You can rely on what the Clerk tells you.
Plaintiff has a hearing set for 9:00 a.m. on February 22 in Department J. Defendant doesn't oppose the motion. Counsel for plaintiff says that he checked in with the Clerk, and then showed up again at "approximately" 9:00 a.m. (my emphasis), at which point he says that the clerk told him that the court had granted his motion. So he left.
In fact, it's undisputed that the court hadn't granted -- indeed, hadn't even yet heard -- the motion. So when that motion was in fact called a little after 9:00 a.m., and the moving party wasn't there, the motion was taken off calendar. Ergo denied.
At which point plaintiff files a CCP 473 motion for relief. Claiming excusable neglect.
The Court of Appeal agrees.
Justice Ashmann-Gerst says that relying on what the clerk tells you is reasonable. Moreover, she also carefully parses the clerk's purported "denial" of what the plaintiff's attorney said transpired.
The clerk for Department J submitted a declaration that says that it wasn't her "habit or practice" to tell attorneys that their motion had been granted. Which I'm certain is true.
But Justice Ashmann-Gerst notes that nowhere in the declaration did the clerk deny that that's what she did here. That's a pretty big omission.
So either the clerk was being crafty -- but the Court of Appeal caught it -- or her declaration did not contain the part that was exceptionally relevant: namely, whether what plaintiff's attorney said was true or not. My sense is that a simple "No, it's not true, I don't do that," would have sufficed.
One tiny point. The Court of Appeal says that plaintiff's counsel was "Mathew J. Singer". There's no attorney in California by that name. Looks to me like the guy is actually Matthew J. Singer. Two t's.
Personally, once I saw that my motion was listed on the calendar, I'd hang for the half-hour or so it'd take for my unopposed motion to be called and formally granted. Regardless of what the clerk told me.
But if you do otherwise, the Court of Appeal will apparently have your back.
