A party should generally contest the tentative ruling if
- Oral argument may change the court’s decision;
- The record needs to be clarified; or
- The grounds for the court’s decision are unclear from its tentative ruling.
But here’s the general rule: Unless there’s absolutely no basis to oppose the tentative ruling, contest it. Other than the time and effort it takes to prepare for and attend the hearing, there’s no downside to contesting a ruling as long as you can make a reasonable argument to support your position.
If you don’t contest a tentative ruling, you’ve effectively conceded it, and the ruling will become the court’s order. See, e.g., San Francisco Ct R 8.3(E) (if no party appears, “the tentative ruling will be adopted”). In addition, acceptance of a tentative ruling without a hearing may result in the court not expressly ruling on evidentiary objections.
But all is not lost if you don’t contest: The failure to contest a tentative ruling doesn’t waive the right to appeal the resulting court order. And a party may still challenge the court’s order by motion for reconsideration, if appropriate.
Whenever you contest a tentative ruling, make sure to comply with all of the court’s requirements, which may include timely notifying the court and other counsel of your intention to appear and argue. See e.g., Marin Ct R 1.6(B); San Francisco Ct R 8.3(D).
If this notice is required and you inadvertently fail to contact the court and the other side, here’s what to do:
- immediately notify opposing counsel and request a waiver of the notice requirement;
- if opposing counsel refuses your waiver request, appear at the hearing and make a showing as to the reasons for your inadvertence in notifying the court and opposing counsel, and then ask the court to continue the hearing to allow for proper notice.
On hearings and tentative rulings on summary judgment motions, check out CEB’s California Summary Judgment, chapter 10.
Other CEBblog™ posts you may find useful:
- Challenging an Adverse Ruling on Bias in Peremptory Challenges Is a High Hurdle
- Did the Trial Court Get the Factual Determination Wrong?
- Checklist for Responding to a Noticed Motion
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