Quail v. Municipal Court

171 Cal. App. 3d 572, 217 Cal. Rptr. 361, 1985 Cal. App. LEXIS 2435

Opinions

Opinion

THE COURT.

*

Petitioner’s appeal from a judgment issued by the respondent court in favor of real party in its unlawful detainer action against him is pending in the Appellate Department of the Superior Court of Los Angeles County. In the instant proceeding petitioner principally contends (1) the respondent did not properly carry out the settlement and engrossment of the settled statement on appeal, and (2) the engrossed settled statement certified by the respondent does not accurately set forth the proceedings in the trial court. (Cal. Rules of Court, rules 127, 128.)

On June 12, 1985, this court stayed all proceedings on the appeal. By order issued June 26, 1985, we referenced the matter to the appellate department with directions that an evidentiary hearing be conducted, and written findings thereafter be submitted to this court, on the following issues:¹

(1) Does the engrossed settled statement certified by the municipal court in case No. A65074 accurately set forth the oral proceedings of February 16, 1984, insofar as they are material to the determination of the points on petitioner’s appeal?

(2) Was the settlement and engrossment of said settled statement properly carried out pursuant to the provisions of rule 127 of the California Rules of Court?

An evidentiary hearing was conducted by the appellate department on July 8, 1985, during which all of the parties to this proceeding were present or represented by counsel. Thereafter, on July 22, 1985, the appellate department complied with this court’s order of reference by submitting the following written findings:

“Having taken judicial notice of the municipal court file in A65074 and of the superior court file in A16411, this court finds with respect to the second question as follows:

“(1) Petitioner complied fully with the California Rules of Court, Rules 121 and 127(a), respectively, in filing his notice of appeal and in serving and filing his proposed statement on appeal.

“(2) Real party in interest did not file, nor attempt to file proposed amendments to petitioner’s proposed statement on appeal.

“(3) The court set June 15, 1984 as the date of hearing to settle the statement on appeal.

“(4) Both petitioner and counsel for real party in interest were present on June 15, 1984 at the hearing to settle the statement on appeal. The court continued said hearing to July 31, 1984.

“(5) On June 22, 1984 real party in interest filed a document improperly entitled ‘Proposed Statement on Appeal’, which document was not timely filed as proposed amendments to the proposed statement because it was not filed within ten days after service of the proposed statement as required by Rule 127(a) of the California Rules of Court.

“(6) On July 31, 1984, the date to which the hearing to settle the statement on appeal had been continued, petitioner appeared; however, no appearance was made on behalf of real party in interest. The hearing to settle the statement on appeal was continued to August 2, 1984.

“(7) Petitioner orally represented to this court that on August 1, 1984 he telephoned the clerk of respondent court and requested a continuance of the hearing to settle the statement on appeal. The clerk informed petitioner that she would advise him of the date to which the hearing would be continued; however, petitioner was not so advised. The municipal court file does not reflect the telephone call.

“(8) On August 2, 1984 respondent court held the hearing to settle the statement on appeal. Petitioner was not present. An appearance was made on behalf of real party in interest. The court ordered real party in interest to engross the settled statement on appeal for the court’s approval.

“(9) The purported engrossed settled statement on appeal bears the trial judge’s signature.

“Based upon the foregoing, this court finds, with respect to question 2, supra, that the settlement and engrossment of the settled statement on appeal herein was not properly carried out pursuant to the provisions of Rule 127 of the California Rules of Court, at least in the following respects;

“(1) Contrary to the requirement of Rule 127(c) that the judge shall settle the statement and fix the time ‘in which appellant shall engross it as settled’, the trial judge ordered respondent to engross the statement on appeal.

“(2) Petitioner was never served with a copy of the settled statement as engrossed in accordance with the judge’s order and therefore had no opportunity to make objections thereto. This fact served to compound the error reflected in the foregoing paragraph.

“(3) Although bearing the signature of the trial judge, the engrossed settled statement does not contain the trial judge’s certification that the statement accurately and truly reflects the oral proceedings of February 16, 1984. Nor have the parties stipulated that the statement does so reflect said proceedings. (See Potter v. Solk (1958) 161 Cal.App.2d Supp. 870, 871-872.)

“This court has not determined whether the engrossed settled statement accurately sets forth the oral proceedings of February 16, 1984. That determination is not made at this time because it appears that remand to respondent court will be required in order to settle the statement on appeal in conformity with the requirements of Rule 127.” (Italics in original.)

We adopt the foregoing findings of the appellate department and conclude therefrom that petitioner is entitled to relief.

We further conclude this is an appropriate matter in which to issue a peremptory writ of mandate in the first instance. (Code Civ. Proc., § 1088; see also Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171 [203 Cal.Rptr. 626, 681 P.2d 893].)

Accordingly, It Is Ordered as follows:

(1) The engrossed settled statement certified August 7, 1984, in case No. A65074 and filed in the appellate department September 13, 1984, in case No. A16411 is hereby stricken. (Code Civ. Proc., § 923.)

(2) Let a peremptory writ of mandate issue, requiring the respondent court (a) to grant to petitioner twenty (20) days from the date of issuance of the remittitur in this proceeding,² to serve and file a condensed statement of the oral proceedings pursuant to rule 127(a) of the California Rules of Court, and (b) thereafter to proceed to settle the statement in conformity with the provisions of said rule 127.

In all other respects the petition is denied.

Except insofar as necessary to comply with this opinion and order, the stay order issued herein June 12, 1985, and modified June 26, 1985, shall continue in force pending the filing in the appellate department of an engrossed settled statement properly certified by the respondent court pursuant hereto.

This opinion shall be deemed final as to this court ten (10) days from the date hereof. (Cal. Rules of Court, rule 24(c).)

Before Lillie, P. J., Thompson, J., and Johnson, J.

1

The stay of proceedings previously issued was modified to permit the appellate department to conduct such hearing. '

2

See rule 25(a), California Rules of Court.