Gee v. American Realty & Construction, Inc.
Decision Date | 03 July 2002 |
Docket Number | No. A095457.,A095457. |
Citation | 122 Cal.Rptr.2d 167,99 Cal.App.4th 1412 |
Court | California Court of Appeals Court of Appeals |
Parties | Gordon GEE et al., Plaintiffs and Respondents, v. AMERICAN REALTY & CONSTRUCTION, INC., et al., Defendants and Appellants. |
Law Offices of Mattaniah Eytan, Mattaniah Eytan, Corte Madera, Eric Schenk, for Appellants.
Kass and Kass Law Offices, Bradley Kass, San Mateo, for Respondents.
On May 21, 2002, this court filed the following opinion:
Defendants petitioned for rehearing, claiming that we had misread In re Griffin, supra, 67 Cal.2d 343, 62 Cal.Rptr. 1, 431 P.2d 625 (Griffin), and decided the appeal on an issue not raised by the parties. We granted rehearing and allowed the parties to file supplemental briefs. To our previous opinion we add the following:
Defendants continue to maintain that we have misconstrued Griffin. The issue in Griffin was a prison commitment made after probation had been revoked, even though the term of probation had expired. The Supreme Court noted in its opinion: (Griffin, supra, 67 Cal.2d 343, 345-346, 62 Cal.Rptr. 1, 431 P.2d 625.) Defendants read this language as indicating that the Supreme Court's subsequent discussion of the estoppel principle is implicitly confined to collateral attacks, not to a direct attack on appeal such as defendants are making. There is no logical reason why the principle should be so limited and nothing in Griffin suggests as much. On the contrary, several of the decisions cited in Griffin involve direct appeals (Hoshour v. County of Contra Costa (1962) 203 Cal.App.2d 602, 605, 21 Cal. Rptr. 714; Phillips v. Beilsten (1958) 164 Cal.App.2d 450, 457, 330 P.2d 912; Munns v. Stenman (1957) 152 Cal.App.2d 543, 557-558, 314 P.2d 67). One of those decisions quotes this excerpt from the first edition of Witkin's treatise on California Procedure: "`There seems to be substantial authority for the proposition that a party who has invoked or consented to the exercise of jurisdiction beyond the court's authority may be precluded from challenging it afterwards" (Munns v. Stenman, supra, at p. 558, 314 P.2d 67, italics added.) The current edition of Witkin has the same statement. (2 Witkin, Cal. Procedure (4th ed. 1996) Jurisdiction, § 324, p. 900.) We do not believe the estoppel principle stated in Griffin was either misperceived or misapplied in our previous opinion.
Although most of defendants' supplemental brief is given over to the Griffin issue, they appear to back off with this argument: In conceding they are no longer challenging the trial court's jurisdiction, defendants must also logically concede the court's jurisdiction to decide defendants' motion including the jurisdiction to decide it wrongly. (E.g. Portnoy v. Superior Court (1942) 20 Cal.2d 375, 378, 125 P.2d 487; Lacks v. Lacks (1976) 41 N.Y.2d 71, 390 N.Y.S.2d 875, 359 N.E.2d 384, 387; State v. Jameson (1963) 80 S.D. 362, 123 N.W.2d 654, 657; State v. Superior Court for King County (1961) 58 Wash.2d 162, 361 P.2d 643, 644; In re Johnson's Estate (1957) 180 Kan. 740, 308 P.2d 100, 106.) The question then becomes whether the defendants have sustained their burden on appeal to show error. They have not.
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