4th District Division two court of appeal initiates a new policy of withdrawing tentative decisions.

The 4th district is one of the few courts that releases tentative decisions to each party at the end of the appeal. The tentatives are not binding and the court specifically points out that they are not binding when it sends out the corresponding notice to the tentative decision.oralargument1

Now the court has initiated a procedure of issuing orders recalling or withdrawing a previously non binding tentative decision affirming what they had initially reversed citing the same circumstances listed in the record of appeal. The overwhelming logic displayed in issuing an order recalling a non binding event escapes any litigant.


With this procedure the court of appeal is confirming that they are viewing the release of the tentatives as a “binding” document without giving the party affected the right to object to their actions or to object to the ambiguities and mistakes as detailed in the prevailing tentative. Most of the litigants that have experienced this court can categorically confirm that the court will not change its tentatives despite grievous mistakes contained in the tentative opinion that substantially prejudices an appellant’s standing in their case.

The California Supreme court has already discussed the notice requirements of the 4th district division two district with the release of its tentatives. In People v Pena (2004) 32 C4th 389, 9 CR3d 107, the high court held that the notice created a real potential to interfere with a party’s proper exercise of the right to present oral argument on appeal. Pena concluded that the language of the notice suggested too strongly that (1) the appellate court already had finally decided the case on the briefs and would not be affected by oral argument, and (2) appellate counsel might face adverse consequences if oral argument were requested.

“[O]ral argument — the chance to make a difference in result — is extremely valuable to litigants. If oral argument is to be more than an empty ritual, it must provide the litigants with an opportunity to persuade those who will actually decide an appeal.” Moles v Regents of Univ. of Cal. (1982) 32 C3d 867, 872, 187 CR 557.

The current actions by the court of appeal confirm the concern expressed in Pena, namely that the court of appeal has already finally decided the case on the briefs and will not be affected by oral argument in any capacity, again violating a litigant’s right to procedural and substantive due process.


One comment on “4th District Division two court of appeal initiates a new policy of withdrawing tentative decisions.

  1. The strong tentative is bad policy. It reflects a preference for central control by judges disregarding litigant advocacy, depriving judges of the opportunity to query about details that are inevitably left unanswered in even the most thorough analysis. Any judge who issues a strong tentative hasn’t evaluated the case completely–it’s per se dereliction of duty to come to any firm conclusions before at least hearing, and preferably asking more questions a briefing schedule inevitably should lead to.

    The strong tentative also reflects stronger control by policy-level influences off the panel. Non-panel judges and policy factors have more influences on tentative–because they’re not disadvantaged by a panel judge who can resist off-panel influences by noting “you weren’t at oral argument.” Don’t be foolish to think that panels look to policy in addition to briefs, and policy is far weaker in evaluating oral argument.

    Strong tentatives are poor-perhaps illegal-practice and policy.

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