A few weeks ago, when we were brainstorming topic ideas, someone mentioned the idea of writing a post on what to do if you are planning a vacation -- Memorial Day weekend and summertime are approaching, after all. One of our editors mentioned Tenderloin notices as a "must do" before leaving.
Lies. All lies. It turns out that there is no support for the oft-used "Notice of Availability" in the text of Tenderloin Housing Clinic v. Sparks, and according to an appeals court in Carl v. Superior Court, the urban legend notices were "simply made up."
The True Tenderloin
How douchey can a lawyer get? From Tenderloin:
On April 18, 1991, Grayson advised Timothy Lee (Lee), appellant's trial counsel, that she would be away from San Francisco for two and one-half weeks, i.e., from April 30, 1991, through May 19, 1991, first at an arbitration proceeding in New York, then on a long-planned vacation in England. Shortly after the April 18 telephone conversation, Lee set three discovery motions for hearing on May 8, 1991, the time he knew Grayson would be away.
He's not done:
On May 9, 1991, Lee served two clients of Grayson's [...] with trial subpoenas requiring them to appear as witnesses in an unrelated third party action [...] on May 13, 1991.
Grayson tried to get the subpoenas quashed over the phone and through a contract attorney, but was denied on procedural grounds. She pleaded with Lee to delay the depositions, but he refused. She then cut short her vacation, but when she arrived, she found that the depositions had been canceled. Lee also tried to file a demurrer while she was gone -- had she not returned early, she would've missed the response deadline and defaulted.
Finding that Lee's actions were in bad faith and solely for the purpose of harassment, the trial court awarded $1,860 in sanctions: reimbursement for airfare and four days of lost vacation. The Appellate Court affirmed.
The Legend of Tenderloin
From that opinion, which nowhere mentions written notices, came the attorney-created Tenderloin notice. A typical example, courtesy of the Los Angeles County Bar [PDF], notes that the attorney:
[W]ill be unavailable for any settlement negotiations, depositions, court hearings, or other appearances, including, but not limited to, summary judgment and/or summary adjudication hearings. Purposefully scheduling a conflicting proceeding without good cause is sanctionable conduct. Tenderloin Housing Clinic, Inc. v. Sparks, 8 Cal. App. 4th 299, 307 (1992).
Where did it come from? No one really knows, but it actually isn't that far off of the law -- scheduling such matters during opposing counsel's vacation, if it is done in bad faith, is sanctionable. The written notice itself, however, has no legal basis.
In a terse, straight to the point opinion, a California appeals court in Carl debunked the Tenderloin myth in 2007, noting that while filing a "notice of unavailability" had become common practice in trial courts, "[t]o the extent this practice attempts to put control of the court's calendar in the hands of counsel -- as opposed to the judiciary-- is an impermissible infringement of the court's inherent powers."
In that case, an attorney filed a "notice of unavailability" immediately after filing a request to disqualify a judge. The appeals court rejected his attempt to "unilaterally call a litigation time-out," as well as any pervading notion amongst the bar that a "notice of availability" was a court-sanctioned practice, either at the trial court or appeals court level.
Does this mean that Tenderloin notices serve no purpose? Not exactly. These notices do provide written proof that opposing counsel was notified of counsel's unavailability, and can be helpful if frivolous filings or other bad faith actions are initiated while you are relaxing on a beach.
Just note that the notices have no legal effect and do not bar the court from acting in your absence.
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