Legal Question in Legal Malpractice in California

The Judge has made a tentative ruling granting the opposing moving party's motion to compel arbitration and I informed the court I would argue my points at the hearing. At the hearing the judge did not give me the time to speak my arguments. The TR order was mailed to me and I returned it with a disapproval citing the reason that I was not allowed to make my arguments at the hearing. The court has not issued a final ruling yet and my case has no activity for 2 weeks. What are my options? Appeal(writ of mandate) or motion to vacant the TR decision?

- Pro Per in Calif Civil

Asked on 10/07/13, 3:17 am

2 Answers from Attorneys

Joel Selik

There is no provision for "returning" a tentative ruling so that is likely to have no effect.

If you were mailed a decision after the Hearing, that would be the Court's ruling. Only appealable orders can be appealed, but you can do a writ, which are only rarely granted.

The Court requires the arguments for your position be submitted in your opposition. The hearing is limited to resonse to the Reply or to specific reasoning against the tentative. The Court had the authority to limit the time to argumen, though it may not completely limit the right to a hearing.

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Answered on 10/07/13, 7:45 am

Timothy McCormick Libris Solutions - Dispute Resolution Services

Mr. Selik is correct that if the court mailed you the TR after the hearing, that IS the final ruling. If it was prepared by the opposing counsel and mailed to you for "approval as to form" you don't have a right to object based on anything that happened at the hearing, other than if the written order does not match what the court ordered at the hearing. In that case, you will have to wait until the final written order is entered before you can do anything.

As for your options procedurally, you have two. You can move for reconsideration in the Superior Court, or you can file for a writ.

You need to bear in mind, however, that a motion for reconsideration must be made based on new evidence along with proof that there was no way you could have presented the evidence in your opposition papers filed before the hearing (motion hearings are NOT evidentiary hearings - there is no right to present evidence that you have not already submitted with your motion or opposition papers), or based on a change in the law since the hearing and the change is retroactive.

You also need to bear in mind that a writ in the situation you describe would require either a showing of denial of due process, or the court completely ignored undeniable evidence and legal authority that you should have won AND that evidence and law was presented to the court in your opposition papers. Again, you have no right to put on your case at the hearing. You have to submit it in your papers. And the follow-up to that is that since you were given the opportunity to submit your papers, the fact that you were not given time to make your arguments in court will not support a claim that you were denied due process.

There is a very orderly and strict process for making and opposing motions. A party files their moving papers - which must include all the legal arguments, facts, evidence and factual arguments they want to make to the court. The other party has a chance to file opposition papers. They must include all THEIR legal arguments, facts, evidence and factual arguments. Then the moving party has a chance to file a reply. They are not allowed to make a new case - only reply to the points made by the opposing papers. The court then issues a tentative. Having already had "two bites at the apple" if the TR goes against the moving party, they have virtually no chance of reversing the TR at the hearing unless there is something the judge just totally misunderstood that they can clear up. The opposing party, if the TR goes against them, is given a little more leeway. They are expected, however, only to respond to the moving party's reply - not make a whole new set of arguments. The hearing is ONLY to clear up anything in the papers, respond to the reply if you are the opposing party, and correct any obvious misunderstanding if any.

Bottom line: there is no right to show up and make your arguments at the hearing that you have not fully presented in papers filed by the appropriate deadline before the hearing. So whether you make it in a motion for reconsideration or in a writ, an argument that you were not given a chance to make your arguments at the hearing will get you no-where, and you will be lucky if you are not ordered to pay the other side's attorneys fees for dealing with a meritless proceeding.

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Answered on 10/07/13, 11:31 am

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