Richards v. Miller

• Decision Date: 02 April 1980
• Citation: 106 Cal.App.3d Supp. 13,165 Cal.Rptr. 276
• Parties: 106 Cal.App.3d Supp. 13 Lawrence L. RICHARDS, Plaintiff and Respondent, v. Corrie MILLER, Defendant and Appellant. Civ. 14439. Appellate Department, Superior Court, Los Angeles County, California
• Court: California Superior Court

Page 276

165 Cal.Rptr. 276

106 Cal.App.3d Supp. 13

Lawrence L. RICHARDS, Plaintiff and Respondent, v. Corrie MILLER, Defendant and Appellant.

Civ. 14439.

Appellate Department, Superior Court, Los Angeles County, California.

April 2, 1980.

Christen Brun Henrichsen and C. B. Henrichsen, Thousand Oaks, for defendant and appellant.

Loo, Merideth & McMillan and Richard D. Teitel, Los Angeles, for plaintiff and respondent.

FAINER, Judge.

This is an appeal from a default judgment by defendant. ¹ Plaintiff brought this action against defendant for breach of contract. Plaintiff served his interrogatories on defendant on December 30, 1977. Defendant failed to make sufficient responses to said interrogatories and, on August 8, 1978, the law and motion court ordered defendant to serve further answers to certain interrogatories. Defendant failed to supply any further answers to the interrogatories within the time limits set by the court order. On November 2, 1978, plaintiff filed his motion to strike defendant's answer to the complaint or in the alternative to compel defendant to give further interrogatory answers pursuant to the provisions of Code of Civil Procedure ² section 2034, subdivisions (a) and (d). The motion was set for hearing on November 14, 1978, 12 days after service by mail of plaintiff's noticed motion. On November 14, 1978, the court granted plaintiff's motion and ordered defendant's answer stricken and her default entered. On February 22, 1979, a judgment by default was made and entered in favor of plaintiff and against defendant.

Defendant's sole contention on appeal is that she received an inadequate statutory notice of the hearing of plaintiff's motion for discovery sanctions because the notice of the hearing date was served by mail and the minimum notice period is 15 days computed as follows: 10 days pursuant to section 1005 plus 5 days pursuant to section 1013, subdivision (a). ³

Defendant's contention is correct and we reverse.

Earlier appellate decisions held that the extension of time under section 1013, subdivision (a) was not available to a party served with a notice of motion, deposited in the mail, 10 days before the date of hearing, because the right to be present at the hearing is not ". . . a right (that) may be exercised, or an act . . . to be done . . . " as those terms are used in the code section. Brown v. Rouse (1897) 115 Cal. 619, 621-622, 47 P. 601 (extension not needed on notice of hearing for justification of sureties); Welden v. Davis Auto Exchange (1957) 153 Cal.App.2d 515, 521, 315 P.2d 33 (notice of motion and of hearing date to dismiss a cross-complaint for want of prosecution did not require an extension of notice of the hearing date); see Cooper v. Board of Examiners (1975) 49 Cal.App.3d 931, 942, fn. 11, 123 Cal.Rptr. 563; contra Mather v. Mather (1943) 22 Cal.2d 713, 719, 140 P.2d 808 (notice of hearing for entry of judgment insufficient when the date of the hearing was only 10 days after the date of mailing).

More recent appellate courts have held that additional time is required under section 1013, subdivision (a) to extend the time to move to compel further answers to interrogatories when the interrogatory responses are served by mail. (California Accounts v. Superior Court (1975) 50 Cal.App.3d 483, 487, 123 Cal.Rptr. 304; see also Shell Oil v. Superior Court (1975) 50 Cal.App.3d 489, 123 Cal.Rptr. 307.) In Shearer v. Superior Court (1977) 70 Cal.App.3d 424, 138 Cal.Rptr. 824, it was held that the time to file a petition for an extraordinary writ was extended if the notice of entry of judgment or order was served by mail. The Shearer court pointed out that there is a statutory exception for notice of appeal in section 1013, subdivision (a) as that exception served the purpose of establishing the date the judgment became final but that the timing of a petition for a writ had no such importance. In Delgado v. Superior Court (1977) 74 Cal.App.3d 560, 563, 141 Cal.Rptr. 528, without discussion, it was held that a notice of motion to transfer an action for convenience of witnesses under section 397, subdivision 3, served by mail, required the extension under section 1013, subdivision (a).

The Shearer decision, supra, in pointing to a statutory exception in section 1013, subdivision (a), inferentially suggests that in the absence of a clear legislative mandate to the contrary, the extension is required for notice for all court hearings. Following this reasoning, we look at the statutory exceptions to discover the legislative intent. In section 1013, subdivision (a), it is provided that the " . . . extension shall not apply to extend the time for filing notice of intention to move for new trial, notice of intention to move to vacate judgment pursuant to Section 663a of this code or notice of appeal." Section 594, subdivision (b) provides that the time periods of section 1013, subdivision (a) will not extend the notice of trial requirement for unlawful detainer actions. The unmistakable legislative intent to be inferred from these provisions is that section 1013, subdivision (a) does extend the time for notice by mail for any other mailed notice. The logical projection of this inference is that if the extension applies to notices of trial, it must also apply to notice of court hearing dates.

As the appellate decisions are conflicting, we are at liberty to choose what we believe to be the better rule. (Auto Equity Sales v. Superior Court (1962) 57 Cal.2d 450, 457, 20 Cal.Rptr. 321, 369 P.2d 937.) It is our view that section 1013, subdivision (a) should be interpreted as allowing the extension for any notice of hearing served by mail. We think that this follows the recent trend as exemplified in Shell Oil v. Superior Court, supra, California Accounts v. Superior Court, supra, and Delgado v. Superior Court, supra. Further, we believe this holding conforms to the legislative intent that the extension is required except when otherwise expressly stated. Finally, we think the practical effect of adoption of this interpretation is beneficial to counsel and trial courts. A conscientious attorney faced with a notice of hearing will not just appear at the hearing but will prepare declarations and points and authorities in opposition to the pending motion. These efforts will be the "act" of an adverse party within the meaning of section 1013, subdivision (a). Mail service has deteriorated over the years. Mail delay of moving and opposition papers is common. Fifteen days' notice provides greater possibilities that the opposition...