Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. 37-2008-00038603-CU-UD-NC, Joe O. Little john, Judge.
IRION, J.
Dean Gordon appeals from a judgment entered against him in an unlawful detainer action filed by Fuller Hein Properties (FHP). The trial court entered judgment in favor of FHP after it granted FHP's motion for judgment notwithstanding the verdict (JNOV) and motion for a new trial, following a jury verdict in favor of Gordon. Gordon contends that FHP's motion for JNOV and motion for a new trial were not timely filed, divesting the trial court of jurisdiction to act on them.
As we will explain, we conclude that (1) Gordon forfeited his appellate challenge by not raising the issue in the trial court, and (2) even were we to reach the merits of Gordon's challenge, the motions were timely filed. Accordingly, we affirm the judgment.
I
FACTUAL AND PROCEDURAL BACKGROUND
We described the dispute between Gordon and FHP in an earlier opinion arising from a lawsuit that Gordon filed against FHP. (Gordon v. Fuller Hein Properties (June 10, 2009, D053528) [nonpub. opn.] (hereafter, June 2009 Opinion).) As we explained there, in 1999, Gordon moved his insurance agency into a building that had recently been purchased by FHP. Gordon occupied the building and made monthly payments to FHP. According to Gordon, at the time he moved into the building he and FHP agreed to enter into a partnership or joint venture under which Gordon would have the option to purchase the building, with his monthly payments going toward the purchase. FHP disputed that it had entered into any such agreement with Gordon and refused Gordon's attempts to exercise the option and purchase the property in 2006. Gordon then filed suit against FHP to enforce the agreement that he contended existed between them. After a bench trial, the court ruled in May 2008 that that no partnership was ever created and that, instead, the parties were operating under a month-to-month tenancy at will. We affirmed that judgment in the June 2009 Opinion.
FHP has requested that we take judicial notice of the June 2009 Opinion and other documents from that litigation. We hereby grant the request.
Following the trial court's ruling (but while Gordon's appeal was pending), FHP filed the instant unlawful detainer action against Gordon. The complaint alleged that Gordon had failed to comply with a notice to quit served by FHP and that Gordon owed back rent in the amount of $30,000.
The unlawful detainer action proceeded to a trial by jury, with the jury finding against FHP. In a special verdict, the jury found that (1) the parties "enter[ed] into a joint venture or partnership concerning the property" and (2) there was not "an agreement to sell real property subject to the Statute of Fraud[s], " which would have made the parties' agreement unenforceable.
On December 16, 2008, Gordon served notice of entry of judgment on FHP. FHP then filed a motion for JNOV and a motion for a new trial. The trial court granted both motions. In its order granting the motion for JNOV, the trial court ruled that "the agreement for the transfer of title to real property, as alleged by [Gordon], is unenforceable as a matter of law" due to the statute of frauds. In its order granting a new trial (to take effect only if the JNOV was later reversed on appeal), the trial court cited the statute of frauds as well as deficiencies in the jury instructions and the special verdict form. The trial court then entered judgment in favor of FHP, notwithstanding the verdict, which terminated Gordon's possession of the premises.
We note that the judgment apparently did not make any provision for the damages sought by FHP in its complaint.
Gordon appeals from the judgment.
II
DISCUSSION
The dispute in this appeal concerns the timeliness of FHP's motion for JNOV and motion for a new trial.
By statute, both motions must be filed and served within 15 days of service of written notice of entry of judgment. When, as here, "the moving party is served by mail, service is complete at the time the notice of entry of judgment is deposited in the mailbox, " and "a file-stamped copy of the judgment suffices as 'written notice.' " (Palmer v. GTE California, Inc. (2003) 30 Cal.4th 1265, 1277.) Because Gordon served FHP with the notice of entry of judgment on December 16, 2008, FHP's deadline for the filing and service of the motion for JNOV and motion for new trial was December 31, 2008.
Code of Civil Procedure (all statutory references are to this code) section 659 provides:
As Gordon points out, "it has uniformly been held that an order granting a new trial is in excess of jurisdiction and void if, for example, it is made" "too late." (Mercer v. Perez (1968) 68 Cal.2d 104, 118 (Mercer).) "When challenged on appeal, such an order is reversible per se." (Ibid.) "[C]ompliance with the 15 day requirement of section 659 is jurisdictional, " and absent compliance a trial court is "without power to entertain the motion." (Tri County Elevator Co. v. Superior Court (1982) 135 Cal.App.3d 271, 277 (Tri County Elevator).)
The motion for JNOV and motion for new trial, as they appear in the record, bear a file stamp dated January 9, 2009, which is nine days past the December 31, 2008 deadline. However, FHP accompanied its motions with a declaration explaining the tardiness. Counsel for FHP declared:
"On December 30, 2008, I secured a date for hearing on the attached motions... with Department N 2 clerk, Paula. The initial date for hearing was set for January 23, 2009, and was to be accomplished on the same date for hearing set for [FHP's] previously filed Motion to Tax Costs."
"On December 31, 2008, the motions... were served by mail to counsel for [Gordon]. In addition, the motions were attempted to be personally filed with the court clerk on that same day."
"Through mistake, inadvertence or excusable neglect, court clerk, T. Butacan, was not aware of the date previously secured for the hearing on the [motions] and rejected the filing even though a date had been secured."
"On January 2, 2009, I became aware of the rejection of the paperwork. On that same morning, I spoke with Paula of Department 2 regarding this situation. In light of the rejection and in an abundance of caution to ensure that [Gordon] had adequate notice, Paula provided [FHP] with a new amended date for hearing on the [motions] for February 6, 2009...."
The applicable proofs of service indicate that FHP originally served the motions on Gordon on December 30, 2008. FHP then served the above-quoted declaration on January 2, 2009. The motions, along with the declaration, were ultimately filed stamped on January 9, 2009. Gordon opposed the motions on the merits, but did not raise the issue of their timeliness. Nor did the trial court discuss the issue of timeliness at the motion hearing or in its ruling.
For the first time on appeal, Gordon argues that the orders granting the motions, and the ensuing judgment in favor of FHP must be reversed because the motions were not timely filed.
FHP asserts several arguments in opposition, including that (1) Gordon has forfeited his ability to challenge the timeliness of the motions by not raising that issue in the trial court, and (2) despite the January 9, 2009 file stamp on the motions, they should be deemed to have been filed on December 31, 2008, when they were delivered to the court clerk but improperly rejected. As we will explain, both arguments have merit.
A. Gordon Has Forfeited the Challenge to the Timeliness of the Motions by Not Raising the Issue in the Trial Court
In his appellate briefing, Gordon acknowledges that he made no objection in the trial court to the timeliness of the motions, but he argues that his failure to object in the trial court should not function as a waiver of his right to raise the issue on appeal. Pointing to case law stating that the time limits in section 659 are "jurisdictional" (see, e.g., Tri County Elevator, supra, 135 Cal.App.3d at p. 277) and that the parties may not confer jurisdiction by participating in a hearing (Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 153), Gordon argues that he has not forfeited his challenge to the trial court's jurisdiction to rule on the motions.
Gordon's argument is flawed by an overly simplistic understanding of the concept of jurisdiction. " 'When courts use the phrase "lack of jurisdiction, " they are usually referring to one of two different concepts....'... A lack of jurisdiction in its fundamental or strict sense results in ' "an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties."... On the other hand, a court may have jurisdiction in the strict sense but nevertheless lack " 'jurisdiction' (or power) to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites."... When a court fails to conduct itself in the manner prescribed, it is said to have acted in excess of jurisdiction.' " (People v. Lara (2010) 48 Cal.4th 216, 224 (Lara), citations omitted.)
" '[A] claim based on a lack of... fundamental jurisdiction[] may be raised for the first time on appeal.... "In contrast, an act in excess of jurisdiction is valid until set aside, and parties may be precluded from setting it aside by such things as waiver, estoppel, or the passage of time...." ' " (Lara, supra, 48 Cal.4th at p. 225, citations omitted.) "[A] claim that a trial court acted in excess of its jurisdiction, as opposed to lacking fundamental jurisdiction to act, is subject to forfeiture by failing to preserve it in the trial court." (People v. Taylor (2009) 174 Cal.App.4th 920, 937-938 (Taylor).)
Our Supreme Court has expressly stated that when a trial court rules on a late-filed motion for a new trial, it acts in excess of its jurisdiction, but nevertheless within its fundamental jurisdiction. (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 289 ["A court may have jurisdiction to grant a new trial after motion based upon proper statutory grounds, but has no jurisdiction to make the order unless the moving party has given his notice of intention within the prescribed statutory time."]; Tabor v. Superior Court of Los Angeles County (1946) 28 Cal.2d 505, 508 [quoting Abelleira]; Mercer, supra, 68 Cal.2d at p. 118 ["an order granting a new trial is in excess of jurisdiction... if... it is made" "too late" (italics added)].) Although we are not aware of any case law on the issue, the same rule logically would apply to a ruling on a late-filed motion for JNOV, as a ruling on a such a motion is generally within the court's jurisdiction, but is limited by certain procedural rules, including the same time limits that control motions for a new trial. (§ 629.)
Accordingly, because a trial court's ruling on late-filed motions for JNOV and a new trial is an act in excess of the court's jurisdiction, but still within its fundamental jurisdiction, a challenge to such a ruling is "subject to forfeiture by failing to preserve it in the trial court." (Taylor, supra, 174 Cal.App.4th at p. 938.) We conclude that because Gordon did not raise the issue in the trial court, he has forfeited the right to an appellate challenge to the trial court's jurisdiction to rule on the motions for JNOV and a new trial.
B. The Motions Were Timely Filed
As an alternative and independent basis for affirming the judgment, we conclude that Gordon is also not entitled to relief on the merits. As we will explain, the motions were timely filed because they were properly presented to the court clerk within the required time period.
The uncontested declaration filed by counsel for FHP establishes that the court clerk erroneously rejected the motions for filing, even though FHP presented them to the clerk within the statutorily required time period. In an analogous situation, involving a jurisdictional deadline, our Supreme Court has explained that the time of filing is the date on which the papers are presented to the clerk, rather than the date on which the papers are eventually file stamped. Specifically, in United Farm Workers of America v. Agricultural Labor Relations Bd. (1985) 37 Cal.3d 912, the appellate court's deputy clerk erroneously refused to file a party's petition for review of an administrative decision for the erroneous reason that it lacked a table of authorities and because it was not verified. Because of the deputy clerk's actions, the petition for review was eventually filed three days beyond the statutory deadline. (Id. at p. 914.) Our Supreme Court ruled that the petition was timely filed when it was first presented to the deputy clerk. " '[F]iling' for purposes of compliance with the [applicable statutory] time limits... means what it does in all other contexts: actual delivery of the petition to the clerk at his place of business during office hours.... Thus, it is the filer's actions that are scrutinized in determining whether a petition was timely filed. Rejection of the petition by the clerk... for a technical defect cannot undo a 'filing' that has already occurred." (Id. at p. 918, citations omitted.)
Courts follow the same rule when an error by a court clerk causes a party to file a complaint outside of the statute of limitations. (See Carlson v. Department of Fish & Game (1998) 68 Cal.App.4th 1268, 1270 [when a court clerk erroneously refused to file a complaint based on noncompliance with local court rules, "[p]laintiff's complaint was... effectively filed when it was first presented to the clerk, and the statute of limitations therefore did not run"]; Rojas v. Cutsforth (1998) 67 Cal.App.4th 774, 778 [determining that a complaint was filed on the date it was erroneously rejected by the clerk, and explaining that "a paper is deemed filed when it is deposited with the clerk with directions to file the paper.... Because here the clerk had no proper basis for rejecting [the] complaint, it must be deemed filed when it was presented" (citation omitted)].)
Applying the same approach here, we conclude that because the undisputed evidence establishes that FHP presented the motions to the court clerk for filing on December 31, 2008, and the court clerk erroneously refused to file them, those motions were in fact filed, for the purposes of the jurisdictional deadline, on December 31, 2008. Accordingly, the motions were timely filed.
At oral argument, counsel for Gordon cited Kisling v. Otani (1962) 201 Cal.App.2d 62, 67-68, which held that a trial court does not have the authority under section 473 to grant relief from the statutory deadline set forth in section 659. Here, because we have concluded that FHP's motions were timely filed, Kisling and other cases that deny relief from section 659's statutory deadline are inapposite.
DISPOSITION
The judgment is affirmed.
WE CONCUR: BENKE, Acting P. J.AARON, J.
"The party intending to move for a new trial must file with the clerk and serve upon each adverse party a notice of his intention to move for a new trial..., either
"1. Before the entry of judgment; or
"2. Within 15 days of the date of mailing notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or service upon him by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest.... [¶]... The time above specified shall not be extended by order or stipulation or by those provisions of Section 1013 of this code which extend the time for exercising a right or doing an act where service is by mail."
Section 629 provides in relevant part:
"A motion for judgment notwithstanding the verdict shall be made within the period specified by Section 659 of this code in respect of the filing and serving of notice of intention to move for a new trial."