Monday, August 4, 2003
Page 7
PERSPECTIVES (Column)
Leaving a Voicemail Doesn’t Constitute Meaningful Notice
By ROGER M. GRACE
Voicemail.
Phooey.
A myriad of recent technological advancements has benefited lawyers and the courts, as well as society as a whole, beyond anything imaginable but a few decades back. I do remember batting out complaints on a manual typewriter, using carbon paper. More recently than that, there was manual Shepardizing, which meant going from case to case in the bound volumes, a tedious process. No PCs, no hyperlinks, no Westlaw, no Internet. With a 33-cent stamp, letters could be sent “special delivery,” but there was no e-mail. Faxing (though the technology existed) was not in common usage.
Hurrah for the progress in technology!
Voicemail, however, is nothing more than an updated version of the answering machine, a gadget which some find useful, but I personally have never wanted to have, any more than I’ve wished for an electric pencil sharpener or a solar powered onion grater.
Whether you’re enchanted by voicemail and/or answering machines, or share my antipathy toward them, I hope you’ll concur that when last-minute notice has to be provided in connection with court proceedings, messages left on these devices should not be deemed to suffice.
Answering machines have been around since 1935. They found favor 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 companies starting in 1990. Basically, it’s an answering machine, but the recording isn’t on a machine attached to the phone. In digital form, it’s out there, in a Bell computer, or somewhere.
Voicemail is not merely in widespread use, but over-use, as I see it. It’s often difficult, nowadays, to get a human being on the line.
While there are many who love to blabber long messages into recording devices, the most I ever utter is my name and phone number. I hate talking to machines. Maybe it’s an uppity attitude. Perhaps it amounts to invidious discrimination. Possibly someday, like on the science fiction radio programs of the 1950s, computers will take over the world; I’d be haled before the 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 at least to a human being who will take a message, not to some gizmo.
This aversion of mine to using voicemail is, of course, strictly subjective. There are, however, drawbacks to voicemail with objective bases.
When a human being takes a message and discerns an urgency to it being communicated, efforts can be taken to track down the intended recipient of the message. Machines, on the other hand, can’t exercise discretion, can’t phone home numbers, can’t run into the parking lot to shout to someone who’s leaving that there’s an important call on hold.
The worst part about voicemail is that there’s a tendency on the part of those who leave voicemail messages to suppose that a communication has been completed. It hasn’t. Communication takes place only when the recording is played back. The problem arises where A assumes that B has been told something because a voicemail was left, but B, in fact, does not know it, because B’s voicemail messages have not been picked up.
Telling something to a machine is just not the same 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 the courtroom clerk had telephoned our office late the previous afternoon and left word on my daughter’s voicemail that the matter was being continued, apparently supposing that this constituted communication. Wrong. My daughter (and co-counsel) had left the office early that day and didn’t listen to the voicemail until right about the time I was showing up for court.
As it happened, I was in the office until about 7 p.m. on the day the clerk telephoned. While I don’t have a voice mailbox, I do have a phone on my desk. Telling me about the continuance would have resulted 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—though feeble—to make contact. It is far from unheard of for courts to continue matters the morning of scheduled hearings when the need for the delay was appreciated before then. The failure to make any effort, at all, to give notice is plainly unconscionable, though no court rule expressly mandates notice in that situation.
It seems to me there ought to be a requirement that notice be afforded tout de suite when circumstances develop precluding a court from hearing a matter as scheduled.
Courtesy is expected of counsel; it should no less 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 be heard on the scheduled date.” (Effective last Jan. 1, the words “must immediately” were substituted for “shall promptly.”) Given the potentially substantial inconvenience to counsel and expense to parties arising from surprise continuances by courts, Rule 321 should be amended, or a new rule should be added, obliging courts to “immediately” give notice of changes in scheduling.
And, when notice is given too close to a hearing for regular mail to be effective, meaningful efforts should be required to make contact—with voicemail being a last-resort means.
Probably the most common circumstance under which last-minute notice is given is where a party plans to make an ex parte motion. California Rules of Court, rule 379 governs.
It requires a declaration which, normally, must show that “the applicant informed the opposing party when and where the application would be made,” with the declaration specifying “the notice given, including the date, time, manner, and name of the party informed.” The rule dictates: “A party seeking an ex parte order must notify all parties no later than 10:00 a.m. the court day before the ex parte appearance….”
That verbiage does not preclude the contention by an applicant that an adversary who doesn’t show up was “informed” of the proceeding and thus given “notice” by virtue of a voicemail having been left.
Yet, given the shortness of the time before the hearing (which now can be a shade less than 24 hours), and the distinct possibility 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 return call, so that notice may be given when that call comes (for the next day if it’s before 10 or for the day after if the return call is later than then).
Clearly, actual knowledge on the part of opposing counsel by 10 a.m. isn’t required. There’s little doubt that it’s enough to leave a message with a secretary or someone else (well, not the Sparkletts deliveryman, but someone who’s apt to appreciate the nature of the notice). The difference between this and entrusting the notice to a machine is that in the latter instance, the caller simply has no reasonable basis for expecting the communication to reach the attention of opposing counsel in a prompt manner. A secretary, on the other hand, can attempt to locate the attorney, bring the matter to the attention of an associate, or otherwise react with a sense of urgency.
There is, of course, many an attorney who has no secretary, and there’s no one else in the office. If the attorney is off somewhere 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 it isn’t. The fact that there’s no alternative in this scenario of leaving the message with a secretary, paralegal, or other attorney in no way enhances the prospect that the voicemail will be effective in alerting the lawyer to the need 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’t mean that every ex parte motion needs to be made the very next day, however. If opposing counsel can’t be reached by telephone and there’s no one to take a message by 10 a.m., and there’s no emergency precluding a slight delay, the logical step is to shift gears and plan the motion for a few days off. This would permit time to make contact by telephone or to effect delivery of written notice.
Inasmuch as the argument against notice by voicemail is its potential ineffectiveness in providing quick notice—should notice by this means be 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 reasonable for 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 where noticed motions are served, pursuant to the parties’ agreement, by fax). What is, unreasonable, however, is where judges, operating under present rules, now honor voicemail messages left before 10 a.m. one day as proper notice of an ex parte hearing the following day at 8:30 a.m.
(Where there is such a delay, there would, or should 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 be effected “at the first reasonable opportunity.” It’s funny how the first reasonable opportunity to serve those papers practically never arises until the morning of the hearing. After all, they just weren’t finished until the night before. If, however, there is a delay of a few days, it stands to reason that the papers could actually be served on opposing counsel by 10 a.m. the day before the hearing. Under Los Angeles County Rules of Court, rule 7.12(b)(4) service, when there’s not enough time 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 situation necessitating a motion the next day, a pitch could be made to judge to excuse the lack of notice. Rule 379 does generally require, in that circumstance, a declaration as to the good faith efforts that were made to reach the other side. Leaving voicemails, while not notice per se, does show an effort to make contact.
I’ve spotted only two published decisions dealing with the efficacy of notice left on a recording device. They are:
•Sonoma County Nuclear Free Zone ’86 v. Superior Court (1987) 189 Cal.App.3d 167. There, it was more than an interim order that was granted on an ex parte basis; it was a peremptory writ of mandate, issued in the first instance. Civil Code §1088 requires notice to the other side before such a writ is allowed, and the requirement has been held to be jurisdictional.
The trial court had granted a writ ordering the county clerk to publish a late-filed ballot argument against a proposition on the ballot, with the only advisement of the emergency hearing being a message left on the answering machine of the group backing the measure. A “yes” vote would have declared the county a “nuclear free zone” (“NFZ”).
The First District Court of Appeal held that the purported notice was insufficient. Then-Justice Zerne Haning III (since retired) wrote:
“Con-NFZ attempted notice by telephoning Pro-NFZ at the number listed in the group’s initiative petitions. The call was taken by an answering machine, which recorded a message not discovered until after the hearing. As proponents of a controversial initiative, Pro-NFZ should have anticipated becoming a party to emergency litigation and should have monitored more frequently its telephone messages. This unfortunate lapse, however, does not excuse Con-NFZ from affording actual notice of the hearing, because the telephone number was not the only method known to Con-NFZ of effecting notice.”
The address and phone number of a prime proponent of the proposition was contained on another election document, and the anti-NFZ knew that another sponsor lived right near the courthouse, Haning noted. He continued:
“We can only conclude Con-NFZ could have given actual notice of the hearing without the risk of reliance on a recording device, but for some reason chose not to. Under these circumstances we conclude Pro-NFZ was inexcusably provided no actual notice of the hearing.”
•Datig v. Dove Books, Inc. (1999) 73 Cal.App.4th 964. 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 of an ex parte motion. The motion, which was unopposed and was granted, was for a dismissal of the complaint. It was based on the plaintiff’s alleged failure to amend the complaint within the 20 days allotted after the sustaining of a demurrer. Efforts to contact the plaintiff’s attorney included two voicemails.
Those voicemails were found ineffectual because of the content of them—no notice as to time and place of the hearing and relief to be sought, merely a request to return the call—and because there was no showing that the messages were left according to the time requirement. The implication of Croskey’s opinion (and it is merely that) is that the voicemails would have sufficed had the caller reeled off the specifics and left them in a timely manner.
Those voicemails should have been disregarded, I submit, for the very reason that they were voicemails. There was no reasonable basis for assuming that the plaintiff’s lawyer had listened to them.
Tomorrow, I’ll discuss a couple unpublished decisions on this subject and get into the matters of notice by e-mail and fax.
Copyright 2003, Metropolitan News Company