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Oral Argument Lost Because Counsel Failed to Call Clerk Within an Hour of Posting the Tentative Ruling

Tim Kowal     June 14, 2021

You are ready for oral argument. You have checked the tentative and you are ready to explain why the judge got it wrong. But unfortunately, the Superior Court for this particular county does not hold oral argument unless, after the court posts the tentative ruling, you give notice to the court and opposing counsel that you still plan to argue. And that window of time can be as little as an hour.

So after giving notice you want a hearing, and filing papers listing the date and time of your requested hearing, the local rules presume you don't really want a hearing after all.

That was the case in Tearse v. Tearse (Jun. 9, 2021) no. A157576 (non-pub.), where a mother sought an order for adult child support. The trial court had continued a hearing on her request for order. The appellant needed to amend her request because the original did not sufficiently allege grounds for relief under Family Code section 3910. But the appellant did not timely file her amended request, and her attorney showed up at the hearing to explain she had tried to file it under seal but didn't realize she needed to obtain a sealing order first.

Too late, the court held. A tentative ruling had been issued the day before, and there was no notice of intent to argue received by the court by 4:00 p.m.

But counsel had looked at the court's website at 3:00, she argued, and there was no tentative. Counsel had to get the sealing request filed that day and could not sit around refreshing her browser all afternoon. And besides, counsel checked with the department at 4:20 while she was at the court filing her sealing motion, and still did not learn of any tentative having been posted.

Well, the court explained, it is true the court posted the tentative a little bit late at 3:10 p.m. So I would have given you until 4:10 p.m. You didn't get here till 4:20. Sorry.

Trial Court's Refusal to Hold Oral Argument Is Not Reversible Error:

Held: Even if the trial court erred (the Court of Appeal seems to assume it did), the error was not prejudicial. Counsel should have filed the amended request on time, and her claimed ignorance of the need to get a sealing order first is no excuse. (Strong  v. Sutter County Board of Supervisors (2010) 188 Cal.App.4th 482, 498 [“[A]n attorney is ‘ “presumed to know the laws and rules of procedure which govern the forms of litigation, the legal remedies, which he [or she] selects and pursues” ’ ”].)

Nor is the refusal to hold an oral argument a deprivation of due process. “Due process requires the opportunity to be heard, rather than an actual hearing.” (Traverso v. People ex rel. Dept. of Transportation (1993) 6 Cal.4th 1152, 1167; accord, In re Marriage of Spector (2018) 24 Cal.App.5th 201, 218.) “ ‘The essence of due process is the requirement that “a person in jeopardy of serious loss [be given] notice of the case against him and opportunity to meet it.” [Citation.] All that is necessary is that the procedures be tailored, in light of the decision to be made, to “the capacities and circumstances of those who are to be heard” [citation], to insure that they are given a meaningful opportunity to present their case.’ ” (Oberholzer v. Commission on Judicial Performance (1999) 20 Cal.4th 371, 392, quoting Mathews v. Eldrige (1976) 424 U.S. 319, 348–349.)

Here, the appellant had an opportunity at the first hearing, where the court allowed her to amend her request for order. When the appellant failed to timely do so, the lack of a further hearing was not a due process issue. “Certainly the Constitution does not require oral argument in all cases where only insubstantial or frivolous questions of law, or indeed even substantial ones, are raised.” (Federal Communications Commission v. WJR, The Goodwill Station (1949) 337 U.S. 265, 276.)

Tip: Always check your local rules. If your court requires telephonic notice of intent to orally argue, be sure to put that in your calendar at the same time you file your motion. And call the clerk and opposing counsel regardless of whether you see the tentative.

Comment:

The local rules of some California courts that condition the right to oral argument on providing notice within a short window the day before the hearing can be vexing, for a few reasons.

First, as counsel experienced in this case, busy trial judges do not always timely post their tentative rulings. Yet counsel may or may not be afforded similar flexibility. When the window to give notice is just one hour, the possibility for forfeiting oral argument is significant.

Second, while there is no absolute right to oral argument on every law and motion matter (Diaz-Barba v. Superior Court (2015) 236 Cal.App.4th 1470, 1490), parties are "entitled to oral argument in 'critical pretrial matters' where there is a 'real and genuine dispute.' " (Medix Ambulance Service, Inc. v. Superior Court (2002) 97 Cal.App.4th 109, 114 (Medix) [demurrer]; see Brannon v. Superior Court (2004) 114 Cal.App.4th 1203, 1210-1211 [motion for summary judgment]; TJX Companies, Inc. v. Superior Court (2001) 87 Cal.App.4th 747, 751 (TJX) [demurrer]; Titmas v. Superior Court (2001) 87 Cal.App.4th 738, 742 [motion to quash].)

There is authority that procedural rights established by statute and by the Rules of Court may not be abridged by local court rules. (See Wells Fargo Bank, N.A. v. Superior Court (1988) 206 Cal.App.3d 918 [local rules and practices may not be applied so as to prevent the filing and hearing of MSJ]; Sentry Ins. Co. v. Superior Court (1989) 207 Cal.App.3d 526. But see Brannon v. Superior Court (2004) 114 Cal.App.4th 1203, 1211 ["We have considered only the right to oral argument on a summary judgment motion. The extent to which oral argument may be required on another type of motion depends on the relevant statutory language and other factors unique to the governing statutory scheme. (See TJX Companies, Inc. v. Superior Court (2001) 87 Cal.App.4th 747, 750-751 [104 Cal.Rptr.2d 810] [setting forth factors relevant in determining whether a statute requires the opportunity for oral argument]; Titmas v. Superior Court (2001) 87 Cal.App.4th 738, 742 [104 Cal.Rptr.2d 803].)"].)

In short, local rules requiring notice of intent to orally argue be given in a short window the day before the hearing could be subject to stronger challenges in cases of dispositive motions and evidentiary hearings.

Third, while the result in this case is correct because it seems obvious there was no evidence that could have been offered at oral argument to change the outcome, a rule that so easily disposes of oral argument puts our judicial system in a bad light. While judges and attorneys know that the papers and evidence submitted in law-and-motion dwarf the importance of oral argument, the parties and public typically do not share that point of view. To nonlawyers, the deprivation of oral argument is tantamount to the deprivation of justice itself. Local rules that impose conditions seemingly designed to undermine the right to oral argument may unwittingly undermine the public's trust in our judicial system.

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at [email protected] or (714) 641-1232.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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