Legal Question in Family Law in California

It means that the court has been flooded with these notices ever since a court of appeals declared that when some attorney tried to screw another attorney by scheduling something when they knew the other attorney would be unavailable, the attorney who pulled the stunt not only lost the motion but paid sanctions. The court doesn't want the file cluttered with these notices, particularly since the court is not obligated in any way to follow them. So you serve them on the other attorneys and parties and leave the court out of it.

Agree with Mr. McCormick. But to clarify, attorneys, when they are planning on a vacation or know that they will otherwise be unavailable, put out a notice of unavailability to discourage the other side from scheduling something in the case (e.g. exparte) during the period of unavailability. The court is no longer accepting these notices for filing.

Notices of unavailability arose in the wake of the decision in Tenderloin Housing Clinic, Inc. v. Sparks (1992) 8 Cal.App.4th 299. They became ubiquitous.

In 2007, the Fourth District Court of Appeal held that �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." (Carl v. Superior Court (2007) 157 Cal.App.4th 73.)

To corrct what Mr. McCormick stated, in Carl v. Supeiror Court, the attorney actually tried to screw the court over, not opposing counsel. 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.

You can read the decision here: http://scholar.google.com/scholar_case?case=9262413179727711452&hl=en&as_sdt=2&as_vis=1&oi=scholarr

In the wake of the Carl decision, some courts are rejecting them outright. Other courts, however, continue to allow them. I have this problem in a case in Los Angeles right now, where opposing counsel obtained an ex parte order requiring me to respond while he was unavailable, scheduled mediation while he was unavailable, and served discovery requiring responses and a protective order while he was unavailable. He now threatens to have me sanctioned for responding while he is "unavailable" but the trial judge thinks this is OK.