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Court of Appeal, Second District, Division 7, California.

COUNTY OF LOS ANGELES, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent. Robert and Heida DOUGHERTY, Real Parties in Interest.

No. B041697.

Decided: August 11, 1989

De Witt W. Clinton, County Counsel, S. Robert Ambrose, Asst. County Counsel and Philip S. Miller, Principal Deputy County Counsel, for petitioner. No appearance for respondent. No appearance for real parties in interest.

This petition for a writ of mandate followed the trial court's denial of petitioner's motion to vacate a trial date and the court's subsequent order continuing trial and tolling the five year statute pursuant to Code of Civil Procedure 1 section 583.340, subdivision (c).   Petitioner contends that the trial court did not have jurisdiction to act as it did because petitioner did not have the 15 days notice of trial required by section 594.   For the reasons discussed in this opinion, we conclude that County waived the notice requirement of section 594 and that the statute is otherwise inapplicable.


On April 13, 1984, plaintiffs (the real parties in interest) filed a wrongful death action against petitioner (hereafter “County”).

On March 15, 1989, plaintiffs personally served on County a notice of a motion to advance trial.   The notice indicated a hearing date of March 30, 1989.

On March 30, 1989, County appeared in response to the notice.   No matter in this case was calendared for that date.

On March 30, 1989, County wrote plaintiffs that their motion had not been on calendar and that if plaintiffs managed to set a trial date, the County would move to vacate the trial date pursuant to section 594.

Since March 30, 1989 was not a normal law and motion date, the matter was continued to March 31, 1989.

On March 31, 1989, plaintiff's motion to advance was heard without any notice to or appearance by County.   A minute order issued setting the matter for trial on April 3, 1989.

On April 3, 1989, the trial court vacated that trial date and issued a minute order which read:  “Calendared in error.   Counsel to secure trial date through Master Calendar Clerk.”

On April 4, 1989, a trial date of April 10, 1989 was set by the court clerk, who gave notice of the April 10th trial date to the parties.

On April 5, 1989, County received the notice of the April 10, 1989 trial date from both the court clerk's office and the plaintiffs.   The notice from plaintiffs erroneously indicated that the motion to advance had been heard on March 30, 1989.

On April 5, 1989, County wrote plaintiffs about the inaccuracy of the notice of the ruling on the motion to advance and to advise them that it would make a special appearance on April 10, 1989, to support a motion to vacate the trial date.

At the April 10th hearing, the court stated that it had granted the motion to advance because the motion had been uncontested, there being no opposition from anyone and no appearance by anyone at the March 31st hearing.   Also, as a practical matter, the court noted that the case would not go to trial until the end of the year since 32 other five-year cases were trailing ahead of it.

On April 10, 1989, the trial court denied the motion to vacate the trial date, ordered that the five year statute be tolled pursuant to section 583.340, subdivision (c) 2 and continued the trial to June 19, 1989.

County petitioned this court for a writ of mandate.   We issued an alternative writ which provided that the trial court was to either (a) vacate its order of April 10, 1989, or (b) in the alternative, show cause as to why it had not done so.   The writ mandated to the trial court that:  “In the event you comply with alternative (a) above, you shall so inform this court by transmitting a copy of your minute order to this court forthwith.”

On May 17, 1989, the trial court set aside its order of April 10, 1989, and granted the County's motion to vacate the trial date.   However, a copy of that minute order was not transmitted to this court by the trial court.   After being notified of the hearing date for oral argument in this matter, the County, in its role as petitioner, provided this court with a copy of the May 17, 1989 minute order.


County contends that compliance with the requirement of section 594, subdivision (a) 3 that an adverse party be given 15 days notice of a trial date is mandatory and that the failure to give the required notice (earlier versions of § 594 required only five days notice, see Historical Note, 16 West's Ann. Code Civ.Proc. (1976 ed.) § 594, pp. 398–399) deprives the court of jurisdiction.

As noted in the factual and procedural synopsis, the trial court only partially complied with the alternative writ.   Even though it set aside its order denying the County's motion to vacate the trial date, it did not transmit a copy of that minute order to this court.   Accordingly, we will treat this petition as though alternative (b) is in effect.   Since the issue of the 15 days notice could be raised by way of appeal after a judgment of dismissal is entered, in the interests of justice and judicial economy, we will proceed with our analysis of the writ petition.

County argues that therefore on March 31, 1989, when plaintiff's motion to advance trial was heard, the trial court did not have jurisdiction to set a trial date since less than 15 days remained prior to the running of the five year statute (§ 583.310) on April 13, 1989.

Even though irregularities occurred in the scheduling of plaintiffs' motion to advance trial and in setting the trial date, compounded by a notice of a ruling which erroneously stated the wrong hearing date for plaintiffs' motion, the irregularities are explained by the fact that plaintiffs' motion had to be continued as it was originally not scheduled on a normal law and motion day and by a court error in setting the April 3, 1989 trial date.   These irregularities do not appear to have any bearing on the legal issue presented to us regarding section 594's notice requirement.

We note that two necessary requirements for the application of section 594 are missing in the instant case.   First, there was no proceeding taken against County in its absence.   Second, plaintiffs did not secure a verdict, judgment or dismissal.

In Sheldon v. Landwehr (1911) 159 Cal. 778, 116 P. 44, the Supreme Court upheld the denial of a defendant's motion for a continuance even though the defendant argued that he had not had notice of the time of trial.   Noting that the defendant was represented at trial, the court stated that:  “It is quite clear, from the reading of this section [§ 594], that it has reference only to proceedings taken against a party in his absence.   Where one party, the other being absent and unrepresented, calls a case for trial, and seeks, upon an ex parte [original emphasis] showing, to secure a dismissal, a verdict, or a judgment, the section requires proof that the absent party has had such notice as would have enabled him to appear to prosecute or defend his case.”   (Emphasis added.)  (Id., at p. 782, 116 P. 44.)

“The purpose of the code section [§ 594] is to prevent the possibility of such default being taken against one who has, by reason of insufficient notice or no notice of the time of trial, been unable to appear.   The provision has no application to cases in which both parties are represented when the case is called for trial.”  (Emphasis added.)  (Ibid.)

“The purpose of the mandatory notice ․ is merely to protect parties against trials, dismissals or judgments in their excusable absence.   Hence, compliance may be waived or excused as follows:  ¶ (a) Where the adverse party is represented [original emphasis] at the trial, a defective notice is immaterial.”  (Emphasis added.)  (7 Witkin, Cal. Procedure (3d ed. 1985) Trial, § 80, p. 82;  accord Bird v. McGuire (1963) 216 Cal.App.2d 702, 715, 31 Cal.Rptr. 386.)

For the reasons discussed in this opinion, we conclude that even though County made what it denominated a special appearance to argue in support of its motion to vacate the trial date, it was represented at the time of trial on April 10, 1989, waiving the notice requirement of section 594.

 “ ‘Whether an appearance is general or special is determined by the character of the relief sought and not by the intention of the party that it shall or shall not operate as a general or special appearance.   The statement of a defendant or party that he is making a special appearance is not necessarily conclusive.   The test is—Did the party appear and object only to the consideration of the case or any procedure in it because the court had not acquired jurisdiction of the person of the defendant or party?   If so, then the appearance is special.   If, however, he appears and asks for any relief which could be given only to a party in a pending case, or which itself would be a regular proceeding in the case, it is a general appearance regardless of how adroitly, carefully or directly the appearance may be denominated or characterized as special․’ ”  (Emphasis added.)  (Judson v. Superior Court (1942) 21 Cal.2d 11, 13, 129 P.2d 361 disapproved on another point in Goodwine v. Superior Court (1965) 63 Cal.2d 481, 484, 47 Cal.Rptr. 201, 407 P.2d 1.)

 Although County designated its appearance on April 10, 1989, as a special appearance, we conclude that it was a general appearance for two reasons.

First, “a defendant makes a general appearance when he takes any part in the action or proceeding [original emphasis], e.g., by pleading, ․” (2 Witkin, Cal. Procedure, supra, Jurisdiction, § 141, pp. 522–523;  accord Bayle–Lacoste & Co. v. Superior Court (1941) 46 Cal.App.2d 636, 644, 116 P.2d 458;  § 1014.)   Although the superior court file is not before us since this case is here on a writ petition, it is a reasonable inference that the County must have answered the complaint or a default would have been entered against it.   Moreover, in its petition, County stated that it had served interrogatories on plaintiffs.   Accordingly, it is clear that County made a general appearance in this matter, establishing the court's personal jurisdiction over it.

The chief reason for allowing a special appearance is to provide “a method of appearing for the sole purpose of objecting to lack of jurisdiction of the person, without submitting to such jurisdiction.”  (2 Witkin, Cal. Procedure, supra, Jurisdiction, § 149, p. 534 and authorities there cited.)   “After a party makes a general appearance in an action, he cannot make a special appearance for the purpose of objecting to defects in the service of process and raising questions as to the jurisdiction of the court over his person.”  (3 Cal.Jur. 3d, Appearance, § 49, p. 792.)   Thus, County could not make a special appearance on April 10, 1989, to raise a question as to the trial court's personal jurisdiction over it.

Second, County's claim is that the court was divested of jurisdiction to set a trial date because it would be unable to give County 15 days' notice of the trial date.   The nature of such a claim is analogous to a contention that the trial court had no jurisdiction over the subject matter, i.e., no jurisdiction to set the trial, not that the court had no jurisdiction over the parties.

In general, contesting subject matter jurisdiction constitutes a general appearance.  (See Taylor v. Superior Court (1928) 93 Cal.App. 445, 447, 269 P. 727.)   We note that the Supreme Court determined that a motion to dismiss for lack of subject matter jurisdiction, coupled with a challenge to jurisdiction over the defendant, was not a general appearance.  (Goodwine v. Superior Court (1965) 63 Cal.2d 481, 484, 47 Cal.Rptr. 201, 407 P.2d 1.)   However, in the case at bar, County not only did not make a motion to dismiss, it had already made a general appearance.

Furthermore, a motion to vacate trial is neither among, nor analogous to, the motions listed by legal authorities as constituting a special appearance.  (See 3 Cal.Jur.3d, Appearance, § 25, pp. 772–773;  2 Witkin, Cal. Procedure, supra, Jurisdiction, § 160, pp. 545–546.)   We conclude that County's appearance to argue the merits of its motion to vacate trial was a general appearance.  (See 2 Witkin, Cal. Procedure, supra, Jurisdiction, § 154, pp. 538–539.)   The proof of notice of trial required by section 594 was unnecessary since County appeared on April 10, 1989.

In Perini v. Perini (1964) 225 Cal.App.2d 399, 37 Cal.Rptr. 354, the Court of Appeal reasoned that a trial held without the notice required by section 594 was in excess of the court's jurisdiction.  (Id., at p. 406, 37 Cal.Rptr. 354.)   In explaining why such a trial exceeded the court's jurisdiction, the Perini court stated that:  “It is elementary that due process of law requires that the party against whom a claim is asserted shall have opportunity to be present when the evidence to sustain the claim is introduced, and that a judgment cannot be rendered in a ‘trial’ held without notice.”  (Emphasis added.)  (Id., at pp. 406–407, 37 Cal.Rptr. 354.)

We are aware that County contends that the trial court did not have the jurisdiction to set the case on March 31, 1989 (or even on March 30, 1989), because less than 15 days remained before the five year statute ran on April 13, 1989.   Since there is a line of authority recognizing the possibility of a waiver of or an exception to the notice requirement of section 594 (see cases collected in Bird v. McGuire, supra, 216 Cal.App.2d 702, 714, 31 Cal.Rptr. 386 and 7 Witkin, Cal. Procedure, supra, Trial, § 80, pp. 82–83), we conclude that it would be putting the cart before the horse to permit a party to claim that it is entitled not to appear for trial before the trial date arrives.

Courts have determined that the failure to give the notice required by section 594 is an error of law which can be corrected by granting a motion for a new trial.  (See cases collected in Simon v. Tomasini (1950) 97 Cal.App.2d 115, 123, 217 P.2d 488.)   The Simon court reasoned that lack of notice left a court without jurisdiction to try the case.  (Id., at p. 122, 217 P.2d 488.)

As conceded by County, the purpose of section 594's notice requirement is to allow an adverse party adequate time to prepare for trial;  therefore, the crucial issue should be whether or not a party has had time to prepare for trial.  (59 Cal.Jur.3d, Trial, § 12, p. 470.)   This issue was not addressed by County in its motion to vacate the trial date.

“It is, of course, true that even in such cases, the want of notice sufficient to have enabled one of the parties to prepare for trial would be good ground for continuance.”  (Sheldon v. Landwehr, supra, 159 Cal. 778, 782, 116 P. 44.)   Had trial commenced on April 10, 1989, County could have requested a continuance if it was unprepared to proceed due to inadequate notice.

However, continuances are not always granted.   In Handy v. Handy (1916) 31 Cal.App. 590, 161 P. 21, the court affirmed the trial court's denial of the defendant's motion for a continuance, which motion was based upon the fact that the defendant had not received a full five days' notice of the time fixed for trial.   The Handy court noted that the defendant:  “had filed his answer;  he was present in court when the case was called for trial, and he made no legal showing to the effect that the notice which he had received was insufficient to enable him to prepare for trial;  in other words, he filed no affidavit setting forth the reasons why he was unable to proceed to trial, ․” (Emphasis added.)  (Id., at p. 591, 161 P. 21.)   Likewise, County made no legal showing that it did not have sufficient time to prepare for trial.

We disagree with the suggestion in Minkin v. Levander (1986) 186 Cal.App.3d 64, 230 Cal.Rptr. 592 and Martin v. K & K Properties, Inc. (1987) 188 Cal.App.3d 1559, 234 Cal.Rptr. 161 that a trial court does not have the jurisdiction to set a trial date during the last 15 days of the five year statute unless the adverse party will have 15 days notice of the trial date.   We agree with Simon, that it is jurisdiction to try the case, not jurisdiction to set the case, which is addressed by section 594.

In Minkin, the trial court set a trial date beyond the five year period and later granted defendant's motion to dismiss based on the plaintiff's lack of reasonable diligence.  (Minkin v. Levander, supra, 186 Cal.App.3d 64, 67, 69, 230 Cal.Rptr. 592.)   The Court of Appeal stated that when the motion to specially set was heard, the trial court did not have jurisdiction to set the case within the five year period as only 10 days remained before the expiration of the five year statute.  (Id., at pp. 70–71, 230 Cal.Rptr. 592.)

In Martin, when plaintiffs' moved to specially set with only 11 days remaining in the five year period, the trial court denied the plaintiffs' motion and later granted the defendant's motion to dismiss.   The Court of Appeal affirmed on the basis of the plaintiffs' lack of diligence and their failure to comply with the 15 day trial notice requirement of section 594.   (Martin v. K & K Properties, Inc., supra, 188 Cal.App.3d 1559, 1567–1568, 234 Cal.Rptr. 161.)

To the extent that the statements in Minkin and Martin regarding the 15 days' notice requirement of section 594 are not dicta, we are not persuaded that 15 days' notice of trial is always necessary—an obvious exception being when both parties are represented and participate in the trial.

 We conclude that 15 days' notice was not required in the instant case.   County was represented at the April 10, 1989, trial and no judgment, verdict, or dismissal was taken.   County did not make a claim, much less a legal showing, that it did not have time to prepare for trial.   Furthermore, according to the trial judge, this case would not go to trial until the end of the year since there were 32 other five year cases trailing ahead of it.   In addition, a continuance leaves County with the opportunity to be present at trial when evidence is introduced and is unlike a dismissal, judgment or verdict, which resolve the merits of the case.   It would be elevating form over substance to hold that the trial court erred in not granting County's motion to vacate the trial date.

Due to the trial court's workload, it tolled the five years statute due to impossibility and continued the trial to June 19, 1989, a date for which County had more than 15 days' notice.   Under the facts of this case, we conclude that the trial court was not without jurisdiction to act as it did.

We need not address the issue of whether or not the trial court would have been able to continue the trial and toll the five year statute had County not appeared on the trial date.


The alternative writ is discharged, and the petition is denied.   The trial court is directed to vacate its minute order of May 17, 1989 and to enter a new and different order in accordance with the holding contained herein.   Each side to bear its own costs.


FN1. All statutory references are to the Code of Civil Procedure..  FN1. All statutory references are to the Code of Civil Procedure.

2.   Section 583.340 provides that:  “In computing the time within which an action must be brought to trial pursuant to this article, there shall be excluded the time during which any of the following conditions existed:“․“(c) Bringing the action to trial, for any other reason, was impossible, impracticable, or futile.”

3.   The relevant part of section 594 provides that:  “In superior ․ courts either party may bring an issue to trial or to a hearing, and, in the absence of the adverse party ․ may proceed with his 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․”  (Emphasis added.)

FRED WOODS, Associate Justice.

LILLIE, P.J., and JOHNSON, J., concur.

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