GOETZ v. Robert E. Goetz, Party in Interest.*

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District Court of Appeal, Second District, Division 2, California.

Mary Eileen GOETZ, Petitioner, v. SUPERIOR COURT OF the State of CALIFORNIA in and for the County of Los Angeles, Respondent, Robert E. Goetz, Party in Interest.*

Civ. 22527.

Decided: August 19, 1957

Bentson and Blumberg, James T. Bentson, Long Beach, for petitioner. Harold W. Kennedy, County Counsel, and Wm. E. Lamoreaux, Asst. County Counsel, Los Angeles, for respondent.

This proceeding in prohibition presents the question whether service by mail by a deputy county clerk of true copies of a commissioner's findings and recommendations and the order of court thereon constitute a ‘written notice of the court's action’ within the provisions of Code of Civil Procedure sec. 259a(2) so as to initiate the five-day period within which exceptions to the findings and order shall be served and filed.

On February 15, 1957, the defendant Robert E. Goetz obtained an order to show cause re modification of the support provisions of a previously entered interlocutory decree. After hearing thereon and pursuant to a commissioner's findings and recommendations, the court, on April 8, 1957, made its order denying defendant's application for modification. True copies of the findings, recommendations and the court order were served by mail on April 8, 1957 by the court clerk upon defendant's attorneys of record. The distance between the place of deposit and the place of address is less than 100 milles. The proof of service by mail fully complies with Code of Civil Procedure sec. 1013a, and there is no contention that defendant's attorneys did not in fact receive the mailed copies of the findings, recommendations and order. No objections or exceptions to the commissioner's report and court order were made until May 14, 1957, at which time defendant's counsel served and filed exceptions to the findings and order not accompanied by any motion under Code of Civil Procedure sec. 473 to be relieved from a failure to serve and file the exceptions at an earlier date. Over petitioner's objection that the exceptions were filed too late, the court proceeded to hear the matter; made its order sustaining defendant's exceptions; and set aside the findings and recommendations and reset the application for modification for subsequent hearing.

Code of Civil Procedure sec. 259a(2) reads in pertinent part as follows: ‘any party to any contested proceeding may except to such report and the subsequent order of the court made thereon within five days after written notice of the court's action’. The section does not provide for any particular form of written notice nor does it restrict the persons who may give such written notice. We can conceive of no more adequate written notice of the court's action than an exact copy of the commissioner's findings, recommendations and court order.

The respondent court contends that under Code of Civil Procedure sec. 259a(2) and Code of Civil Procedure secs. 1010–1015, dealing with notices generally, the notice necessary to commence the five-day period for the filing of exceptions must be a formal process signed by the attorney and designed for the purpose of starting the period of time running. In Jansson v. National Steamship Co., 34 Cal.App. 483, 168 P. 151, which is cited in support of this contention, a written notice of the assignment of a judgment signed only by the plaintiff was served on the defendant. It was held that such document was only intended to give notice of the assignment of the judgment and therefore did not constitute a notice of the entry of judgment. The court went on to quote from a statement made by the trial judge without supporting authority (34 Cal.App. at page 486, 168 P. at page 152): ‘Where an attorney is retained in an action to represent a party litigant, all statutory notices and legal proceedings therein must be signed or inauguarated by the attorney of record alone.’ Respondent also relies on Harris v. Minnesota Investment Co., 89 Cal.App. 396, 265 P. 306, which involved the sufficiency of a post card notice mailed by the clerk on the overruling of a demurrer. Patently a post card notice was inffective as a mailed notice regardless of any signature thereon. The court, however, citing Jansson v. National Steamship Co., supra, reiterated the statement that all notices must be signed by the attorney of record alone. It does not appear that there was an application for hearing in either of these cases by the Supreme Court, and we are unable to find that either has been subsequently cited for the proposition that every notice must be signed by the attorney of record.

Code of Civil Procedure sec. 650 formerly provided: ‘Where a party desires to have exceptions taken at a trial settled in a bill of exceptions, he may, within ten days * * * after receiving notice of the entry of judgment * * * prepare the draft of a bill * * *.’ In Kelleher v. Creciat, 89 Cal. 38, 26 P. 619, the Supreme Court held that the service upon the attorneys for the defeated parties of a copy of the findings and judgment after entry thereof constituted the service of notice of entry of judgment for the purpose of commencing the time within which to prepare a bill of exceptions under the foregoing section.

We do not question the general rule that notice of some action sought to be taken in a judicial proceeding such as notices of motion, notices of intention to move for new trial, notices of appeal and similar notices must be signed by the attorney of record for the party giving such notice. However, a notice, the purpose of which is to convey information of some action already taken by the court, appears to be of a different character, and we see no inherent reason why such a notice must be signed by an attorney. ‘The term ‘notice’ of itself imports that the information given thereby comes from an authentic source, and is to be directed to some one who is to act or refrain from acting in consequence of the information contained in the notice' (Williams v. Bergin, 108 Cal. 166, 171, 41 P. 287, 288). We conclude that service by mail by a deputy county clerk of copies of the commissioner's findings and recommendations and of the order of court thereon constituted ‘written notice of the court's action’ within the purview of Code of Civil Procedure sec. 259a(2).

Let a peremptory writ of prohibition issue restraining the respondent court from enforcing its order of May 31, 1957 setting aside the findings, recommendations and order of April 8, 1957 and from proceeding to conduct a rehearing upon the order to show cause re modification of judgment dated February 15, 1957.

RICHARDS, Justice pro tem.

FOX, Acting P. J., and ASHBURN, J., concur.