Opinion
A150259
09-28-2018
HAMID TAEB, Plaintiff and Respondent, v. ABBAS MASH et al., Defendants and Appellants.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Alameda County Super. Ct. No. RG12642446)
This appeal results from a deputy clerk's repeated failure to serve plaintiff's counsel at the mailing address in the court's record. The trial court issued a proposed statement of decision and proposed judgment, which the clerk mailed to plaintiff's counsel's old address and—as a result—he did not receive them. The court, then, erroneously, filed a statement of decision and notice of entry of judgment, which were again mailed to the wrong address, and were issued without giving plaintiff the statutorily-required time to object to the proposed statement and judgment. The court acknowledged the court's errors and granted plaintiff's motion to vacate the statement of decision and judgment pursuant to Code of Civil Procedure section 473, subdivision (d). Appellants Abbas Mash (Mash) and Niki S. Inc. (collectively, appellants) appeal from the trial court's order. Plaintiff contends the order is not appealable. We conclude that the order is appealable and affirm it.
All references are to Code of Civil Procedure unless otherwise noted.
FACTUAL AND PROCEDURAL BACKGROUND
This case arises from a real property development transaction between plaintiff and Mash which ultimately resulted in the filing of the third amended complaint and a bench trial. The court heard testimony and, after oral argument, issued a tentative decision from the bench awarding plaintiff $376,604.20. At the court's direction, plaintiff prepared and sent appellants' counsel a proposed judgment reflecting the tentative decision.
It is unnecessary to review the facts of the dispute and the third amended complaint's allegations to address the issues presented by the appeal.
On February 17, 2016, appellants filed a request for statement of decision and served plaintiff by mailing it to both of his attorneys, addressed as follows: "Jordan Yudien, Esq. [(Yudien)], YUDIEN LAW FIRM 500 Ygnacio Valley Road, Suite 325, Walnut Creek, CA 94596"; "Williem Bard, Esq., YUDIEN LAW FIRM 500 Ygnacio Valley Road, Suite 325 [(Suite 325 address)], Walnut Creek, CA 94596." (Italics added.)
All dates refer to 2016, unless otherwise indicated.
The addresses were consistent with two notices plaintiff served and filed on October 6, 2015: a notice of change of address and fax with counsel's "new contact information []: 'Jordan Yudien, Esq., 500 Ygnacio Valley Road, Suite 325, Walnut Creek, CA 94596[;]' " and a notice of association of Williem J. Bard (Bard) as counsel, providing the Suite 325 address for Bard, as well. (Italics added.)
On February 19, Yudien wrote to the court to advise that appellants filed a request for statement of decision and had refused to approve his proposed judgment and to inquire whether plaintiff should prepare a proposed statement of decision. (Cal. Rules of Court, rule 3.1590(f).) The February 19, letter, which was copied to appellants' counsel, included Yudien's then-current law office address, the Suite 325 address. It asked that any correspondence also be sent to his home address: 110 Easy Street, Alamo, CA 94507, as he was assisting his wife with personal issues.
On March 1, the court filed and served a proposed statement of decision and proposed judgment, both of which departed from the tentative decision, awarding plaintiff only fifty thousand dollars ($50,000). The deputy clerk served plaintiff by mailing copies addressed to Yudien's former address.
The proof of service reflects a mailing to: Jordan Yudien, Esq. (Yudien), Yudien Law Firm, 500 Ygnacio Valley Road, Suite 350, Walnut Creek, CA 94596. (Italics added.) It was not sent to the Easy Street address or to Bard.
On March 18, the court filed a statement of decision and a notice of entry of judgment and judgment awarding plaintiff fifty thousand dollars ($50,000), which the deputy clerk again served on plaintiff by mailing copies to Yudien's old Suite 350 address. The court filed an amended statement of decision on March 22 and, once again, the clerk served plaintiff by mailing to the Suite 350 address.
When appellants filed a motion to strike or tax costs supported by a memorandum on April 26, they served plaintiff at the correct Suite 325 address, and at 110 Easy Street, Alamo, CA 94507 and also served Bard at the Suite 325 address.
Plaintiff filed on September 20, a motion to vacate the statement of decision and judgment to permit him to file objections to the court's proposed statement of decision and proposed judgment (the motion). The motion was supported by declarations of Yudien and Bard both listing the Suite 325 address and attesting that they had not received the court's proposed statement of decision, statement of decision, notice of entry of judgment, and judgment. Yudien also stated that, when he received the amended statement of decision on April 11 or 12, he reviewed the court's docket and learned, for the first time, that the court filed the proposed statement of decision and judgment and the statement of decision and notice of entry of judgment, all of which were served by mail to the Suite 350 address, but were not rerouted to the 325 address, and—as a result—he did not receive them.
On April 20, the case was assigned for all purposes to a new judge —the Hon. Stephen M. Pulido —because the trial judge, Hon. Lawrence John Appel, retired.
Appellants opposed the motion arguing that the motion was untimely and unsupported by authority. They treated it as a motion for new trial, although plaintiff had not styled it as such. (§ 656 et. seq.) Appellants argued that plaintiff failed to file within the time required by section 659 and—as a result—the court was deprived of jurisdiction to entertain it. They contended that the new-trial motion filing deadline was triggered when "Plaintiff reserved May 24, 2016, for the hearing on his motion, thus providing his 'notice of intention' under Code of Civil Procedure 659." Alternatively, appellants claimed that plaintiff had actual notice of the amended statement of decision "as early as 'April 11 or 12,' 2016, and absolutely no later than May 11, 2016." They argued that the last day to have filed the motion was either September 14—180 days after the March 18 entry of judgment—or July 10, 60 days after Plaintiff had actual notice of the clerk's Notice of Entry. In summary Mash argued that "[t]the Court no longer has jurisdiction over this motion, since more than 180 days passed between the Entry of Judgment on March 18, 2016 and Plaintiff's filing of his Motion to Vacate or Modify the Judgment issued by Judge Appel."
A new trial motion must be filed "[w]ithin 15 days of mailing a notice of entry of judgment by the clerk of the court pursuant to Section 664.5, or service upon him or her by any party of written notice of entry of judgment, or within 180 days after the entry of judgment, whichever is earliest." (§ 659, subd. (a)(2).)
"[T]he power of the court to rule on a motion for a new trial shall expire 60 days from and after the mailing of notice of entry of judgment by the clerk of the court pursuant to Section 664.5 or 60 days from and after service on the moving party by any party of written notice of the entry of the judgment, whichever is earlier, or if such notice has not theretofore been given, then 60 days after filing of the first notice of intention to move for a new trial. If such motion is not determined within said period of 60 days, or within said period as thus extended, the effect shall be a denial of the motion without further order of the court." (§ 660.)
Plaintiff's Opposition to Defendants' Motion to Strike or Tax Costs (which was scheduled to be heard on May 24) was supported by Yudien's May 11 declaration in which he acknowledged that he received notice of the amended statement of decision on April 11 or 12.
On October 20, the trial court heard argument and filed its order granting the motion to vacate/set aside judgment, pursuant to section 473, subdivisions (b) and (d). The court found that plaintiff did not receive notice of the proposed statement of decision, and—on that basis—found good cause to grant relief pursuant to section 473. The court overruled appellants' timeliness objection finding no evidence that plaintiff received notice of the events which would have triggered compliance with the new trial motion filing deadlines.
The parties elected to proceed without a record of reporter's transcript; we are limited to the grounds stated in the trial court's filed order. The order referenced—and appellants' and plaintiff's briefs address—section 473, subdivision (b). Because, the court found that "[t]he record unambiguously shows that the Proposed Statement of Decision . . . was sent to the wrong address," it concluded, "the Court is required to vacate the Judgment and the Amended Statement of Decision in the interests of justice." On the record's undisputed facts, [s]ection 473, sub[division] (b) is inapplicable; there is no evidence of Plaintiff's or his counsel's "mistake, inadvertence, surprise, or excusable neglect." (Section 473, subd. (b).) Therefore, we do not address that issue.
"The deadlines set forth in Sections 659 and 660 are based on the presumption that counsel received timely notice of the entry of Judgment. Plaintiffs have presented substantial evidence to support their contention that they still have not been given adequate notice due to the Clerk's Office's failure to update his mailing address and add the mailing address of co-counsel Williem Bard."
DISCUSSION
I. Legal Principles
A. Whether the Challenged Order is Appealable
Both parties assumed the challenged order is appealable. We issued an order requesting briefing on the issue and directing counsel to be prepared to address the issue at oral argument. Appellants contend that the order is appealable, but, if not, we should treat it as a petition for an extraordinary writ; plaintiff takes the contrary positions.
"The existence of an appealable judgment or order is a jurisdictional prerequisite to an appeal. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126 [(Jennings)]; Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696 [(Griset)].) 'A reviewing court must raise the issue on its own initiative whenever a doubt exists as to whether the trial court has entered a final judgment or other order or judgment made appealable by Code of Civil Procedure section 904.1.' " (Harrington-Wisely v. State of California (2007) 156 Cal.App.4th 1488, 1494 (Harrington-Wisely).)
"The right to appeal is wholly statutory." (Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5.) "A motion to vacate a judgment made under the provisions of section 473 of the Code of Civil Procedure which is granted is treated as a special order after final judgment and is appealable." (Zancaner v. Louisville & Nashville R. Co. (1963) 220 Cal.App.2d 836, 839; see Nuckolls v. Bank of California, Nat'l Ass'n. (1937) 10 Cal.2d 266, 270-271.) The issue of appealability of a motion to vacate a judgment—which the trial court granted pursuant to section 473 subdivision (d)—more frequently arises when a motion to vacate the judgment is granted pursuant to section 663. "As early as 1911, [the Supreme C]ourt ruled that 'an order authorized by section 663 of the Code of Civil Procedure' 'is clearly an appealable order.' (Bond [v. United Railroads (1911) 159 Cal. 270,] at p. 273 [(Bond)].)" (Ryan v. Rosenfeld (2017) 3 Cal.5th 124, 129 (Ryan).)
Bond, supra, 159 Cal. 270, relied on section 963 which provided that " 'an appeal may be taken from any special order made after final judgment.' [Citation.] Former section 963 was repealed and replaced in 1968 by section 904.1, which as amended continues to provide that an appeal 'may be taken' '[f]rom an order made after a judgment' that was itself appealable." (Ryan, supra, 3 Cal.5th at p. 129.) Like Bond, 159 Cal. 270, Ryan, supra, 51 Cal.5th 124, addresses the issue of appeal from an order pursuant to a section 663 motion to vacate a judgment. "The text and structure of section 904.1 show that the Legislature authorized appeals of all orders granting or denying Code of Civil Procedure section 663 motions—just as we long held." (Ryan, supra, at pp. 134-135, some italics added.) The authority supporting appeal from an order vacating a judgment pursuant to section 663 is equally applicable to the challenged order vacating the judgment pursuant to section 473, subdivision (d).
Ryan, supra, 3 Cal.5th 124, addresses appeal of an order denying a section 663 motion; the court reaffirms Bond, supra, 159 Cal. 270, and clarifies—and to the extent necessary overrules—what some courts considered a contrary holding in Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865. (Ryan, supra, at p. 135.)
B. Standard of Review
We apply the abuse of discretion standard to review the court's order granting the motion to vacate the judgment and amended statement of decision, but exercise our independent review to decide questions of law. (Nixon Peabody, LLP v. Superior Court (2014) 230 Cal.App.4th 818, 822; Falahati v. Kondo (2005) 127 Cal.App.4th 823, 828.) "[W]e will not disturb the trial court's factual findings where, as here, they are based on substantial evidence. It is the province of the trial court to determine the credibility of the declarants and to weigh the evidence. . . . [¶] . . . This does not end the matter, however, because whether the [order] complied with constitutional and statutory requirements are questions of law as to which we exercise independent review." (Falahati v. Kondo, supra, 127 Cal.App.4th at p. 828.)
C. The Court's Jurisdiction to Correct Its Mistakes
Section 473 subdivision (d) vests the court with the power to "correct clerical mistakes in its judgments and orders" and to "set aside any void judgment or order."
II. Analysis
Plaintiff based his motion to vacate the amended statement of decision and judgment on principles of due process and—contrary to California Rules of Court, Rule 3.1590— the court's failure to provide plaintiff with notice and an opportunity to object to the proposed statement of decision which reduced his recovery from $376,604.20—as stated in the court's tentative decision—to fifty thousand dollars ($50,000). Not only did the court mail the proposed statement of decision and judgment to Yudien's former address, rather than to the Suite 325 address, but the court served and filed the statement of decision and judgment "on March 18, 2016, a mere 17 days after the service of the Proposed Statement and Proposed Judgment." Plaintiff argued that he was entitled to 20 days' notice: 15 days pursuant to Rule 3.1590(g) and an additional five days, pursuant to section 1013, subdivision (a) because the proposed statement and proposed judgment were served by the court by mail. (California Rules of Court, rule 3.1590(g); § 1013, subd. (a).)
Plaintiff did not move pursuant to section 473, subdivision (d)—the ground on which the trial court relied—nor did Mash address this provision in his opposition. Because, the parties elected to proceed without a record of reporter's transcript, we do not know whether section 473, subdivision (d) was addressed at the hearing by either or both parties. The trial court granted the motion to vacate/set aside judgment, pursuant to section 473, subdivisions (b) and (d). Since section 473, subdivision (d) relief is available—either upon motion of a party or the court—we agree with the trial court that there was a statutory basis for the order. We also find substantial evidence in the record to support the court's decision. The proposed statement of decision "was sent to the wrong address for attorney Jordan Yudien. . . . For that reason, the Court is required to vacate the Judgment and the Amended Statement of Decision in the interests of justice." The court overruled appellants' timeliness objection because "[t]he deadlines set forth in Sections 659 and 660 are based on the presumption that counsel received timely notice of the entry of Judgment. Plaintiffs have presented substantial evidence to support their contention that they still have not been given adequate notice due to the Clerk's Office's failure to update his mailing address and add the mailing address of co-counsel Williem Bard." We agree.
DISPOSITION
The order vacating the judgment is affirmed. Plaintiff shall recover costs on appeal.
/s/_________
Ross, J. We concur: /s/_________
Siggins, P.J. /s/_________
Pollak, J.
Judge of the San Francisco Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. --------