Metropolitan News-Enterprise


Tuesday, July 13, 2021


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California Supreme Court:

1884 Opinion Assumed to Have Precedential Value Doesn’t

Chief Justice Says Subsequent History of Case Has Been Overlooked; Rule That Time Is Computed by Excluding First Day Applies Where Period for Bringing Action Has Been Tolled During Plaintiff’s Minority


By a MetNews Staff Writer


The California Supreme Court said yesterday that a case decided in 1884 which has been cited a total of eight times by it and other courts under the assumption that it had precedential value never did, and was correctly disregarded by the Court of Appeal though for the wrong reason.

 Chief Justice Tani Cantil-Sakauye wrote for a unanimous court in finding that—contrary to the unreported Dec. 9, 1884 decision in Ganahl v. Soher—the rule that time is computed by excluding the first day and including the last day applies where a plaintiff, whose period for suing is tolled during his or her minority, reaches 18.

At issue in the case was the timeliness of a wrongful death action brought by Luis Alexandro Shalabi, who turned 18 on Dec. 3, 2011 and filed his complaint on Dec. 3, 2013. Under the standard method of computation, embodied in Code of Civil Procedure §12, the action was brought within the requisite two-year period, Cantil-Sakauye said.

CCP §12

Sec. 12 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.”

Tolling during a plaintiff’s minority takes place under Code of Civil Procedure §328.

Div. Two of the Fourth District Court of Appeal held on May 21, 2019 in an opinion by Acting Presiding Justice Douglas P. Miller that the California Supreme Court’s opinion in Ganahl may be disregarded because the court failed to discuss §12.

The jurist sought to justify snubbing a decision of the state’s high court by quoting a decision that court handed down in 2004 reciting that “cases are not authority for propositions not considered.”

Cantil-Sakauye agreed that the 1894 opinion may be disregarded, but on a different basis: It was rendered by a three-justice panel, under a constitutional provision then in effect, and before the decision became final, it was vacated upon the case being taken up by the full court.

1884 Opinion

In that opinion by Justice Erskine Mayo Ross (later a judge of the Ninth U.S. Circuit Court of Appeals), joined in by two colleagues, it is set forth:

“…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 11th of April, 1881, was barred by the provisions of the statute.”

Cantil-Sakauye noted that unreported California Supreme Court opinions do generally have precedential effect, but that one doesn’t in light of its procedural posture. She explained:

 “The constitutional provisions applicable at the time of the Ganahl proceedings make clear that our decision in Ganahl I was vacated as a matter of law and has never had any precedential authority. Article VI, section 2 of the California Constitution of 1879 established the court’s structural practice (abandoned five decades later) of operating in two three-justice ‘departments,’ each with ‘the power to hear and determine causes.’ This section provided that either the Chief Justice or any four justices may, ‘before or after judgment by a department, order a case to be heard in bank.’ (Ibid.)

She continued: “Significantly, this section also specified that an order for a hearing in bank “shall have the effect to vacate and set aside the [prior] judgment (Ibid., italics added.) Thus, Ganahl I is not—and never has been—a binding decision of this court.”

Reason Offered

The chief justice noted:

“Nevertheless, various past appellate decisions (including by this court) in addition to the one we review here have failed to apprehend this rule’s application with respect to Ganahl I and have purported to give precedential effect to that decision. We have no doubt that this lapse may be attributed, in part, to the fact that services such as Westlaw and LexisNexis’s Shepard’s Citations Service do not show the relevant subsequent or prior history with regard to either the initial decision in Ganahl I or the superseding decision in Ganahl II. Nevertheless, it is plain that Ganahl I, having been reheard by this court before it became final and superseded by Ganahl II, was vacated and never had precedential effect — as we now recognize, better late than never.”

She said in a footnote:

“Approximately 1,800 opinions rendered over the course of this court’s first six decades were, through inadvertence or otherwise, not published in the California Official Reports….Most of these Supreme Court cases set out in the seven volumes of California Unreported Cases remain precedential unless and until overruled.”

Cantil-Sakauye said that it is established that §12 applies unless a statute expressly renders it inapplicable. Sec. 328 does not do so, she noted, proclaiming Ganahl I not to be “independently persuasive.”

The case is Shalabi v. City of Fontana, 2021 S.O.S. 3030.


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