Ah, the perfect pre-holiday ruling: A state appellate panel late Wednesday gave loud and somewhat grouchy notice that lawyers can no longer dictate the terms of their availability. Taking aim at a practice it says is premised on nothing more than "made up" authority, a three-justice panel in Santa Ana warned that the Fourth District won't accept so-called "notices of unavailability," which it says have become common in trial courts in the years since a 1992 case, Tenderloin Housing Clinic v. Sparks, was decided.
According to the per curiam opinion (.pdf), that case held that an attorney can be sanctioned for intentionally timing filings to land while an opponent is on vacation. That's led lawyers to send opponents — and courts — notices setting out dates they aren't available.
In the petition dispatched Wednesday, attorney David Williams filed a statement of disqualification against the judge assigned to his client's case, then sent a notice saying he wouldn't be available to respond to anything for more than a month. Since trial judge Judge Ronald Bauer has only 10 days to act, he ignored the notice and ordered the statement stricken.
It gets better.
The petition filed with the court of appeal was itself untimely, but Williams told the justices that was because Bauer hadn't served him — he'd only served his client. For proof, he attached a fax cover sheet addressed to his client. Nice try, but the justices pulled the superior court file and noted that it contains a fax cover sheet addressed to Williams, as well.
Even though the petition was untimely under any theory, the justices took the trouble to debunk Williams' claim that his "notice" could somehow stop the clock. "Simply put, petitioner essentially argues that by filing a 'notice of unavailability' he unilaterally called a litigation time-out." Alas, the court concluded, "petitioner cannot on his own enjoin the superior court from issuing orders."
Nor should lawyers try to stop the Fourth District's from doing so. Having gotten its start in the trial courts, the practice now "permeates" the appellate process, according to the opinion in Carl v. Superior Court, which was signed by Justices David Sills, Richard Aronson and Raymond Ikola. The notices now arrive, they note, "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."
Bet they won't be coming any more.
— Greg Mitchell