Metropolitan News-Enterprise


Monday, November 26, 2007


Page 1


Court Rejects Use of Tenderloin ‘Notices of Unavailability’


By STEVEN M. ELLIS, Staff Writer


The Fourth District Court of Appeal has ruled that a “notice of unavailability,” by which a litigant purports to bind other parties and the court from taking adverse action during a prescribed time period, is not a fileable document under the Rules of Court.

In a per curiam decision Wednesday by Presiding Justice David G. Sills, Justice Richard M. Aronson, and Justice Raymond J. Ikola, Div. Three  Wednesday rejected the use of notices under the guise of Tenderloin Housing Clinic, Inc. v. Sparks (1992) 8 Cal.App.4th 299, holding that what has become “common practice in trial courts” is instead an impermissible infringement of the court’s inherent powers to the extent the notices attempted to put control of the court’s calendar in the hands of counsel.

The matter arose after Orange Superior Court Judge Ronald L. Bauer struck a statement of disqualification filed on April 4 by Andrew Carl.  Shortly after filing the statement, Carl also filed a notice of unavailability citing Tenderloin that said he would be unavailable to respond to anything until May 11.

Out of Office

California counsel often cite Tenderloin to serve “notices of unavailability” informing other counsel that they will be out of the office for a certain time period, and requesting opposing counsel not to schedule any matters requiring counsel’s presence or filed pleadings during that period under threat of sanction for ignoring the notice, the appellate panel explained.

In Tenderloin, counsel scheduled a deposition after being notified by opposing counsel, a solo practitioner, that she would be out of the country on vacation on that date.  Counsel refused to continue the deposition, and the solo practitioner, who was forced to return early, was granted sanctions because the court found that the deposition was timed in bad faith and with the intent to harass.

After Bauer concluded that Carl’s statement disclosed no legal grounds for disqualification and was untimely because Carl’s filings, if accepted, would not allow the court to respond to the statement within 10 days as required by Code of Civil Procedure Sec. 170.4(b), Carl filed a petition for a writ of mandate challenging the decision.

Ten-Day Limit

Noting that Carl could only challenge the order by filing such a petition within 10 days of written notice of the order’s entry, Div. Three rejected Carl’s argument that his “notice of unavailability” tolled the running of the limitation period.

“The purported function of this ‘notice’ was to arrest the power of the superior court to issue any order that would require or impose upon petitioner any legal obligation to act,” the court said.  “Simply put, petitioner essentially argues that by filing a ‘notice of unavailability’ he unilaterally called a litigation time-out.”

The court said that Carl’s argument failed for many reasons, but identified as the most obvious the facts that Carl could not enjoin the superior court from issuing orders; that he did not possess the power to extend statutory limitations periods; and that Carl’s petition was untimely under his own theory because he had filed it more than 10 days after the date upon which his notice indicated he would again become available.

The court said that it was explaining its reasons for denying Carl’s petition, in part, because the practice of filing notices of unavailability in the superior court permeated the appellate court system.

“We receive them on a regular basis and at all times during the appeal process:  they come before the record is filed, they come while the matter is being briefed, and they have even come after a matter has been submitted for decision,” the panel said.

Tenderloin, of course, merely holds that a trial court may impose sanctions against an attorney who conducts litigation in bad faith and solely for the purpose of harassment,” he justices continued. “There, among other things, the sanctioned attorney purposefully set discovery for times when he knew opposing counsel was on vacation and unavailable in order to gain an unfair, tactical advantage in the litigation. 

Nothing in Tenderloin, however, expressly condones the practice that has grown up around its name.  It has simply been made up.”

Such notices are neither authorized nor necessary in appellate practice, and counsel who file them in the future will have them returned, the panel declared. Under the Rules of Court, the justices said, “any party who feels the uncomfortable pinch of an oncoming deadline may seek appropriate relief.”

The case is Carl v. Superior Court (Coast Community College District), G038766.


Copyright 2007, Metropolitan News Company