Voicemail, Answering Machines, E-Mail, Fax: They Don't Provide Instant Notice

Tuesday, August 5, 2003

Page 7

PERSPECTIVES (Column)

Voicemail, Answering Machines, E-Mail, Fax: They Don’t Provide Instant Notice

By ROGER M. GRACE

Scene One. Time: morning. Place: a law office.

An attorney determines that an ex parte motion needs to be made tomorrow. California Rules of Court rule 379 requires notice to the other side by 10 a.m. today. The attorney telephones opposing counsel at 9:59 a.m. Only voicemail is available. The lawyer leaves a message, setting forth the time and place of the hearing and what relief will be sought, and inquiring if the motion will be opposed, as required by the rule.

There’s no call back. The lawyer executes the required declaration setting forth the giving of notice.

Scene Two. Time: the next day, 8:30 a.m. Place: the courtroom.

The ex parte motion is made. No one has shown up to oppose it. It’s granted.

Is there a problem here?

As I discussed here yesterday, I would question whether a recitation to an audio recording mechanism constitutes “notice,” given the uncertainty as to when the message is going to be played back. It well might be heard only after the hearing has taken place.

And what if the recipient does hear the message the day it was left—but at 5 in the afternoon, or 11 at night? Was “notice” given by 10 a.m., as required by the state rule, or was the giving of notice merely set in motion but not actualized until it was heard? I think the latter is the case.

Notification to a machine—unlike that given to a secretary or other human being in the attorney’s office who is likely to pay heed to the information—is like a letter not yet delivered. It is a potential communication, its purpose yet unrealized.

A secretary could be thought of, in a loose sense, as an “agent” of the attorney for receiving notice. If you give the message to a secretary at 9:59 a.m., there’s notice before 10. I would find it difficult to think of a machine performing an “agency” function.

Under the premise that a voicemail is “notice” only after it’s listened to, and given that only the recipient knows when he or she heard it, the party who has left a voicemail cannot make the requisite statement in a declaration as to when notice was given. Only if the recipient calls back or otherwise acknowledges the voicemail by 10 a.m. should the notice requirement be found to have been met for a hearing the next day.

There’s an excellent analysis in McCullough v. Department of Personnel Administration, C038937, decided last year by the Third District Court of Appeal. It’s regrettable the opinion wasn’t published. It concerned purported notice via a telephone recording device.

The appeals court reversed the denial of a writ petition sought by Rina McCullough, who was deemed to have resigned when she didn’t show up for work at the Department of Motor Vehicles. An administrative hearing was scheduled by the Department of Personnel Administration for Monday, Feb. 28, 2000, but a few days before then, her union let McCullough know it wouldn’t be representing her. It agreed to ask the hearing officer for a continuance so she could obtain other counsel. On the Friday before the scheduled hearing, the hearing officer denied an ex parte request for a continuance, and instructed her secretary to let McCullough know by phone. McCullough did not appear the following Monday, and the decision went against her.

Leaving “an inchoate verbal message with an answering machine or voice mail, or whatever form of message storage it may have constituted” wasn’t good enough, Justice Rodney Davis wrote. “There is no showing this last minute notification on Friday was a method reasonably certain to accomplish actual notice of plaintiff’s need to appear on Monday,” he said.

Davis remarked that there was no need to reach the issue “of whether this phone call to an answering machine violated the plaintiff’s right to due process” — but then appeared to find that due process, indeed, had been abridged. He said there was a “denial of the plaintiff’s right to a fair hearing…, given the substantial chance that the plaintiff never received the oral message.”

The fact that a voicemail has been received merely means it is stored somewhere in the form of scads of bits (ones and zeroes) on a magnetic medium. It does not mean it has come to the attention of the intended human recipient. The common propensity of voicemail recipients to play back messages in batches virtually assures delays.

Voicemails are, as Davis aptly phrased it, “inchoate” communications, not completed until heard. Until that occurs, there’s no notice.

There’s even less to be said for notice via answering machines. Those devices offer less security than voicemail and a far higher chance of mechanical glitches.

Court of Appeal Presiding Justice Dennis Perluss of this district’s Div. Seven has a contrary view. He declared in a July 24 opinion that leaving word on an answering machine can constitute actual notice.

Perluss’ view was set forth in In re Raven S., B164003. The opinion was not certified for publication (but, since it was filed only 12 days ago, a prospect remains that it might wind up in the Official Reports).

An issue in the case was whether a father, Glenn S., who didn’t appear at a properly noticed hearing relating to the termination of his parental rights, was given adequate notice of the continuation of that hearing. His lawyer tried to reach S. at his mother’s house, where he lived, leaving two messages on the answering machine for the client to call him. Perluss declared that an “inference of actual notice is reasonable in this case.”

The jurist indicated in a footnote that the panel was “not entirely convinced” of the correctness of cases that require notice of the continuation of such a hearing, but declined to tackle that issue, saying it was unnecessary to the decision in the present case. There does seem to be something to be said for the notion that someone who’s received proper notice of a hearing and chooses not to show up forfeits entitlement to notice of a further hearing. Rather than embracing that proposition, was the opinion inferred notice when, plainly, none was given.

Under the facts set forth in the opinion, no reader would be rooting for Glenn S. to regain custody of his daughter, nor suppose that the outcome would have been any different if the father had attended the hearing. (Perluss observed that if there was a defect in notice, the error was harmless.) Nonetheless, the proposition that a lawyer’s acknowledgement of having left word on an answering machine for his client to call constitutes actual notice of a hearing is an insult to the reader’s intelligence.

It’s noteworthy that all that the lawyer acknowledged was having left two messages to call. Squeezing more than that out of the concession, Perluss observed that “Glenn S.’s lawyer never asserted he had not communicated the correct hearing date in those two telephone messages.” This is strained reasoning one might expect of a desperate advocate, not a jurist. The concession by the lawyer that he left a message for his client to call him is a concession of that, nothing more.

In Datig v. Dove Books (1999) 73 Cal.App.4th 964, referred to in yesterday’s column, the Court of Appeal found facially inadequate as a notice of an ex parte hearing this message left on a voicemail: “Rod, this is Steve Soloway, can you call me, thanks.” Justice H. Walter Croskey of this district’s Div. Three wrote: “[C]alling plaintiff’s counsel and leaving a message for him to call back is not notice of anything.” Under Perluss’ reasoning, it must be inferred that Soloway also gave Rod the specifics because there’s no evidence that he didn’t.

It is unknown whether Glenn S. received the messages. Yet, Perluss infers actual notice. How does Perluss know that the mother didn’t skip through the messages on the answering machine and miss the ones from the lawyer, or neglect to pass them on to sonny? How does he know the tape didn’t get mangled? That a neighbor’s kid didn’t spill grape juice on the tape, ruining it. That it wasn’t accidentally erased? That the playback mechanism wasn’t jammed?

He knows nothing other than what’s in the court record—a statement by the lawyer at a trial court hearing that he twice told an answering machine that he wanted Glenn to give him a jingle.

What Perluss overlooks is that if a telephone number is known, reverse directories are available that will reveal the address. Glenn S. presumably could have been apprised of the continuance in writing.

In a case in which it did matter whether actual notice had been given, application of Perluss’ reasoning would stand out as an affront to due process.

And then there is e-mail. That means of communication has decided advantages over other modes.

It provides a means of instantaneous sending of documents as attachments. There’s no fuzziness, as on faxes. It’s possible to “cut and paste” from e-mailed documents. While there’s no statutory provision yet for service by e-mail, agreements to exchange courtesy copies of documents by this means are beneficial to both sides.

E-mails permit back-and-forth discourses with opposing counsel that have two advantages. There’s time to formulate statements with more precision than those blurted out in conversation. There can’t be a disagreement as to what was said because it’s in writing. This method is quicker and easier than drafting letters and mailing or faxing them.

Los Angeles Superior Court Judge William F. Highberger, in a now-completed case, recently permitted communications from opposing counsel and myself via e-mail, obviating the need for the other side to make an ex parte appearance to get the court’s OK on something. (The judge had copies of the e-mails placed in the court file.) That struck me as an intelligent use of a technology that is under-utilized by the courts.

Nonetheless, e-mail suffers from the same infirmity as voicemail, so far as last-minute notice is concerned. There’s a lack of assurance that the communication will attract human attention in a timely manner.

Notice of ex parte proceedings by fax presents distinct issues.

Code of Civil Procedure Secs. 1010.6(6) and 1013(e); California Rules of Court, rule 2008; and Los Angeles County Rules, rule 18.0(g) permit “service” of notice by fax, but only where agreed to by the parties. Does this apply to ex parte motions? I’d suggest it doesn’t.

Application of those provisions would not seem to be contemplated by Rule 379. That rule permits oral notifications. Yet, Secs. 1010.6(6) and 1013(e) are contained among, and linked to, provisions that relate to notices which must, of necessity, be in writing. Sec. 1005, which sets forth the time requirement for most noticed motions, prescribes “written notice,” and §1010 provides that “[n]otices must be in writing.” The provisions in the rules for fax agreements do not appear to have any broader application than the statutes which the rules mirror.

Moreover, the fax provisions refer to “service” of notices—which implies physical delivery of a writing. It would seem oxymoronic to speak in terms of “oral service” of notice. Rule 379 refers to notice of the hearing being “given.” It doesn’t say that notice is “served,” nor would use of that word be sensible where notification may be oral.

There would appear to be no express rule barring notification of an ex parte hearing by fax, just as there is no rule barring such notification by voicemail.

A fax does have distinct advantages over voicemails as a means of giving notice. A fax is a communiqué printed on paper as it arrives. It is there in the recipient’s office, in physical, concrete form—not something amorphous like a voicemail, electronic signals on a computer, dormant until activated. A fax is, from its inception, real; a voicemail is nothing but potential sound.

Transmissions to conventional fax machines bob out as they are received; they don’t have to be fetched, as voicemails do. If the addressee of the fax isn’t in the office at the moment, others are apt to come across the fax and set in motion the preparation of opposition. By contrast, it’s unlikely that anyone else will review the absent lawyer’s voicemail.

On the other hand, fax machines do jam. Wrong numbers are dialed, with the sender often being oblivious to the error. And, there’s a tendency for faxes to stack up in offices—sometimes for hours—before anyone disburses them to the addressees.

While the statutes and rules relating to service by fax would seem be inapplicable to ex parte hearings, a legislative determination underlying them is worthy of note. It has apparently been discerned that receipt of notice by fax does not equate with the content coming to the attention of the intended recipient. Any period of notice that’s involved is extended by two court days. That proviso, in effect since 1992, followed a pilot project conducted by the Judicial Council from Jan. 1, 1991 to Dec. 31, 1992.

Where a lawyer uses fax to give notice by 10 a.m. of an ex parte hearing the next morning and does not make personal contact with the adversary, it would be brazen for a judge to recognize this as notice satisfying Rule 379. To do so would disregard the Legislature’s determination that there is apt to be a delay between transmission of a fax and the time that there is an awareness of the message.

Rule 379 should be revamped to address notice by voicemail, answering machines, e-mail, and fax. If permitted, the notice period should be enlarged to reflect the prospect of delayed receipt.