Business and attorneys with litigation in California should review a strongly worded decision by the California Court of Appeal, Fourth Appellate District, regarding the use of the “notice of unavailability” by attorneys. The practice arose in the wake of the decision in Tenderloin Housing Clinic, Inc. v. Sparks (1992) 8 Cal.App.4th 299 [10 Cal.Rptr.2d 371]. Attorneys often make use of the notice procedure in situations, such as a planned vacation, to preemptively ward off surprise attacks from opposing counsel. In Carl v. Superior Court (2007), the Court of Appeal expressed its frustration with what it views as the abuse of this practice. According to the court, “to the extent this practice attempts to put control of the court’s calendar in the hands of counsel – as opposed to the judiciary – it is an impermissible infringement of the court’s inherent powers.
The issue arose after Carl filed a statement of disqualification against the assigned trial judge on April 4, 2007. Carl then filed a notice of unavailability under Tenderloin, indicating that he would be unavailable to respond to anything until May 11, 2007. Under Code of Civil Procedure section 170.3, a judge must act on a statement of disqualification within ten days or be deemed to have consented to the disqualification. On April 13, 2007, during the time period Carl claimed he would be “unavailable,” the trial judge struck the statement of disqualification because it disclosed no legal grounds for disqualification and was untimely. Carl did not file his petition for writ of mandate with respect to the disqualification order until June 11, 2007, outside the ten-day window provided in Code of Civil Procedure section 170.3
The Court of Appeal rejected Carl’s contention that his petition was timely because the trial judge acted improperly by issuing a ruling during the time period specified in his notice of unavailability. The court rejected the idea that under Tenderloin, a notice of unavailability has the effect of prohibiting opposing counsel or the court from taking any action during that period which adversely affects the unavailable party. As the court described it, “simply put, petitioner essentially argues that by filing a ‘notice of unavailability’ he unilaterally called a litigation time-out.” The court strongly disagreed, noting that the petitioner had no power to stop a superior court from issuing orders and could not use a notice of unavailability to extend statutorily imposed deadlines or time periods.
The court went on to harshly attack the practice of filing notices of unavailability, explaining that the practice of filing notices in the superior court “now permeates the appellate 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.”
But no more. The court questioned the very premise for filing notices of unavailability, stating that Tenderloin merely holds that that a trial court may impose sanctions against an attorney who conducts litigation in bad faith and solely for the purpose of harassment.” According to the court, “nothing in Tenderloin, however, expressly condones the practice that has grown up around its name. It has simply been made up.”
The Carl court made it very clear that there was no authority for filing notices of unavailability in the appellate courts, and Carl also calls into question the use of the practice in the trial courts. In the wake of Carl, the “notice of availability” may itself become unavailable.
Full Opinion Text: http://www.courtinfo.ca.gov/opinions/documents/G038766.PDF