Attal v. Taylor
Filed 8/19/08 Attal v. Taylor CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
SHARON TAYLOR ATTAL, Plaintiff and Appellant, v. JOHN TAYLOR et al., Defendants and Respondents. | D051175 (Super. Ct. No. 37-2007-00064303- CU-PT-CTL) MODIFICATION ORDER AND ORDER DENYING PETITION FOR REHEARING [NO CHANGE IN JUDGMENT] |
THE COURT:
The opinion filed on July 25, 2008 is hereby modified as follows:
1. Delete the first two paragraphs on page 5 (lines 1-18) and replace them with the following:
After Sharon's efforts to get the Cemetery to proceed without a court order failed, she filed a disinterment petition in the superior court on March 28, 2007, naming John and the Cemetery as respondents. (All further dates are in 2007 except as otherwise noted.) Shortly thereafter Patricia lost her fight with cancer and Dennis filed a petition similar to Sharon's. Both petitions relied in part on Sharon's declaration, which provided in part that she was unable to carry out Mark's wishes for his remains to be placed in the crypt because doing so was a "physical impossibility." At some point not evident from the record, the court set Sharon's petition for hearing on May 3.
After service of the petitions, John's attorney noticed an ex parte appearance in Dennis's case, seeking to clarify how the court intended to handle the matter procedurally and specifically requesting that the court continue the hearing date on Sharon's petition so that he could conduct discovery before having to respond. Dennis's counsel, who represented to the court that he was specially appearing on Sharon's behalf as well, requested that the court consolidate the proceedings on the two petitions and expedite the hearing date. The court granted Dennis's consolidation request and denied both the petitioners' request for an expedited hearing date and John's request for deferment of the hearing. Without objection, the court ordered that further briefing be filed and served five days before the hearing date. John filed and served his written opposition and a cross-petition to disinter Mark's remains so that they could be placed in the crypt in accordance with the directions in Mark's will. Sharon addressed both the original petitions and John's cross-petition in her reply.
2. Delete the first three paragraphs on page 17 (lines 1-16) and replace them with the following:
At the time Sharon filed her petition, she also filed a "consent to electronic service" in which she agreed to accept electronic service of motions in the case and, at the request of both Sharon and Dennis, the court consolidated the matters to be heard together, denied John's request for a continuance of the hearing date on the petitions and set a schedule for further briefing in the matter. John filed and electronically served his opposition to the petitions and his cross-petition on both Dennis and Sharon in accordance with the briefing schedule set by the court.
Although Sharon now contends that the electronic service upon her was invalid, she never raised this objection below, when the court would have had an opportunity to inquire further on the matter. Further, there is no indication that she failed to timely receive the electronically served documents and her lack of objection in the superior court suggests that in fact she did receive them. Further, although she also argues that she had inadequate time to respond to John's papers, she did not raise any objection to the superior court about this, nor did she request a continuance of the hearing. Finally, although Sharon was unhappy with the Cemetery's response to her request for documents, she never sought to compel further responses, nor did she request a continuance of the hearing to allow her to receive supplemental responses to her requests.
Because the record shows that Sharon had both notice and an opportunity to respond to John's cross-petition and that she in fact responded thereto without objection, her due process objection provides too little and comes too late.
The petition for rehearing is denied.
[NO CHANGE IN JUDGMENT]
HALLER, Acting P. J.
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