CITY AND COUNTY OF SAN FRANCISCO v. CARRARO

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

CITY AND COUNTY OF SAN FRANCISCO, a municipal corp., Plaintiffs and Respondents, v. Frank CARRARO and Lena Carraro, Defendants and Appellants.

Civ. 20033.

Decided: February 18, 1963

William Steinberg, San Francisco, for appellants. Thomas M. O'Connor, City Atty. of the City and County of San Francisco, John J. Taheny, Jr., Deputy City Atty., San Francisco, for respondent.

This is an appeal by the property owners, Frank and Lena Carraro, from a default judgment in favor of the City and County of San Francisco, in an action in eminent domain, and from the order denying their motion to set aside entry of default and default judgment. The City commenced its action on December 5, 1955, to condemn in fee the interests in six parcels of land owned by the appellants for public use as a portion of John McClaren Park. On February 29, 1960, by written substitution of attorneys, William Steinberg and Abraham Berry were appointed as attorneys of record for the appellants. In March, 1960, the appellants, by Mr. Berry, filed a notice of motion to amend the answer, which motion was orally presented in court on March 28, 1960. All of the parties stipulated through their respective attorneys, in writing, that the date of the valuation which was to be the measure of compensation for all the property to be taken was to be September 6, 1960. At 9:30 a. m. on October 24, 1960, the case was called for trial by the presiding judge and assigned to Judge Caulfield's department and proceeded to trial in the absence of appellants or their counsel.

The record before us does not contain any notice of time and place of trial as required by section 594 of the Code of Civil Procedure and furthermore, the record before us does not show that proof of service of such notice was made to the trial court at the time of trial. Code of Civil Procedure section 594 requiring service of notice of time and place of trial and proof of service when an adverse party is absent is mandatory. Mere knowledge of a probable date of trial is not sufficient notice of time and place of trial (Payer v. Mercury Boat Co., 195 Cal.App.2d 659, 16 Cal.Rptr. 123; Hurley v. Lake County, 113 Cal.App. 290 at pp. 295–296, 298 P. 123 at p. 125; Simon v. Tomasini, 97 Cal.App.2d 115 at p. 123, 217 P.2d 488 at p. 493).

The record before us does not show any waiver of the provisions of section 594 of the Code of Civil Procedure. This section could be waived if there was a written stipulation setting the cause for trial on a date certain or if both parties appear at the time of trial and proceed. The mere fact that both counsel were present in court and consented to a continuance of the trial does not, under the authorities, obviate the necessity of the five days' notice of time and place of trial. This notice is basic and jurisdictional and proof thereof must be made at the time of trial unless both parties are present and proceed to trial.

The jurisdictional requirements not having been met at the time of trial in this case, requires a reversal. Even though respondents may have served notice of time and place of trial on the appellants, no proof of such service was made at the time of trial and hence, the lower court had no jurisdiction to proceed.

Judgment in favor of plaintiffs and respondents is reversed, and order denying appellants' motion to set aside entry of default and default judgment is reversed.

KAUFMAN, Presiding Justice.

SHOEMAKER and AGEE, JJ., concur. Rehearing granted; KAUFMAN, P. J., dissenting.