Opinion
Rehearing April 11, 1972.
Opinion on pages 193 to 200 omitted
HEARING GRANTED
For Opinion on Hearing, see 105 Cal.Rptr. 29, 503 P.2d 285.
Burd, Hunt & Friedman, Peter Hunt, Michael J. Flynn, San Francisco, for defendant and appellant.
Kerner, Colangelo & Imlay, James D. Hobbs, San Francisco, for plaintiff and respondent.
[100 Cal.Rptr. 744]MOLINARI, Presiding Justice.
On September 22, 1970, respondent Peacock Hill Association, a corporation, filed a motion to dismiss the appeal of appellant Peacock Lagoon Construction Company, a corporation. That motion, numbered 1 Civil 28799, together with all documents filed therein, is incorporated herein by reference and made a part hereof. The motion is predicated on the ground that appellant may not prosecute this appeal because its corporate powers, rights and privileges were suspended for nonpayment of taxes pursuant to Revenue and Taxation Code section 23301. We have concluded that the motion is well taken and that the appeal must be dismissed.
All statutory references are to the Revenue and Taxation Code unless otherwise indicated.
A certificate of the Secretary of State, dated September 11, 1970, which accompanied the motion to dismiss, indicates that appellant's corporate powers, rights and privileges had been suspended pursuant to section 23301 as of February 2, 1970, and that reinstatement had not been effected. On October 22, 1970, appellant filed a declaration in opposition to the motion to dismiss. It was accompanied by a receipt from the Franchise Tax Board, dated October 21, 1970, indicating that appellant had filed its tax return for the income year ending July 31, 1970, had paid a penalty assessment and interest which had been owing due to late filing of its return for the income year ending December 31, 1968, and had applied for a certificate of revivor. On November 4, 1970, appellant filed in these proceedings a certificate of revivor issued by the Franchise Tax Board and indicating that as of October 22, 1970 appellant was reinstated and revived to good standing. On November 24, 1970, following argument on the motion, we ordered that the motion to dismiss be continued for determination when the cause on appeal would be heard on the merits. Said order was vacated on February 24, 1972, and on said day the motion to dismiss the appeal was ordered submitted.
Section 23301 provides that the corporate powers, rights, and privileges of a domestic taxpayer shall be suspended if the corporation fails to pay its taxes or any penalty or interest which may be owing. Section 25962.1 provides that any person who attempts or purports to exercise the powers, rights, and privileges of a suspended corporation is punishable by a fine and/or imprisonment.
A suspended corporation may not prosecute or defend an action or appeal from an adverse decision. (Boyle v. Lakeview Creamery Co., 9 Cal.2d 16, 20, 68 P.2d 968; Reed v. Norman, 48 Cal.2d 338, 343, 309 P.2d 809; Traub Co. v. Coffee Break Service, Inc., 66 Cal.2d 368, 371, 57 Cal.Rptr. 846, 425 P.2d 790; Ocean Park, etc., Co. v. Pacific Auto P. Co., 37 Cal.App.2d 158, 159-160, 98 P.2d 1068; Fidelity Metals Corp. v. Risley, 77 Cal.App.2d 377, 383, 175 P.2d 598; Brown v. Superior Court, 242 Cal.App.2d 519, 522, 51 Cal.Rptr. 633.) Accordingly, a motion to dismiss an appeal must be granted where it is shown that the corporate appellant has suffered a suspension of its powers, rights and privileges and has not been revived. (Laurel Crest, Inc. v. Vaughn, 272 Cal.App.2d 363, 364, 77 Cal.Rptr. 538.)
Since a suspended corporation may not appeal from an adverse decision the filing of a notice of appeal by a suspended corporation is a nullity. In the instant case the notice of appeal filed by appellant on August 18, 1970 was a nullity for its corporate powers were suspended at that time. We perceive, moreover, that since a timely notice of appeal is essential to appellate jurisdiction (Bryant v. Los Angeles Transit Lines, 116 Cal.App.2d 473, 474, 253 P.2d 731; Deward v. La Rue, 235 Cal.App.2d 59, 61, 44 Cal.Rptr. 886), appellant was required to file a notice of appeal as required by rule 2(a) of the California Rules of Court which provides that a notice of appeal shall be filed within 60 days after the date of mailing notice of entry of judgment [100 Cal.Rptr. 745] by the clerk, or within 60 days after the date of service of written notice of enter of judgment by any party upon the party filing the notice of appeal, or within 180 days after the entry of the judgment, whichever is earliest, unless the time is extended by rule 3 of the California Rules of Court.
The application of rule 3 is not pertinent to the instant proceeding.
In the instant case the clerk mailed a notice of entry of judgment to appellant on June 29, 1970. Accordingly, the 60-day period within which to file a notice of appeal expired on August 28, 1970. No notice of appeal was filed during that period other than the pupated notice of appeal filed on August 18, 1970, which, for the reasons pointed out above, was a nullity. We therefore conclude that since appellant did not obtain a certificate of revivor and file a new notice of appeal within this period no timely notice of appeal essential to appellate jurisdiction was filed.
We are not unmindful of the holding in Ransome-Crummey Co. v. Superior Court, 188 Cal. 393, 397-399, 205 P. 446, that a suspended corporation does not have the power to receive a notice of entry of judgment and thus the statutory period within which to file a notice of intention to move for a new trial did not commence. The instant case does not involve the service of the notice of entry of judgment upon appellant but merely the mailing of the notice of entry of the judgment. As we read rule 2(a), the time within which to file a notice of appeal where the clerk mails the notice of entry of judgment commences at the time of mailing and is operative whether the notice is received or not. In this situation, as in the case involving the entry of judgment itself, the act of mailing the notice is purely ministerial and involves no action or assumption of power on the part of the person to whom the notice is sent.
Assuming, arguendo, that the mailing of the notice of entry of judgment did not toll the time within which the notice of appeal could be filed, we apprehend that at the most appellant would have only 180 days after the entry of judgment within which to file its notice of appeal. To hold that a corporation, in default in the payment of its taxes so as to warrant the suspension of its corporate powers, is entitled to file a notice of appeal until such time as its corporate powers are revived would result in an advantage not enjoyed by corporations that maintain themselves in good standing. Accordingly, in the present case, if we extend the rationale of Ransome-Crummey to its utmost appellant did not file a timely notice of appeal. The 180-day period expired on December 23, 1970, and no notice of appeal was filed before that date, notwithstanding that a certificate of revivor was issued on October 22, 1970.
We are satisfied that the revival of the corporate rights, powers and privileges on October 22, 1970, did not have the effect of validating the acts attempted during the period of suspension since the revival is not made retroactive by statute. (Ransome-Crummey Co. v. Superior Court, supra, 188 Cal. 393, 398, 205 P. 446, 448.) As observed in Ransome-Crummey Co., 'The suspension of the rights, powers, and privileges is a disability imposed on a corporation as a penalty, and it would tend to deprive the statute of its force and encourage a corporation in default to postpone payment of its taxes indefinitely, if it were held that, by subsequent payment of the delinquent taxes, all the benefits of the attempted acts denied to the corporation could be secured.' (At p. 398, 205 P. at p. 448.)
In reaching the conclusion that the appeal must be dismissed in the present case we take cognizance of the distinction made in Traub between the cases which hold that a suspended corporation not shown to have been reinstated lacks the right and capacity to defend an action or to appeal from an adverse decision (see Boyle v. Lakeview Creamery Co., supra, 9 Cal.2d 16, 20, 68 P. 968; Ocean Park, etc., Co. v. Pacific Auto P. Co., supra, 37 Cal.App.2d 158, 159- [100 Cal.Rptr. 746] 160, 98 P.2d 1068; Reed v. Norman, supra, 48 Cal.2d 338, 343, 309 P.2d 809; Baker v. Ferrel, 78 Cal.App.2d 578, 579, 177 P.2d 973) and those holding that a suspended corporation may proceed with an action after its reinstatement. (See Traub Co. v. Coffee Break Service, Inc., supra, 66 Cal.2d 368, 370-372, 57 Cal.Rptr. 846, 425 P.2d 790; Maryland C. Co. v. Superior Court, 91 Cal.App. 356, 267 P. 169; Diverco Constructors, Inc. v. Wilstein, 4 Cal.App.3d 6, 12, 85 Cal.Rptr. 851; and see Schwartz v. Magyar House, Inc., 168 Cal.App.2d 182, 188, 335 P.2d 487; Old Fashion Farms v. Hamrick, 253 Cal.App.2d 233, 235, 61 Cal.Rptr. 254; Duncan v. Sunset Agricultural Minerals, 273 Cal.App.2d 489, 493, 78 Cal.Rptr. 339; A. E. Cook Co. v. KS Racing Enterprises, Inc., 274 Cal.App.2d 499, 500, 79 Cal.Rptr. 123.)
We apprehend in the instant case that appellant could seek to invoke the jurisdiction of this court only upon its obtaining the certificate of revivor on October 22, 1970. If appellant was bound by the 60-day limitation provided for in rule 2(a), as we believe it was, such certificate availed it nothing since the time within which a notice of appeal could be filed had expired on August 28, 1970. On the other hand, if we assume that appellant was bound by the 180-day limitation, the time within which to appeal expired on December 23, 1970, and appellant could have filed a notice of appeal at any time after October 22, 1970, the date of revival, and until December 23, 1970. This revivor did not, however, have the effect of resuscitating the notice of appeal filed on August 18, 1970. Appellant was obliged to file a new notice of appeal. This it failed to do.
Appellant asserts that respondent has waived its right to raise the issue of appellant's lack of capacity because respondent did not urge such capacity until the instant motion to dismiss and that, in essence, respondent should be estopped from asserting such incapacity since it participated in pretrial proceedings and in the trial at a time when appellant was under suspension. This contention is without merit. It is not alleged or shown that respondent knew of appellant's suspended status before or during the trial of the instant action. Moreover, under well-recognized equitable principles a corporation that was subject to criminal penalties because it attempted to exercise corporate powers when it was under suspension, as was the case here, may not claim that others are estopped from bringing to the attention of a court the fact of such suspension.
It is also the general rule that jurisdiction cannot be conferred on an appellate court by estoppel or waiver. (Kientz v. Harris, 117 Cal.App.2d 787, 789-790, 257 P.2d 41; Estate of Brewer, 156 Cal. 89, 90, 103 P. 486; Estate of More, 143 Cal. 493, 496, 77 P. 407; see In re Del Campo, 55 Cal.2d 816, 817, 13 Cal.Rptr. 192, 361, P.2d 912; Mills v. Superior Court, 2 Cal.App.3d 214, 216-217, 82 Cal.Rptr. 469.) The courts have, however, recognized that in exceptional cases the late filling of a notice of appeal may be relieved by proof of estoppel. (See Slawinski v. Mocettini, 63 Cal.2d 70, 72-74, 45 Cal.Rptr. 15, 403 P.2d 143; Mills v. Superior Court, supra, 2 Cal.App.3d at p. 219, 82 Cal.Rptr. 469; In re Morrow, 9 Cal.App.3d 39, 45, 88 Cal.Rptr. 142.) In Slawinski, it was held that the plaintiffs were entitled to rely upon the date set forth in the written order of the judge and the notice prepared and sent by defense counsel pursuant to said order as correctly setting forth the date on which their motion for new trial had been denied and from which their time to appeal would run. Similarly, in Mills it was held that where a defendant, in reliance upon the erroneous advice of the clerk of the small claims court that the defendant had 30 days in which to appeal from an adverse judgment of the small claims court, failed to file an appeal within the prescribed 20-day period but filed it on the 25th day, the defendant was entitled to have the time to appeal extended to that day.
In Morrow, the petitioners appeared without objections in proceedings by a natural mother to obtain a new trial following [100 Cal.Rptr. 747] an order granting their petition to have a minor child declared free from parental custody and control. Under Civil Code section 238 the court did not have power to grant a new trial. The motion was nevertheless argued on the merits and denied. A notice of appeal was filed by the mother within 30 days after the order denying the motion for new trial. The filing of such order was more than 60 days after the date of mailing notice of entry of judgment. The petitioners argued that since there was no provision for a new trial in the proceedings the notice of intention to move for a new trial was ineffective for any purpose and therefore the appeal should be dismissed for lack of jurisdiction because the mother failed to file a notice of appeal within the aforementioned 60-day period. We held that petitioners were estopped to urge a construction of Civil Code section 238 which would have precluded the appeal because petitioners not only failed to object to the proceedings in the trial court, but also failed to make a motion to dismiss the appeal before this court and did not raise the point of lack of jurisdiction until they filed their reply brief. (9 Cal.App.3d at pp. 44-46, 88 Cal.Rptr. 142.)
The instant case is not one that comes within the narrow passage of the policy enunciated by Slawinski and followed in Mills and Morrow. We do not have a case of clerical error nor do we have dilatory conduct similar to that presented in Morrow. Here respondents filed a timely notice to dismiss and it is not claimed or shown that they should have objected earlier to appellant's suspended status. Moreover, appellant did not attempt to obtain a certificate of revivor until after the instant motion to dismiss. After obtaining such certificate appellant made no effort to file a notice of appeal either on the basis that it was timely or on the basis that even though late it should be permitted under the circumstances. In sum, the situation here is the result of appellant's own doing, i. e., the nonpayment of taxes which placed it in the impotent status of suspended animation.
The appeal is ordered dismissed.
SINS and ELKINGTON, JJ., concur.