Opinion
A104071.
11-3-2003
PC-DOCTOR, INC., Petitioner, v. THE SUPERIOR COURT OF ALAMEDA COUNTY, Respondent; S. BRUCE PINCUS, Real Party in Interest.
THE COURT:
Petitioner PC-Doctor, Inc., was the defendant in a small claims case in which real party in interest S. Bruce Pincus prevailed. Petitioner timely appealed the small claims judgment. (Code Civ. Proc., §§ 116.710, subd. (b), 116.750, subd. (b).) Thereafter, respondent superior court purportedly mailed a "Notice of Hearing" to petitioner and real party in interest, notifying them that the small claims appeal/trial de novo was set to occur on July 11, 2003, at 9:00 a.m. in Department 23. On July 11, 2003, after neither party appeared in court, respondent entered an order dismissing petitioners appeal.
Shortly after receiving notice that its appeal had been dismissed, petitioner retained counsel to investigate why the dismissal had occurred. Promptly thereafter, petitioners counsel filed a motion for relief from dismissal of the small claims appeal, arguing with supporting evidence that petitioner had never received notice of the small claims appeal hearing, and requesting relief from dismissal under section 473, subdivision (b), and due process principles. Real party in interest did not oppose petitioners motion for relief from dismissal. Nevertheless, and without holding a hearing, respondent summarily denied petitioners motion. Petitioner now seeks writ relief.
Although generally disfavored, review of small claims judgments by extraordinary writ may occur where there is "statewide importance [to] the general issues presented" (Green v. Superior Court (1974) 10 Cal.3d 616, 621) and a need "to secure uniformity in the operations of the small claims courts" (Davis v. Superior Court (1980) 102 Cal.App.3d 164, 168). Here, the due process problems manifested by respondents ruling render writ review appropriate under the foregoing authorities.
Respondent superior court erred in two respects when it summarily denied petitioners motion for relief from dismissal.
First, respondent held no hearing on petitioners motion, which raises due process concerns. "It is a cardinal principle of our jurisprudence that a party should not be bound or concluded by a judgment unless he has had his day in court. [¶] This means that a party must be duly cited to appear and afforded an opportunity to be heard and to offer evidence at such hearing in support of his contentions. [¶] His right to a hearing does not depend upon the will, caprice or discretion of the trial judge who is to make a decision upon the issues. [¶] An order or judgment without such an opportunity is lacking in all the attributes of a judicial determination. [Citations.] [¶] Refusal to permit counsel for petitioner to present evidence and make a reasonable argument in support of his clients position [i]s not a mere error in procedure. It amount[s] to a deprival of a substantial statutory right . . . ." (Spector v. Superior Court (1961) 55 Cal.2d 839, 843-844.)
Second, respondent should have granted relief from dismissal on due process grounds. As this Division has held, while a superior court which has determined a small claims appeal has no jurisdiction to entertain a motion to vacate the judgment under section 473, the superior court still retains inherent power to correct an irregular or "improvident order," meaning an order "`rendered unintentionally and inadvertently by reason of the courts own mistake of fact or lack of knowledge of the circumstances." (ERA-Trotter Girouard Assoc. v. Superior Court (1996) 50 Cal.App.4th 1851, 1857.) As an example of such a correctable order, we have explained that "where a defendant in a small claims appeal does not receive adequate notice of the trial date in superior court and, thus, fails to appear and suffers a default, a superior court should not be without power to fashion a remedy." (Id. at p. 1857 & fn. 5; see also Elder v. Justices Court (1902) 136 Cal. 364, 367 [certiorari properly granted to annul judgment where petitioner was not given written notice of the time set for trial].) That example reasonably describes the situation presented here. The record here contains uncontroverted evidence that petitioner never actually received notice of the small claims appeal hearing date. On this record, respondent should have granted petitioner the relief it sought. (Cf. Bonzer v. City of Huntington Park (1993) 20 Cal.App.4th 1474, 1478-1481 [reversing an order denying relief under section 473, where the only evidence that appellants received notice of a hearing date was a proof of service declaration pursuant to section 1013a, subdivision (3), and the rebuttable presumption created by the proof of service (Evid. Code, § 641) ceased to exist upon presentation of appellants evidence of no actual notice (Evid. Code, § 604), which was neither impeached nor contradicted; "[a]ny inference, in the face of appellants declarations, that the subject notices were actually received [was], as a matter of law, inappropriate." (Italics omitted.)].)
Accordingly, we conclude that respondent superior court initially erred in failing to hold a hearing on petitioners motion for relief from dismissal, and then compounded that error when it refused to grant relief from dismissal on due process grounds.
We previously advised the parties that we might issue a peremptory writ in the first instance. (See Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 177-180.) The petition is unopposed, petitioners right to relief is obvious, and no useful purpose would be served by issuance of an alternative writ, further briefing and oral argument. (Ng v. Superior Court (1992) 4 Cal.4th 29, 35; see also Lewis v. Superior Court (1999) 19 Cal.4th 1232, 1236-1237, 1240-1241.)
Therefore, let a peremptory writ of mandate issue commanding respondent superior court to set aside and vacate its August 18, 2003, order denying petitioners motion to set aside the dismissal of its small claims appeal, and to enter a new and different order granting that motion and scheduling further proceedings on petitioners appeal. This decision shall be final as to this court within five days. (Cal. Rules of Court, rule 24(b)(3).) Petitioner shall recover the costs it incurred in this writ proceeding. (Cal. Rules of Court, rule 56.4(a).) --------------- Notes: All further statutory references are to the Code of Civil Procedure, unless otherwise noted.