[VAR & VSEA] OPPOSITION TO MOTION TO DISMISS APPEAL
"INTRODUCTION
Welcome to the trenches and the world of sharp practice by trial lawyers.
This motion by Varian to dismiss an appeal by Delfino and Day from an order denying judgment notwithstanding the verdict (JNOV) is based on a trick that is well-known to many trial lawyers - serve a document twice on successive dates and hope the opposing party calendars the wrong date for a subsequent jurisdictional filing. That is what Varian's attorneys did here. First, they attempted a substituted personal service of the trial court judgment on counsel for Delfino and Day; then, the next day, they personally served the same judgment (with notice of entry) on Delfino, Day, and their counsel. Now, Varian claims the attempted substituted personal service commenced the jurisdictional period for filing post-trial motions, making those motions untimely by one day.
The trick does not work here, however, because the attempted substituted personal service on counsel for Delfino and Day was ineffective, for want of compliance with the requirements for such service prescribed by Code of Civil Procedure section 1011, subdivision (a). Only the subsequent personal service on Delfino, Day and their counsel could be effective, so that the post-trial motions were timely filed and Varian's procedural challenge to the appeal from the order denying JNOV is meritless.
BACKGROUND
On February 13, 2002, a process server engaged by counsel for Varian attempted to serve notice of entry of judgment on Randall Widmann, who was trial counsel for Day, and on Glynn Falcon, who was trial counsel for Delfino, by leaving conformed copies of the judgment at their offices. For Widmann, the process server's declaration of service states only that he delivered a copy of the judgment to Widmann at 3:03 p.m. "by slipping under door." (Respondents' Motion to Dismiss, exh. B.) For Falcon, the process server's declaration of service states only that he delivered a copy of the judgment at 3:20 p.m. "by leaving with George Richardson (Atty), authorized to accept." (Respondents' Motion to Dismiss, exh. A.)
The next day, on February 14, 2002, another process server engaged by counsel for Varian personally served Delfino, Day, and their counsel with the same judgment, along with a notice of its entry. (Respondents' Motion to Dismiss, exh. I.) Delfino and Day filed their post-trial motions 15 days later on March 1, 2002. (Respondents' Motion to Dismiss, exhs. C, D, E & F.) The trial court determined that the notice of entry of judgment was effected on February 14, 2002, and thus the post-trial motions were timely filed (but were substantively meritless). (Respondents' Motion to Dismiss, exh. G, p. 21; exh. J, p. 32.)
LEGAL DISCUSSION
I.
THIS COURT HAS JURISDICTION BECAUSE THE APPEAL IS TIMELY AND THE ORDER IS APPEALABLE; THE REAL ISSUE IS WHETHER THE ORDER SHOULD BE AFFIRMED BECAUSE THE MOTIONS BELOW WERE UNTIMELY.
Varian now contends that the appeals by Delfino and Day from the order denying JNOV should be dismissed because the appeals are purportedly "invalid," and thus the Court of Appeal "has no jurisdiction" (Respondents' Motion to Dismiss, p. 1), for want of trial court jurisdiction to rule on an untimely motion for JNOV.
Varian is confused. This court plainly has jurisdiction on appeal from the order denying JNOV, which was appealable and was timely appealed. The order denying JNOV is made appealable by Code of Civil Procedure section 904.1, subdivision (a)(4). The order was filed on April 11, 2002. (Respondents' Motion to Dismiss, exh. G.) Delfino and Day filed a notice of appeal from the order on May 1, 2002. (Respondents' Motion to Dismiss, exh. H.) The deadline for filing the notice of appeal was 60 days. (Cal. Rules of Court, rule 2(a).) The notice of appeal was filed well within that deadline. Thus, the order was both appealable and timely appealed, vesting appellate jurisdiction in this court.
Varian's real argument is not that this court lacks jurisdiction to review the order denying JNOV, but rather that the trial court lacked jurisdiction to grant JNOV because the post-trial motions were untimely, and thus the order denying JNOV should be affirmed. That argument would be properly addressed in this court's decision on the appeal (see Ehrler v. Ehrler (1981) 126 Cal.App.3d 147, 151-153, 155), not on a dismissal motion where appellate jurisdiction has plainly vested.
II.
THE MOTION FOR JNOV WAS TIMELY, AND THUS ITS MERITS ARE REVIEWABLE, BECAUSE THE DEADLINE FOR FILING THE MOTION WAS NOT COMMENCED BY THE ATTEMPTED SUBSTITUTED PERSONAL SERVICE.
Technically, Varian has waived appellate review of the trial court's jurisdiction on the motion for JNOV by failing to raise that point in the Respondent's Brief. (See, e.g., Reyes v. Kosha (1998) 65 Cal.App.4th 451, 466, fn. 6.) If, however, the point is deemed to have been raised on appeal by virtue of the dismissal motion, this court should conclude that the motion for JNOV was indeed timely, and thus its merits are reviewable on appeal, because the attempted substituted personal service on February 13, 2002 was ineffective for want of compliance with the requirements for such service prescribed by Code of Civil Procedure section 1011, subdivision (a).
Code of Civil Procedure section 1011, subdivision (a), prescribes the following requirements for substituted personal service of a document on a party's attorney when the attorney is absent from his or her office:
The document must be placed "in an envelope or package clearly labeled to identify the attorney being served . . . ." (Ibid.)
The document must be left "with a receptionist or with a person having charge" of the attorney's office. (Ibid.)
If there is no receptionist or person having charge of the office, the document must be left between 9:00 a.m. and 5:00 p.m. "in a conspicuous place in the office." (Ibid.)
If the office is not open, the document may be served at the attorney's residence or by mail. (Ibid.)
In order to demonstrate substituted personal service on counsel pursuant to Code of Civil Procedure section 1011, subdivision (a), the party attempting such service must submit an affidavit showing compliance with all of these statutory requirements and conditions. (Mohr v. Byrne (1900) 131 Cal. 288, 289-290; National Advertising Co. v. City of Rohnert Park (1984) 160 Cal.App.3d 614, 619.) Thus, for example, in Mohr v. Byrne, an affidavit stating only that a document was left at the office of respondents' counsel was insufficient to establish substituted personal service because, among other things, the affidavit did not show whether the attorneys were absent from the office, whether anyone in charge of the office was present, whether the document was left in a conspicuous place in the office, or whether the office was open or closed. (Mohr v. Byrne, supra, 131 Cal. at p. 290.) Similarly, in Dalzell v. Superior Court (1885) 67 Cal. 453, 454, an affidavit was insufficient to establish substituted personal service by leaving a document on counsel's desk, because the affidavit failed to establish that counsel was absent from the office.
The affidavits submitted by Varian in its attempt to establish substituted personal service were woefully inadequate. Neither affidavit established the overall statutory requirement that the document was placed "in an envelope or package clearly labeled to identify the attorney being served . . . ." (Code Civ. Proc., ' 1011, subd. (a).) The affidavit for service on Delfino's attorney Falcon also failed to establish that the person with whom the document was left was "a person having charge" of Falcon's office (ibid.); the affidavit merely said that person was "authorized to accept" service (Respondents' Motion to Dismiss, exh. A), which is not the statutory standard. The affidavit for service on Day's attorney Widmann also failed to establish that there was no receptionist or person having charge of the office or that the document was left in a conspicuous place in the office. The process server's assertion that he delivered the document "by slipping under door" (Respondents' Motion to Dismiss, exh. B) does not indicate whether the document ended up in a conspicuous place; it could have landed under a piece of furniture or in some other inconspicuous place. Moreover, the affidavit suggests that Widmann's office was closed (see Mohr v. Byrne, supra, 131 Cal. at p. 290 [statement that affiant left document at office "is consistent with the fact that the office was closed, and that it was left outside of the door"]) - meaning Widmann could only be served at his residence or by mail (Code Civ. Proc., ' 1011, subd. (a)).1
In an elegant use of the passive voice, Varian's dismissal motion says that counsel "was served" on February 13 (Respondents' Motion to Dismiss, p. 1) and appellants "also were served" on February 14 (Respondents Motion to Dismiss, p. 4, fn. 2). Served by whom? By counsel for Varian, of course.
Why would Varian's counsel try to serve notice of entry of judgment twice on successive days, first by substituted personal service on counsel and then by personal service on Delfino, Day, and their counsel? This sort of trick is well-known to many trial lawyers. If the substituted personal service does not result in actual notice to opposing counsel - which is a very real possibility where a document is left with a stranger or slipped under a door - opposing counsel will rely on the subsequent service to calender the date for a jurisdictional filing, making the client vulnerable to a jurisdictional challenge.
If Varian's counsel intended this trick, then it did not work, because the attempted substituted personal service was invalid. And if no trick was intended, then the only reason for Varian's counsel to serve notice of entry again on February 14 would be that Varian's counsel knew the attempted substituted personal service on February 13 was invalid. In either case, the challenge to the trial court's jurisdiction is meritless. Whether or not Varian's counsel realized it, the attempted substituted personal service was invalid, so that the post-trial motions were timely filed and Varian's procedural challenge to the appeal from the JNOV is meritless.
1. At the hearing on the post-trial motions, Widmann offered to file a declaration by his secretary stating that the process server left the judgment at his office after 5:00 p.m., but the judge made such filing unnecessary by immediately ruling that the motions were timely filed. (Respondents' Motion to Dismiss, exh. J, p. 32) Thus, Varian's argument that Day failed to offer evidence on this point (Respondents' Motion to Dismiss, p. 4, fn. 2), is specious. Day made the offer, but the court brushed it aside. In any event, the point is meaningless, because the process server's affidavit was insufficient independent of the question whether he slipped the document under the door after 5:00 p.m.
CONCLUSION
For the foregoing reasons, this court should (1) deny the dismissal motion, and (2) if the court addresses the challenge to the trial court's jurisdiction when deciding the appeal from order denying JNOV, reject that challenge.
Dated: January 16, 2003
Respectfully submitted,
HORVITZ & LEVY LLP
signed By Jeremy B. Rosen
Attorneys for Attorneys for Defendants and Appellants MICHELANGELO DELFINO and MARY E. DAY"
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