Kabran v. Sharp Mem'l Hosp.

• Decision Date: 19 January 2017
• Docket Number: S227393
• Citation: 212 Cal.Rptr.3d 361,386 P.3d 1159,2 Cal.5th 330
• Court: California Supreme Court
• Parties: Berthe Felicite KABRAN, Plaintiff and Respondent, v. SHARP MEMORIAL HOSPITAL, Defendant and Appellant.

2 Cal.5th 330

386 P.3d 1159

212 Cal.Rptr.3d 361

Berthe Felicite KABRAN, Plaintiff and Respondent,

v.SHARP MEMORIAL HOSPITAL, Defendant and Appellant.

S227393

Supreme Court of California

Filed January 19, 2017

Lotz, Doggett & Rawers, Jeffrey S. Doggett, Evan J. Topol, San Diego, and Patrick F. Higle for Defendant and Appellant.

Berman & Riedel, William Michael Berman ; Kenneth M. Sigelman & Associates, Kenneth M. Sigelman, Penelope A. Phillips, San Diego; Williams Iagmin and Jon R. Williams for Plaintiff and Respondent.

Liu, J.

A jury returned a special verdict finding that Sharp Memorial Hospital (the Hospital) was negligent in its treatment of Eke Wokocha but that this negligence did not cause his quadriplegia. Shortly thereafter, Wokocha died. An autopsy revealed evidence that, according to Wokocha's widow, Berthe Kabran, called into question the jury's causation determination. Kabran moved for a new trial on the basis of this evidence. In submitting expert affidavits explaining the significance of this evidence, Kabran did not timely pay the necessary filing fee. The Hospital did not object to the timeliness of the affidavits, and the trial court granted Kabran's motion for a new trial. The Hospital, relying on Erikson v. Weiner (1996) 48 Cal.App.4th 1663, 56 Cal.Rptr.2d 362 (Erikson ), argued on appeal that because the affidavits were not timely filed, the trial court lacked jurisdiction to rely on them in hearing the new trial motion. The Court of Appeal held that the trial court did not lack fundamental jurisdiction and that the Hospital forfeited its challenge to the timeliness of the affidavits by failing to object in the trial court.

We conclude that Code of Civil Procedure section 659a does not deprive a court of fundamental jurisdiction to consider affidavits submitted after the 30-day deadline set forth in the statute. Because the Hospital did not object to the timeliness of the affidavits in the trial court, it may not raise this issue for the first time on appeal. Accordingly, we affirm the judgment of the Court of Appeal.

I.

Wokocha sued the Hospital in October 2012, alleging he was mishandled by an occupational therapist during a postoperative stay at the Hospital in January 2009. The Hospital's negligence, Wokocha alleged, caused spinal shock and bleeding, which in turn caused Wokocha's deterioration into quadriplegia. The suit proceeded to trial. In February 2013, the jury returned a special verdict finding that the Hospital was negligent in the care of Wokocha but that this negligence was not a substantial factor causing Wokocha's quadriplegia. (All dates in the following two paragraphs are in the year 2013.)

Shortly after the verdict, Wokocha died, and the court substituted Kabran as plaintiff. On March 1, Kabran filed a notice of intent to move for a new trial, alleging newly discovered material evidence as a ground for the motion. On March 6, the parties stipulated to a 20-day extension under Code of Civil Procedure section 659a for Kabran to file moving papers and affidavits in support of her motion for a new trial. (All undesignated statutory references are to the Code of Civil Procedure.) The trial court's order granting the extension identified Monday, April 1, as the deadline for filing. Because the César Chávez Day holiday fell on Sunday, March 31, that year, April 1 was a court holiday. On April 2, Kabran served the Hospital and attempted to file with the court a memorandum of points and authorities along with two declarations—one by Dr. Guerad Grice, the other by Dr. Jeffrey Gross—in support of her motion for a new trial. Kabran's memorandum and supporting affidavits argued for a new trial on the basis of autopsy findings tending to show that the mass on Wokocha's spine causing his deterioration into quadriplegia was not a tumor, as the Hospital had argued, but a "traumatic neuroma" consistent with the injury Wokocha allegedly suffered during his postoperative stay in January 2009.

The series of events that gave rise to the issue before us began when Kabran, in filing the memorandum and supporting affidavits on April 2, failed to pay the requisite filing fee. On April 4, the clerk of court canceled the original April 2 time stamp and did not process the submissions. Before the time stamp was canceled, however, Kabran obtained via an ex parte hearing on April 3 an order setting a new trial motion hearing for April 12 with a deadline for the Hospital's opposition papers of April 10. Kabran's memorandum was stamped as received, with filing fees, on April 5; the Gross and Grice affidavits were filed on April 9. In opposition, the Hospital submitted numerous evidentiary objections to the content of the affidavits and argued that the allegedly new evidence was cumulative, could have been discovered through reasonable diligence before trial, and would not have changed the outcome of the trial. The Hospital did not object to the admission of the memorandum or supporting affidavits on the ground that they were untimely filed. On April 12, the trial court granted Kabran's motion for a new trial on the grounds that "[t]here is a probability that this new evidence [the autopsy findings] may render a different result in a new trial" and that the evidence "could not, with reasonable diligence, [have] been discovered and produced at trial." The order quoted Grice's affidavit in support of this conclusion.

The Hospital appealed. In addition to disputing the new trial order on its merits, the Hospital argued for the first time that the Grice and Gross affidavits were not timely filed under section 659a, that the 30-day aggregate period set forth in section 659a is jurisdictional, and that the trial court's order relying on the belated filings was therefore void. The Court of Appeal rejected this argument, explaining that the trial court's reliance on the Grice and Gross affidavits was "in excess of its jurisdiction, but nevertheless within its fundamental jurisdiction." "Because [the Hospital] did not challenge the timeliness" of Kabran's affidavits and instead opposed the motion on the merits, the Court of Appeal held any objection waived and went on to affirm the trial court's new trial order on the merits. In so holding, the Court of Appeal disagreed with Erikson , supra , 48 Cal.App.4th 1663, 56 Cal.Rptr.2d 362, which had held that the 20-day extension in section 659a is the exclusive remedy for a failure to file within the initial 10-day period and so trial courts lack jurisdiction to consider affidavits filed after the 30-day aggregate period. We granted review.

II.

Sections 656 through 662 set forth when and how a party may move for a "re-examination of an issue of fact in the same court after a trial and decision by a jury, court, or referee." (§ 656.) Sections 659, 659a, and 660 set forth the procedures and deadlines associated with litigating a new trial motion. A party must file a notice of its intent to move for a new trial either between the rendering of a decision and the judgment being entered; or within 15 days after the clerk mailed, or the opposing party received service of, written notice of the judgment; or within 180 days after the judgment was entered, "whichever is earliest." (§ 659.) Once jurisdiction is established by motion, the trial court has to rule on the motion within 60 days from the mailing or service of notice of judgment or, if no notice was given, within 60 days after the notice of intention to move for a new trial. (§ 660.)

Section 657 sets forth the possible grounds on which a trial court may grant a new trial motion. Section 658 provides that although such a motion generally may rely solely on the minutes of the court, a motion that relies on newly discovered evidence, juror misconduct, accident or surprise, or an irregularity in the proceedings "must be made upon affidavits." Section 659a establishes deadlines for submission of the required affidavits. At the time Kabran submitted the Grice affidavit, section 659a read as follows: "Within 10 days of filing the notice, the moving party shall serve upon all other parties and file any affidavits intended to be used upon such motion. Such other parties shall have ten days after such service within which to serve upon the moving party and file counter-affidavits. The time herein specified may, for good cause shown by affidavit or by written stipulation of the parties, be extended by any judge for an additional period of not exceeding 20 days." (Former § 659a, as amended by Stats. 1989, ch. 1416, § 20, p. 6232.)

"A motion for a new trial is ‘a new statutory proceeding, collateral to the original proceeding’ and constitutes a new action brought to set aside the judgment." (Spruce v. Wellman (1950) 98 Cal.App.2d 158, 161, 219 P.2d 472.) Both the "right to move for a new trial" and the court's jurisdiction to hear it are creatures of statute. (Wagner v. Singleton (1982) 133 Cal.App.3d 69, 72, 183 Cal.Rptr. 631 ; 8 Witkin, Cal. Procedure (5th ed. 2008) Attack on Judgment in Trial Court, § 19, p. 601 ["there is no inherent power in the trial court to grant a new trial"].) A trial court gains jurisdiction to hear such a motion only after a party files a timely notice of intent and judgment has been entered. (Tabor v. Superior Court (1946) 28 Cal.2d 505, 508, 170 P.2d 667 [court had no jurisdiction to hear new trial motion filed before court signed and filed findings of fact and conclusion of law, and parties cannot overcome this jurisdictional defect by stipulation or waiver].) Thus, a "trial court does not have the jurisdiction to make an order granting a new trial on its own motion." (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 151, 178 Cal.Rptr. 642.) Nor is it "within the power of the litigants to invest the court with jurisdiction to hear and determine the motion for a new trial by consent, waiver, agreement or acquiescence."

(City of Santa Barbara v. Superior Court (1966) 240 Cal.App.2d 612, 614, 49 Cal.Rptr. 798.)

Because ...