Tuesday, January 24, 2017

Maybe Mandatory, But Definitely Not Jurisdictional.

Kabran v. Sharp Memorial Hospital, No. S227393 (Cal Jan. 19, 2017)

The issue is whether Plaintiff’s late filing of declarations in support of a motion for new trial—to which Defendant didn’t object in the trial court—is a jurisdictional defect that can be raised as a matter of right for the first time on appeal. The Supreme Court affirms the court of Appeal in 2015’s Kabran decision and says no, for largely the same reasons.

Plaintiff’s ground for seeking a new trial was newly discovered evidence. Under Code of Civil Procedure §§ 657(4) and 658, a new trial motion on that ground must be supported by affidavits extrinsic to the trial record. Under § 659a, those affidavits and any brief in support of the motion must be filed within ten days of the moving party’s filing a notice of intention to move for new trial, a filing that is itself subject to strict statutory limits in § 659. The § 659a deadline can be extended by up to ten days on order or stipulation. (It was twenty days when this case was before the trial court, but reduced to ten effective 1/1/15.) The court has sixty days to decide the motion, timed either from the sending of notice of the entry of judgement or from the filing of the notice of intention, whichever is shorter. See § 660. If the motion isn’t decided by that deadline, the trial court loses jurisdiction to grant it and it is denied by operation of law.

Here, after a full extension to file affidavits was given, Plaintiff still didn’t get the affidavits filed on time due to some issue with paying the filing fee. But Defendant didn’t object to their untimeliness in the trial court. Instead, it argued for the first time on appeal that the trial court lacked jurisdiction to even consider them. The Court of appeal rejected the argument, finding that Defendant waived it.

In an unanimous opinion by Justice Liu, the Supreme Court affirms. It is well-established that § 659’s the deadlines for filing a notice of intent and § 660’s cutoff for the court to decide the motion are jurisdictional. Blow them and the new trial game is over. But § 659’s deadline for affidavits is less clear. That said, the court reviews the case law and finds most of it consistent with the affidavit deadline not being jurisdictional. One court of appeal case—Erikson v. Weiner, 48 Cal. App. 4th 166 (1996)—goes the other way. But the court explains that Erickson was confused about differences between three types of deadlines: directory, mandatory, and jurisdictional. The difference lies in the consequences from blowing them.

Directory deadlines are still obligatory, in the sense they need to be followed, but non-compliance with them does not render the underlying action automatically voidable. Noncompliance can be excused. On the other hand, noncompliance with a mandatory deadline renders the underlying action voidable, but not void. If an objection based on the deadline is raised, a court must reject the underlying action as invalid. But the consequences of missing a jurisdictional deadline go even further. The underlying action is void ab initio—treated as never valid at all. Unlike a directory deadline (which can be excused) or a mandatory one (which can be waived) a defaulted jurisdictional deadline deprives the the court of fundamental power to even reach an issue. Under this setup, all jurisdictional deadlines are mandatory—in the sense neither can be excused by an act of discretion. But all mandatory deadlines are not jurisdictional, because non-jurisdictional deadlines can be forfeited or waived.

Deciding which category a deadline falls into ultimately boils down to legislative intent. Two rebuttable rules of thumb apply: First, California state courts generally have jurisdiction unless the Legislature says otherwise. And second, absent any indicia of contrary legislative intent, deadlines are presumed to be directory. When a statute is jurisdictional, the Legislature tends to leave hallmarks of that intent in the text of the statute, like a stated consequence of non-compliance or a clear statement that the deadline cannot be waived or extended. 

Those indicia do, in fact, appear in §§ 659 and 660. But they don’t appear in § 659a, which specifically gives the court the discretion to grant an extension or the parties to stipulate to one. So § 659a is not jurisdictional and the Court of Appeal could find that Defendant waived it when it failed to object to the trial court.
Court of Appeal affirmed.

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