People v. $20,000 U.S. Currency

• Decision Date: 25 October 1991
• Docket Number: No. C009277,C009277
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Appellant, v. $20,000 U.S. CURRENCY, Defendant; Lane Oldham et al., Defendants and Respondents.

Page 746

286 Cal.Rptr. 746

235 Cal.App.3d 682

The PEOPLE, Plaintiff and Appellant, v. $20,000 U.S. CURRENCY, Defendant;

Lane Oldham et al., Defendants and Respondents.

No. C009277.

Court of Appeal, Third District, California.

Oct. 25, 1991.

[235 Cal.App.3d 685] Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Arnold O. Overoye, Sr. Asst. Atty. Gen., W. Scott Thorpe and David A. Rhodes, Deputy Attys. Gen., for plaintiff and appellant.

No appearance, for defendant.

Jack D. Wood and Leo A. Battle, Paradise, for defendants and respondents.

SPARKS, Acting Presiding Justice.

While the substantive nature of this action is forfeiture, this appeal is concerned solely with the narrowly circumscribed question of whether the time granted to file an amended petition was extended by five days under the provisions of Code of Civil Procedure section 1013. The ruling in question granted a motion for judgment on the pleadings with leave to amend. Notice of that ruling was mailed to the losing party, who had also been present through an attorney at the time of the ruling. The trial court held that the time was not extended by mailing the notice of the ruling; instead, notice of the ruling was waived by counsel's presence at the hearing, so that the time to amend therefore ran from the date of the hearing. We disagree and hold that the time to file an amended pleading was extended for five days. Since an amended pleading had been timely filed within the extended time period, we shall reverse.

PROCEDURAL BACKGROUND

The People, acting through the District Attorney of Butte County, filed a petition under Health and Safety Code section 11470 et sequitur for the forfeiture of $20,000 and other items seized by officers of the State Bureau of Narcotics Enforcement and the Butte Inter-Agency Narcotics Task Force. The petition named Lane and Sandra Oldham as the owners of the property. A second amended petition was filed on February 27, 1990. On March 23, 1990, defendant Lane Oldham moved for judgment on the pleadings. The hearing on that motion was set for April 13, 1990. At that scheduled hearing Judge Riley, sitting by assignment, granted the motion for judgment on the pleadings with leave to amend. Neither the allegations nor the basis for the ruling are relevant to this appeal. The minutes of the hearing reflect that counsel for the parties were present and that the motion was "granted with 30 days leave to amend." ¹ It does not appear that the district attorney waived notice of that ruling in open court and no waiver of notice of the ruling appears in the minutes. The 30-day period expired on May 14 (the 13th being a Sunday) unless it was extended by provisions of Code of Civil Procedure section 1013, subdivision (a) [undesignated section references will be to this code]. (See Montgomery v. Norman (1953) 120 Cal.App.2d 855, 857, 262 P.2d 360.) On April 13, the same day the motion was granted, counsel for defendant Lane Oldham served a notice of the court's ruling by mailing a copy to the district attorney. The notice recounted that "[t]he court granted [defendant] Lane Oldham's Motion for Judgment on the Pleadings, granting leave to plaintiff to file its amended complaint within 30 days."

By Tuesday, May 15, no amended petition had been filed. The real parties in interest presented a proposed judgment to Judge Gilbert of the Butte County Superior Court for him to sign. Judge Gilbert in turn caused the judgment to be mailed to Judge Riley in El Dorado County, who executed it on May 17; the Butte County Clerk entered the judgment in the judgment book on May 22. Meanwhile, the People had filed a third amended petition on May 16, two days late unless the time had been extended.

On May 25, the People moved to vacate the judgment under section 473 solely on the ground that their time to file the amended petition was extended by five days because the notice of the ruling on the motion to vacate was served by mail. (§ 1013, subd. (a).) The court denied the motion on June 15. It stated at the hearing, "All right[. M]otion to vacate is denied. And let me just read into the record the citations I've made here on my intended decision. Bar[r]on [v. Deleval (1881) ] 58 Cal[.] 95. Also 49 Cal[.]Jur[.3d, P]leadings[,] section 160. [Estate of ] Keating [ (1910) 158 Cal[.] 1 . Also [Guedalia v. Superior Court (1989) ] 211 C[al].A[pp].3d 1156 . Also [Citicorp North America, Inc. v. Superior Court (1989) ] 213 C[al].A[pp].3d 563 . I believe for reasons stated in those cases that [for] the parties at least that were present, 30 days meant and means 30 days, and thus the motion to vacate is denied."

On July 13, the People purported to appeal from the order of April 13 and appealed from the order of June 15. ² In this court, the People renew their argument that section 1013 extended their time to file the amended petition. ³ We turn to this not entirely simple question.

DISCUSSION

Section 1013, subdivision (a) deals with service by mail. Under its terms, "[t]he service is complete at the time of the deposit, but any prescribed period of notice and any right or duty to do any act or make any response within any prescribed period or on a date certain after the service of such document served by mail shall be extended five days if the place of address is within the State of California...." ⁴

As was well explained in Citicorp North America, Inc. v. Superior Court (1989) 213 Cal.App.3d 563, 567-568, 261 Cal.Rptr. 668, "Section 1013 is a procedural statute of general application and it is not limited only to rules or statutes which expressly incorporate its terms. It has been broadly construed. In the absence of an exception expressly created by statute or rules, section 1013 applies to extend any prescribed time period following service by mail. It is a 'service' statute and was intended by the Legislature to extend statutory deadlines and time periods initiated or triggered by a notice, document, or request which is served by mail.... [p] Thus, the cases have consistently held that where a prescribed time period is commenced by some circumstance, act or occurrence other than service then section 1013 will not apply. [p] On the other hand, where a prescribed time period is triggered by the term 'service' of a notice, document or request then section 1013 will extend the period." (Citations, fns. & emphasis deleted.) ⁵

Ultimately, the question of whether section 1013 is applicable depends upon the triggering aspect of the service of notice. Thus, this case turns on whether the time to amend the petition ran from the service of the notice of the order granting the motion (in which case the People would be entitled to an additional five days for its service by mail) or from the time the order itself was rendered in open court (in which case the fact that the notice of the motion was mailed to them would be a mere happenstance of no import). ⁶ The district attorney contends that the time to amend the petition was extended for five days under section 1013 because service of the notice was required by section 1019.5. The defendants in interest counter that section 1019.5 has no application here because section 472b is the more specific statute and it controls. ⁷ They further argue that under section 472b, as construed by the California Supreme Court, the presence of counsel at the hearing where a ruling is made constitutes a waiver of any notice of that ruling. As defendants see it, the People "did not have 5 more days because appellant's counsel, Deputy District Attorney Daniel Montgomery was personally present in court when Judge Riley announced the ruling. [The Deputy District Attorney's] presence rendered mailed notice of the ruling to appellant unnecessary. Alternatively, presence of appellant's counsel was a waiver of service of notice by mail of the court's ruling."

Section 1019.5 provides, "When a motion is granted or denied, unless the court otherwise orders, notice of the court's decision or order shall be given by the prevailing party to all other parties or their attorneys, in the manner provided in this chapter, unless notice is waived by all parties in open court and is entered in the minutes." Under this general provision, the People were entitled to notice of the court's ruling, which was neither countermanded by order of the court nor expressly waived in open court according to the record on appeal. But the fact they were entitled to notice is not determinative of whether this notice triggers the time to amend or is independent of it, since nothing in section 1019.5 states it is the trigger for any time period related to an order. Statutes and rules which invoke the extension provisions of section 1013 typically provide that the allotted time shall run from the service of the notice or other document. (See, e.g., Citicorp North America, Inc. supra, 213 Cal.App.3d 563, 261 Cal.Rptr. 668 [Cal.Rules of Court, rule 1515]; Villa v. Workers' Comp. Appeals Bd. (1984) 156 Cal.App.3d 1076, 203 Cal.Rptr. 26 [former Cal.Admin.Code, tit. 8, § 10500]; Carli v. Superior Court (1984) 152 Cal.App.3d 1095, 199 Cal.Rptr. 583 [former § 2033, subd. (a) ]; Karz v. Karl (1982) 137 Cal.App.3d 637, 187 Cal.Rptr. 183 [former § 2030, subd. (a) ]; Baker v. Anderson (1981) 119 Cal.App.3d 1000, 174 Cal.Rptr. 307 [§ 471.5]; Dept. Alcoholic Bev. Control v. Alcoholic Bev. Control Appeals Board (1959) 169 Cal.App.2d 785, 338 P.2d 50 [former Bus. & Prof.Code, § 23081].) Since section 1019.5 does not explicitly provide that a time period is triggered by service of the written notice the statute requires, it is not, on its face, dispositive of the issue in this case. Instead, we must look elsewhere for the answer to this procedural conundrum.

A motion for judgment on the pleading is a common law motion. Consequently, "no specific statute or rule prescribes the grounds or procedure of the motion...." (6 Witkin, op. cit. supra,...