Injectronics, Inc. v. Commodore Business MacHines, Inc.

Opinion

CHRISTIAN, J.

Plaintiff Injectronics, Inc. took judgment against defendant Commodore Business Machines, Inc. for breach of contract. Defendant appeals, challenging the refusal of the court to make findings of fact and conclusions of law as requested by appellant.

The cause was tried without a jury, and the court filed its memorandum of decision on August 25, 1978. A copy of the memorandum of decision was placed in the mail the same day. Twelve days later, on September 6, 1978, appellant filed a request for findings of fact and conclusions of law. The request was rejected as untimely. Instead, on September 11, 1978, the clerk directed counsel for respondent to prepare, serve and submit to the court a proposed judgment. Judgment was rendered accordingly.

[187]

Appellant asserts that its request for findings of fact and conclusions of law was timely, even though it was filed 12 days after the announcement of intended decision was mailed.

Rule 232(b), California Rules of Court, requires that after the announcement of intended decision is mailed a request for findings of fact and conclusions of law must be served and filed within 10 days.

1

But appellant points out that Code of Civil Procedure section 1013, subdivision (a) provides: “In case of service by mail, the notice or other paper must be deposited in a.. .facility regularly maintained by the United States Postal Service. . . .The service is complete at the time of the deposit, but if, within a given number of days after such service, a right may be exercised, or an act is to be done by the adverse party, the time within which such right may be exercised or act be done, is extended five days if the place of address is within the State of California. ...” If this statute is applicable, appellant’s request for findings was timely.

In

McBride

v.

Alpha Realty Corp.

(1975) 49 Cal.App.3d 925 [123 Cal.Rptr. 270], a request for findings of fact and conclusions of law was filed 15 days after the clerk mailed a memorandum of the court’s intended decision. The court refused to make findings and rendered judgment. On appeal, the court held that the 10-day period specified in rule 232(b) was subject to the time extension provisions of section 1013, and concluded that the superior court had erred when it failed to make findings of fact.