Vm Courts Messages Meaning

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Monday,August 4, 2003

Vm Courts Message Meaning

Page7

ByROGER M. GRACE

Voicemail.

Phooey.

A myriad of recent technological advancementshas benefited lawyers and the courts, as well as society as a whole, beyondanything imaginable but a few decades back. I do remember batting outcomplaints on a manual typewriter, using carbon paper. More recently than that,there was manual Shepardizing, which meant going from case to case in the boundvolumes, a tedious process. No PCs, no hyperlinks, no Westlaw, no Internet.With a 33-cent stamp, letters could be sent “special delivery,” but there wasno e-mail. Faxing (though the technology existed) was not in common usage.

Hurrah for the progress in technology!

Voicemail, however, is nothing more than anupdated version of the answering machine, a gadget which some find useful, butI personally have never wanted to have, any more than I’ve wished for anelectric pencil sharpener or a solar powered onion grater.

Whether you’re enchanted by voicemail and/oranswering machines, or share my antipathy toward them, I hope you’ll concurthat when last-minute notice has to be provided in connection with courtproceedings, messages left on these devices should not be deemed to suffice.

Answering machines have beenaround since 1935. They foundfavor with Orthodox Jews who weren’t permitted to answer the phone on Saturdays,the Sabbath. The first commercially successful answering machine, Ansa Fone,hit the market in the U.S.in 1960, an import from Japan.

Then came voicemail, offered by phone companiesstarting in 1990. Basically, it’s an answering machine, but the recording isn’ton a machine attached to the phone. In digital form, it’s out there, in a Bellcomputer, or somewhere.

Voicemail is not merely in widespread use, butover-use, as I see it. It’s often difficult, nowadays, to get a human being onthe line.

While there are many who love to blabber long messagesinto recording devices, the most I ever utter is my name and phone number. Ihate talking to machines. Maybe it’s an uppity attitude. Perhaps it amounts toinvidious discrimination. Possibly someday, like on the science fiction radioprograms of the 1950s, computers will take over the world; I’d be haled beforethe House Committee on Un-Machine Activities and made to account for my anti-contraptionism.Nonetheless, when I telephone someone, I want to talk to that person, or atleast to a human being who will take a message, not to some gizmo.

This aversion of mine to using voicemail is, ofcourse, strictly subjective. There are, however, drawbacks to voicemail withobjective bases.

When a human being takes a message and discerns anurgency to it being communicated, efforts can be taken to track down theintended recipient of the message. Machines, on the other hand, can’t exercisediscretion, can’t phone home numbers, can’t run into the parking lot to shoutto someone who’s leaving that there’s an important call on hold.

The worst part about voicemail is that there’s atendency on the part of those who leave voicemail messages to suppose that acommunication has been completed. It hasn’t. Communication takes place onlywhen the recording is played back. The problem arises where A assumes that Bhas been told something because a voicemail was left, but B, in fact, does notknow it, because B’s voicemail messages have not been picked up.

Telling something to a machine is just not thesame as telling it to a person.

I recently came into court,expecting to argue a motion — but the motion wasn’t on calendar. It seems thecourtroom clerk had telephoned our office late the previous afternoon and leftword on my daughter’s voicemail that the matter was being continued, apparentlysupposing that this constituted communication. Wrong. My daughter (andco-counsel) had left the office early that day and didn’t listen to thevoicemail until right about the time I was showing up for court.

As it happened, I wasin the office until about 7 p.m. on the day the clerk telephoned. While Idon’t have a voice mailbox, I do have a phone on my desk. Telling me about the continuance would haveresulted in actual notice. But, the clerk was content to leave a voicemail,ignoring the potential inefficacy of that approach.

Well, at least there was some effort—thoughfeeble—to make contact. It is far from unheard of for courts to continuematters the morning of scheduled hearings when the need for the delay wasappreciated before then. The failure to make any effort, at all, to give noticeis plainly unconscionable, though no court rule expressly mandates notice inthat situation.

It seems to me there ought to be a requirementthat notice be afforded tout de suitewhen circumstances develop precluding a court from hearing a matter asscheduled.

Courtesy is expected of counsel; it should noless be expected of courts. California Rules of Court, rule 321(b) provides:“The moving party must immediately notify the court if a matter will not beheard on the scheduled date.” (Effective last Jan. 1, the words “mustimmediately” were substituted for “shall promptly.”) Given the potentiallysubstantial inconvenience to counsel and expense to parties arising fromsurprise continuances by courts, Rule 321 should be amended, or a new ruleshould be added, obliging courts to “immediately” give notice of changes inscheduling.

And, when notice is given too close to a hearingfor regular mail to be effective, meaningful efforts should be required to makecontact—with voicemail being a last-resort means.

Probably the most commoncircumstance under which last-minutenotice is given is where a party plans to make an ex parte motion. CaliforniaRules of Court, rule 379 governs.

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It requires a declaration which, normally, mustshow that “the applicant informed the opposing party when and where theapplication would be made,” with the declaration specifying “the notice given,including the date, time, manner, and name of the party informed.” The ruledictates: “A party seeking an ex parte order must notify all parties no laterthan 10:00 a.m.the court day before the ex parte appearance….”

That verbiage does not preclude the contentionby an applicant that an adversary who doesn’t show up was “informed” of theproceeding and thus given “notice” by virtue of a voicemail having been left.

Yet, given the shortness of the time before thehearing (which now can be a shade less than 24 hours), and the distinctpossibility than a voicemail won’t be picked up during such a brief interval,it seems to me that purported notice by this means should be discounted.

Voicemail should be used simply to seek a returncall, so that notice may be given when that call comes (for the next day ifit’s before 10 or for the day after if the return call is later than then).

Clearly, actual knowledgeon the part of opposing counsel by 10 a.m. isn’t required. There’s little doubtthat it’s enough to leave a message with a secretary or someone else (well, notthe Sparkletts deliveryman, but someone who’s apt to appreciate the nature ofthe notice). The difference between this and entrusting the notice to a machineis that in the latter instance, the caller simply has no reasonable basis forexpecting the communication to reach the attention of opposing counsel in aprompt manner. A secretary, on the other hand, can attempt to locate theattorney, bring the matter to the attention of an associate, or otherwise reactwith a sense of urgency.

There is, of course, many an attorney who has nosecretary, and there’s no one else in the office. If the attorney is offsomewhere but, by a recorded message, invites the caller to leave a voicemail,is this, under a better-than-nothing theory, adequate notice? I’d suggest itisn’t. The fact that there’s no alternative in this scenario of leaving themessage with a secretary, paralegal, or other attorney in no way enhances theprospect that the voicemail will be effective in alerting the lawyer to theneed to be in court the next morning.

For a motion to be made on an ex parte basis,there is, necessarily, such urgency as precludes a noticed motion. That doesn’tmean that every ex parte motion needs to be made the very next day, however. Ifopposing counsel can’t be reached by telephone and there’s no one to take amessage by 10 a.m.,and there’s no emergency precluding a slight delay, the logical step is toshift gears and plan the motion for a few days off. This would permit time tomake contact by telephone or to effect delivery of written notice.

Inasmuch as the argument against notice byvoicemail is its potential ineffectiveness in providing quick notice—should notice by this meansbe given effect when the hearing is slated for three or four days ahead? Sure.By then, voicemail messages are bound to be picked up. It would be reasonablefor a court rule to provide that a voicemail has the effect of notice after,say, 48 hours (akin to the extension of the period of notice by two days wherenoticed motions are served, pursuant to the parties’ agreement, by fax). Whatis, unreasonable, however, is where judges, operating under present rules, nowhonor voicemail messages left before 10 a.m. one day as proper notice of an ex partehearing the following day at 8:30 a.m.

(Where there is such a delay, there would, orshould be, additional notice of a superior sort. Under subd. (h) of Rule 379,service of the application for an ex parte order and the attachments must beeffected “at the first reasonable opportunity.” It’s funny how the firstreasonable opportunity to serve those papers practically never arises until themorning of the hearing. After all, they just weren’t finished until the nightbefore. If, however, there is a delay of a few days, it stands to reason thatthe papers could actually be served on opposing counsel by 10 a.m. the day before the hearing. Under LosAngeles County Rules of Court, rule 7.12(b)(4) service, when there’s not enoughtime to use the mails, must be made “personally or by facsimile transmission.”A written notice of the hearing could be the first paper in the batch.)

If there is a true emergency situationnecessitating a motion the next day, a pitch could be made to judge to excusethe lack of notice. Rule 379 does generally require, in that circumstance, adeclaration as to the good faith efforts that were made to reach the otherside. Leaving voicemails, while not notice perse, does show an effort to make contact.

I’ve spotted only two publisheddecisions dealing with theefficacy of notice left on a recording device. They are:

•SonomaCounty Nuclear Free Zone ’86 v. Superior Court(1987) 189 Cal.App.3d 167. There, it was more than an interim order that wasgranted on an ex parte basis; it was a peremptory writ of mandate, issued inthe first instance. Civil Code §1088 requires notice to the other side beforesuch a writ is allowed, and the requirement has been held to be jurisdictional.

The trial court had granted a writ ordering thecounty clerk to publish a late-filed ballot argument against a proposition onthe ballot, with the only advisement of the emergency hearing being a messageleft on the answering machine of the group backing the measure. A “yes” votewould have declared the county a “nuclear free zone” (“NFZ”).

The First District Court of Appeal held that thepurported notice was insufficient. Then-Justice Zerne Haning III (sinceretired) wrote:

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“Con-NFZ attempted notice by telephoning Pro-NFZat the number listed in the group’s initiative petitions. The call was taken byan answering machine, which recorded a message not discovered until after thehearing. As proponents of a controversial initiative, Pro-NFZ should haveanticipated becoming a party to emergency litigation and should have monitoredmore frequently its telephone messages. This unfortunate lapse, however, doesnot excuse Con-NFZ from affording actual notice of the hearing, because thetelephone number was not the only method known to Con-NFZ of effecting notice.”

The address and phone number of a primeproponent of the proposition was contained on another election document, andthe anti-NFZ knew that another sponsor lived right near the courthouse, Haningnoted. He continued:

“We can only conclude Con-NFZ could have givenactual notice of the hearing without the risk of reliance on a recordingdevice, but for some reason chose not to. Under these circumstances we concludePro-NFZ was inexcusably provided no actual notice of the hearing.”

•Datigv. Dove Books, Inc. (1999) 73 Cal.App.4th964. The opinion, by Justice H. Walter Croskey of this district’s Div. Three,pooh poohs five stabs which the defendants’ attorney made at giving notice ofan ex parte motion. The motion, which was unopposed and was granted, was for adismissal of the complaint. It was based on the plaintiff’s alleged failure toamend the complaint within the 20 days allotted after the sustaining of ademurrer. Efforts to contact the plaintiff’s attorney included two voicemails.

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Those voicemails were found ineffectual becauseof the content of them—no notice as to time and place of the hearing and reliefto be sought, merely a request to return the call—and because there was noshowing that the messages were left according to the time requirement. Theimplication of Croskey’s opinion (and it is merely that) is that the voicemailswould have sufficed had the caller reeled off the specifics and left them in atimely manner.

Those voicemails should have been disregarded, Isubmit, for the very reason that they were voicemails. There was no reasonablebasis for assuming that the plaintiff’s lawyer had listened to them.

Tomorrow, I’ll discuss a couple unpublisheddecisions on this subject and get into the matters of notice by e-mail and fax.

Copyright 2003, Metropolitan News Company

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