Friday, May 24, 2019
Court of Appeal:
Judge Erred in Adhering to California Supreme Court Decision
Justices Discount 1884 Opinion, Saying It Failed to Address Controlling Statute
By ROGER M. GRACE, Editor
Div. Two of the Fourth District Court of Appeal has reversed a judgment by a San Bernardino Superior Court judge that was grounded on an 1884 decision of the California Supreme Court, declaring that it is at liberty to disregard that case because the high court justices failed to take into account the relevant statute.
Acting Presiding Justice Douglas P. Miller wrote the opinion, filed Tuesday and not certified for publication. Miller said that Judge Wilfred J. Schneider Jr. erred in relying on Ganahl v. Soher which calculated a limitations period as starting on the day the would-be plaintiff reached his majority—April 11, 1876—and ending five years later, on April 10, 1881.
The Supreme Court, in an opinion by Justice Erskine Mayo Ross, held that an action brought on April 11, 1881 was time-barred.
That spurned decision, contrary to current practices, was decided by a three-judge panel and was unpublished.
The case before Miller’s panel posed the question of whether an action by Luis Alexandro Shalabi against the City of Fontana and others was barred by a two-year statute of limitation. The plaintiff reached the age of majority on Dec. 3, 2011 and brought suit on Dec. 3, 2013—which, under Ganahl, was one day too late.
Miller pointed to Code of Civil Procedure §12, enacted in 1872, which provides: “The time in which any act provided by law is to be done is computed by excluding the first day, and including the last, unless the last day is a holiday, and then it is also excluded.” By excluding Dec. 3, 2011, and including Dec. 3, 2013, he found the action was timely.
Discounting the contrary view expressed in Ganahl, the justice said:
“Ganahl failed to cite section 12….Ganahl failed to explain why it applied the calendar method, despite the statutory requirement for application of the anniversary method. Ganahl did explain that Gordon’s birthday started the running of the statute of limitations because Gordon had the entirety of his birthday to file the lawsuit….However, Ganahl did not explain how the court could create an exception to section 12, which requires the first day be excluded when calculating time. Because Ganahl did not cite section 12 or explain how the court could create an exception to a law created by the Legislature, we conclude Ganahl is not binding authority on the issue of how to calculate time under section 12.”
Miller cited the rule that cases “are not authority for propositions not considered.”
The case is Shalabi v. City of Fontana, 2019 S.O.S. 2417.
Miller did not mention the California Supreme Court’s 1993 decision in In re Harris which proclaimed the continued viability of Ganahl, though it applied the case in the context of deciding that a person who was tried as an adult for crimes committed one day before his 16th birthday should have been dealt with as a minor.
Chief Justice Malcolm Lucas (now deceased) said that “the common law rule for calculating a person’s age has always been that one reaches a given age at the earliest moment of the day before their [sic] anniversary of birth,” quoting a Tennessee decision as explaining:
“A person is in existence on the day of his birth. On the first anniversary he or she has lived one year and one day.”
The common law method has been legislatively abandoned, he said.
Status of Ganahl
Cautioning against a disregard of Ganahl, Lucas indicated disapproval of the utterance in People v. Valladares—decided in 1984 by Div. Five of this district’s Court of Appeal, in an opinion Presiding Justice Robert Feinerman, now deceased—“that right or wrong, the decision in People v. Dudley was binding on the trial court.”
Dudley was a 1942 opinion of the Fourth District Court of Appeal, not yet divided into divisions that serve separate geographic areas. (Div. Two was created in 1965 and Div. Three in 1982)
Contradicting the decision in Ganahl, the court in Dudley held that the victim of a sexual assault on the day before the 14th anniversary of her birth was 14.
Lucas said Feinerman’s decision “fails to recognize that Ganahl was a California Supreme Court case” and that his “conclusion that Dudley was ‘binding’ on the trial court is inaccurate.”
In a footnote, the chief justice observed that “the fact that Ganahl v. Soher…is not an officially reported case” does not “detract from its status as precedent.”
Although it is presently required under the California Rules of Court, rule 8.1105(a), that all decisions of the state Supreme Court be published, that was not so in 1894.
Initially—starting June 1, 1850, even before statehood was granted—all California Supreme Court opinions were reported.
The first unreported decision was filed on Sept. 15, 1855. It was a mere 108 words.
The last one came on June 10, 1910; in it, the First District Court of Appeal granted admission to law practice to 23 men, on petition of the dean of Hastings College of Law.
Although the practice of the Supreme Court is to have all of its opinions published, Art. VI, §14 of the state Constitution specifies that “[t]he Legislature shall provide for the prompt publication of such opinions of the Supreme Court…as the Supreme Court deems appropriate….”
The opinion in Ganahl emanated from “Department One” of the Supreme Court.
The current state Constitution, which went into effect in 1879, enlarged the number of members of that body from five to seven—as at present—and provided that the court could decide cases in panels of three associate justices.
This was so until voters on Nov. 8, 1966, repealed and reenacted Art. VI, with the provision for the Supreme Court sitting in panels (by then long in disuse) left out.
Opinion in Ganahl
Although Ganahl does not address Code of Civil Procedure §12, it does rely on statutes. It says:
“Sections 25 and 26 of the Civil Code of this state provide:
“ ‘Sec. 25. Minors are (1) males under twenty-one years of age; (2) females under eighteen years of age.
“ ‘Sec. 26. The periods specified in the preceding section must be calculated from the first minute of the day on which persons are born to the same minute of the corresponding day completing the period of minority.’
“Under the rule prescribed by the section last quoted, Henry Gordon Ganahl became of age the first minute of the eleventh day of April, 1876, and by virtue of section 328 of the Code of Civil Procedure he was entitled to commence an action for the recovery of whatever interest he had in the land within the period of five years thereafter, but not after the expiration of that period. In computing the period of five years we must include the eleventh day of April, 1876, because, as the plaintiff in question attained his majority the first minute of that day, he had the whole of the day in which to sue; and computing that as the first day of the five years, the whole period of five years expired with the tenth day of April, 1881, and the action not having been commenced until the eleventh of April, 1881, was barred by the provisions of the statute.”
Family Code §6500 now provides:
“A minor is an individual who is under 18 years of age. The period of minority is calculated from the first minute of the day on which the individual is born to the same minute of the corresponding day completing the period of minority.”
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