Is there an unintended gap in California’s case coordination statutes?

Most civil litigation practitioners are at least vaguely aware that multiple actions “involving a common question of fact or law” can be coordinated before a single court for unified proceedings (for purposes of this discussion, “coordination” has a very specific meaning and refers to the process set forth in the Civil Code).  However, the coordination procedure varies, depending upon the nature of the actions to be coordinated, and the statutory scheme arguably contains an ambiguity that may cause uncertainty as to which procedure should be invoked.

Coordination is governed by California Code of Civil Procedure sections 403, 404 and 404.1 (all further statutory references are to the California Code of Civil Procedure).  Section 403, discussing the procedure for non-complex cases, provides, in part:

A judge may, on motion, transfer an action or actions from another court to that judge's court for coordination with an action involving a common question of fact or law within the meaning of Section 404. The motion shall be supported by a declaration stating facts showing that the actions meet the standards specified in Section 404.1, are not complex as defined by the Judicial Council and that the moving party has made a good faith effort to obtain agreement to the transfer from all parties to each action.

(Section 403, emphasis added.)  Section 404, setting forth the coordination procedure for complex actions, provides:

When civil actions sharing a common question of fact or law are pending in different courts, a petition for coordination may be submitted to the Chairperson of the Judicial Council, by the presiding judge of any such court, or by any party to one of the actions after obtaining permission from the presiding judge, or by all of the parties plaintiff or defendant in any such action. A petition for coordination, or a motion for permission to submit a petition, shall be supported by a declaration stating facts showing that the actions are complex, as defined by the Judicial Council and that the actions meet the standards specified in Section 404.1. On receipt of a petition for coordination, the Chairperson of the Judicial Council may assign a judge to determine whether the actions are complex, and if so, whether coordination of the actions is appropriate, or the Chairperson of the Judicial Council may authorize the presiding judge of a court to assign the matter to judicial officers of the court to make the determination in the same manner as assignments are made in other civil cases.

(Section 404, emphasis added.)  In short, coordination of complex actions is determined by the Judicial Council, not any trial court to which one of the complex actions is assigned.  As background information only, Section 404.1 describes the factors that are considered in any instance where coordination of actions is sought:

Coordination of civil actions sharing a common question of fact or law is appropriate if one judge hearing all of the actions for all purposes in a selected site or sites will promote the ends of justice taking into account whether the common question of fact or law is predominating and significant to the litigation; the convenience of parties, witnesses, and counsel; the relative development of the actions and the work product of counsel; the efficient utilization of judicial facilities and manpower; the calendar of the courts; the disadvantages of duplicative and inconsistent rulings, orders, or judgments; and, the likelihood of settlement of the actions without further litigation should coordination be denied.

The included emphasis in the sections quoted above highlights the ambiguity in this statutory scheme.  Section 403 specifies the authority of a trial court to coordinate two or more non-complex actions, as “complex” is defined by the Judicial Council in California Rules of Court, rule 3.400.  Section 404 specifies the process for coordinating two or more complex actions.  Omitted from this scheme is the situation where one complex matter and one or more non-complex matters are pending in different courts.  Such a scenario might arise if a class action and multiple individual actions, all asserting the same misconduct, are simultaneously pending in different courts.  Under the literal language of Sections 403 and 404, one cannot assert either that the actions are not complex (Section 403) or that the actions are complex (Section 404).

I am unaware of an answer to this potential ambiguity. It is my belief that a non-complex action can be coordinated into a complex action without petitioning the Judicial Council, so long as the Judicial Council has not already acted on a petition affecting the complex matter.  This interpretation seems consistent with the intent that the coordination of non-complex matters is appropriately supervised by trial court judges but the coordination (and subsequent transfer) of a complex action requires the oversight provided by the Judicial Council Process.  I had hoped in one case to test this proposition, but the matters were transferred before I could do so.  Any takers?

Further resources:  visit or California’s Official California Legislative Information site for free access to California’s complete Code of Civil Procedure.