Douglas v. Janis

• Decision Date: 16 December 1974
• Citation: 43 Cal.App.3d 931,118 Cal.Rptr. 280
• Court: California Court of Appeals Court of Appeals
• Parties: Jack DOUGLAS, Plaintiff, Respondent and Appellant, v. S. Roger JANIS, Defendant, Appellant and Respondent. Civ. 42900.

Page 280

118 Cal.Rptr. 280

43 Cal.App.3d 931

Jack DOUGLAS, Plaintiff, Respondent and Appellant, v. S. Roger JANIS, Defendant, Appellant and Respondent.

Civ. 42900.

Court of Appeal, Second District, Division 1, California.

Dec. 16, 1974.

As Modified Dec. 23, 1974.

Rehearing Denied Jan. 10, 1975.

Hearing Denied Feb. 13, 1975.

I. B. Kornblum, Beverly Hills, and David H. Kornblum, Los Angeles, for plaintiff Douglas.

Rosenfeld, Meyer & Susman, Beverly Hills, John G. Davies, San Diego, and Edward J. Riordan, Beverly Hills, for defendant Janis.

LILLIE, Associate Justice.

Plaintiff recovered judgment of a jury verdict in an action for slander; subsequently the trial court entered an order granting defendant's motion for a new trial. Plaintiff appeals from the order; defendant appeals from the judgment.

The judgment awarding plaintiff $50,000 compensatory damages was entered June 21, 1972. On June 22, 1972, plaintiff served on defendant by mail notice of entry of judgment, and on June 23, 1972, the clerk of the court served notice of entry of judgment on defendant. On July 10, 1972, defendant filed notice of intention to move for a new trial; thereafter plaintiff filed notice of motion to strike notice of intention to move for a new trial on the ground that it 'was not timely filed and that such filing is jurisdictional.' After a hearing the motion to strike was denied on the ground that 'plaintiff failed of strict compliance with the statutory requirements.' ¹ Subsequently defendant's motion for a new trial was granted and the court filed its specification of reasons in support thereof.

Viewing the record in light of applicable statutory and case law authority we conclude that defendant's notice of intention to move for a new trial was not timely filed and, this requirement being jurisdictional, the trial court acted outside of its jurisdiction and in excess of its power in granting the motion for new trial. The time in which the notice must be filed is governed by sectin 659, subdivision 2, Code of Civil Procedure. ² Under section 1013, Code of Civil Procedure, ³ service of a document by mail is 'complete' when it is deposited in the mail (McKeon v. Sambrano, 200 Cal. 739, 741, 255 P. 178; Gill v. Southern Pacific Co., 174 Cal. 84, 87, 161 P. 1153; Caldwell v. Geldreich, 137 Cal.App.2d 78, 81, 289 P.2d 832); and under section 1013a, subdivision (1), ⁴ proof of service may be made by a declaration attached to the served document in the same manner as here made. We therefore compute the 15-day period afforded defendant in which to file his notice of intention to move for a new trial from the day of service of plaintiff's notice of entry of judgment, June 22, 1972, 'by excluding the first day, and including the last, unless the last day is a holiday, and then it is also excluded.' (Section 12, Code of Civil Procedure.) Taking judicial notice of the calendar for June and July, 1972, (§ 452, subd. (h) and 459, subd. (a)(2), Evid.Code) we determine the fifteenth day from June 22, 1972, to be Friday, July 7, 1972 (not a holiday). Defendant's notice was filed on July 10, 1972. Thus, because compliance with the 15-day requirement of section 659 is jurisdictional defendant's notice was totally ineffectual; the trial court had no power to entertain or act on the motion, and its purported grant of the new trial was void. (Neale v. Morrow, 174 Cal. 49, 51--52, 161 P. 1165; Markaway v. Keesling, 211 Cal.App.2d 607, 610, 27 Cal.Rptr. 583; Radford v. Crown City Lumber & Mill Co., 165 Cal.App.2d 18, 20, 331 P.2d 438; King v. Wilson, 101 Cal.App.2d 242, 243, 225 P.2d 270 (notice 1 day late).)

Defendant claims plaintiff's notice of entry of judgment was 'defective' and therefore ineffectual to commence the running of the 15-day period because the declaration of 'proof of service by mail' attached to the notice did not comply with the requirements of sections 1013 and 1013a. He refers to the language of section 1013 which provides that a document served by mail must be 'addressed to the person on whom it is to be served, at his office address as last given by him on any document which he has filed in the cause and served on the party making service by mail'; and submits that every document he previously served on plaintiff bore defense counsel's suite number in a named building in addition to the street, city address and zip code, but that plaintiff's declaration of proof of service did not contain the room number and building name. He also refers to section 1013a, which requires the accompanying affidavit or declaration of proof of service by mail to show the 'place of deposit in the mail,' and argues that inasmuch as the declaration shwos the place of its mailing as 'Los Angeles, California', this is inadequate because there is no indication of the specific mailbox in Los Angeles in which it was mailed. ⁵ Although we agree that 'strict compliance' with sections 1013 and 1013a is required, we decline to equate 'strict compliance' with absurdity in compliance. The rule of 'strict compliance' is satisfied by substantial, without literal, compliance (see Words and Phrases, Vol. 40, pp. 452--453, and authorities cited therein); and in light of the fact that the record shows that counsel for defendant admitted that his office received a copy of the notice of entry in the mail, we find defendant's entire argument in this respect to be hypertechnical. Moreover, the cases defendant cites fail to support his position. In Forslund v. Forslund, 225 Cal.App.2d 476, 37 Cal.Rptr. 489, and Marsden v. Collins,23 Cal.App.2d 148, 72 P.2d 247, the court found there had been sufficient compliance with the 'mailing' sections of the Code of Civil Procedure; ⁶ in Carlon v. Gray, 10 Cal.App.2d 658, 52 P.2d 966, the purported proof of service by mail failed to show the street address of both the addressor and the addressee. Marsden distinguishes Carlon for this reason (23 Cal.App.2d p. 150, 72 P.2d 247). ⁷

In light of the foregoing we deem it unnecessary to consider plaintiff's additional contention that the specification of reasons given in support of the order was inadequate.

Inasmuch as our ruling above automatically reinstates the judgment we summarize the evidence for disposition of the issue of insufficiency of the evidence to support the judgment raised on defendant's appeal. Except for the precise language used by defendant in relation to the claim of slander, the evidence is undisputed. As to this we consider the evidence in a light most favorable to the prevailing party and resolve all conflicts in favor of the respondent, and indulge, all legitimate and reasonable inferences to uphold the verdict (Cunningham v. Simpson, 1 Cal.3d 301, 306, 81 Cal.Rptr. 855, 461 P.2d 39 (slander)).

Plaintiff is an independent television producer who has produced numerous programs in which he also has appeared as a commentator or performer. In 1964 he made a pilot film for a T.V. program to be called 'AMERICA!' wherein places of interest in the United States would be featured; and subsequently sold the show. For financing the production plaintiff arranged to borrow $418,000 from a bank, $100,000 of which had to be guaranteed by others. In this connection plaintiff, a member of the Riviera Country Club, approached defenant, also a member, and other individuals; thirty-nine films were initially planned, and ultimately defendant and the others agreed with plaintiff that in return for fifth percent of the net profits of the show they would make the guarantee, and in addition would pay plaintiff for their percentage interest $20,000 at the commencement of the series and $15,000 after the 39 films had been completed. The production costs included $1,000 per show as salary to plaintiff for his role as producer and on-camera host. Ultimately 65 shows were produced and accordingly plaintiff drew a total of $65,000 in salary; with the $35,000 paid him by defendant and the others, he realized a total of $100,000. The show was not a financial success and defendant and the investors lost some of their investment. In addition defendant and the others participated with plaintiff in the production of other format productions which too were unprofitable resulting in further monetary losses. These activities involved the formation of various participating corporate entities and covered the years 1964 through 1967. Sometime in January 1969, defendant stated to Fredericks, another investor, 'that he discovered that Mr. Douglas had taken $100,000 from the 'AMERICA!' series and that he had records to prove it'; on another occasion in January defendant stated to a group of four or five Riviera members, including a Mr. Goethals, during lunch at the club 'that Mr. Jack Douglas had stolen $100,000 from one of his corporations.'

In light of the substantial evidence in the record of defendant's statements to others and that these statements were untrue and nonprivileged, we find defendant's contention of insufficiency of the evidence to support the judgment to be untenable. Section 46, Civil Code, defines slander as 'a false and unprivileged publication, orally uttered . . . which 1. Charges any person with crime. . . . 3. Tends directly to injure him in respect to his office, profession, trade or business. . . . by imputing something with reference to his office, profession, trade or business that has a natural tendency to lessen its profits. . . .' ⁸ Fredericks, who testified to the aforementioned statement made to him by defendant, also testified that he had understood it to mean that plaintiff had taken 'another $100,000,' in addition to the $100,000 in salary and investment funds, from the 'AMERICA!' series. Goethals, after testifying that defendant had stated to the luncheon group, 'Mr. Jack Douglas had stolen $100,000 from one of his corporations,' further testified in answer to the following questions: 'Q Did you believe that he (defendant) was saying that it...