KETCHUM v. DAWSON

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Court of Appeal, First District, Division 1, California.

Andrea KETCHUM, a Minor, etc., et al., Plaintiffs and Respondents, v. Robert DAWSON, Defendant and Appellant.

Civ. 46499.

Decided: August 11, 1980

Boornazian, King, Jensen & Garthe, George King, David J. Garthe, James L. McIntosh, Oakland, for defendant and appellant. John Riordan, San Francisco, for plaintiffs and respondents.

On this appeal from an order granting plaintiffs and respondents Ketchum a new trial against defendant and appellant Dawson two questions are presented.   The first is whether the order was “entered in the permanent minutes of the court” within “60 days” after filing of plaintiffs' notice of intention to move for a new trial.  (See Code Civ.Proc., § 660, 3d par.)   The second is whether the trial court timely filed its specification of reasons therefor. (See Code Civ.Proc., § 657.)

We now consider the first of the questions posed.

 In response to plaintiffs' request for a clerk's transcript and designation that “All Minute Orders” be included therein, the transcript included a minute order dated and filed January 19, 1978 (57 days after filing of plaintiffs' notice of intention to move for a new trial) which stated, under caption of the court and the cause:  “Plaintiffs' motion for new trial as to Dawson granted.”  (Emphasis added.)

Nothing is found in the record to suggest that this entry was made in other than the “permanent minutes of the court,” or at a time other than therein stated.   Defendant Dawson's contrary contentions are found invalid.

 The second question is more troublesome.   We enter upon our analysis of it in light of the well-known principles of appellate procedure that:  “Error is never presumed, but must be affirmatively shown” (Carpenter v. Pacific Mut. Life Ins. Co., 10 Cal.2d 307, 326, 74 P.2d 761, 773, affd. sub nom., Neblett v. Carpenter, 305 U.S. 297, 59 S.Ct. 170, 83 L.Ed. 182);  and that:  “Without a record that reveals error it will be presumed that there was no error” (Garrett v. Shenson Meat Co., 5 Cal.App.3d 69, 74, 85 Cal.Rptr. 65, 67).

The trial judge was sitting pro tempore under assignment in San Francisco.   At the close of the January 19, 1978, hearing he orally announced that plaintiffs' motion for a new trial was granted and stated his (here unquestioned as to content) reasons therefor.   He then stated:  “[T]he court knows the law requires that my reasons be set forth in writing and I want to particularly ask the reporter to make up a copy of my remarks which enumerate my reasons so I can sign the reporter's statement of my orally expressed reasons which I adopt as my written reasons for granting the motion.”   The judge then, on judicial business, traveled to Ventura County where he received delivery of his transcribed reasons for granting the new trial.   He there forwarded to the San Francisco Superior Court clerk by mail such reasons in writing to which had been attached the following addendum:  “January 26—1978 Ventura, Calif.   I Robert D. Carter, Judge Assigned in the foregoing case do hereby adopt and republish all the foregoing remarks by the Court, as the written reasons for granting the Plaintiffs a new trial and direct the Clerk of the Court to file this document in the above case forthwith.  [Signed] Robert D. Carter, Judge.”

It will be seen that the court's written specification of reasons was signed and mailed to the superior court clerk of San Francisco on Thursday, January 26, 1978, 7 days after the filing of the order granting a new trial.

The specification of reasons was thereafter stamped “filed ” by the clerk of the superior court on Wednesday, February 1, 1978, 13 days after filing of the order granting a new trial.

 Under Code of Civil Procedure section 657 (next to last par.) “the court must, within 10 days after filing [the order granting a new trial], prepare, sign and file such specification of reasons in writing with the clerk.”   A timely filing of a written specification of reasons is “mandatory ” and “jurisdictional.”   Without such a timely filing the order, without exception, is a “nullity.”  (La Manna v. Stewart, 13 Cal.3d 413, 417–425, 118 Cal.Rptr. 761, 530 P.2d 1073.)

We inquire whether, under apposite law, the trial judge's filing of his specification of reasons was timely.

Code of Civil Procedure section 12a provides:

“If the last day for the performance of any act provided or required by law to be performed within a specified period of time shall be a holiday, then such period is hereby extended to and including the next day which is not a holiday.   The term ‘holiday’ as used herein shall mean [Saturdays and Sundays]  ․ ․ ․ .  [¶] This section applies  ․ ․ ․  to all  ․ ․ ․  provisions of law, however stated or wherever expressed, providing or requiring an act to be performed on a particular day or within a specified period of time.   The mention of  ․ ․ ․  sections herein is not intended and shall not be construed to exclude the application of this section to  ․ ․ ․  other provisions of law, whether the latter are expressed in this or any other code or statute, ordinance, rule, or regulation.”  (Emphasis added.)  Section 12a expressly refers to procedures on motion for new trial.  (See id., 2d par.;  Code Civ.Proc., § 660, 3d par.)

Resort to a year 1978 calendar discloses that the 10th day after filing of the minute order granting the new trial was Sunday, January 29, 1978.   The last day for filing of the trial court's specification of reasons was accordingly Monday, January 30, 1978.

 It is, of course, settled law that:  “When the instrument is deposited with the proper officer, at the proper place for the purpose of filing, in contemplation of law, it is deemed to have been filed.”  (Estate of Sankey, 199 Cal. 391, 396, 249 P. 517, 519.)   Entering its receipt in the clerk's records, or “ ‘Indorsing it with the time of filing is not a necessary part of filing.’ ”  (A & B Metal Products v. MacArthur Properties, Inc., 11 Cal.App.3d 642, 647, 89 Cal.Rptr. 873, 876.)  “Where the filing is effectuated through mailing, it is complete when the document is delivered to the clerk by the postal service, not when it is deposited in the mail;  ․ ․ ․”   (Thompson, Curtis, Lawson & Parrish v. Thorne, 21 Cal.App.3d 797, 801, 98 Cal.Rptr. 753, 756.)

 But there is a well-known disputable presumption that:  “A letter correctly addressed and properly mailed is presumed to have been received in the ordinary course of mail.”  (Evid.Code, § 641;  Goodson v. Bogerts, Inc., 252 Cal.App.2d 32, 39, 60 Cal.Rptr. 146.)  “Such a presumption is evidence  ․ ․ ․  and may prevail [even] against positive evidence to the contrary.”  (City etc. of San Francisco v. Carraro, 220 Cal.App.2d 509, 528, 33 Cal.Rptr. 696, 706.)

 That the trial judge's letter was “correctly addressed and properly mailed” is here established, for as “addressed” and “mailed” it was thereafter delivered.

We believe it to be manifest that a letter so mailed in this state on a Thursday from Ventura to San Francisco would, “in the ordinary course of mail ” (emphasis added), be received by its addressee on, or before, the following Monday.

Since the record before us does not affirmatively establish error, it will be presumed that there was no error.  (See Carpenter v. Pacific Mut. Life Ins. Co., supra, 10 Cal.2d 307, 326, 74 P.2d 508;  Garrett v. Shenson Meat Co., supra, 5 Cal.App.3d 69, 74, 85 Cal.Rptr. 65.)

The order granting a new trial is affirmed.

ELKINGTON, Associate Justice.

RACANELLI, P. J., and NEWSOM, J., concur.