Knudson v. Superior Court,

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IN THE COURT OF APPEAL

FOURTH APPELLATEDISTnICT

STATE OF CALIFORNIA

L. V. KNUDSON, No. 4 - Civil 9370

Petitioner,

_ vs. -

THE SUPERIOR COURT OF THE STATE OF CALIFORNIA,COUNTY OF SAN DIEGO, - -

, ReBp~ndeI?-~' ,;:, ' _:' ,:~ ,_

and , . . ... -,. ; . :-' .'~" . . • - ' .. - .~\ <:' '

DEWEY H. BANDY, -individulllly and ,- - - . _ db" BANDY'S' CAMPSTERS, and GREAT -

- AMERICAN INSURANCE COMPANY, -:,,- , c'o-rporntlori • . . " ,", ' , -. .

-' Rlial PartleB~ Irtterest

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POINTS AND AUTHORITIES IN OPPOSITION TO PETITION FOR WRIT OF MANDATE

LUCE, FORWARD, HAMILTON & SCRIPPS David H. Getches 2100 Electronics Capital Building 110 West .. C" Street SaD Diego, California 02101

Attorneys tor Great American Insurance Company, Real Party In Interest.

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IN T HE COURT OF APPEAL

FOURTH APPELLATE DISTRICir

STATE OF CALIFORNIA

5 L. V. KNUDSON, ) )

6 Petitioner,) )

7 VS . )

) 8 THE SUP ERIOR COURT OF THE )

STATE OF CA LIFORNIA, COUNTY ) 9 OF SAN DIEGO, )

) 10 Respondent, )

) 11 and )

) 12 DEWE Y H. BANDY, individually and )

dba BANDY'S CAMPSTERS, and GREAT ) 13 AMERICAN INSURANCE COMPANY, a )

corporation, ) 14 )

Real Parties in Inte rest. ) 15 )

No. 4- Civil 9370

16 To the Honorable Court of Appeal for the FourlhAppellatc District

17 of the State of California:

18 Real party in interest, Great American Ins urance Company,

19 r espectfully prays that petitioner I s Petition for. Writ of Mandate

20 be denied and present the following Points and Authroties in

21 Opposition to th~ Petition:

22 FACTS

23 As stated in greater detail in the Petition for a Writ of

24 Mandate, petitioner was not present at the trial of this action in

25 .~hc MunicIpal Court, Departmen~ 5, San Diego Judicial District

26 on May 2, 1968. No Motion for continuance was m ade in the

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1 presiding department on the d ay of trial or a t any time prior to

2 tria l. The presiding department, the Honorable Charles M. ,-

3 Snell presiding, having full knowledge of the f acts and circumstances

" causing Mr. Moore I s absence assigned the case out for trial to

.5. Dc~artment 5, the Honorable Richard J . Donovan presiding.

6 Judge Donovan also kne w the facts and <:ircumstances caus ing

'1 counsel's absence and determine d th,at the matter should go

8 forw ard to tria l. No explanation was ever given for the absence

9 of the defendant personally. Testimony was heard and evidence

10 introduced at the trial and the court found tha t on b asH of· the

11 pleadings and the evidence tha t judgment s hould be for the plaintiff,

12 Dewey Ii. Bandy, and for the plaintiff 'in interverition, Great

13 American Insurance Company. Accordingly on May 14, 1968,

· 14 judgment was entered in favor of plaintiff, Bandy, and on May

15 16, 1968, judgment after ,tri a l by court, ~efendant failing to appear,

16 was entered in 'favor of plaintiff in intervention

17 On June 12, 1968, defend ant file d a document entitled

18 "Notice of Motion for a New Trial and to Set Aside and Vacate

19 Judgment taken by Default. II Two days l ate r , a hearing was held

20 on the motion, it was denied. Inasmuch as P9titioner has stated

21 on page 8 of the Petition that 'the fac ts set out in the Decl aration

22 of R ichard M. Moor e filed in support of the June 12, 1968, motion

,23 are not in dispute. It should be pointed out that be cause of the

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shortness of time between service and filing of petitioner r s

·Notice of Motion and the hcari~g thereon petitioner at the hearing

s pecifically waived the filing of counter de clarations , objections,

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or points and authorities and the f ac l that none wer e filed s h ould

not be taken as an admi ssion pf the facts found .in petitioner I 5

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Declaration. That 'respondents were not required to fil~

decl arations , objections, or points and authorities is supported

. by appropriate notatiQn i n the clerk I s transcript for June 14.

1968.

On .June 27, 1968, Notice of Appeal was file d an,d 'ser ved

8 by responde nts. On July 12, 1968, re al party in interest, Great

!I American Insurance Company. filed a Notic e of Motion and , 10 .Motion to Dism,iss Appeal. The above facts and dates are

11 s upported by the Declaration of David H. Get~hes. in support

12 ' of the Motion to Dismiss Appeal filed and served therewith.

13 Real party's in interest Motion to Dismiss came on for hearing

14 before the Appellate Department of the Superior Court for the

15 C70unty of San Diego on July 19, 1968 . Cpunsel for petitioner

16 was not prescnOt to argue so the matter was taken under

" submission by the Appellate Department. On July 24 , 1968,

18 the Appellate Department, the Honorabl~ William A. o Gleri,

t9 presiding judg~ , filed its order dismissing t~e appeal. No

20 petition for rehearing was filed and, accordingly, the

21 judgme nt became .final on July ' 31, 1968.

22 On August 5, 1968, a P e tition for Writ of Mandate was

28 filed in this court by petitioner. These Points and Authorities

24 are made in opposition too that petition.

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1 ARGUMENT

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3 A WRIT OF MANDATE CANNOT PROPERLY BE GRANTED I{;

• THIS CASE.

5 1. The r e is no provision in the constitution, . s ta tute s. or

6 court rule s of Caliiornia permitting courts of appeal to issue

'1 ·Writs of Mandate affecting the Appellate Department of the

8 Superior Court. A reading of the statutes and the constitution

9 w~uld give no indication that Writs of Mandate affe cting the

10 Appellate Department of the Superior Court can be grant~d by

11 courts of appeal. California Constitution, Article 6, § 11

12 sta tes: .

"u The -Supreme Court has appella te jurisdiction when judgm ent of death

. 14 has been pronounced . With tha t exception courts of appeal have appellate

15 jurisdication when Superior Courts have original jurisdiction and in othe r causes

·16 prescribed by statute. .

17 Superior Courts have appell a te jurisdiction in causes prescribe d by

18 statute that arise in MuniCip al and Justice Courts in their Counties.

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No sta tutes or rules of court implementing this provision

of the constitution were found which would indicate any right in

the court of appeal to issue a Writ o.f Mand a te dire cting the

Appellate Department of the Superior Court to take jurisdiction

in iii m a Uer. C. C. P. § 1085 refers only to 1tinfe rioru tribunals .

2' 2 . In the past Writs of Mandate we r e gr ante d by the c~urt'~ of

25 . a~pe al affecting Appellate Departme nts ,of the Superior Court

26 .s~<O'nce it was the~ the only \Vay to ge t 'r eview ~f Appell a te

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1 Department decis isons. It is clear th at prior to the

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cons titutional amendm~nts of 1960 "the District Court of

Appeal d id not have appellate jurisdic tion to revie\v a

decision of the Appellate Department of the Superior Court.

The de cision of the Appellate Department was final and, .

6 the r e was no poss ibility for review. In order to alleviate

'1 the h arshness of the finality of these judgments extr aordinarx

8 writs were used. See Goldber~. The Extraordinary \r\i'its

9 and the Review of Inferi or Cburt Judgments , 36 Cal. L. Rev.

10 558 (1 948 ). The old system. in which the decision of the

11 Supe rior Court on appeal was fin al wi th no furth e r right of

12' appe al to~ nor right to a he aring in. the Dis trict Court of

13 Appeal or Supreme Court, was s everely criticized by the

14 Judicial Co'uncil in the -State Bar. 1 W{tkin, C alifornia

15 Procedur e § 1lS. Article VI of the California Cons titution as

16 amendrl in 1960~ and imple menting' legi s lation effective

17 January 2, 1962. (Code of Civil Procedure § 988 t) r e medied

18 the situation to a large extent.

19 Code of Civil Procedure § 988 t, provides three way~

20 for decisions in the Appellate Department of the Superior

21 Court to be r eviewed by the courts of a ppeal. The Supe rior

22 . Court Appe llate Department may certify a case up to the

23 Court of Appeal on its own M?tion. The case may be

24 cer tified to the Court of Appeal by the Superior Court on

, 25 the application of one of the parties . The case m ay be

26 trans ferre d to the Court of Appeal on its own m otion. This

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1 legislation gives the Court of Appeal discretionary power to

~ review cases on appeal to the Superior Court both before and

3 after a decision has been entered. It may review the decision

.4 afte r a decision in the .Appellate Depar tment on the motion of

5.. the Court of Appeal or on a certification by the Superior Court

6 either before or , after a decision in the Appellate Department.

7 See, California :Rules of Court, Rules 6'1 - 69; Paulos and Verner,

8 1 5 Hastings Law Journal I! (1963). It would seem that the

9 remedial constitutional amendment as implemented by statutes

10 and court rules alleviate the need for the use of extraordinary

11 writs to circumvent the nonappealability of Appellate Department

12 decisions by the use of extraordinary writs: [n fact, no case

13 : has been found where a court of appeal 'i ssue d a ·Writ of Mandate

14 affecting the App.cllate Department of a Superior . Court since the

15 changes in the l aw.

16 3 . Petitioner had plain, speedy, and adequate remedy in the -

17 ordinary course of l aw in the form of a rehearing and, therefore,

18 the use of a Writ of Mandate should not be permitted , California

Code of Civil Procedure § 1086 provides with respect to Writs of 19 .

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Mandate:

The Writ must -be issued in all cases where there is not a plain. speedy, and adequate remedy, in the ordinary course of law. . .

Under California Rules of Courts, Rule 107 a judgment of the

Appellate Department does not become final for a period· of seven

days during which petitions for rehearing :nay be filed which w ill

26 . further delay the finality of the judgment. The effect of

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dismissing the appeal by the Appellate Department is to

affirm the judgment appealed from. qalifoJ'nia Code of Ci:ril

Procedure § 955. It would seem that the possibility of a

rehearing would make it a prcrequi,site to obtaining a Writ of

Mandate since f~lure to do 50 would not place the petitioner

in a position of having exhausted his other r~medies.

A petition for rehearing would have been entirely

appropri ate in this matter. Because petitioner did not find

it convenient to be present for argument on the Motion to Dismiss

the Appeal he might have urged that certain ad'ditional 'arguments

ought to be made to the court which were not disclosed in his

Points and Authorities filed in ' opposition, to the Motion to Dismiss.

It is reason~ble to expect tha t the Appe,llate Department might

grant a petition for rehearing based on these facts.

II

EVEN IF THE COURT OF APPEAL ENTERTAINED PETITIONER'S

APPLICATION FOR A WRIT OF MANDATE, THE WR IT MUST BE

DENIED SINCE THE APPELLATE DEPARTMENT CORRECTLY

DETERMINED THAT IT HAD NO JURISDICTION.

1. If petitioner's Motion was a Motion for New Trial or a

Motion to Vacate it was invalid and did not extend the time for

filing a Notice of Appeal. It is not disputed that if the motion

'made by petitioner entitled "Motion for New Trial ,and t~ Set

Aside and Vacate Judgment taken by Default" 'was a Motion for.

New Trial (Code of Civil Procedure § 657) or a Motion to Vacate

(Code of Civil Procedure § 663). it would be invalid because it

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w'as not filed within 15 days of the date of mailing Notice of

Entry of Judgment in the trial court. As an invalid motion , .

it would not extend the time for filing Notice of Appeal as

provided in California Rules of Court, Rule 123 and, Notice of

Appeal having been filed by Pct~tioner greater than 30 days afte r

mailing Notice of Entry of Judgment in the trial court, the

. 1 Notice of Appeal would not be tim ely filed. California Rules of

8 Court, Rule 122. It is clear that when a Notice of Appeal is

9 filed l ate, a Motion to Dismiss the Appeal is in order and must

10 be granted. Kientzv. Harris. 11 7 Cal. App. 2d787. 257P.

11 2d 41 (1953).

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13 :Petitioner I S contentIon that its Motion is a Motion to set

14 aside a default judgment is untenable. 'Having conceded that

15 the appeal would not be timely if its Motion were a Motion for

16 ' New Trial or a Motion to Vacate, petitioner urges that its

17 Motion is a Motion to Set Aside a Default Judgm~nt taken by

18 mist ake, inadl(crtence. surprise, or excusable neglect under

19 Code of Civil Procedure § 473, Petitioner urges that its

20 absence at the time of trial was the result of mistake,

21 inadverte nce, surprise, or excusable neglect and that this absence

22 r~sulted in a default being taken against it.

23 Although the pe titioner did not appear at the time of trial,

24 the court nevertheless heard witnesses and evidence and

25 entertained arguments of counsel which were present. This is

~n entirely proper pr~ccdure under California Code of Civil 26

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1 § 594 sa long as the absent party has had five days t notice of

2 the trial. In this matter there is no dispute that sufficient notice ,-3 was given to petitioner and a showing was made at the time of

" trial that there was such notice. The Code does not call such

5. hearing in the absence of a nonappearing party a IIdefault. II

6 Section 473 is designed to .mitigate the harshness of

7 -finding against parties without having a trial of the case on the

8 merits and allows a defaulted party on a proper showing of such

9 merits to obtain relief in the form of having the default set aside.

10 The usual situation in which a motion under the statute is made

11 is one in which a party fails to file a responsiv~ pleading due to

12 C ircum"stances contemplated by the statutory language of

13 "mistake, inadvertence. surprise or excusable "neglect. 1/ The

14 legislative purp0se is clearly to see that cases are heard on

15 their merits where it appears that a substantial defense could be

16 made. Stout· v. Bakker, 212 Cal. App. 2d 780, 27 Cal. Rptr.

17 661. (1963).

18 The purpose of the Code of Civil Procedure § 473 is not

19 to allow parties to seek a change in judgment after trial. The

20 policy is clearly to relieve parties who have had judgment taken

21 against them without a proper showing of the merits of the case

22 and without an opportunity to be heard. In this matter the merits

of the case were tried in open court and it was necessary for the 23

24 plaintiff and plaintiff in intervention. real parties in interest herein. to

25 prove their cases to the satisfaction of the court. Petitioner

26 had all necessary notice of the proceedings and had an opportunity

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1 to be present in person or by other counsel when his attorney

2 of record was not available.

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. In order to assure that a party seeking to satisfy the

judgment by means of Section 473 has a meritorious case. it is

required that the moving party demonstrate the merits of his ,

case which would lead to another result. A. & S. Airconditioning

7 v . Moore Company, 184 Ca1. App. 2d 617, 7 Ca1. Rptr. 592 (1960)

8 The declarations filed in support ,of petition I s motion alleged

9 no probative facts concerning the merits of the petitioner's case

10 :which were not already set out in pleadings or shown by

11 evidence introduced at the trial. For this reason the declarations

12 were in'sufficient to support a Motion to Set Asid~ a Default

13 J udgment. The court specifically noted at the "time of argument

"14 on the motion that the declarations were not !?-ufficient.

15 Although this is not the proper plaCE! to argue the merits of

16 the motion already decided by the Muncipal Court, it is submitted

17 that the circumstances set out in the declarations filed by

18 petitioner were insufficient to support a motion under Section 473

19 since they do not demonstrate a situation in which 0. judgment has

20 been taken by mistake, inadvertence l surprise, or excusable

21 neglect. Rather the declarations seem to give sUPP9rt to a

22 Motion for New Trial. When a matter has been heard in the

23 absence of one of the parties as permitted under Code of Civil

24 Procedure § 594, and the absent party believes the proceedings

2S to be improper # or that the court is guilty of misconduct the proper

26 motion i s a Motion for New Trial. This seems to have beerL"recognized

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by petitioner in its Notice of Motion fOl' New_ Tria l and to Set Aside

and Vacate Judgment taken by Default in which it is stated:

The Motion for a New Trial is made on the grounds that there . occurred an irregularity in the proceedings in this matter the court proceded (sic) to hear this case as a default without the presence of defendant or his counsel after being informed that counsel for defendant was engaged in another matter in the L os Angeles Judicial District and had notified the court that he would be late and had requested the matter to trail.

It is clear that it is contrary to the policy of California

Courts to use Section 473 to extend the ' time within which to file

a Motion for New Trial. The Motion cannot be used as a

substitute for a Motion for New Trial a nd does not clothe the

court with authority to mollify the harshness of the time limit

impo sed by the statute concerning Motions for New Trial.

Kisling v. Otani, 201 Cal. App. 2d 62, 1S, .Cal. Rptr. 913 (1962).

16 Petitioner urges that Palmcse v , Superior Court# 193 Cal.

17 App. 2d 600, 14 Cal. Rptr. 453 (1961) is authority for the

,18 proposition that the Appellate Department should have heard the

19 appeal herein. The procedural facts in Palmese are similar

20 to thos e in our case but they differ in one material respect.

21 In that case the defendant answered plaintiff! s complaint and filed

22 a cross- complaint; plaintiff did not 3:ppear at the trial and his

. 23 default was taken as to the cross-complaint. There was no

2( ,showing that an answer was ever filed to the cross-complaint

25 and without further facts this appears to be like the classic

26 case where there is no appearance whatsoever by a party which

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has been sued. It ma'y be that the cross-complaint was never

,served, was deficient, or was fatally defective in some respect.

There was no adjudication on the merits of the cross-compl~int -

cross-defendant' 5 default was merely taken based on the fact of his

nonappearance. This is in contrast to our case' where the case is

. fully pleaded and the court heard testimony and took evidence on its

merit s . The circumstances in Palmcse could b e within the policy

of Code of Civil Procedure § 473, the circumstances in our case

could not, and ,therefore it was not properly a Motion under

Section 473.

4. ·Eve n if pe titioner's Motion 'was a Motion to Set Aside a

Default Judgment, the time for filing a Notice of Appeal was

not extended. California Rules of Court~ Rule 123 makes no

prov ision for extend ing the time in which a Notice of Appeal may

be file d where the re is a motion to 'se t aside a judgment under

Section 473 of the Code of Civil Procedure. Motions to vacate

extend the time for filing Notice of Appeal under Rule 123(brbut

nowhere in the statutes is a motion under Section 473 called

a IIMotion to Vacate. II It is true that many courts h ave referred

to s uch motions using interchangeabl y the names "Motion to VacateU'

-'01' a "Motion to Set Aside a Default Judgment~ ff but apparently

it was not until Palmese that any court held Rule 123(b) to be

applicable to such motions. There has been no case since which

so holds . 'Justice Nourse (pro t ern) held without citing authority~

tha t Rule 3(b) (now Rule l23(b)) applies to motions under Section 473

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1 as well a s motions under Section 663 (pertaining to Motions to

2 Vacate Jud gment ): It is submitted that the court was confuse d

8 by the fact that a Motion to Sct Aside a Judgme nt under Section 473·

• is often r eferred to as a Motion to Vacate by courts and attorneys .

. 5 If we accept Palmese as correct in stating that the time

6 for filing a Notice of Appeal is · extended by filing a Motion under

7 Section 473 j t he time would not b e extended in our case, It

8 shoul d b e noted that Palmese holds only that th~ cour,t below

9 s h ould be directe d lito hear and de termine the appeal from the

10 order denying petitioner' 5 Motion to Vacate th e 'Judgment".

11 The cou rt states a t page 603:

12 It is apparent from what we have said that the court did have jurisdiction

13 insofar as the appeal from the order denying the Motion to Vacate is

14 concerned for the Notice of Appeal fro m that order was filed l ess than

15 30 days after the orde r denying pe titioner ' s Motion was e ntered,

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The case was no t conce rned with a tim el y filin g of a Notice of

Appeal from the underlying judgment_

CONCLUSION

It i s evident from the foregoin g Points and Authorities

that the court of a ppeal should not consider the P e tition for \Vrit

22 of Mandate. E ven if the P etition is considered, denial is

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compell e d becau se the appeal was properl y dismissed by the

Appellate Departments of the Supe rior Court upo,n it s finding

that the Notice of Appeal was no t timely.

Re spectfully submitted.

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LUCE, FORWARD, HAMILTON & SCRIPPS

'!l:Jaoid'dl. '(2 • 'r '1ctc{, '

David H. Get ches Attorney for real party in interest Great Am e rican Insurance Company

10 DATED: August 9, 1968,

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1 DECLARATION OF SERVICE BY MAI L

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3 I, the undersigned, say: I am a citizen of the United States,

" over 1~ years of age , employed in the County of S~n Diego,

5 C alifornia, in ~hich county the within-mentioned mailing

6 occurred, a nd not a party to the subject cause . My business

'1 address is 2100 E lectronics Capital Building, 11Q W.es t ",e" Stree~.

8 San Diego, California. I served the Points' and Authorities in

9 .opposition to Petition for Writ of Mand ate, of which the true and

10 correct original copy is affixed', by placing a copy thereof in a

11 separate envelope for each addressee n amed hereafter,. addressed

12 to each such addressee respectively as follow s :

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County Clerk To be delivered to the Honorable Richard J. Donovan Muncicip al Court of the State of California County of San Diego 220 West Broadway San Diego, California 92101

County Clerk , Appellate Department .Superior Court of the State of California County of San Diego 220 West Broadway San Diego, California 92101

Lawrence Wasserman, Esq. Hatfie l d & Wasserm an 3949 Ciairemont Drive, Suite 16 San Diego, California 92117

Richard M. Moore. Esq. 3910' Oakwood · Avenue Los Angeles 4, California

Each envelope was then sealed and with the postage thereon

fully prepaid deposited in the United Stales mail by n=..e a t San

Diego, California, on August 9 , 1968.

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1 There i s a delivery, service by United 'States mail at e'ach

2 place so addressed or regular comq-tunication by United States

3 mail between the place of mailing and each. place so addressed. r

4. I declare under penalty of perjury that the foregoing is

5, true and correct.

6 Executed on August 9, 1968

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