In re Marriage of Goddard

• Decision Date: 07 June 2004
• Docket Number: No. S107154.,S107154.
• Citation: 14 Cal.Rptr.3d 50,33 Cal.4th 49,90 P.3d 1209
• Court: California Supreme Court
• Parties: In re MARRIAGE OF Lynn E. and Terry GODDARD. Lynn E. Jakoby, Respondent, v. Terry Goddard, Appellant; Michael G. York, Appellant.

14 Cal.Rptr.3d 50

90 P.3d 1209

33 Cal.4th 49

In re MARRIAGE OF Lynn E. and Terry GODDARD.

Lynn E. Jakoby, Respondent, v. Terry Goddard, Appellant;

Michael G. York, Appellant.

No. S107154.

Supreme Court of California.

June 7, 2004.

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

Susan K. Weiss, Santa Monica, for Respondent.

Schwamb & Stabile and Mark A. Hewitt, Orange, as Amici Curiae on behalf of Respondent.

MORENO, J.

A trial of an issue of fact in a civil matter may proceed in the absence of one of the parties and a default judgment may issue if the trial court is satisfied that that party "had 15 days' notice of such trial." (Code Civ. Proc., § 594, subd. (a).) If such notice was served by a party, Code of Civil Procedure section 594, subdivision (b) provides that proof of such notice of trial "may be made by introduction into evidence of an affidavit or certificate . . . or other competent evidence."

In the present case, the husband in a marriage dissolution action did not appear for trial and a judgment was entered. The husband appealed, arguing that the notice of the trial date that had been served by opposing counsel had not been entered into evidence. The notice of trial had been filed, however, and was in the court file. The Court of Appeal affirmed the judgment, concluding the failure to introduce the notice into evidence was harmless error.

We granted review to decide whether the failure to enter into evidence the notice of trial, as required by Code of Civil Procedure section 594, subdivision (b) constitutes a jurisdictional defect or is subject to harmless error analysis. For the reasons that follow, we conclude the error is subject to harmless error analysis and affirm the judgment of the Court of Appeal.

I. FACTUAL AND PROCEDURAL BACKGROUND

On May 10, 1999, Lynn E. Jakoby filed a petition for dissolution of her marriage to Terry Goddard. On May 22, 2000, Goddard filed a response and request for dissolution of marriage.

On August 3, 2000, Jakoby filed a motion for attorney fees and costs for Goddard's failure to answer interrogatories and to provide a "Preliminary Declaration of Disclosure," including a schedule of assets and debts. A hearing was held on August 30, 2000, at which Goddard and his counsel, Michael G. York, failed to appear. The court ordered Goddard to respond to the interrogatories and provide a preliminary declaration of disclosure, including a schedule of assets and debts, by September 15, 2000, and imposed sanctions and costs in the amount of $2,023. The court set the matter for trial on October 25, 2000, and directed Jakoby to give notice of the ruling and of the date of trial.

On August 31, 2000, Jakoby filed a notice of ruling stating that trial had been set for October 25, 2000. Attached to the notice was a proof of service that showed it had been served by mail on York, Goddard's counsel.¹

On October 25, 2000, Goddard and York failed to appear for trial and the court granted the petition for dissolution of marriage.

Goddard and York appealed from the resulting judgment. Goddard argued that the trial court erred in conducting the trial in his absence because Jakoby had not introduced into evidence proof of the notice of trial as required by Code of Civil Procedure section 594, subdivision (b) (hereafter section 594(b)). Relying upon the decision in Irvine National Bank v. Kwang-Wei Han (1982) 130 Cal.App.3d 693, 181 Cal.Rptr. 864 (Irvine), Goddard asserted that the notice of trial in the court file was insufficient. The Court of Appeal rejected Goddard's argument, finding Jakoby's failure to introduce proof of the notice of trial to be harmless error in light of the circumstance that "there is an uncontroverted under-oath showing and no dispute that notice of trial was given in full compliance with section 594, subdivision (a)."²

II. DISCUSSION

The Court of Appeal recognized that the evidentiary rule of section 594(b) is mandatory but held that the failure of a prevailing party to comply with this rule is not a jurisdictional defect. If compliance is not jurisdictional, then a party's failure to comply with section 594(b)'s evidentiary rule will not render a subsequent judgment voidable if the failure is harmless error. (People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243.) If jurisdictional, then the judgment is voidable and reversible on appeal even where, as here, it is clear from the record that the required notice was given. (County of Santa Clara v. Superior Court (1971) 4 Cal.3d 545, 549, 94 Cal.Rptr. 158, 483 P.2d 774 (County of Santa Clara); 2 Witkin, Cal. Procedure (4th ed. 1996) Jurisdiction, §§ 276, 278, pp. 840-842, 843-844.)

The due process clauses of the United States and California Constitutions require that a party be given reasonable notice of a judicial proceeding. (Scott v. McNeal (1894) 154 U.S. 34, 46, 14 S.Ct. 1108, 38 L.Ed. 896; Harrington v. Superior Court (1924) 194 Cal. 185, 188, 228 P. 15.) This notice requirement is codified in subdivision (a) of Code of Civil Procedure section 594 (hereafter section 594(a)), which states that a party may proceed in the absence of an adverse party with a trial that involves issues of fact if proof is made to the court that "the adverse party has had 15 days' notice of such trial."

Section 594(b) requires a party to enter into evidence such notice of the trial: "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.)

In order to determine whether the provision of section 594(b) regarding proof of the notice of trial is mandatory and, if so, whether the failure to comply with that portion of section 594(b) is jurisdictional, we begin with the language of the statute as the most reliable indicator of legislative intent. (Hunt v. Superior Court (1999) 21 Cal.4th 984, 1000, 90 Cal.Rptr.2d 236, 987 P.2d 705.) Section 594(b) was added by amendment in 1975; prior to that time there had been no statutory requirement calling for evidence of notice of trial to be introduced at trial. (Stats.1975, ch. 1001, § 1, p. 2345.) Section 594(a) requires that proof "shall" be made to the court's satisfaction, "as specified in subdivision (b)," that the adverse party has had 15 days' notice of the trial. Section 594(b) continues that such proof "may be made by introduction into evidence of an affidavit . . . pursuant to Section 1013a or other competent evidence." Code of Civil Procedure section 1013a provides for proof of service by mail. The final clause of section 594(b) notes that the "provisions of this subdivision are exclusive."

We first consider the import of the word "may" in the statutory phrase: "proof may be made by introduction into evidence of an affidavit or . . . other competent evidence." (§ 594(b), italics added.) The word "may" could be read in this context to make the entire evidentiary provision permissive. If the provision is permissive, then it would serve only as an optional means of reinforcing "to the court's satisfaction" that the adverse party has had 15 days' notice of the trial as required in section 594(a). Reading the entire evidentiary provision to be permissive is supported by the use of "shall" rather "than" may elsewhere in section 594(b).

A better explanation for the choice of "may" rather than "shall," however, is that it precedes two evidentiary alternatives set forth in the statute. The statute requires either "introduction into evidence of an affidavit or certificate," or the introduction of "other competent evidence." (§ 594(b).) Coupled with the presence of an exclusivity clause that allows no other option for providing proof to the satisfaction of the trial court, the statutory language best supports the conclusion that the overall evidentiary provision is mandatory, but the form of proof, be it either introduction into evidence of compliance with Code of Civil Procedure section 1013a, or other competent evidence, is at the discretion of the party attempting to proceed in the absence of its adversary. Our Courts of Appeal have found accordingly that section 594(b)'s evidentiary rule is mandatory. (Irvine, supra, 130 Cal.App.3d 693, 697, 181 Cal.Rptr. 864; San Francisco Bay Conservation and Development Commission v. Smith (1994) 26 Cal.App.4th 113, 126, 31 Cal.Rptr.2d 488 (San Francisco Bay).)

While the statutory language supports the conclusion that section 594(b)'s evidentiary rule is mandatory, it does not settle the question whether the failure to comply with its mandate is jurisdictional. Nor is the legislative history of assistance. The history reveals that Senate Bill No. 847 (1975-1976 Reg. Sess.), introduced on April 10, 1975, was designed to amend section 594 (hereafter section 594) and remedy the fact that section 594 "now is silent as to who must give, the manner of giving, and the means by which proof may be made of giving the requisite notice" of trial where an adverse party is absent and the other party wishes to proceed with the hearing or trial. (Sen. Com. on Judiciary, Rep. on Sen. Bill No. 847 (1975-1976 Reg. Sess.) Aug. 21, 1975; see also Assem.3d reading analysis, Sen. Bill No. 847 (1975-1976 Reg. Sess.) June 2, 1975.)³ The legislative history does not illuminate...