Hollister Convalescent Hospital, Inc. v. Rico

TOBRINER, J.

I dissent. We created the time limits on the filing of a notice of appeal for a purpose: to promote the speedy and efficient administration of justice. We should interpret and apply those limits not blindly, as do the majority, but with a sensitivity to the objectives which those limits serve.

I believe the unanimous opinion authored by Justice Peek in Slawinski v. Mocettini (1965) 63 Cal.2d 70 [ 45 Cal.Rptr. 15 , 403 P.2d 143 ] exemplifies this sensitive and purposeful interpretation of the rules governing the filing of a notice of appeal, and provides a guide for resolution of the present case. In Slawinski , the court clerk entered the order denying plaintiffs’ motion for a new trial in the minutes of July 10. Plaintiffs, however, relied on the written order of the judge and the notice prepared by defense counsel, both of which indicated that the order denying a new trial was entered on July 13. Holding plaintiffs’ appeal was timely, we stated that “an attorney should be entitled to accept such documents at face value where they appear to be proper and consistent with the proceedings. In the absence of any statute, rule, or other circumstance it is not required that he search the permanent minutes of the court to check for an earlier minute entry, and certainly he could not reasonably be expected to do so. To hold that the 30-day period within which to file an appeal commenced to run on the entry of the instant minute order would only promote injustice.” ( 63 Cal.2d 70, 72-73 .)

*676 The present case presents an analogous situation. Having received a notice of entry of the court’s order denying a new trial which counsel considered ambiguous as to the date of entry of the order, counsel was in doubt concerning the time limit for filing a notice of appeal. For counsel to travel from Oakland to the office of the San Benito County Clerk in Hollister and personally search the minutes of the court would involve an inefficient and wasteful procedure. The sensible course for counsel to follow would be to inquire by telephone. When the clerk of the superior court twice reported in response to telephone inquiries that the order was entered on February 6, counsel had no reason to doubt the accuracy of that representation, and no reasonable way to inquire further. Counsel therefore relied upon the clerk’s representation and filed the notice of appeal within 30 days from February 6. 1 Since the reliance of counsel appears reasonable, and the delay is a matter of only one day, I would follow the reasoning of Slawinski and deny the motion to dismiss the appeal. 2

The majority, however, dismiss the relevant language of Slawinski as “panoramic,... erroneous,... persistent,... unnecessary and overbroad dicta,” and, confining the holding of Slawinski to its narrowest possible scope, reject the spirit which animated that opinion. Yet the majority do not expressly disagree with anything Slawinski said; they do not, for example, maintain that an attorney cannot reasonably rely upon representations from court or counsel, that he must personally examine the minutes of the court, or that no injustice ensues when an appeal is barred because an attorney reasonably relied upon a false or mistaken representation. Instead the gist of the majority opinion is that once a time limit is labeled “jurisdictional,” questions of reasonable reliance, *677 efficient administration, or substantial justice no longer matter, jurisdictional limits, implacable and merciless, stand above such considerations. Thus like King Darius, compelled by the immutable laws of the Medes and Persians to condemn Daniel to the lion’s den, the majority believe themselves compelled to act with blind injustice.

The short answer to such legal pedantiy is that the time limit on filing a notice of appeal is only as jurisdictional as we want it to be. No constitutional provision, statute, or rule declares the limit to be jurisdictional. To the extent that some earlier cases such as Estate of Hanley, supra, 23 Cal.2d 120 , imply that appellate courts must enforce such time limits blindly and without thought to considerations of efficiency or equity, those decisions are contrary to the weight of present authority. (See Slawinski v. Mocettini, supra, 63 Cal.2d 70 ; Desherow v. Rhodes (1969) 1 Cal.App.3d 733, 743-745 [ 82 Cal.Rptr. 138 ]; 6 Witkin, Cal. Procedure (2d ed. 1971) pp. 4336-4339.)

In criminal matters we have refused to dismiss an appeal when “the prisoner did not file the written notice of appeal in time because he relied upon representations or conduct of prison officials which lulled him into a false sense of security.” (In re Benoit (1973) 10 Cal.3d 72, 83 [ 109 Cal.Rptr. 785 , 514 P.2d 97 ], see People v. Head (1956) 46 Cal.2d 886, 889-890 [ 299 P.2d 872 ]; People v. Rascon (1954) 128 Cal.App.2d 118, 120 [ 274 P.2d 899 ]; People v. Calloway (1954) 127 Cal.App.2d 504 [ 274 P.2d 497 ].) We uphold such late filing although it is incongruous with the theory that the court lacks jurisdiction to do so. We attempt to overcome the dilemma by decreeing that we will deem the appellant to have constructively filed a timely appeal.

With deference to the majority, I submit that the use of these transparent fictions manifests the fact that the court is in reality not dealing with these issues on a “jurisdictional” basis at all. We recognized as much in In re Benoit, supra, in which we stated that “the principle of constructive filing ... in our view embodies nothing more than a basis for judicial acceptance of an excuse for the appellant’s delay in order to do justice.” ( 10 Cal.3d at p. 84 .) Disguising a doctrine of reasonable reliance under the legal fiction of constructive filing may maintain the illusion that time limits for filing an appeal are jurisdictional, but the cases involving this doctrine demonstrate that the court can pierce that illusion whenever necessary “in order to do justice.” (Id.) Thus the majority are not compelled to disregard the reasonable reliance by appellants’ counsel or to overlook the manifest inefficiency of a rule *678 requiring attorneys personally to peruse the minutes of the court to verify the date of entry of orders. They are free to consider such matters and, in light of that consideration, to arrive at a reasonable and just disposition of the motion before them. I believe they err in not doing so.

I dissent also to the “panoramic, erroneous, persistent, unnecessary and overbroad dicta” of the majority opinion. Ranging far beyond the facts and arguments of the instant case, the majority assert that neither estoppel nor waiver is a defense to a motion to dismiss an untimely appeal. I think the majority opinion probably errs on both counts, and that its dicta on such matters, will foster judicial inefficiency; in any event I believe the resolution of such controversies should await a case in which they are properly presented to the court. It is only too easy to decide in the abstract that estoppel and waiver will not be recognized as defenses, but if this court confronted a concrete case in which the respondent had deceived the appellant or trifled with the court, we might well reach a different result.

In declaring that proof of estoppel cannot justify the late filing of a notice of appeal, the majority proffer no reason other than the repeated assertion that such time limits are jurisdictional. Yet as the majority recognize, a party deceived into filing a late notice of appeal can bring an independent equitable action to set aside the judgment. The problem with that remedy is that if the appellant prevails in his equitable action, the consequence is hot to reinstate the appeal but to reopen the trial court judgment, thus requiring a wholly unnecessary retrial of the original cause. Thus the practical effect of judicial refusal to acknowledge estoppel as a defense to a motion to dismiss is simply to force the deceived appellant to substitute a time-consuming and inefficient remedy for a speedy and efficient determination of the matter.

The majority range even further afield to disapprove the decision of the Court of Appeal in In re Morrow (1970) 9 Cal.App.3d 39 [ 88 Cal.Rptr. 142 ]. Morrow held that respondents who briefed an áppeal on its merits and filed no motion to dismiss had waived their right to assert that the appeal was untimely filed. Since in the present case respondent promptly filed its motion to dismiss, Morrow is not on point and disapproval of that case is entirely unnecessary.

The majority’s overruling of Morrow is yet another illustration of how insistence upon the “jurisdictional” character of rules 2 and 3 will defeat the objective of those rules. The smooth and efficient operation of the *679 appellate process requires that respondents file their motion to dismiss an appeal promptly, before the court spends unnecessary effort in preparing for argument and opinion. Yet if the timeliness of the notice of appeal is jurisdictional, as the majority use that term, that matter can be raised at any time. The respondent would then have no incentive to raise the issue promptly; he might prefer to wait until the court filed its opinion on the merits, and then act before that opinion became final. The majority opinion leaves the appellate courts without effective sanctions to prevent such tactics.

In summary, the labeling of the time limit on the filing of a notice of appeal “jurisdictional” logically implies that we should dismiss the instant appeal, but the policies underlying the creation of those time limits oppose the dismissal. In such a conflict, the underlying policy must prevail; juridical concepts, such as the concept of “jurisdictional” time limits, are not the masters but the servants of the courts.

I submit that we sometimes become so enamored with procedural rules and requirements that we allow them to take on a sanctity and inviolability of their own. Let us not forget that the rules were designed to afford litigants an opportunity for fair trial, and that their viability lies in effecting functional justice. We do not mean, of course, that the rules should be grossly violated or that justice itself be delayed. But here the delay was miniscule; yet the majority, in order to block the litigant’s appellate day in court, have themselves struck down decisions that allow it.

Mosk, J., concurred.

One wonders why appellants’ counsel delayed until what he thought was the 29th day of the 30-day period before filing the notice of appeal; presumably careful counsel do not walk so near the edge of the cliff without good reason. The majority opinion, however, renders further inquiry into counsel’s reason irrelevant.

Respondent in the instant case conceded that Slawinski had impliedly overruled the strict jurisdictional rule of Estate of Hanley (1943) 23 Cal.2d 120 [ 142 P.2d 423 , 149 A.L.R. 1250 ], but contended that Slawinski was distinguishable on three grounds: that the present case involved no misrepresentation by respondents; that appellants’ counsel had reason to doubt the correctness of the clerk’s representation; and that the clerk’s representation was not written. None of these distinctions are adequate. Slawinski rests upon principles of reasonable reliance, not estoppel, so the source of the erroneous representation is inconsequential. I find nothing unreasonable in the decision of appellants’ counsel to rely on the statement of the court clerk, who had the minute book in his possession, instead of on the ambiguous written notice from opposing counsel. Finally, the oral nature of the clerk’s representation is immaterial unless one questions the truthfulness of appellants’ affidavits, but neither respondents nor the majority raise any such factual issue.