A notice of unavailability of counsel in California is an informal document an attorney files to tell the court and opposing parties they will be out during a specific window and cannot attend proceedings. It carries no formal legal authority. In Carl v. Superior Court (2007) 157 Cal.App.4th 73, the Fourth District Court of Appeal held that these notices are not fileable documents under the California Rules of Court and cannot bind the court’s calendar.1Justia. Carl v. Super. Ct. The practice persists anyway because it creates a paper trail of good faith and can support sanctions against an opponent who schedules events during a known absence.
What the Notice Does and Doesn’t Do
The idea is simple. You tell everyone you’ll be out from, say, June 1 through June 15, and opposing counsel and the court clerk are expected to avoid setting hearings, depositions, or other events during that window. Most attorneys and court staff do respect the notice in practice, because rescheduling is easier than dealing with the fallout of proceeding without someone.
What the notice cannot do is take the court’s calendar out of the court’s hands. The Carl court called the practice, “to the extent it attempts to put control of the court’s calendar in the hands of counsel,” an “impermissible infringement of the court’s inherent powers.”1Justia. Carl v. Super. Ct. Filing one does not prevent the court from scheduling anything during your absence, and it does not entitle you to a continuance if something gets set. An attorney who relies on the notice alone and then misses a hearing is taking a real risk. The notice is a courtesy, not a shield.
What to Include
No statewide rule prescribes the format, so the document follows the general formatting conventions for California court papers. The essentials are practical:
- The case caption: parties, court, department, and case number, so the notice ends up in the right file.
- Specific start and end dates. Vague language like “mid-June” defeats the purpose.
- The scope of the unavailability — whether you are unavailable for all proceedings or only certain types, such as hearings, depositions, or settlement conferences.
- A short professional reason: a prescheduled vacation, a medical matter, or a trial conflict in another case. Detailed justification is unnecessary.
Serving the Notice
The notice needs to reach every party in the case. Under Code of Civil Procedure section 1010.6, electronic service is mandatory for represented parties who have appeared in the action. An unrepresented party may consent to electronic service but is not required to accept it. Attach a proof of service declaring under penalty of perjury that the notice was delivered to all attorneys and self-represented parties.
Timing matters more than any formal deadline. Filing 15 to 30 days before the first date of absence gives the court and opposing counsel enough lead time to avoid conflicts. Sending it the day before you leave accomplishes little. The earlier the notice goes out, the stronger it looks if a scheduling dispute arises later.
When the Notice Actually Carries Weight: Sanctions
The notice’s real legal value shows up in a sanctions motion. In Tenderloin Housing Clinic, Inc. v. Sparks (1992) 8 Cal.App.4th 299, a sole practitioner told opposing counsel she would be in New York for an arbitration and then on vacation in England for two and a half weeks. Opposing counsel then scheduled three discovery motions and three depositions during the exact days he knew she would be gone.2Justia. Tenderloin Housing Clinic, Inc. v. Sparks
The trial court imposed $1,860 in sanctions, covering airfare back from England and four days of lost vacation. The Court of Appeal affirmed, finding the conduct was in bad faith and solely intended to harass. The authority was Code of Civil Procedure section 128.5, which allows a court to order a party or attorney to pay reasonable expenses caused by “actions or tactics, made in bad faith, that are frivolous or solely intended to cause unnecessary delay.”3California Legislative Information. CCP 128.5
A filed notice strengthens that kind of motion because it eliminates any argument the other side didn’t know about the absence. Without it, an opponent can claim ignorance. With it, bad faith is much easier to show.
When You Need a Continuance Instead
A notice of unavailability is designed to prevent conflicts before events are scheduled. Once a hearing or trial date is already on the calendar, the notice alone will not get it moved. For that, you need a motion for continuance or an ex parte application under California Rules of Court, Rule 3.1332.
Rule 3.1332 starts from the premise that trial dates are firm. A continuance requires an “affirmative showing of good cause,” and the rule lists qualifying circumstances, including the unavailability of trial counsel due to illness or “other excusable circumstances” and situations where counsel is engaged in another trial.4Judicial Branch of California. California Rules of Court – Rule 3.1332 A preplanned vacation, standing alone, is a harder sell than a conflicting trial date or a medical emergency.
The court weighs how close the trial date is, whether there have been previous continuances, the length of the requested delay, and the prejudice to other parties. Filing the notice early and following up with a formal continuance motion when needed shows the court you planned ahead rather than springing a last-minute conflict.
Appellate Courts Do Not Accept These Notices
The Carl decision was blunt about the appellate level: notices of unavailability filed in the Court of Appeal will be returned to counsel unfiled.5Metropolitan News-Enterprise. Court Rejects Use of Tenderloin Notices of Unavailability If you need more time on appeal, file a motion or stipulation for extension under the applicable appellate rules.
The Notice Covers You, Not Your Firm
One limit attorneys sometimes overlook: the notice covers your personal unavailability, not the entire firm’s. If a colleague can cover a hearing or deposition, the court and opposing counsel are not obligated to reschedule just because the attorney of record filed a notice. Courts expect reasonable efforts to find coverage when the absence is foreseeable.