What Good is a Cup of Coffee?

Honorable Maren E. Nelson

Editor's Note: Judge Nelson is the Supervising Judge of the Los Angeles Superior Court Family Law Division.

Last year I suggested that you adopt Assistant Presiding Judge Dan Buckley’s idea that at the beginning of a matter you have a cup of coffee with opposing counsel so as to get to know him or her on a personal level, with the hope that your professional relationships will be improved. Whether or not you have yet done that (and I continue to urge you to do so) I want to focus on three times when you must meet and confer with the other side:

(1) Prior to hearing on any RFO;

(2) In connection with most discovery motions;

(3) Prior to a Mandatory Settlement Conference.

California Rule of Court 5.98 requires that, except in cases involving domestic violence, all parties and all attorneys are required to meet and confer in person, by telephone, or as ordered by the court, before the date of a hearing relating to a Request for Order. The parties must discuss and make a good faith attempt to settle all issues and must exchange all documentary evidence that is to be relied on for proof of any material fact at the hearing, other than documents primarily for impeachment or rebuttal.

With limited exceptions, the Discovery Act requires a “meet and confer” before a discovery motion is filed. See e.g. Cal. Code of Civ. Pro. Section 2030.300(b) (Interrogatories); Section 2033.290(b) (Requests for Admission); Section 2031.310(b) (Requests for Production of Documents and Other Things); Section 2025.480(b) (Depositions). The “meet and confer declaration” must state facts showing a reasonable and good faith attempt at an informal resolution of each issue presented by the motion. Cal Code of Civ. Pro. Section 2016.040. Failure to comply with this requirement gives rise to mandatory sanctions. Cal. Code of Civ. Pro. Section 2023.020.

Local Rule 5.14 presently provides that prior to a Mandatory Settlement Conference counsel must hold at least one face-to-face or telephonic settlement discussion and provide the other with all pertinent information. Amendments to that rule are proposed to require a meet and confer prior to a Trial Readiness Conference or a Settlement Conference.

Each of these provisions requires the meet and confer process occur before the matter is heard. Often, however, there has been either no “meet and confer” or the one that was had was inadequate. Frequently we are told this is because there is a high level of antagonism between the parties and/or counsel. However, dislike of the other side does not excuse compliance with the meet and confer requirements. See Volkswagenwerk Aktiengesellschaft v. Superior Court (Golsch) (1981) 122 Cal. App. 3d 326, 333-334. Self-serving letters, failures to exchange documents because “the other side already has them,” and bickering between counsel, also do not constitute a good faith meet and confer. The law “requires that counsel attempt to talk the matter over, compare their views, consult, and deliberate [citation].” Clement v. Alegre (2009) 177 Cal. App. 4th 1277, 1294, citing Townsend v. Superior Court (1998) 61 Cal. App. 4th 1431, 1439.

What is reasonable will depend on the case. Weil and Brown, et al. in CAL. PRAC. GUIDE: CIV. PRO. BEFORE TRIAL (The Rutter Group 2015) at 8:1163 offer several practice pointers about what constitutes a “reasonable attempt” to meet and confer in discovery motions. Many of them carry over to RFOs and MSCs. Borrowing from those suggestions: A good first step is a respectful letter that discusses the issues in a professional way and shows a willingness to meet halfway, where appropriate. A follow up e-mail or call and request for a personal meeting to exchange information or to discuss the issues should follow. A letter confirming agreements reached, with a proposed stipulation, should be sent to memorialize your understandings. Finally, a call to the court as soon as the matter resolves, is appreciated.

Is it always easy? No. But, the consequences for your client can be significant. With a good faith effort you may avoid the expense of an unnecessary motion. With a poor effort there may be a decision by your judicial officer to deny or continue your motion, or worse yet, sanctions. If you start with the cup of coffee you will likely make the “meet and confer” process a bit more pleasant and, with a little effort, more productive.

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