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.
Showing posts with label deadlines. Show all posts
Showing posts with label deadlines. Show all posts
Tuesday, January 24, 2017
Monday, June 8, 2015
Every Requirement Isn't Jurisdictional
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.
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.
Thursday, April 30, 2015
Of Proofs and Postmarks
Simplon Ballpark v. Scull, No. D06291 (D4d1 Mar. 30, 2015)
I don’t often think about proofs of service. A legal assistant attaches them after my work is done. But when they go wrong, they can go really wrong, especially when a jurisdictional deadline is at issue. The court here reads the mail service statute to save a defendant, who lost at trial but won a JNOV, and then almost lost again due to a postmarking issue.
Most documents can be served by mail. Code of Civil Procedure § 1013a addresses the various methods of proof of that service. Apropos here, § 1013a(1) permits proof by attesting that the document was “deposited in” the mail. On the other hand, § 1013a(3) permits proof of service by attestation that the mail was placed in an outgoing mail bin, when an established office practice is to combine the binned mail and give it to the post office on the same day. That proof, however, is presumed invalid if the postmark is more than one day after the pleading was supposedly served. The presumption is a burden-shifting rebuttable presumption. I.e., it affects the burden of coming forward with evidence.
The court here first finds that this wasn’t § 1013a(1) service. In light of the statutory structure, “deposited in” requires a declaration stating the date and place where the document was actually delivered to the postal service or put in a mailbox. That’s not what was at issue here.
As far as §1013a(3) goes, the one-day postmarking presumption applies only “upon motion of the party served.” Thus, to be entitled to the benefits of the presumption of non-compliance, the served party must file a motion or application seeking an invalidation of the service. Since plaintiff never filed a motion to invoke the presumption, the burden never shifted to defendant. Because of that, defendant never received notice that it would have needed to submit evidence in rebuttal. So plaintiff’s argument that there was no jurisdiction for the trial court to address the JNOV due to late service was forfeited in the trial court.
Affirmed.
I don’t often think about proofs of service. A legal assistant attaches them after my work is done. But when they go wrong, they can go really wrong, especially when a jurisdictional deadline is at issue. The court here reads the mail service statute to save a defendant, who lost at trial but won a JNOV, and then almost lost again due to a postmarking issue.
Most documents can be served by mail. Code of Civil Procedure § 1013a addresses the various methods of proof of that service. Apropos here, § 1013a(1) permits proof by attesting that the document was “deposited in” the mail. On the other hand, § 1013a(3) permits proof of service by attestation that the mail was placed in an outgoing mail bin, when an established office practice is to combine the binned mail and give it to the post office on the same day. That proof, however, is presumed invalid if the postmark is more than one day after the pleading was supposedly served. The presumption is a burden-shifting rebuttable presumption. I.e., it affects the burden of coming forward with evidence.
The court here first finds that this wasn’t § 1013a(1) service. In light of the statutory structure, “deposited in” requires a declaration stating the date and place where the document was actually delivered to the postal service or put in a mailbox. That’s not what was at issue here.
As far as §1013a(3) goes, the one-day postmarking presumption applies only “upon motion of the party served.” Thus, to be entitled to the benefits of the presumption of non-compliance, the served party must file a motion or application seeking an invalidation of the service. Since plaintiff never filed a motion to invoke the presumption, the burden never shifted to defendant. Because of that, defendant never received notice that it would have needed to submit evidence in rebuttal. So plaintiff’s argument that there was no jurisdiction for the trial court to address the JNOV due to late service was forfeited in the trial court.
Affirmed.
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