IN RE: MARRIAGE OF Lynn E. and Terry GODDARD.

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Court of Appeal, Second District, California.

IN RE: MARRIAGE OF Lynn E. and Terry GODDARD. Lynn E. Jakoby, Respondent, v. Terry Goddard, Appellant; Michael G. York, Appellant.

No. B147332.

Decided: April 19, 2002

Michael G. York, in pro. per., Newport Beach, for Appellant Terry Goddard. No appearance on behalf of Respondent.

I. INTRODUCTION

Terry Goddard (the husband) and Michael G. York (the husband's attorney) appeal from a judgment of dissolution of marriage which incorporates a discovery monetary sanctions order.   Prior to trial, in full compliance with Code of Civil Procedure 1 section 594, subdivision (a), the husband's counsel was given notice of the trial date.   On the trial date, there was no appearance on behalf of the husband.   An uncontested trial was held.   Section 594, subdivision (b) requires that the notice of trial be introduced in evidence.   At the uncontested trial, the notice of the trial date served on Mr. York, the husband's counsel, was not introduced in evidence.   On appeal, the husband argues that the failure to have introduced the notice of trial into evidence was a jurisdictional error.   The husband argues that the failure to have introduced the notice of trial into evidence is not subject to harmless error analysis under article VI, section 13 of the California Constitution as interpreted in People v. Watson (1956) 46 Cal.2d 818, 836, 299 P.2d 243, and its progeny.   In the published portion of the opinion, we explain why we disagree and find that the failure to have introduced the notice of trial into evidence was in fact harmless error.

II. DISCUSSION

A.-C.**

Neither the husband nor Mr. York appeared for trial.   The superior court file contains a notice of ruling on the wife's discovery motion that sets forth the trial date.   The notice of ruling, filed on August 31, 2000, stated in part, “The Court set this matter for trial on October 25, 2000․” For purposes of our discussion, we refer to the August 31, 2000, document as the notice of trial.   Attached to the notice of trial was a proof of service which stated it was served by mail on Mr. York on August 30, 2000.   The written notice of trial was not admitted into evidence at the uncontested trial.   In fact, no mention of the written notice to Mr. York and the husband of the trial date was made during the trial or in the judgment subsequently entered.

 The husband contends the judgment must be reversed because the notice of trial was not introduced as evidence as required by section 594, subdivision (b).  Section 594, subdivision (a) provides:  “In superior and municipal courts either party may bring an issue to trial or to a hearing, and, in the absence of the adverse party, unless the court, for good cause, otherwise directs, may proceed with the case and take a dismissal of the action, or a verdict, or judgment, as the case may require;  provided, however, if the issue to be tried is an issue of fact, proof shall first be made to the satisfaction of the court that the adverse party has had 15 days' notice of such trial ․ as specified in subdivision (b).  If the adverse party has served notice of trial upon the party seeking the dismissal, verdict, or judgment at least five days prior to the trial, the adverse party shall be deemed to have had notice.”  (Italics added.)   The “proof shall first be made” portion of section 594, subdivision (a) was added to the statute in substantially similar language in 1899.  (Stats.1899, ch. 6, § 1, p. 5.)

Section 594, subdivision (b), which is the provision of law at issue in this case, states:  “The notice to the adverse party required by subdivision (a) shall be served by mail on all the parties by the clerk of the court not less than 20 days prior to the date set for trial․ If notice is not served by the clerk as required by this subdivision, it may be served by mail by any party on the adverse party not less than 15 days prior to the date set for trial․ If notice is served by the clerk, proof thereof may be made by introduction into evidence of the clerk's certificate pursuant to subdivision (3) of Section 1013a or other competent evidence.   If notice is served by a party, proof may be made by introduction into evidence of an affidavit or certificate pursuant to subdivision (1) or (2) of Section 1013a or other competent evidence.   The provisions of this subdivision are exclusive.”  (Italics added.)   Section 594, subdivision (b) was added in 1975.  (Stats.1975, ch. 1001, § 1, p. 2345.)   The “or other competent evidence” language was added in 1976.  (Stats.1976, ch. 406, § 1, pp. 1056-1057.)

 The purpose of section 594 is to prevent the possibility of a default or judgment being taken against a party who, because of no or insufficient notice of the date set for trial, is unable to appear.  (Au-Yang v. Barton (1999) 21 Cal.4th 958, 962-963, 90 Cal.Rptr.2d 227, 987 P.2d 697;  Sheldon v. Landwehr (1911) 159 Cal. 778, 782; , 116 P. 44 59 Cal.Jur.3d, Trial, § 12, p. 470.)   As the Supreme Court explained in Estate of Dean (1906) 149 Cal. 487, 492, 87 P. 13, “[Section 594 was] designed to prevent the manifest injustice of dismissing a party's action, or trying it in his absence, because of his failure to appear at a time at which he could not be held to have had notice that the trial would be had, or that any proceeding would be taken against him.”

The clear language of section 594 is consistent with this statutory purpose.  Section 594, subdivision (a) mandates that, when an issue of fact is to be tried, and the adverse party is absent, “proof,” as specified in section 594, subdivision (b), must be made to the satisfaction of the trial court that the absent adverse party received 15 days' notice of the trial date.   As noted previously, section 594, subdivision (b) specifies that when notice of the trial date is served by a party, the requisite proof of notice “may be made by introduction into evidence of an affidavit or certificate pursuant to subdivision (1) or (2) of Section 1013a or other competent evidence.” (§ 594, subd. (b).)  Moreover, section 594, subdivision (b) states, “The provisions of this subdivision are exclusive.”   Section 1013a, subdivisions (1) and (2), which are referred to in section 594, subdivision (b), provide that proof of service by mail may be made by affidavit or certificate setting forth specified information.

 The Courts of Appeal have held that the 15-day notice requirement of section 594, subdivision (a), is mandatory and jurisdictional.  (Urethane Foam Experts, Inc. v. Latimer (1995) 31 Cal.App.4th 763, 767, 37 Cal.Rptr.2d 404;  Martin v. K & K Properties, Inc. (1987) 188 Cal.App.3d 1559, 1567, 234 Cal.Rptr. 161;  Minkin v. Levander (1986) 186 Cal.App.3d 64, 70, 230 Cal.Rptr. 592;  Campanella v. Takaoka (1984) 160 Cal.App.3d 504, 510-511, 206 Cal.Rptr. 745, disapproved on another point in Salas v. Sears, Roebuck & Co. (1986) 42 Cal.3d 342, 346, 228 Cal.Rptr. 504, 721 P.2d 590;  Bird v. McGuire (1963) 216 Cal.App.2d 702, 713, 31 Cal.Rptr. 386;  Isherwood v. Hyrosen Properties, Inc. (1987) 194 Cal.App.3d Supp. 33, 36, 240 Cal.Rptr. 157.)   Moreover, a judgment entered absent compliance with the 15 day notice requirement in section 594, subdivision (a) is void.  (Urethane Foam Experts, Inc. v. Latimer, supra, 31 Cal.App.4th at p. 767, 37 Cal.Rptr.2d 404;  Irvine National Bank v. Han (1982) 130 Cal.App.3d 693, 697, 181 Cal.Rptr. 864.)

But this case does not involve section 594, subdivision (a).   Rather, it involves the failure to have introduced the notice of trial into evidence as required by section 594, subdivision (b).  The California appellate courts have disagreed as to whether the failure to comply with section 594, subdivision (b) is a jurisdictional error.   We set forth the conflict in the decisional authority in some detail.   With respect to the requirements of section 594, subdivision (b), Division Two of the Court of Appeal for the Fourth Appellate District held 20 years ago that absent actual evidence in the record made before the trial court that the required 15 days' notice was given, a court is without jurisdiction to proceed in the adverse party's absence.  (Irvine National Bank v. Han, supra, 130 Cal.App.3d at p. 698, 181 Cal.Rptr. 864.)   The record in Han included a notice of trial accompanied by a proof of service by mail more than 15 days prior to the trial date.   However, the notice of trial and proof of service were not placed in evidence, nor was the superior court asked to take judicial notice of the file.  (Id. at p. 695, 181 Cal.Rptr. 864.)   No mention of notice to the absent defendant was made at trial and the judgment did not reveal whether the trial court had considered the issue of notice.  (Id. at pp. 695-696, 181 Cal.Rptr. 864.)   The Court of Appeal held:  “It is essential to the jurisdiction of the trial court in proceeding in the absence of defendant that proof must first be made that defendant had been given statutory notice.  (Starkweather v. Minarets Mining Co. (1935) 5 Cal.App.2d 501, 503 [43 P.2d 321];  Stubblefield v. Long (1932) 125 Cal.App. 329 [13 P.2d 862].) A judgment entered after a trial held without the notice prescribed by section 594 is not merely error, but is an act in excess of the court's jurisdiction.  (Wilson v. Goldman (1969) 274 Cal.App.2d 573, 577 [79 Cal.Rptr. 309].)” (Irvine National Bank v. Han, supra, 130 Cal.App.3d at p. 697, 181 Cal.Rptr. 864, original italics.)   The court concluded:  “There was absolutely no competent evidence ‘introduced into evidence’ at the trial to show that defendant had been served with notice of trial.   Although the notice of trial and the attached proof of service were apparently in the superior court file at the time of the trial, those documents were not introduced into evidence as required by section 594, subdivision (b) which also provides that ‘the provisions of this subdivision are exclusive.’   There was no testimony that the required notice was given, nor is there any suggestion in the judgment that the court even considered the matter. In the absence of any actual evidence in the record made before the trial court that notice was given, the court was without jurisdiction to proceed in defendant's absence.”  (Id. at pp. 697-698, 181 Cal.Rptr. 864, fn. omitted, orig. italics.)

The Court of Appeal for the First Appellate District, Division Two, in People ex rel. San Francisco Bay Conservation etc. Com. v. Smith (1994) 26 Cal.App.4th 113, 126-129, 31 Cal.Rptr.2d 488, disagreed with the Irvine National Bank holding to a limited extent.  Smith disagreed with the suggestion in Irvine National Bank that actual notice of trial would not be sufficient to uphold a judgment entered after an uncontested trial.   In Smith, the absent party had actual notice of the trial date.   The Court of Appeal held the notice requirements of section 594 were therefore met.   (Id. at pp. 128-129, 31 Cal.Rptr.2d 488.)  People ex rel. San Francisco Bay Conservation etc. Com. v. Smith, supra, 26 Cal.App.4th at page 126, 31 Cal.Rptr.2d 488, also states:  “Compliance with subdivision (a) is mandatory and jurisdictional [citations];  the requirements of subdivision (b) are not jurisdictional (Isherwood v. Hydrosen [Hyrosen] Properties, Inc.[, supra,] 194 Cal.App.3d Supp. [at pp.] 36-37 [240 Cal.Rptr. 157].) One case has held, in apparent tension with the view of subdivision (b) as not jurisdictional, that failure to formally place proof of service in evidence, as subdivision (b) specifies ‘may’ be done, voids a judgment even though proof of service was on file with the trial court and is a part of the record on appeal.  (Irvine National Bank v. Han[, supra,] 130 Cal.App.3d [at pp.] 697-698 [181 Cal.Rptr. 864] );  contrast Kalmus v. Kalmus (1951) 103 Cal.App.2d 405, 419 [230 P.2d 57] [reviewing court considered documents on file which the lower court could have judicially noticed].)”  (Italics added.)

In Isherwood v. Hyrosen Properties, Inc., supra, 194 Cal.App.3d Supp. at pages 36-37, 240 Cal.Rptr. 157, the Appellate Division of the Superior Court of Los Angeles County examined the question of the jurisdictional effect of section 594, subdivision (b) in a slightly different context.   The appellate division concluded that section 594, subdivision (a) was jurisdictional.   But, the court held section 594, subdivision (b) was not jurisdictional.  (Ibid.)

 We are in accord with the analysis in People ex rel. San Francisco Bay Conservation etc. Com. v. Smith, supra, 26 Cal.App.4th at pages 126-129, 31 Cal.Rptr.2d 488, and Isherwood v. Hyrosen Properties, Inc., supra, 194 Cal.App.3d Supp. at pages 36-37, 240 Cal.Rptr. 157, that section 594, subdivision (b) is not a jurisdictional requirement.   Compliance with section 594, subdivision (b) is mandatory;  but it is not jurisdictional.   The Supreme Court described the distinction between mandatory and jurisdictional statutes as follows:  ‘ “Not every violation of a statute constitutes excess of jurisdiction on the part of a court.   The doctrine relied upon by petitioners applies only where the clear purpose of the statute is to restrict or limit the power of the court to act and where the effective enforcement of such restrictions requires the use of the extraordinary writs of certiorari or prohibition.   Where, as here, the statute does not restrict the power of the court but merely sets up a condition precedent to the establishment of plaintiff's cause of action, we think the violation of the statutory provision constitutes an error of law rather than excess of jurisdiction.’  [Citation.]”  (County of Santa Clara v. Superior Court (1971) 4 Cal.3d 545, 549, 94 Cal.Rptr. 158, 483 P.2d 774 citing Redlands etc. Sch. Dist. v. Superior Court (1942) 20 Cal.2d 348, 360, 125 P.2d 490;  accord Poster v. Southern Cal. Rapid Transit Dist. (1990) 52 Cal.3d 266, 274, 276 Cal.Rptr. 321, 801 P.2d 1072 [‘ “A typical misuse of the term “jurisdictional” is to treat it as synonymous with “mandatory.”   There are many time provisions, e.g., in procedural rules, which are not directory but mandatory;  these are binding, and parties must comply with them to avoid default or other penalty.   But failure to comply does not render the proceeding void․” ’];  Conservatorship of Kevin M. (1996) 49 Cal.App.4th 79, 87, 56 Cal.Rptr.2d 765 [same].)   Our conclusion in this case is premised upon common sense.   The failure to have given notice of the trial date is an obvious jurisdictional defect.   The purpose of a trial is to have the parties present evidence and arguments.   If one party does not have notice of the trial, the entire purpose of the proceeding, the presentation of evidence by the opposing parties in an adversarial setting, can never occur.   Further, the evident unfairness of one side appearing with its adversary knowing nothing of the proceedings goes to the very essence of the jurisprudential function of a trial, i.e., it is a jurisdictional defect.

Jurisdictional errors are of two types.   When a court has no jurisdiction in a fundamental sense, an ensuing judgment is void.  (Becker v. S.P.V. Construction Co. (1980) 27 Cal.3d 489, 493, 165 Cal.Rptr. 825, 612 P.2d 915;  Armstrong v. Armstrong (1976) 15 Cal.3d 942, 950, 126 Cal.Rptr. 805, 544 P.2d 941;  2 Witkin, Cal. Procedure (4th ed. 1996) Jurisdiction, § 276, pp. 840-841.)   Also an “action in excess of jurisdiction” when the trial court has jurisdiction in a fundamental sense is merely voidable.   (Conservatorship of O'Connor (1996) 48 Cal.App.4th 1076, 1088, 56 Cal.Rptr.2d 386;  see White v. Renck (1980) 108 Cal.App.3d 835, 839, 166 Cal.Rptr. 701.)   The error in this case, failing to receive a document into evidence which is in the superior court file, does not fall within of the ambit of the decisional authority construing the scope of jurisdiction defects.   The decisional authority defining both types of jurisdictional defects is set out in the margin.2  The differences between the present case and the scenarios listed in the margin are self-evident.   What occurred in this case was not a jurisdictional error.

 In terms of prejudice, the “improper admission or rejection of evidence” or “any error as to any matter of procedure” is subject to harmless error analysis.   In relevant part, article VI, section 13 of the California Constitution provides in pertinent part, “No judgment shall be set aside ․ on the ground of ․ the improper admission or rejection of evidence, or ․ for any error as to any matter of procedure, unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.”   No doubt, there are certain errors, such as the denial of a jury trial right, which result in a miscarriage of justice.  (People v. Cahill (1993) 5 Cal.4th 478, 492, 20 Cal.Rptr.2d 582, 853 P.2d 1037;  People v. Watson, supra, 46 Cal.2d at p. 835, 299 P.2d 243.)   A judgment entered against a party who was never advised of a trial date most assuredly falls within the limited type of error where a miscarriage of justice results by reason of the very violation of section 594, subdivision (a).   By contrast, when there is an uncontroverted under oath showing and no dispute that notice of trial was given in full compliance with section 594, subdivision (a), it is difficult to argue that a miscarriage of justice has resulted because the notice sitting in the superior court file was not received into evidence.   The failure of the trial court at the uncontested trial to have admitted the notice of trial sitting in the superior court file into evidence falls within the extremely broad category of “any error as to any matter of procedure” or “the improper admission or rejection of evidence” in article VI, section 13 of the California Constitution.

 When we apply the harmless error test, we conclude that reversal is not in order.   In order for an error to result in reversal, there must be a reasonable probability of a different result had the mistake not occurred.   (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 983, 67 Cal.Rptr.2d 16, 941 P.2d 1203;  Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 570, 34 Cal.Rptr.2d 607, 882 P.2d 298.)   There is no reasonable probability of a different result.   Had the notice of trial been introduced in evidence as required by section 594, subdivision (b), the result would have been the same.   The trial court would have proceeded with the uncontested trial.   The failure to comply with the provisions of section 594, subdivision (b) was not sufficiently prejudicial to permit reversal of the judgment.

III. DISPOSITION

The order imposing $2,023 in discovery sanctions against Michael G. York is reversed.   The order imposing $2,023 in discovery sanctions against Terry Goddard is affirmed.   The judgment is affirmed in all other respects.   Each party is to bear their own costs on appeal.

FOOTNOTES

FN1. All future statutory references are to the Code of Civil Procedure except where otherwise noted..  FN1. All future statutory references are to the Code of Civil Procedure except where otherwise noted.

FOOTNOTE.   See footnote *, ante.

2.   Examples of jurisdictional defects include convicting an unrepresented accused or prosecuting a person who has been granted immunity from such prosecution.  (People v. Allen (1999) 21 Cal.4th 424, 431, 87 Cal.Rptr.2d 682, 981 P.2d 525 [right to counsel];  People v. Backus (1979) 23 Cal.3d 360, 381, 152 Cal.Rptr. 710, 590 P.2d 837 [immunity].)   The failure to file and serve an order to show cause in an indirect contempt case is a jurisdictional defect.  (Cedars-Sinai Imaging Medical Group v. Superior Court (2000) 83 Cal.App.4th 1281, 1287-1288, 100 Cal.Rptr.2d 320.)   An assignment of a referee for a purpose other than one listed in section 639 has been treated as a jurisdictional defect.   (Jovine v. FHP, Inc. (1998) 64 Cal.App.4th 1506, 1531-1532, 76 Cal.Rptr.2d 322.)   An unlawfully imposed sentence is a jurisdictional defect.  (People v. Jones (1995) 33 Cal.App.4th 1087, 1093, 39 Cal.Rptr.2d 530.)   In terms of appeals, jurisdictional defects include:  failing to timely file a notice of appeal;  the lack of a final judgment;  and raising an issue not listed in the notice of appeal.  (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 674, 125 Cal.Rptr. 757, 542 P.2d 1349 [untimely notice of appeal];  Committee for Responsible Planning v. City of Indian Wells (1990) 225 Cal.App.3d 191, 195, 275 Cal.Rptr. 57 [absence of a final judgment];  Norman I. Krug Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 45-47, 269 Cal.Rptr. 228 [failing to list issue in notice of appeal].)   The failure to post a bond is a jurisdictional defect barring enforcement of a preliminary injunction.  (Condor Enterprises, Ltd. v. Valley View State Bank (1994) 25 Cal.App.4th 734, 741, 30 Cal.Rptr.2d 613.)   The failure to provide requisite notice to a surety is a jurisdictional defect.   (People v. United Bonding Ins. Co. (1971) 5 Cal.3d 898, 904-907, 98 Cal.Rptr. 57, 489 P.2d 1385.)   Cases where there is exclusive federal jurisdiction may not be tried in state courts.  (Chromy v. Lawrance (1991) 233 Cal.App.3d 1521, 1524-1528, 285 Cal.Rptr. 400.)   A court may lack jurisdiction to fix an attorney's lien in the same action commenced on behalf of the client.  (Valenta v. Regents of University of California (1991) 231 Cal.App.3d 1465, 1469-1470, 282 Cal.Rptr. 812.)   The failure of a complaint to contain facts sufficient to state a cause of action is a jurisdictional defect.  (William M. v. Superior Court (1990) 225 Cal.App.3d 447, 453, fn. 6, 275 Cal.Rptr. 103.) The immunity of a foreign state is jurisdictional in nature.  (Philippine Export & Foreign Loan Guarantee Corp. v. Chuidian (1990) 218 Cal.App.3d 1058, 1095, 267 Cal.Rptr. 457.)   The failure to exhaust administrative remedies is a jurisdictional defect.  (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 292-293, 109 P.2d 942.)   A dependency judge may not deprive visitation to a father after a family law court has ordered he have visitation.  (In re Brendan P. (1986) 184 Cal.App.3d 910, 920, 230 Cal.Rptr. 720.)   A court commits jurisdictional error when it decides an issue which has not been assigned to it for decision.  (Shane v. Superior Court (1984) 160 Cal.App.3d 1237, 1249, 207 Cal.Rptr. 210.)   A probation report is a jurisdictional prerequisite to a finding that a minor is not fit for treatment in the juvenile court system.  (Jimmy H. v. Superior Court (1970) 3 Cal.3d 709, 714-715, 91 Cal.Rptr. 600, 478 P.2d 32.)   The deliberate refusal to follow binding precedent of a higher court is a jurisdictional defect.  (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 457, 20 Cal.Rptr. 321, 369 P.2d 937.)   A trial court's effort to resentence a defendant pursuant to Penal Code section 1170 more than 120 days after the initial sentence is a jurisdictionally void act.  (People v. Roe (1983) 148 Cal.App.3d 112, 117-118, 195 Cal.Rptr. 802.)   Various errors on a summons can constitute a jurisdictional defect.  (County of Tulare v. Boggs (1983) 146 Cal.App.3d 236, 246, 194 Cal.Rptr. 80.)   In a criminal case, the failure of the information to state facts sufficient to negative the statute of limitations is a jurisdictional defect.  (People v. Posten (1980) 108 Cal.App.3d 633, 648, 166 Cal.Rptr. 661.)   The failure to give notice of a tax sale is a jurisdictional defect.  (Kaufman v. Gross & Co. (1979) 23 Cal.3d 750, 755, 153 Cal.Rptr. 577, 591 P.2d 1229.)   Likewise, the failure to give proper notice in a probate petition is a jurisdictional defect.   (Guardianship of Slakmon (1978) 83 Cal.App.3d 224, 235, 147 Cal.Rptr. 777.)   Adjudicating the rights of party to an insurance contract when it is not before the court is a jurisdictional defect.  (Fraser-Yamor Agency, Inc. v. County of Del Norte (1977) 68 Cal.App.3d 201, 214, 137 Cal.Rptr. 118.)   Failing to discuss all of the elements of a contempt in the order is a jurisdictional error.  (In re Jones (1975) 47 Cal.App.3d 879, 881, 120 Cal.Rptr. 914.)   None of these situations is akin to the failure to formally receive a notice into evidence which is in the superior court file.

TURNER, P.J.

We concur:  GRIGNON and MOSK, JJ.