Simmons v. Superior Court

341 P.2d 13, 52 Cal. 2d 373, 1959 Cal. LEXIS 212

Opinions

TRAYNOR, J.

Petitioner commenced an action in the respondent court against the Santa Barbara Ice and Cold Storage Company and others. After the defendants’ demurrer to a second amended complaint was sustained with leave to amend, a “Notice of Motion to Dismiss” was filed on the ground that petitioner had failed to amend his complaint within the time allowed by the court. The matter came on for hearing on August 27, 1956. Petitioner appeared at the hearing and stated that he elected to stand on the pleadings, but opposed the motion on the ground that the demurrer had been improperly sustained. The court then stated that it desired to cheek the file, and after doing so instructed the clerk, in chambers, that the motion to dismiss was granted. The order was entered in the minutes of the court on the same day. No notice appears to have been given petitioner or his counsel of the fact that the motion had been granted, and he states that he did not learn of the dismissal until March 18, 1957, almost five months after the time for appeal had expired. In this proceeding, petitioner seeks certiorari to review the order of dismissal on the grounds that the respondent court exceeded its jurisdiction by causing the order of dismissal to be entered in this manner, and that since he had no notice of the fact that the order had been entered, the remedy of appeal was not available to him.

Certiorari is available only when it can be shown that an inferior court has exceeded its jurisdiction and that “there is no appeal, nor . . . any plain, speedy and adequate remedy” open to the party seeking the writ. (Code Civ. Proc., § 1068; Noble v. Superior Court, 109 Cal. 523, 526 [42 P. 155] ; Olcese v. Justice’s Court, 156 Cal. 82, 84-88 [103 P. 317]; Leach v. Superior Court, 215 Cal. 531, 534-535 [12 P. 2d 1]; Ivory v. Superior Court, 12 Cal.2d 455, 459-460 [85 P.2d 894]; Redlands etc. Sch. Dist. v. Superior Court, 20 Cal.2d 348, 351 [125 P.2d 490].) The writ will not issue if the petitioner had a right of appeal from the order or judgment in question and permitted the time to lapse without perfecting an appeal. If there was an opportunity to appeal and it was lost through the neglect of the aggrieved party, the subsequent absence of this remedy cannot be asserted as a reason for issuing the writ. (Leach v. Superior Court, 215 Cal. 531, 534-535 [12 P.2d 1]; State Bd. of Equalization v. Superior Court, 9 Cal.2d 252, 255 [70 P.2d 482] ; Ivory v. Superior Court, 12 Cal.2d 455, 459-460 [85 P.2d 894]; Howaldt v. Superior Court, 18 Cal.2d 114, 116-117 [114 P.2d 333]; Phelan v. Superior Court, 35 Cal.2d 363, 370-371 [217 P.2d 951].)

Under these rules it is clear that certiorari is not available to petitioner. The record shows that the order of dismissal was entered on August 27, 1956, and that petitioner was required to take his appeal within 60 days of that date. He offers no excuse for his failure to do so except that he did not have actual knowledge of the court’s ruling. He offers no explanation for his failure to discover the court’s order until March 18, 1957, except that the clerk did not send him notice. Such circumstances do not justify an exception to the general rules.

Petitioner was not entitled by law to any notice of the court’s ruling, and the fact that he did not have actual notice of the ruling is therefore immaterial. (Arens v. Superior Court, 45 Cal.2d 623, 625 [290 P.2d 257].) It is a litigant’s duty to protect his own record in each step of the proceedings, and his failure to do so, in the absence of reasonable justification, does not entitle him to an extension of the time for appeal by resort to a writ of certiorari. (See Estate of Hanley, 23 Cal.2d 120, 122-124 [142 P.2d 423, 149 A.L.R. 1250] ; Palomar Refining Co. v. Prentice, 47 Cal.App.2d 572, 573 [118 P.2d 322].) No circumstances are disclosed that would justify petitioner’s failure to keep himself informed of the court’s action on the motion to dismiss. He could have become aware of the court’s ruling merely by checking the minutes of the court. Even a telephone inquiry would have disclosed the status of the case. Such a minimum amount of diligence would seem to be particularly essential in a case like the present one, where the adverse party was entitled to have the order in question entered as a matter of course, and where, therefore, it was likely that a ruling would be forthcoming shortly.¹ Having had an appeal available that was lost through the running of the time within which to appeal, petitioner may not now have certiorari to review the order of dismissal.

Petitioner’s reliance on Elder v. Justice’s Court, 136 Cal. 364 [68 P. 1022], and Grinbaum v. Superior Court, 192 Cal. 528 [221 P. 635], is misplaced. In each case extremely unusual circumstances existed that were held to justify issuance of the writ, even though there was a right to appeal in the first instance. In the Elder ease, the aggrieved party not only had no notice of the fact that a default judgment had been entered against him, but had no notice or knowledge of the time fixed for trial of the dispute or that the matter had been called and the motion for default made and granted. In setting aside the judgment, the court held that certiorari was a proper remedy since the statutory requirement for notice of the day fixed for trial (Code Civ. Proc., former § 850) had not been complied with and defendant had acted with diligence as soon as he learned that the default judgment had been entered against him. It does not appear that the defendant was negligent in failing to discover entry of the judgment, which, for some unexplained reason, did not occur until over four years after the action was commenced. In the Grinbaum case the petitioner was adjudged insane in a proceeding in which she did not appear. She was given no notice of the original proceedings or of the application for the order or of the hearing thereon, as required by statute. (Code Civ. Proc., former §§ 1763,1793.) In answer to the contention that certiorari was not a proper remedy to review the order because of the fact that an appeal had been available, the court stated: “ [I] t is obvious from the state of this record that the petitioner neither had nor was in any condition to receive notice of the making of such order or of the defects in the same during the statutory time when such appeal might have been taken.” (192 Cal. at 556.) Only two other cases have been found that hold that certiorari is a proper remedy when the right to appeal has been lost by the running of time due to lack of knowledge of the fact that judgment had been entered. (Lee v. Small Claims Court, 34 Cal.App.2d 1 [92 P.2d 937] ; O’Kuna v. Small Claims Court, 81 Cal.App. 588 [254 P. 291].) Neither case holds, however, that lack of knowledge, in itself, is sufficient justification for issuance of the writ. In neither ease is it suggested that the petitioner was in any way negligent in failing to discover that judgment had been entered against him. In light of the fact that both cases involved small claims judgments, where the time for appeal was extremely short² and where litigants are not permitted to be represented by counsel, there was reasonable justification for the failure of the aggrieved party to discover the entry of judgment. (See 1 Witkin, California Procedure, 235; 36 Cal.L.Rev. 558, 568.) These cases are all clearly distinguishable from the present one, where the reason for petitioner’s lack of knowledge of the order of dismissal was merely his failure to keep himself informed of the status of the case.

Moreover, in causing the order of dismissal to be entered in the minutes by oral direction from chambers, the court did not exceed its jurisdiction. The order was entered in the minutes of the court on the same day that the motion to dismiss was made, after the matter had been properly noticed and a hearing had been held in which the parties appeared, in accordance with the judge’s instructions to his clerk. Petitioner contends that the trial judge lacked the authority to order in chambers that the dismissal be entered in the minutes without filing a formal written order to that effect. In support of this contention petitioner relies on a statement in United Railroads v. Superior Court, 197 Cal. 687 [242 P. 701], that an order granting a new trial can only be made by oral pronouncement in open court or by filing a formal written order signed by the judge. In that ease, a motion for new trial was granted by a formal written order duly signed and filed by the judge. It was urged that an order granting such a motion could not be effective unless the judge “betake himself to the courtroom in which the hearing had been had and there mount the bench and formally and audibly pronounce an order granting the motion for a new trial, and that by no other method could such an order be lawfully rendered.” (197 Cal. at 692.) The court rejected this contention and held that, in addition to the suggested method, the method followed by the trial judge was entirely proper. Any statement in that opinion implying that these two methods are exclusive, however, is dicta, since to decide the matter under consideration it was necessary for the court to hold only that the method there employed was proper or improper. Incidental statements or conclusions not necessary to the decision are not to be regarded as authority. (People v. McAllister, 15 Cal.2d 519, 523 [102 P.2d 1072].) Moreover, later cases lend support to the view that the procedure used by the trial judge in the present ease is also proper. (Dempsey v. Market Street Ry. Co., 23 Cal.2d 110 [142 P.2d 929] ; Cox v. Tyrone Power Enterprises, Inc., 49 Cal.App.2d 383 [121 P.2d 829]; Gossman v. Gossman, 52 Cal.App.2d 184 [126 P.2d 178]; Hackel v. Los Angeles Ry. Corp., 31 Cal.App.2d 228 [88 P.2d 178].) These cases hold that when the court orders the clerk to enter a minute order, the order so entered in the minutes is a written order of the court, and no formal writing signed by the court and filed with the clerk is necessary. Whether the orders of the court in those cases were delivered to the clerk in chambers or from the bench does not appear from the published opinions, but no significance should be attached to that circumstance. The crucial question in determining the proper procedure for rendition of an order that has been heard in open court,³ is whether a written record of the disposition of the motion is made by the court. The act of instructing the clerk to enter the order in the minutes, whether in chambers or on the bench, followed by entry in the minutes is the equivalent of signing a formal order and filing it with the clerk. In Dempsey v. Market Street Ry. Co., 23 Cal. 2d 110 [142 P.2d 929], we held that under section 657 of the Code of Civil Procedure a written entry in the minutes is sufficient when a new trial is granted on the ground of insufficiency of the evidence. We stated: “Section 657 is subject to the construction that there must be a separate, formal, written order, in addition to a minute entry . . .• but it may also be construed as requiring merely that a written record of that ground must be made within the 10-day period. We feel the latter construction is preferable because it accomplishes the result intended by the Legislature and at the same time conforms to existing practice, retains simplicity and uniformity in procedure, and avoids the introduction of an additional and wholly unnecessary procedural requirement, the failure to observe which would render ineffectual the considered action of a court.” (23 Cal.2d at 114.)

Since the trial did not exceed its jurisdiction in the present case and an appeal was available to petitioner, the order is affirmed.

Gibson, C. J., Spence, J., McComb, J., and Peters, J., concurred.

Footnotes

1

It appears that defendant’s demurrer to the complaint was sustained with leave to amend, but that defendant elected to stand on the pleadings. In such a ease, although the court may reconsider the demurrer, the defendant is entitled to have a dismissal entered on motion in the absence of counsel for plaintiff and without notice to him. (Saddlemire v. Stockton Savings etc. Soc., 144 Cal. 650, 655-656 [79 P. 381]; Berri v. Superior Court, 43 Cal.2d 856, 860 [279 P.2d 8].)

2

Formerly, appeal from such a judgment had to be taken within five days of entry of judgment and there was no requirement for notice of such entry. In 1951, the statute was amended to provide that an appeal may be taken ‘ ‘ within 10 days of the mailing [to defendant] of notice of entry of judgment.” (Code Civ. Proc., § 117j.)

3

Section 166 of the Code of Civil Procedure, which defines the powers of judges “in. chambers,” does not apply to the present case. The motion was brought on for hearing pursuant to due and sufficient notice thereof; the hearing on the motion was had in open court, both parties being present; opportunity was afforded for argument of the merits of the motion; and the matter was submitted to the court for determination. The only act done in chambers was the instruction by the judge to his clerk to enter in the minutes the final determination of the motion. It is conceded that a written order signed by the judge in chambers is valid.