Shearer v. Superior Court

• Decision Date: 06 June 1977
• Citation: 70 Cal.App.3d 424,138 Cal.Rptr. 824
• Court: California Court of Appeals Court of Appeals
• Parties: Frederick H. SHEARER and Richard Dugger, Petitioners, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent; THUNDERVOLT CORPORATION, a corporation, Real Party in Interest. Civ. 50030.

Page 824

138 Cal.Rptr. 824

70 Cal.App.3d 424

Frederick H. SHEARER and Richard Dugger, Petitioners, v. The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;

THUNDERVOLT CORPORATION, a corporation, Real Party in Interest.

Civ. 50030.

Court of Appeal, Second District, Division 4, California.

June 6, 1977.

Cummins, White & Breidenbach and Francis Breidenbach, Los Angeles, and Thornburg, McGill, Deahl, Harman, Carey & Murray, South Bend, Ind., for petitioners.

No appearance on behalf of respondent.

Millar & Heckman and Richard W. Millar, Jr., Newport Beach, for real party in interest.

FILES, Presiding Justice.

This is a mandate proceeding brought under Code of Civil Procedure section 418.10, subdivision (c), to compel the superior court to grant the motion of petitioners (defendants below) to quash service of summons on the ground of lack of jurisdiction over them. The only novel issue here arises from the contention of real party (plaintiff below) that the petition for a writ of mandate, filed here 15 days after notice of the trial court's ruling had been mailed, was untimely. We hold that Code of Civil Procedure section 1013 operates to extend the 10 days allowed by section 418.10, and thus the petition here was timely.

The superior court denied the defendants' motion to quash service on November 23, 1976. Plaintiff's attorneys served notice of ruling by mailing it on November 24 to the office of the defendants' attorney in Los Angeles. This petition for mandate was filed here on December 9, which was the 15th day after the mailing.

Code of Civil Procedure section 418.10, subdivision (c), provides that if a motion to quash is denied, 'the defendant, within 10 days after service upon him of a written notice of entry of an order of the court denying his motion . . . may petition an appropriate reviewing court for a writ of mandate to require the trial court to enter its order quashing the service of summons . . ..'

Code of Civil Procedure section 1013, which governs service by mail generally, provides in subdivision (a) that 'if, within a given number of days after such service, a right may be exercised, or an act is to be done by the adverse party, the time within which such right may be exercised or act be done, is extended five days if the place of address is within the State of California, . . ..'

The language of those two sections, read literally, authorized the filing of the petition for writ of mandate on or before the 15th day after the mailing of the notice. It is the contention of plaintiff that section 1013 should not be applicable, by analogy with the rule governing the time for filing a notice of appeal.

In 1967 section 1013 was amended to state that it shall not apply to extend the time for filing a notice of appeal. ¹ This language was the basis of the decision in Chase v. Glynn (1973) 35 Cal.App.3d 29, 110 Cal.Rptr. 566. (See also Nuway Associates, Inc. v. Keefe (1971) 15 Cal.App.3d 926, 928, 93 Cal.Rptr. 614.) Real party argues that a petition for a writ of mandate is functionally similar to an appeal and so the same provision should apply.

The nonapplicability of section 1013 to notices of appeal is explained by the history of the amendments of that statute and the amendments of the rules on appeal.

In 1965, by reason of certain statutory changes, the Judicial Council amended rule 2 of the California Rules of Court to provide that the time for taking an appeal in a civil case would run from the service of a written notice instead of from the entry of the order or judgment appealed from. At that time section 1013 provided that if service was by mail, time would be extended one day, plus one day additional for every 100 miles distance between the place of deposit and the place of address. The Council concluded that the times provided for in rule 2 should not be extended by the provisions of section 1013, and recommended to the Legislature that it amend section 1013 to that effect.

The Report of the Judicial Council to the Governor and the Legislature, dated January 2, 1967, explained the Council's recommendation. After quoting from section 1013, the report stated (at pp. 59--60):

'Apparently the above quoted provision of Section 1013 applies to notice of entry of judgment served by a party, but it is not clear whether Section 1013 applies when notice of entry of judgment is mailed by the clerk of the court. To the extent that Section 1013 does apply, the time may vary as between the parties in the same case and the date when a judgment becomes final will depend upon the location of the attorneys' offices. In addition, a factual issue will be presented, i.e., the distance from place of mailing of notice of entry of judgment, thereby complicating the resolution of a jurisdictional matter. ( ) It is important that any ambiguity regarding the application of Section 1013 be resolved and that the same rule apply to both the clerk's and party's notice. The factors mentioned above favor resolving the question by expressly providing that the section does not apply. With regard to the filing of a notice of appeal this rule would be no hardship since the 60-day or 30-day period would not be shortened appreciably.'

In accordance with that recommendation, the Legislature amended section 1013 to provide that the extension shall not apply to extend the time for filing a notice of appeal. (Stats.1967, ch. 169, § 6, p. 1267.)

The concern of the Judicial Council, as expressed in its 1967 report, was for precision in establishing, by public record, the date when a judgment becomes final. No comparable importance attaches to an order denying a motion to quash, so long as the aggrieved party is able to determine his time limit for seeking review.

Section 418.10, prescribing the procedure for motions to quash and for appellate review of a denial, was enacted in 1969, without any change in section 1013. The Legislature has thus made clear its intent that the general provisions of section 1013 govern the time limit prescribed in section 418.10 for filing a petition for a writ of mandate.

The underlying superior court action was brought by Thundervolt Corporation, as plaintiff, against Ristance Corporation, Ristance Products, Inc., Frederick H. Shearer and Richard Dugger.

Plaintiff is an Illinois corporation, doing business in California. The corporate defendants are incorporated in Indiana, and have done business in California, and have made a general appearance in the action.

The Ristance corporations, one or both, are in the business of manufacturing, and Thundervolt is a dealer and distributor of products manufactured by Ristance. The complaint is in two counts. The first count alleges that plaintiff and the defendants entered into an oral contract whereby plaintiff was granted exclusive sales rights to certain products, and that 'defendants and each of them' agreed not to sell or distribute these products except through plaintiff. Count one...