  [¶] And I want to stop that practice.”   The court expressed concern about a “cluttered record” and complained to another counsel that “[y]ou are directing me to approximately six inches in two stacks, so approximately 10 to 12 inches worth of former timber.”  (Emphasis added.)

At an August 4, 1989, hearing, the trial court had pointed the problem out to counsel.  (“I have just read reference to the same authorities too many times.   I don't need to read the Avondale case 15 times in order to come to an understanding of it.   Please be advised.”)   Coudert did not need to be hit with a block of wood to figure out that whatever else might be excused, voluminous repetition would not be tolerated.

Indeed, on March 22, 1991, the trial court made plain it did not object to necessary documents with reference to the five-year motion.  (“I think that it's necessary to do some damage to a few more trees.”)

All of the above shows Coudert was on notice that needless repetition was the trial court's concern.   Yet Coudert filed eight and one-half inches of “former timber,” which only rehashed what the court already knew.

The court ignored other violations of the page limitation, such as Montrose's 47 pages, and punished only the violation which presented a large pile of repetition.   This can only mean that elimination of repetition was the reason for the limitation in the first place.   Indeed, Coudert states in its opening brief on appeal that the trial court stated it “did not object to the memorandum of points and authorities or declaration filed by Travelers, but only to the volume of supporting exhibits attached to the declaration.”

In any event, even if limiting pages rather than repetition was the trial court's only concern, that the trial court chose to ignore minor violations of the limitation by other counsel, does not mean it was also required to tolerate a blatant violation by Coudert.   The contrast between Montrose's 47 pages and Coudert's 81/212 inch heap, for example, is stark.   While I have found no reference to how many pages Coudert filed, I note that 7 inches of the appendix filed on appeal totals just over 1500 pages.   It appears 81/212 inches is closer to 1800 pages.

I am particularly fond of the majority's solution to the problem:  “we are unaware of any requirement obligating any court to read every paper submitted to it, without regard to relevance.   The trial court could simply have ignored the exhibits.”  (Judges cannot impose page limitations more stringent than the local rules prescribe, but can just refuse to read anything the lawyers submit.)   Encouraging lawyers to submit hundreds upon hundreds of pages of fluff and then encouraging trial courts to ignore it hardly seems effective in discouraging such conduct.  (Is this possibly a variation of the tree-falling-in-the-forest question?   If millions of words are put into documents no one will ever read, do they truly exist?)

We should be trying to encourage efficient litigation, not needless acts.   We certainly should not overturn a trial court's justified imposition of sanctions just because it might be arguable whether other minor transgressions violated the page-limitation order.   The bulk dumped on the court by Coudert was so blatant a disobedience that, contrary to the majority's belief, there was abundant reason for Coudert to know it was violating the order.¹

Coudert says, “[a]ttaching exhibits was intended to save the Court tens of hours of time.”   The majority seems to accept this with a straight face, pointing out that the “nature of the motion required an evidence-based opposition.”   The trial court was entitled to reject such largesse in advance by limiting the amount of documentation to be filed.   Eight and one-half inches of surplusage sounds like the kind of help most courts can do without.   Indeed, the majority, after pointing out it was necessary because of the “evidence-based opposition,” implies the trial court should have just ignored it.

Coudert refers to local rules of court and the law and discovery policy manual to support its argument that filing the exhibits was proper.   However, contrary to the majority, I see nothing in the rules or manual precluding a trial court from limiting the size of pleadings under certain circumstances, especially when the same judge has presided over lengthy on-going proceedings on the case and is well-versed in the history of the proceedings.

Coudert points out that the order imposing sanctions stated that the court, on March 22, 1991, and other dates, had instructed Coudert to refrain from voluminous, burdensome filings.   Thus, Coudert argues, it was given no notice, as required by Code of Civil Procedure section 177.5, that it would have to defend itself concerning conduct prior to April 8, 1991.   The argument is specious.   Coudert was sanctioned for the April 8 filing, not for previous conduct.   The March 22 and other admonitions were merely evidence of the current lack of good faith and were clearly why the trial court eschewed ignoring the April 8 transgression and imposed monetary sanctions instead of issuing a warning.   I know of nothing that requires a court not only to give notice of the failing that will be the subject of a sanctions hearing, but to detail the expected evidence as well.

Coudert points out that Code of Civil Procedure section 177.5 sanctions do “not apply to advocacy of counsel before the court.”   Coudert argues its filing was with good cause and substantial justification and necessary for proper advocacy.   I disagree, noting that the filing of voluminous documents already known to the court in violation of a court order directed at needless repetition, does not strike me as advocacy, but rather obstructionism.

Because the record supports the trial court's imposition of sanctions, and does not demonstrate abuse, I would affirm the sanctions order.

FOOTNOTES

1.   Unless otherwise stated, all section references are to the Code of Civil Procedure.

2.   Effective December 1992, paragraph 133 of the Los Angeles Superior Court's Law and Discovery Policy Manual specifically states that the 15–page limit “shall not take into account exhibits, declarations, attachments, and a table of contents.”

3.   In People v. Tabb (1991) 228 Cal.App.3d 1300, 279 Cal.Rptr. 480, an appeal by defense counsel sanctioned $75 in a criminal case, county counsel appeared for the trial court.   In Moyal v. Lanphear (1989) 208 Cal.App.3d 491, 256 Cal.Rptr. 296, where sanctions against an attorney were made payable to an opposing party, there was no appearance for the court or the county.   In Laborers' Internat. Union of North America v. El Dorado Landscape Co. (1989) 208 Cal.App.3d 993, 256 Cal.Rptr. 632, an appeal by an attorney from a sanction award made payable to the county, county counsel appeared for the trial court.   In Caldwell v. Samuels Jewelers (1990) 222 Cal.App.3d 970, 272 Cal.Rptr. 126, an appeal by two attorneys from a sanction order made payable to the county, county counsel appeared for the County of Santa Clara.   In Seykora v. Superior Court (1991) 232 Cal.App.3d 1075, 283 Cal.Rptr. 857, an appeal by an attorney from an order to pay sanctions to the county, county counsel appeared for the trial court.   In Bergman v. Rifkind & Sterling, Inc. (1991) 227 Cal.App.3d 1380, 278 Cal.Rptr. 583, an appeal by an attorney directed to pay sanctions to the county, county counsel appeared for the trial court.   In this case, County Counsel appears for the trial court and for the County of Los Angeles.

1.   As an aside, neatness counts with the majority.  (“In this case, the papers were reasonably easy to read.   There are lots of headings, a sufficient amount of white space and standard size type was used.”)   If you are going to willfully ignore valid court orders, keep it neat and you'll probably be OK.   And although it counts for nothing, I don't see how a lawyer whose practice emphasizes civil motions can be a “rotten writer” and a “very good lawyer.”

MIRIAM A. VOGEL, Associate Justice.

DUNN, J.*, concurs.