Thursday, November 17, 2005

Osman v. Superior Court (Cal. Ct. App. - Nov. 16, 2005)

THIS counts as a waiver?! Wow.

The prosecution messes up a criminal complaint and the court grants defendant's demurrer. Section 1007 of the Penal Code says that in such settings, the court can grant the prosecution a maximum of 10 days to amend the complaint, and Section 1008 states that if no such amendment is made within this period, the complaint must be dismissed.

So, here, the court grants the demurrer, but its order -- contrary to Section 1007 -- granted the prosecution 33 days in which to amend. So when no amendment was made within 10 days, pursuant to Section 1008, the defendant moved for mandatory dismissal of the complaint.

But Justice Mallano holds here that no such dismissal was required, because defendant "by her silence" waived the protections of Section 1007. What?! Remember, defendant properly and timely requested dismissal. Her only "silence" was her failure to jump up and down at the hearing itself and scream that the court's order violated Section 1007. But since when does that count as a waiver? Is it a waiver when the trial court grants a summary judgment motion and I don't say "Hey, that's wrong" at the conclusion of the hearing? Is it waiver when the court improperly sets a trial to be heard in Santa Clara County if you don't orally object immediately after the court orally issues its order? Since when?

Yes, it's waiver when you don't make a timely objection. But, before this case, we didn't require an objection at the actual hearing itself -- an objection that you'd not even necessarily know to make, as it might well be an error (as here) that you didn't anticipate and the legal invalidity of which you were unaware. Add to all of this the fact that Sections 1007 and 1008 are mandatory provisions anyway, and hence ones which might well be incapable of being waived.

In any event, at a minimum, we shouldn't stretch to find waiver. Which, with all due respect, Justice Mallano does here.

P.S. - Full disclosure. I personally know the defendant, Randa Osman. She's a partner at the law firm at which both my wife and I once worked, and was a co-worker for a time. And I also like and respect her. But -- and I'm being totally honest here -- I didn't even realize that this was her case until after I was halfway through writing this post. My reactions have nothing to do with the fact that it's Randa. They're instead my honest reactions to the Court of Appeal's holding.