Explains how to respond when a California elder abuse MSJ tentative ruling goes against you — how to identify whether to request oral argument, what surgical argument has the best chance of moving the court, and why to always submit on a favorable tentative.

When the Tentative Goes Against You: Oral Argument in California Elder Abuse MSJ

The court issues the tentative the afternoon before the hearing. It says the motion is granted. You have until 4 p.m. to request oral argument. Most bad tentatives are not reversed at oral argument. The ones that are reversed almost always hinge on one thing: a specific point the lawyer identified cleanly — a ground the tentative overlooked, an argument the court never reached. From our review of California elder abuse MSJ practice, the difference between the argument that moves a tentative and the argument that doesn't is almost always precision.

The defense move. After a favorable tentative, defense wants you to argue. Long arguments after a favorable tentative are how favorable tentatives become unfavorable rulings — every minute you spend re-litigating the merits gives the court a reason to dig deeper into an analysis that already came out in their favor. On a bad tentative, defense knows that most reversal attempts fail and that forced argument tends to entrench the court's analysis. The decision to argue or submit is yours, and making it correctly is the first thing you do when the tentative lands.

What the rulings show. From our review of California elder abuse MSJ practice, the arguments most likely to move a bad tentative identify a ground the court never addressed — not an error in the court's merits analysis. In a 2026 San Bernardino County Superior Court ruling (No. CIVRS2401232, 5/19/26), the motion was denied on two procedural grounds — Pattern 10 (the notice of motion identified issues that weren't causes of action or issues of duty under CCP § 437c(f)(1)) and Pattern 7 (the recklessness conflation) — before the court reached the merits. A tentative that goes only to the merits may have missed those independent grounds entirely. If the tentative you're fighting doesn't address every argument you raised in opposition, one of those unaddressed arguments may be the argument worth making.

Your best move. Three disciplines that determine whether argument is worth requesting.

Map the tentative against every argument you raised in opposition. The tentative addresses some of what you argued — not all of it. Read it the same way you ran the audit worksheet on defense's papers: which arguments did the court reach, and which did it not address? A tentative that grants the motion on the custodial relationship under Winn may never have reached the Beltran separate-statement defect you raised, or the Aguilar burden-shifting problem in the separate statement. Those are independent grounds for denial. The argument that has the best chance of moving the tentative is short and surgical: "Your Honor, the tentative does not appear to address [Pattern X]. That ground provides an independent path to denial regardless of the Court's analysis on the other issues. We respectfully ask the Court to consider it."
When the tentative has one dispositive issue, argue that issue only. Some tentatives are organized around one finding: "The motion is granted because plaintiff has not raised a triable issue on the custodial relationship under Winn." Your argument is not about the Sababin audit or the recklessness evidence. It is about the specific step in the Winn analysis where the court's reasoning is most vulnerable. "Your Honor, the tentative does not appear to address the admission documents at Exhibit 1, paragraphs 4-7, which specifically enumerate the basic-care duties defendant assumed at admission." That is an ask the court can say yes to in two minutes. Re-litigating the entire merits record is an ask the court will almost never say yes to.
Submit on a favorable tentative. Every time. If the tentative denies the motion, submit on it. Do not appear. If defense requests argument and you have to show up, say "we submit on the tentative" and nothing else. The analysis came out in your favor. The goal is to let the court confirm the ruling without giving it a reason to reconsider. A lawyer who argues a favorable tentative at length is inviting reconsideration. Don't.

This article is for educational purposes only and is not legal advice. All frameworks and sample language should be reviewed by a licensed attorney and adapted to your particular client, case, and situation.