Kabran v. Sharp Memorial Hosp., No. D064133 (D4d1 May 20, 2015)
This is a med-mal case where the timeliness of a new trial motion is at issue. Plaintiff complied with the fifteen day window to file a notice of intention to move for new trial under Code of Civil Procedure § 659(a). But she didn’t pay the filing fee when she filed her brief and affidavits, which resulted in her blowing the ten-day deadline to get those docs on file under § 659a. Defendant didn’t object to the trial judge, who ultimately granted the motion on the grounds of newly discovered evidence. On appeal, defendant argues, for the first time, that plaintiff’s tardiness deprived the court of jurisdiction to grant the motion.
Not so. Although § 659(a)’s fifteen-day deadline to file a notice of intention has been deemed “mandatory and jurisdictional,” the better of the cases agree that § 659a’s ten-day deadline thereafter to file a brief and affidavits is not. The court here declines to follow Erikson v. Weiner, 48 Cal. App. 4th 1663 (1996), which read § 659a’s use of the word “shall” to impose a jurisdictional limit. As the court usefully explains, the use of statutory language indicating that a requirement is strict or mandatory does not automatically deprive the court of jurisdiction if there’s non-compliance. Failure to comply with these mandatory requirements does not render any proceeding in spite of them void.
It follows that, since there isn’t a jurisdictional defect at issue, nothing stops the court from holding that defendant waived the error by failing to object. Which it does.
Affirmed.
Update: Review granted, July 29, 2015.
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