In re Marriage of Goddard

• Citation: 97 Cal.App.4th 1059,118 Cal.Rptr.2d 842
• Decision Date: 19 April 2002
• Docket Number: No. B147332.,B147332.
• Parties: In re MARRIAGE OF Lynn E. and Terry GODDARD. Lynn E. Jakoby, Respondent, v. Terry Goddard, Appellant; Michael G. York, Appellant.
• Court: California Court of Appeals

118 Cal.Rptr.2d 842

97 Cal.App.4th 1059

In re MARRIAGE OF Lynn E. and Terry GODDARD Lynn E. Jakoby, Respondent, v. Terry Goddard, Appellant Michael G. York, Appellant.

No. B147332.

Court of Appeal, Second District, Division 5.

April 19, 2002.

Certified for Partial Publication.^*

Review Granted July 10, 2002.

Michael G. York, in pro. per., Newport Beach, for Appellant Terry Goddard.

No appearance on behalf of Respondent.

TURNER, P.J.

I. INTRODUCTION

Terry Goddard (the husband) and Michael G. York (the husband's attorney) appeal from a judgment of dissolution of marriage which incorporates a discovery monetary sanctions order. Prior to trial, in full compliance with Code of Civil Procedure¹ section 594, subdivision (a), the husband's counsel was given notice of the trial date. On the trial date, there was no appearance on behalf of the husband. An uncontested trial was held. Section 594, subdivision (b) requires that the notice of trial be introduced in evidence. At the uncontested trial, the notice of the trial date served on Mr. York, the husband's counsel, was not introduced in evidence. On appeal, the husband argues that the failure to have introduced the notice of trial into evidence was a jurisdictional error. The husband argues that the failure to have introduced the notice of trial into evidence is not subject to harmless error analysis under article VI, section 13 of the California Constitution as interpreted in People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243, and its progeny. In the published portion of the opinion, we explain why we disagree and find that the failure to have introduced the notice of trial into evidence was in fact harmless error.

II. DISCUSSION

A.-C.^**

Neither the husband nor Mr. York appeared for trial. The superior court file contains a notice of ruling on the wife's discovery motion that sets forth the trial date. The notice of ruling, filed on August 31, 2000, stated in part, "The Court set this matter for trial on October 25, 2000...." For purposes of our discussion, we refer to the August 31, 2000, document as the notice of trial. Attached to the notice of trial was a proof of service which stated it was served by mail on Mr. York on August 30, 2000. The written notice of trial was not admitted into evidence at the uncontested trial. In fact, no mention of the written notice to Mr. York and the husband of the trial date was made during the trial or in the judgment subsequently entered.

The husband contends the judgment must be reversed because the notice of trial was not introduced as evidence as required by section 594, subdivision (b). Section 594, subdivision (a) provides: "In superior and municipal courts either party may bring an issue to trial or to a hearing, and, in the absence of the adverse party, unless the court, for good cause, otherwise directs, may proceed with the case and take a dismissal of the action, or a verdict, or judgment, as the case may require; provided, however, if the issue to be tried is an issue of fact, proof shall first be made to the satisfaction of the court that the adverse party has had 15 days' notice of such trial ... as specified in subdivision (b). If the adverse party has served notice of trial upon the party seeking the dismissal, verdict, or judgment at least five days prior to the trial, the adverse party shall be deemed to have had notice." (Italics added.) The "proof shall first be made" portion of section 594, subdivision (a) was added to the statute in substantially similar language in 1899. (Stats.1899, ch. 6, § 1, p. 5.)

Section 594, subdivision (b), which is the provision of law at issue in this case, states: "The notice to the adverse party required by subdivision (a) shall be served by mail on all the parties by the clerk of the court not less than 20 days prior to the date set for trial.... If notice is not served by the clerk as required by this subdivision, it may be served by mail by any party on the adverse party not less than 15 days prior to the date set for trial.... If notice is served by the clerk, proof thereof may be made by introduction into evidence of the clerk's certificate pursuant to subdivision (3) of Section 1013a or other competent evidence. If notice is served by a party, proof may be made by introduction into evidence of an affidavit or certificate pursuant to subdivision (1) or (2) of Section 1013a or other competent evidence. The provisions of this subdivision are exclusive." (Italics added.) Section 594, subdivision (b) was added in 1975. (Stats.1975, ch. 1001, § 1, p. 2345.) The "or other competent evidence" language was added in 1976. (Stats.1976, ch. 406, § 1, pp. 1056-1057.)

The purpose of section 594 is to prevent the possibility of a default or judgment being taken against a party who, because of no or insufficient notice of the date set for trial, is unable to appear. (Au-Yang v. Barton (1999) 21 Cal.4th 958, 962-963, 90 Cal.Rptr.2d 227, 987 P.2d 697; Sheldon v. Landwehr (1911) 159 Cal. 778, 782; 116 P. 44, 59 Cal.Jur.3d, Trial, § 12, p. 470.) As the Supreme Court explained in Estate of Dean (1906) 149 Cal. 487, 492, 87 P. 13, "[Section 594 was] designed to prevent the manifest injustice of dismissing a party's action, or trying it in his absence, because of his failure to appear at a time at which he could not be held to have had notice that the trial would be had, or that any proceeding would be taken against him."

The clear language of section 594 is consistent with this statutory purpose. Section 594, subdivision (a) mandates that, when an issue of fact is to be tried, and the adverse party is absent, "proof," as specified in section 594, subdivision (b), must be made to the satisfaction of the trial court that the absent adverse party received 15 days' notice of the trial date. As noted previously, section 594, subdivision (b) specifies that when notice of the trial date is served by a party, the requisite proof of notice "may be made by introduction into evidence of an affidavit or certificate pursuant to subdivision (1) or (2) of Section 1013a or other competent evidence." (§ 594, subd. (b).) Moreover, section 594, subdivision (b) states, "The provisions of this subdivision are exclusive." Section 1013a, subdivisions (1) and (2), which are referred to in section 594, subdivision (b), provide that proof of service by mail may be made by affidavit or certificate setting forth specified information.

The Courts of Appeal have held that the 15-day notice requirement of section 594, subdivision (a), is mandatory and jurisdictional. (Urethane Foam Experts, Inc. v. Latimer (1995) 31 Cal.App.4th 763, 767, 37 Cal.Rptr.2d 404; Martin v. K & K Properties, Inc. (1987) 188 Cal.App.3d 1559, 1567, 234 Cal.Rptr. 161; Minkin v. Levander (1986) 186 Cal.App.3d 64, 70, 230 Cal.Rptr. 592; Campanella v. Takaoka (1984) 160 Cal.App.3d 504, 510-511, 206 Cal.Rptr. 745, disapproved on another point in Solas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 346, 228 Cal.Rptr. 504, 721 P.2d 590; Bird v. McGuire (1963) 216 Cal.App.2d 702, 713, 31 Cal.Rptr. 386; Isherwood v. Hyrosen Properties, Inc. (1987) 194 Cal.App.3d Supp. 33, 36, 240 Cal.Rptr. 157.) Moreover, a judgment entered absent compliance with the 15 day notice requirement in section 594, subdivision (a) is void. (Urethane Foam Experts, Inc. v. Latimer, supra, 31 Cal.App.4th at p. 767, 37 Cal.Rptr.2d 404; Irvine National Bank v. Han (1982) 130 Cal.App.3d 693, 697, 181 Cal.Rptr. 864.)

But this case does not involve section 594, subdivision (a). Rather, it involves the failure to have introduced the notice of trial into evidence as required by section 594, subdivision (b). The California appellate courts have disagreed as to whether the failure to comply with section 594, subdivision (b) is a jurisdictional error. We set forth the conflict in the decisional authority in some detail. With respect to the requirements of section 594, subdivision (b), Division Two of the Court of Appeal for the Fourth Appellate District held 20 years ago that absent actual evidence in the record made before the trial court that the required 15 days' notice was given, a court is without jurisdiction to proceed in the adverse party's absence. (Irvine National Bank v. Han, supra, 130 Cal.App.3d at p. 698, 181 Cal.Rptr. 864.) The record in Han included a notice of trial accompanied by a proof of service by mail more than 15 days prior to the trial date. However, the notice of trial and proof of service were not placed in evidence, nor was the superior court asked to take judicial notice of the file. (Id. at p. 695, 181 Cal.Rptr. 864.) No mention of notice to the absent defendant was made at trial and the judgment did not reveal whether the trial court had considered the issue of notice. (Id. at pp. 695-696, 181 Cal.Rptr. 864.) The Court of Appeal held: "It is essential to the jurisdiction of the trial court in proceeding in the absence of defendant that proof must first be made that defendant had been given statutory notice. (Starkweather v. Minarets Mining Co. (1935) 5 Cal.App.2d 501, 503 ; Stubblefield v. Long (1932) 125 Cal. App. 329 .) A judgment entered after a trial held without the notice prescribed by section 594 is not merely error, but is an act in excess of the court's jurisdiction. (Wilson v. Goldman (1969) 274 Cal.App.2d 573, 577 .)" (Irvine National Bank v. Han, supra, 130 Cal.App.3d at p. 697, 181 Cal. Rptr. 864, original italics.) The court concluded: "There was absolutely no competent evidence `introduced into evidence' at the trial to show that defendant had been served with notice of trial. Although the notice of trial and the attached proof of service were apparently in the superior court file at the time of the trial, those documents were not introduced into evidence as required by section 594, subdivision (b) which also provides that `the provisions of this subdivision are exclusive.' There was no testimony that the required notice...