What’s a Minute Order?
For those of you newly grappling with the strange world of California court procedures, there may be some confusion as to the difference between a court order and a minute order. The terms sound similar, but they are actually different things.
The official record of the proceedings in the California courts, whether it be a civil or family law case, is kept by the court itself (hereinafter the Court). The Judge who hears the matter is responsible for reporting the outcome of the proceedings to the Court. The Court takes this information and enters it into the Court’s system, which then becomes the court’s record (hereinafter the Record). These entries made by the court are referred to as "minute orders" and, sometimes, as "registers".
So, let’s say that there are entitled to "The parties are referring the matter to a forensic evaluator to address the issues of custody and visitation with the children" This is the minute order noting that the Judge has ordered the parties to visit with a forensic evaluator . What happens now?
The minute order is not the order of the court. The minute order is just a note of what the judge ordered. The minute order gives the court’s version of what happened, but the court does not make any orders. After the hearing, usually within a day or two, the minute orders are indexed by all the local courts. Minute orders are not, as a rule, sent directly to the court’s for any action. Some courts still have a day or two delay before minute orders are posted online.
While minute orders are kept by the Court and available online, it does not mean that they are correct. Errors do happen. Additionally, the orders can be written in such a way that they need clarification. Luckily, there is a process for correcting errors in minute orders (if there is an error) and for getting the clarification you need.
How Do Minute Orders Come Into Existence?
Minute Orders are created by court reporters and quickly become the most accurate records of court proceedings. Whether ordered or prepared, each Minute Order is transcribed within 24 hours of the proceeding for review by the judicial officers and courtroom staff. Once proofread by the reporter and court staff, the Minute Order is then distributed electronically to all concerned in a timely manner. Thus, the process of Minute Orders creation is accomplished solely by the Reporter and Court Staff and is not considered a direct task of the Court Clerk. In fact, it is not uncommon for the judge to ask the reporter to prepare detailed Minute Orders for certain hearings. At times, a Judicial Officer will even annotate his or her own notes on the back of the Minute Order. This is especially the case when there are specific instructions for the parties to follow before the next scheduled date. When a Minute Order is prepared by request of the Courts and then later requested to be changed, the judge or commissioner must approve the requested change. The presiding officer must sign off on the revisions which are clearly noted in the Minute Order. Any changes made to the Minute Order after it has been published require a declaration as to why the Minute Order is being revised. Fortunately, because Minute Orders are prepared quickly, revisions to them are rare, and the majority of them go on record as they were originally typed.
Case Types In Which Minute Orders are Used
Widespread in the California Court System, minute orders are used in cases on all topics of law. Below are some examples of cases that use minute orders:
Criminal Cases
Criminal defendants often have rights to discuss their case only with their defense attorneys and others in their defense team. These rights are only allowed to be waived after the defendant receives prescribed advisements, which typically go well beyond the understanding of an average person. Because these advisements are very specific, and a well trained ordinal person can very easily be confused by them, minute orders are used to preserve the record of whether or not proper advisements were given.
Family Law Cases
The Family Code Section 3024 has a very specific procedure notice rule. In this section the Family Law Code of the California legislature requires that notice in family law cases be given to certain respondents. Notice is essential to obtaining personal jurisdiction over a parties who may be affected by a court order.
UTPA Cases
In United States Truck Pr, Inc v. Candy Man (2007) 150 Cal App. 4th 742, the majority opined "It is clear from the California Uniform Trade Secrets Act (UTSA) (Civ.Code, § 3426 et seq.) that its intent is to settle trade secret disputes in a quick and inexpensive manner." The California legislatures intent of having a quick and inexpensive litigation process for cases involving trade secrets is further reinforced by the use of Minute Orders. Due to the volume and speed of litigation over trade secrets, judges are authorized by California Government Code § 68070 to use electronic notice, training, and experimentation. The courts are therefore not required to enter formal orders as they explained in UTPA cases. Finding that the Trial Court improperly substituted a clerical mistake for a judicial error the Court of Appeal wrote in the above case "courts should avoid ordering the trial judge to create a transcript of the proceedings whenever a sufficiently 10tifying record is presented."
Bankruptcy
The Bankruptcy Code § 348 (a) concerns the dismissal of Bankruptcy petitions. If the court dismisses the petition you can no longer get the relief that bankruptcy offers. In such a case the Court may enter a minute order to indicate what happened at the hearing on the Petition.
Minute Orders’ Legal Importance
In California, courts often enter orders in the form of written minute orders. Minute orders are simply court records, and orders made in a minute order are presumed to be made in the course of the judicial business of the court (Evid. Code sec. 664; see also Los Angeles Audubon Society v. City of Los Angeles (2013) 221 Cal.App.4th 804, 812 [minute order contained all elements of a final judgment]; Mardin v. Superior Court (1993) 12 Cal.App.4th 13, 17 [minute order was effective judgment on statutory causes of action of forcible detainer, and not mere minute order].) Thus, courts will enforce minute orders as enforceable judgment if they are not challenged in a timely manner. (See Los Angeles County Department of Children and Family Services v. Superior Court (2010) 187 Cal.App.4th 148, 155.) In Los Angeles County Department, the appellate court held that "an appropriate remedy for a violation of an enforceable minute order…is contempt of court." (187 Cal.App.4th at p. 155.) Against this authority, defendants in Sanchez v. Cty. of San Bernadino (2016) 245 Cal.App.4th 1449, argued that the minute order "did not fall within the category of enforceable minute orders." (Sanchez, supra,245 Cal.App.4th at p. 1467.) The court rejected this claim, holding that a minute order has the force of a final judgment (see Los Angeles Audubon Society, supra, 221 Cal.App.4th at p. 812, citing Mardin v. Superior Court, supra, 12 Cal.App.4th at p. 17 ["Any order…entered in the minutes will become the judgment, provided no steps are taken to have the determination set aside"].) Sanchez stands for the proposition that "a minute order has the same legal force and effect as a judgment, subject to the rules governing enforcement and appeal." (Sanchez, supra, 245 Cal.App.4th at p. 1467, citing In re Marriage of Park (2013) 220 Cal.App.4th 1128, 1146 ["the minute order is a judgment despite its designation as a minute order in the calendar"].)
"An appeal may lie from an order signed by a judicial officer,…but that does not mean…that every act or step taken in a pending action is appealable." (Mardi v. Kobinger (1972) 29 Cal.App.3d 718, 722.) For appeal purposes a minute order (and all other documents) constitute an enforceable judgment "whether or not it was denominated as a judgment." (Norgart v. Upjohn Co.(1999) 21 Cal.4th 383, 401.) A minute order will be treated as a judgment if the order falls within the broad categories of orders resolving substantive issues in the case, including pleadings, motions, and other related matters. (See California Rules of Court, rule 8.104(d)(1).) Sanchez found that violation of a minute order was enforceable by contempt (245 Cal.App.4th at p. 1461), and noting that "the order is enforceable if it is not appealed or set aside." ( Id., citing Los Angeles County Department of Children and Family Services, supra, 187 Cal.App.4th at p. 156; see also Mardin v. Superior Court, supra, 12 Cal.App.4th at p. 16.) Sanchez stands for the proposition that an enforceable minute order may be enforced by contempt (whether civil or criminal) (see Lucky Stores v. Superior Court (1990) 219 Cal.App.3d 189, 207), even though parties may seek to set aside a minute order (see Gebre Meridion v. Superior Court (2002) 99 Cal.App.4th 1548, 1552), and the moving party must make that showing to the court.
Minute Orders – Formal Court Orders’ Key Differentiation
While minute orders and formal court orders have their similarities, they differ predominantly in terms of formality, timing, and implications on the legal process. A minute order is an informal document that establishes a record of what was discussed in the courtroom. A formal court order is a temporary or permanent order issued by a judge or magistrate in court. It is signed by court staff to indicate that the contents are accurate and that the order has been issued by a judicial officer . These documents are delivered to the parties via the court clerk. In divorce cases, a minute order usually notes informal agreements such as child custody, child support, and/or visitation, support spousal, or other post-judgment agreement made while appearing in court. A formal order is legally binding and can be executed as a contemptuous move to enforce compliance with the law. Orders to show cause, default judgments, and modification orders are formal court orders.
Litigants and Minute Orders
In order to avoid being taken by surprise at court appearances, it is critical that litigants review and understand all minute orders issued in their case. For example, when a judge orders a party to file documents or reschedule a hearing on a particular day, that party must understand the format of, the information contained in, how to read, and what the order means, and if he or she need take any action before the next court appearance.
Minute orders include some, but not all, of the information necessary to understand the order and respond to it. For example, a minute order may provide that a party must file documents with the court and serve those documents on the opposing party on a specific day.
But the order may not state the precise type of documents to be filed, such as whether a settlement conference statement or a trial brief must be prepared, much less the specific content required in the filing. The order may fail to state whether any particular procedures must be followed regarding the filing or the serving of the documents, such as whether an original hard copy must be filed with the court and a courtesy copy delivered to the courtroom clerk or a judge’s chambers. The order may not specify when the filed documents are due, such as whether they are due that same day or the following week.
The law provides until the end of the third court day (and the court has its own "best practices" for turn-around times — see below) for a party to respond to a minute order that doesn’t sufficiently provide all the instructions necessary to perform as ordered. Therefore, it is vital that a litigant review all minute orders, including routine housekeeping orders such as calendaring orders, within 24 hours of such orders being issued. A litigant who does not review his or her minute orders until the night before the hearing runs the risk of not being fully prepared to perform as required.
A litigant must then determine if he or she has complied with the minute order as soon as possible, and immediately contact opposing counsel or the opposing party if he or she has not done so. If the order is perfect with no need for a further response, then the party should get in contact with the court during this three-day window to let them know that that is the case. If, however, the party needs further assistance, then the party should also contact opposing counsel. This way, opposing counsel or the opposing party can help the litigant figure out exactly to what the judge was referring in the minute order.
If a party cannot comply with the minute order as stated, he or she must address this specific issue with the court as soon as possible and in the form that the court prefers. Again, the law provides a party until the end of the third court day to notify the court if he or she cannot comply with a minute order. However, it is recommended that a party do so sooner to give the court staff enough time to process the request and allow opposition from the other side if necessary. Thus, this specific issue should be raised today, discussed, and resolved before the order becomes absolute.
Keep in mind the court understands that minute orders can be confusing to a party who may not have had to deal with them before. Therefore, the court is willing to help litigants comprehend their orders and help litigants comply therewith. This, however, only applies if the litigant contacts the court within the window provided. If the litigant waits until the end of third court day to raise an objection to the order, then the court will most likely ignore the objection and the litigant must comply with the order.
This does not mean that a litigant must blindly obey every minute order issued by the court. A party may send a written objection to the order and/or explain to the court in person any unreasonable requests contained in the minute order. The court may elect to modify its previous order as it feels appropriate after hearing arguments from both sides.
If a party needs to do something that goes beyond the scope of performance of the minute order, for example take action that involves unilaterally changing a hearing date (or the judge presiding over the case), filing a new motion, or re-scheduling an already calendared Settlement Conference, that party is advised to check the court’s website for the appropriate procedures regarding this specific request, and then submit it to the court and provide opposing counsel with a courtesy copy. The request may be made in the form of a letter addressed to the judge who issued the minute order. The letter should be submitted as soon as possible but in any case within the three-day time limit. If and as needed, opposing counsel or an opposing party may respond in a similar fashion.
There is no one person or group of people in each court to handle minute order complaints. However, each district has certain best procedures that cater to conflicts over minute orders. The parties should familiarize themselves with the best practices of the court where their matter is pending, and follow that court’s procedures. A litigant in the Santa Clara Civil Division can look up procedures that apply to the Civil Courts of Santa Clara County by visiting the Civil Division’s Procedures Information page. The Superior Court provides minimum standards of responsiveness when requesting changes to a minute order (for example, asking the parties to review and agree upon the proposed correction, and then submitting a letter to the judge with both parties’ signatures for the judge’s endorsement). This is a good place to start when a conflict arises over a minute order.
Each court may follow its own policies and procedures. Therefore, a party should always check with the specific court where the case is pending for their own court-specific guidelines. Most courts post all of their procedures on their website.
Minute Orders: Challenges & Pitfalls
One of the very real problems with minute orders, and the reason why they can be confusing to litigants and lawyers alike, is that judges routinely abbreviate them, leaving out their reasoning and/or the law. What happens when there is no statutory or controlling case law on point, and the judge’s reasoning is omitted from the minute order? Such was the case in the unpublished afternoon-matter decision of McMahon v. McMahon (2012) 2012 WL 2122233. The husband was ordered to pay the wife $30,000 over time with the parties’ adult son acting as a trustee. The precise orders regarding the son and the timeline were not included in the minute order because he was more interested in his own problems than an accurate minute order. That was an issue.
Another classic example of the perils of an abbreviated minute order came in the January 13, 2000 case of In re Marriage of Schenck (2000) 80 Cal.App.4th 1285. While awarding the mother primary custody of the children and the father every other weekend visitation, the appellate court held, "The juvenile court ruled without a statement of its reasons, stating only ‘full and complete findings of fact and summary of all testimony’ in the Minute Order. Without more, we cannot determine whether it reached its decision properly …. The minute order did not state whether the juvenile court excluded it from determining custody and therefore whether the juvenile court presumed it awarded custody pursuant to its order, using a different standard [than Thomas]." (see In re Marriage of Schenck, supra, 80 Cal.App.4th at 1292.)
The judge’s ruling may also contain additional complexities as recounted by the appellate court in the case of Patel v. 7-Eleven, Inc. (2011) 204 Cal.App.4th 1317 . "[The trial] court required [the plaintiff] to submit a proposed statement of decision in which the law and evidence for each factual issue must be articulated: Reliance on the minute order procedure, rather than a posttrial proposal, would prejudice the court by requiring it to sift through the court record to find the factual findings and legal conclusions relevant to each recognized theory of his case. (See In re Marriage of Schenck, supra, 80 Cal.App.4th at p. 1292.) This burden is objectionable on two grounds: first, because it does not lend itself to appellate review; and second, because it places an unfair burden on the trial court to search through the entire record in a case and apply the substantial evidence rule when assessing the arguments of litigants who are unhappy with a statement of decision that lacks necessary detail. We conclude, based on In re Marriage of Arceneaux (1990) 51 Cal.3d 113 (‘Arceneaux’), that the minute order rule is not dictated or even informed by the statute. [Fn. 6.]" (See Patel v. 7-Eleven, Inc., supra, 204 Cal.App.4th at 1328.)
Desiring full closure on all the issues raised in the dissolution case, September 14, 2010, the Court issued a ruling on all issues of child support, medical and dental expenses for the children, and attorney fees to the petitioner-wife. After the hearing on reserving jurisdiction over spousal support, the Court also issued a minute order. The two orders were in some respects conflicting. The Court of Appeal agreed with the wife and found the Court’s minute order to be deficient. The Court of Appeal held that the trial court erred in failing to make a posttrial statement of decision and reversed the trial court’s judgment. (see In re Marriage of Becker 2010) 190 Cal.App.4th 1031.)
Carefully read all minute orders. If there are no specific rulings, kindly remind your Commissioner or Judge to issue the detailed ruling that you are entitled to have. Ask specific questions about ruling that you do not understand or if the judgment seems to be inconsistent with the oral pronouncement.