Court Can't Force a Cottle by Surprise

Dept. of Forestry & Fire Protection v. Howell, No. C074879 (D3 Dec. 6, 2017)

In complex cases, California trial courts are afforded some procedural leeway to come up with means to streamline the litigation and make it more efficient, so long as the procedures don’t run afoul of any constitutional provision, statute, or rule. One such innovation was blessed in Cottle v. Superior Court, 3 Cal. App. 4th 1367 (1992), which permitted the use of a kind of pretrial preliminary hearing, where the plaintiff in a complex case can be required to come forward with prima facie evidence on a key element as a condition to getting to trail. 

The trial court in this case—a complicated muti-defendant case where a state agency is trying to get reimbursed for its costs in fighting a 60,000 acre wildfire—tried to use a Cottle procedure to winnow the case down. Problem is, it did so in a completely unfair way. Two days before the pretrial conference, it gave the parties notice that it might conduct a Cottle hearing. It did not, however, identify the issues that would be subject to it. Plaintiffs were ultimately afforded a half-day’s notice that they would be expected to make a prima facie evidentiary showing on key issues of causation. They tried to make that showing—while also arguing an oral motion for judgment on the pleadings and haggling about jury instructions. But the trial court found they failed to so and dismissed the claims.

In Cottle plaintiffs were given months of notice about the issues they would need to prove up and permitted to offer detailed written presentations, along with argument, as to why they set out a prima facie case. In contrast, here, the whole thing was kind of a ramshackle oral presentation done on almost no notice, jammed into a pretrial conference where a bunch of other stuff was going on. The Court of Appeal finds that, under the circumstances, the trial court’s running the Cottle process as it did violated plaintiffs’ rights to procedural due process.

While that would ordinarily mean a full reversal, the Court of Appeal, however, goes on to sustain a judgment on the pleadings based on a statutory interpretation issue that kills off all, or essentially all, of the claims. (There’s a dissent that disagrees on this point.) 

And then the court decides a bunch of other stuff in an unpublished part. So the case is remanded, but it doesn’t look like there’s much left to do.

Reversed.