Au-Yang v. Barton, S061703.

• Decision Date: 18 November 1999
• Docket Number: No. S061703.,S061703.
• Citation: 987 P.2d 697,21 Cal.4th 958,90 Cal.Rptr.2d 227
• Court: California Supreme Court
• Parties: Susan AU-YANG, Plaintiff and Respondent, v. Neil BARTON et al., Defendants and Appellants.

90 Cal.Rptr.2d 227

987 P.2d 697

21 Cal.4th 958

Susan AU-YANG, Plaintiff and Respondent, v. Neil BARTON et al., Defendants and Appellants.

No. S061703.

Supreme Court of California.

November 18, 1999.

Anthony P. David, San Francisco, for Defendants and Appellants.

Franklin Melius Gordon for Plaintiff and Respondent.

KENNARD, J.

Subdivision (a) of Code of Civil Procedure section 594 (hereafter section 594(a)) prohibits trial of an issue of fact in the absence of a party unless it is first proven that the absent party "has had 15 days' notice of such trial." When a case has been set for trial, with 15 days' notice to all parties, and the trial court thereafter advances the trial to an earlier date, does section 594(a) prohibit the court from conducting the trial on the earlier date in the absence of a party who has not received 15 days' notice of this trial date? The answer is yes.

I

In June 1991, defendant Neil Barton, doing business as Neil Barton Construction, entered into a contract with plaintiff Susan Au-Yang to replace a deck at her home in Mill Valley, California, for $28,501.31. In April 1992, plaintiff filed suit in Marin County Superior Court, alleging that defendant had negligently performed the work and seeking damages "in excess of $60,000."

Defendant asserted various affirmative defenses not relevant here, and he filed a cross-complaint for breach of contract, fraud, and negligent interference with prospective economic advantage. He alleged that he had substantially complied with the contract but that plaintiff refused to pay him and refused to allow him to make corrections or to complete construction, and that plaintiff had entered into the contract with no intention of paying him.

The case was originally set for trial on August 12, 1993. On that day, the attorneys for both parties were present and ready for trial, but for reasons not described in the record the trial was continued, first to January 6, 1994, then to August 18, 1994, and later to February 16, 1995.

On January 27, 1995, the trial court granted a motion by defendant's attorney to withdraw from the case. Shortly before the February 16, 1995, trial date, defendant, who had moved to the State of Washington, filed a petition for bankruptcy in the United States Bankruptcy Court for the Western District of Washington, the effect of which was to stay the action in Marin County Superior Court. (See 11 U.S.C. § 362(a)(1).) On February 16, the trial court reset the case for trial on October 12, 1995. Defendant was notified of the new trial date.

On May 12, 1995, the federal bankruptcy court granted defendant's motion to dismiss his petition for bankruptcy. On June 14, 1995, plaintiff filed a motion in Marin County Superior Court for an order advancing the case for trial, and plaintiff served defendant with a copy of the motion, which stated that a hearing on the motion was scheduled for July 14, 1995, but it said nothing about a proposed new date for the trial.

Defendant did not appear at the July 14, 1995, hearing on plaintiffs motion to advance the trial date. At that hearing, the trial court vacated the October 12, 1995, trial date and scheduled a status conference on July 20, 1995. Defendant was not notified of, and did not appear at, this conference. On July 20, 1995, the court scheduled a further status conference for July 27, 1995. Again, defendant received no notice of the conference and he did not appear. On July 27, 1995, the court set the case for trial on August 10, 1995, 14 days later.

Trial was held on August 10, 1995; defendant was not present. After hearing plaintiffs evidence on the merits, the trial court entered a judgment for plaintiff in the amount of $102,286, plus costs and attorney fees totaling $43,009.87.

On September 29, 1995, defendant, who was still living in the State of Washington, moved to set aside the judgment under Code of Civil Procedure section 473, which authorizes the trial court to grant a party relief from a judgment obtained as a result of the party's "mistake, inadvertence, surprise, or excusable neglect." Defendant's supporting declaration stated that the October 12, 1995, trial date was the last trial date of which he had notice; that he received notice of plaintiffs motion to advance the trial to an unspecified date but did not appear at the hearing on that motion; and that he "received no notice that plaintiffs motion had been granted or that an earlier trial date had been set until about August 22, 1995," when he "received notice from the Superior Court of Washing for Thurston County informing [defendant] that a foreign judgment had been entered in this case."

The trial court denied defendant's motion to set aside the judgment. The court explained: "Defendant NEIL BARTON admits receiving the Notice of Motion to Advance the Trial Date. He presented no opposition to that Motion. He offered no excuse for his failure to make an inquiry of the outcome of said motion. There is insufficient showing of mistake, inadvertence, surprise, or excusable neglect. He failed to exercise reasonable diligence. [Citations.]"

The Court of Appeal affirmed the judgment. We granted review to decide whether, under section 594(a), defendant was entitled to 15 days' notice of the new trial date.

II

No matter how thoroughly the parties prepare for trial before a trial date is set, there are certain preparations that can occur only after a trial date is set, such as subpoenaing and scheduling the availability of witnesses, scheduling the availability of counsel, and making any necessary arrangements for the transportation of witnesses, parties, counsel, and exhibits. If a trial date, once set, is thereafter advanced to an earlier date, many of these preparations will have been for naught. Some may have to be done over; others may become impossible in light of the changed schedule. The Legislature, recognizing these facts, has in section 594(a) made a policy determination that 15 days is the minimum period parties should be allowed for these preparations and that the court lacks the authority to proceed with trial in the absence of a party who has not received this minimum period for preparation. (See Horstmyer v. Trial Bd. of Sacramento (1937) 21 Cal.App.2d 533, 538, 69 P.2d 1021 ["The purpose of requiring notice of the time and place for trial is to enable the parties to prepare for trial and to prevent the rendering of judgment by default without the opportunity of being present."]; 59 Cal.Jur.3d, Trial, § 12, p. 470.)

As noted at the outset, section 594(a) provides that when a party fails to appear for a trial involving contested issues of fact, trial may be held in that party's absence only if "proof shall first be made to the satisfaction of the court that the [absent] party has had 15 days' notice of such trial...." ¹ We have explained the purpose of this provision as follows: "A proceeding taken against [a party] in his absence is in the nature of a default. The purpose of [section 594(a) ] is to prevent the possibility of such default being taken against one who has, by reason of insufficient notice or no notice of the time of trial, been unable to appear." (Sheldon v. Landwehr (1911) 159 Cal. 778, 782, 116 P. 44; see also Estate of Dean (1906) 149 Cal. 487, 492, 87 P. 13.)

Proceeding to judgment in the absence of a party is an extraordinary and disfavored practice in Anglo-American jurisprudence: "[T]he policy of the law is to have every litigated case tried upon its merits, and it looks with disfavor upon a party, who, regardless of the merits of the case, attempts to take advantage of the mistake, surprise, inadvertence, or neglect of his adversary." (Weitz v. Yankosky (1966) 63 Cal.2d 849, 855, 48 Cal.Rptr. 620, 409 P.2d 700; accord, Berri v. Rogero (1914) 168 Cal. 736, 740, 145 P. 95.) Reflecting this principle, section 594(a) expressly puts the burden on the party seeking to proceed with trial in the absence of the opposing party to prove that the absent party received the statutory 15-day notice. The Legislature has not required the absent party to show that it did not receive the statutorily required notice.

Compliance with section 594(a)'s notice requirement is "mandatory." (Bird v. McGuire (1963) 216 Cal.App.2d 702, 713, 31 Cal.Rptr. 386.) Although the parties may by mutual consent proceed to trial on less than 15 days' notice, the trial court may not shorten the time for notice and thereafter proceed in a party's absence. (7 Witkin, Cal. Procedure (4th ed. 1997) Trial, §§ 86-87, pp. 105-107.)

Section 594(a) makes no exception for advancements of trial. Its language prohibits in all cases a trial in the absence of a party, unless the party seeking to proceed first proves that at least 15 days before the trial the absent party was given notice that trial was to occur.

In this case, plaintiff does not contend that she complied with section 594(a) by giving defendant 15 days' notice of the August 10, 1995, trial date and by proving this fact to the trial court before trial proceeded.² Indeed, it would have been impossible for her to do so, given that the new trial date was less than 15 days after the hearing at which the court advanced the trial. Because plaintiff failed to comply with section 594(a), the trial court exceeded its authority when it conducted the trial in defendant's absence. Although the judgment of the trial court states that it acted after "[p]roof having first been made to the satisfaction of the court that defendant has had notice of the time and place fixed for trial of this action ...," this statement is without significance, for there was and could have been no proof that defendant received the notice required by section 594(a).

Notwithstanding the trial court's lack of authority to proceed, the Court of Appeal held that the trial court did not err. In doing so, it created a novel exception to section 594(a), holding that plaintiff did not have to notify defe...