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Tentative Rulings: Contest or Concede?

200368976-001When the tentative ruling is against you, you’ve got two choices: contest or concede. Here’s the spoiler: One of these choices is generally the way to go.

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:

  1. immediately notify opposing counsel and request a waiver of the notice requirement;
  2. 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:

© The Regents of the University of California, 2015. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

9 replies on “Tentative Rulings: Contest or Concede?”

Julie, do you have a cite/authority re: failure to contest a tentative order does not waive right to appeal? I agree with you, but I realized I don’t have any authority for that in my notes.

also, SUPER important to check and calendar time to look at the tentative and then notify the court of intent to challenge. I’ve had several cases where the tentative was released minutes before the deadline to give notice of opposition….

Thanks for your comment. I don’t believe the statement has a single citation to support it. It derives from the concept that a tentative ruling is not an appealable “judgment” in a technical sense. See CCP §577 (final determination of rights of parties) and what can be appealed by statute (CCP §904.1(a)(1) (stating appeal may be taken “. . . From a judgment. . .”). You may want to look at Mundy v Lenc (2012) 203 CA4th 1401, 1406 (and the cases discussed therein), for the proposition that submission to a tentative ruling is not an act that misleads a trial court (by inviting error) and therefore a party who did so can appeal the court order based on the ruling.

Yes: I think Mundy v Lenc is the right case to cite: embarassed to have found that in my notes on the subject. Sorry to have made you pull it up. :0)

Thanks for your comment, and the answer is generally yes. The party favored by the court’s tentative ruling should review the ruling and attempt to anticipate the opposing party’s arguments against the ruling.

Due to a disability, I as a pro se plaintiff failed to file a response to a motion to strike. I contacted defendant’s counsel 10 days before the hearing asking them to continue the motion hearing date. They did not reply. I attempted to file the request for continuation at the court the day before the hearing but they court’s docket clerk instructed me to come back on the hearing date. I prepared a motion to oppose and appeared at the hearing, but the court did not hear me, and simply ruled on the motion. Was i treated fairly by the court, Is there any remedy for me?

I’m sorry, but we cannot provide any legal advice. You may want to contact an attorney in your area.

Tentative rulings are also a useful resource beyond the specific case the ruling is for. For example, reading a judge’s prior tentative rulings can give insight into what cases and arguments that judge finds persuasive. A free, searchable database of California tentative rulings is available here:

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