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Tuesday, August 5, 2003

 

Page 7

 

PERSPECTIVES (Column)

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

 

By ROGER M. GRACE

 

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

An apostle determines that an ex parte motion needs to be fabricated tomorrow. California Rules of Cloister aphorism 379 requires apprehension to the added ancillary by 10 a.m. today. The apostle telephones opposing admonition at 9:59 a.m. Alone voicemail is available. The apostle leaves a message, ambience alternating the time and abode of the audition and what abatement will be sought, and inquiring if the motion will be opposed, as appropriate by the rule.

There’s no alarm back. The apostle executes the appropriate acknowledgment ambience alternating the giving of notice.

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

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

Is there a botheration here?

As I discussed actuality yesterday, I would catechism whether a abode to an audio recording apparatus constitutes “notice,” accustomed the ambiguity as to aback the bulletin is activity to be played back. It able-bodied ability be heard alone afterwards the audition has taken place.

And what if the almsman does apprehend the bulletin the day it was left—but at 5 in the afternoon, or 11 at night? Was “notice” accustomed by 10 a.m., as appropriate by the accompaniment rule, or was the giving of apprehension alone set in motion but not accomplished until it was heard? I anticipate the closing is the case.

Notification to a machine—unlike that accustomed to a secretary or added animal actuality in the attorney’s appointment who is acceptable to pay heed to the information—is like a letter not yet delivered. It is a abeyant communication, its purpose yet unrealized.

A secretary could be anticipation of, in a apart sense, as an “agent” of the apostle for accepting notice. If you accord the bulletin to a secretary at 9:59 a.m., there’s apprehension afore 10. I would acquisition it difficult to anticipate of a apparatus assuming an “agency” function.

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Under the apriorism that a voicemail is “notice” alone afterwards it’s listened to, and accustomed that alone the almsman knows aback he or she heard it, the affair who has larboard a voicemail cannot achieve the requisite account in a acknowledgment as to aback apprehension was given. Alone if the almsman calls aback or contrarily acknowledges the voicemail by 10 a.m. should the apprehension claim be begin to accept been met for a audition the aing day.

There’s an accomplished assay in McCullough v. Department of Personnel Administration, C038937, absitively aftermost year by the Third District Cloister of Appeal. It’s afflictive the assessment wasn’t published. It anxious declared apprehension via a blast recording device.

The appeals cloister antipodal the abnegation of a command abode approved by Rina McCullough, who was accounted to accept accommodated aback she didn’t actualization up for assignment at the Department of Motor Vehicles. An authoritative audition was appointed by the Department of Personnel Administration for Monday, Feb. 28, 2000, but a few canicule afore then, her abutment let McCullough apperceive it wouldn’t be apery her. It agreed to ask the audition administrator for a constancy so she could access added counsel. On the Friday afore the appointed hearing, the audition administrator denied an ex parte appeal for a continuance, and instructed her secretary to let McCullough apperceive by phone. McCullough did not arise the afterward Monday, and the accommodation went adjoin her.

Leaving “an baggy exact bulletin with an answering apparatus or articulation mail, or whatever anatomy of bulletin accumulator it may accept constituted” wasn’t acceptable enough, Justice Rodney Davis wrote. “There is no assuming this aftermost minute notification on Friday was a adjustment analytic assertive to achieve absolute apprehension of plaintiff’s charge to arise on Monday,” he said.

Davis remarked that there was no charge to ability the affair “of whether this buzz alarm to an answering apparatus abandoned the plaintiff’s appropriate to due process” —  but again appeared to acquisition that due process, indeed, had been abridged. He said there was a “denial of the plaintiff’s appropriate to a fair hearing…, accustomed the abundant adventitious that the plaintiff never accustomed the articulate message.”

The actuality that a voicemail has been accustomed alone agency it is stored about in the anatomy of bulk of $.25 (ones and zeroes) on a alluring medium. It does not beggarly it has arise to the absorption of the advised animal recipient. The accepted ability of voicemail recipients to comedy aback belletrist in batches around assures delays.

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

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There’s alike beneath to be said for apprehension via answering machines. Those accessories action beneath aegis than voicemail and a far college adventitious of automated glitches.

Court of Appeal Presiding Justice Dennis Perluss of this district’s Div. Seven has a adverse view. He declared in a July 24 assessment that abrogation chat on an answering apparatus can aggregate absolute notice.

Perluss’ actualization was set alternating in In re Raven S., B164003. The assessment was not certified for advertisement (but, aback it was filed alone 12 canicule ago, a anticipation charcoal that it ability wind up in the Official Reports).

An affair in the case was whether a father, Glenn S., who didn’t arise at a appropriately noticed audition apropos to the abortion of his affectionate rights, was accustomed able apprehension of the assiduity of that hearing. His apostle approved to ability S. at his mother’s house, area he lived, abrogation two belletrist on the answering apparatus for the applicant to alarm him. Perluss declared that an “inference of absolute apprehension is reasonable in this case.”

The apostle adumbrated in a comment that the console was “not absolutely convinced” of the definiteness of cases that crave apprehension of the assiduity of such a hearing, but beneath to accouterment that issue, adage it was accidental to the accommodation in the present case. There does assume to be article to be said for the angle that addition who’s accustomed able apprehension of a audition and chooses not to actualization up forfeits alms to apprehension of a added hearing. Rather than all-embracing that proposition, was the assessment accepted apprehension when, plainly, none was given.

Under the facts set alternating in the opinion, no clairvoyant would be acclaim for Glenn S. to achieve aegis of his daughter, nor accept that the aftereffect would accept been any altered if the ancestor had abounding the hearing. (Perluss empiric that if there was a birthmark in notice, the absurdity was harmless.) Nonetheless, the hypothesis that a lawyer’s accepting of accepting larboard chat on an answering apparatus for his applicant to alarm constitutes absolute apprehension of a audition is an insult to the reader’s intelligence.

It’s noteworthy that all that the apostle accustomed was accepting larboard two belletrist to call. Squeezing added than that out of the concession, Perluss empiric that “Glenn S.’s apostle never asserted he had not announced the absolute audition date in those two blast messages.” This is artificial acumen one ability apprehend of a atrocious advocate, not a jurist. The acknowledgment by the apostle that he larboard a bulletin for his applicant to alarm him is a acknowledgment of that, annihilation more.

In Datig v. Dove Books (1999) 73 Cal.App.4th 964, referred to in yesterday’s column, the Cloister of Appeal begin facially bare as a apprehension of an ex parte audition this bulletin larboard on a voicemail: “Rod, this is Steve Soloway, can you alarm me, thanks.” Justice H. Walter Croskey of this district’s Div. Three wrote: “[C]alling plaintiff’s admonition and abrogation a bulletin for him to alarm aback is not apprehension of anything.” Under Perluss’ reasoning, it charge be accepted that Soloway additionally gave Rod the specifics because there’s no affirmation that he didn’t.

It is alien whether Glenn S. accustomed the messages. Yet, Perluss infers absolute notice. How does Perluss apperceive that the mother didn’t skip through the belletrist on the answering apparatus and absence the ones from the lawyer, or carelessness to canyon them on to sonny? How does he apperceive the band didn’t get mangled? That a neighbor’s kid didn’t discharge grape abstract on the tape, ruining it. That it wasn’t accidentally erased? That the playback apparatus wasn’t jammed?

He knows annihilation added than what’s in the cloister record—a account by the apostle at a balloon cloister audition that he alert told an answering apparatus that he capital Glenn to accord him a jingle.

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What Perluss overlooks is that if a blast cardinal is known, about-face directories are accessible that will acknowledge the address. Glenn S. allegedly could accept been acquainted of the constancy in writing.

In a case in which it did amount whether absolute apprehension had been given, appliance of Perluss’ acumen would angle out as an abuse to due process.

And again there is e-mail. That agency of advice has absitively advantages over added modes.

It provides a agency of direct sending of abstracts as attachments. There’s no fuzziness, as on faxes. It’s accessible to “cut and paste” from e-mailed documents. While there’s no approved accouterment yet for account by e-mail, agreements to barter abode copies of abstracts by this agency are benign to both sides.

E-mails admittance back-and-forth discourses with opposing admonition that accept two advantages. There’s time to codify statements with added absorption than those blurted out in conversation. There can’t be a altercation as to what was said because it’s in writing. This adjustment is quicker and easier than drafting belletrist and commitment or faxing them.

Los Angeles Superior Cloister Adjudicator William F. Highberger, in a now-completed case, afresh acceptable communications from opposing admonition and myself via e-mail, obviating the charge for the added ancillary to achieve an ex parte actualization to get the court’s OK on something. (The adjudicator had copies of the e-mails placed in the cloister file.) That addled me as an able use of a technology that is under-utilized by the courts.

Nonetheless, e-mail suffers from the aforementioned affliction as voicemail, so far as last-minute apprehension is concerned. There’s a abridgement of affirmation that the advice will allure animal absorption in a appropriate manner.

Notice of ex parte affairs by fax presents audible issues.

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Code of Civil Procedure Secs. 1010.6(6) and 1013(e); California Rules of Court, aphorism 2008; and Los Angeles County Rules, aphorism 18.0(g) admittance “service” of apprehension by fax, but alone area agreed to by the parties. Does this administer to ex parte motions? I’d advance it doesn’t.

Application of those accoutrement would not assume to be advised by Aphorism 379. That aphorism permits articulate notifications. Yet, Secs. 1010.6(6) and 1013(e) are independent among, and affiliated to, accoutrement that chronicle to notices which must, of necessity, be in writing. Sec. 1005, which sets alternating the time claim for best noticed motions, prescribes “written notice,” and §1010 provides that “[n]otices charge be in writing.” The accoutrement in the rules for fax agreements do not arise to accept any broader appliance than the statutes which the rules mirror.

Moreover, the fax accoutrement accredit to “service” of notices—which implies accurate commitment of a writing. It would assume oxymoronic to allege in agreement of “oral service” of notice. Aphorism 379 refers to apprehension of the audition actuality “given.” It doesn’t say that apprehension is “served,” nor would use of that chat be alive area notification may be oral.

There would arise to be no accurate aphorism barring notification of an ex parte audition by fax, aloof as there is no aphorism barring such notification by voicemail.

A fax does accept audible advantages over voicemails as a agency of giving notice. A fax is a communiqué printed on cardboard as it arrives. It is there in the recipient’s office, in physical, accurate form—not article baggy like a voicemail, cyberbanking signals on a computer, abeyant until activated. A fax is, from its inception, real; a voicemail is annihilation but abeyant sound.

Transmissions to accepted fax machines bob out as they are received; they don’t accept to be fetched, as voicemails do. If the aborigine of the fax isn’t in the appointment at the moment, others are apt to arise beyond the fax and set in motion the alertness of opposition. By contrast, it’s absurd that anyone abroad will analysis the absent lawyer’s voicemail.

On the added hand, fax machines do jam. Wrong numbers are dialed, with the sender generally actuality absent to the error. And, there’s a addiction for faxes to assemblage up in offices—sometimes for hours—before anyone disburses them to the addressees.

While the statutes and rules apropos to account by fax would assume be extraneous to ex parte hearings, a aldermanic assurance basal them is aces of note. It has allegedly been discerned that cancellation of apprehension by fax does not agree with the agreeable advancing to the absorption of the advised recipient. Any aeon of apprehension that’s complex is continued by two cloister days. That proviso, in aftereffect aback 1992, followed a pilot activity conducted by the Judicial Council from Jan. 1, 1991 to Dec. 31, 1992.

Where a apostle uses fax to accord apprehension by 10 a.m. of an ex parte audition the aing morning and does not achieve claimed acquaintance with the adversary, it would be audacious for a adjudicator to admit this as apprehension acceptable Aphorism 379. To do so would apathy the Legislature’s assurance that there is apt to be a adjournment amid manual of a fax and the time that there is an acquaintance of the message.

Rule 379 should be revamped to abode apprehension by voicemail, answering machines, e-mail, and fax. If permitted, the apprehension aeon should be continued to reflect the anticipation of delayed receipt.  

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Copyright 2003, Metropolitan News Company 

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