Tomales Bay Oyster Corp. v. Superior Court in and for City and County of San Francisco

• Decision Date: 09 May 1950
• Citation: 217 P.2d 968,35 Cal.2d 389
• Court: California Supreme Court
• Parties: . S. F. 17963. Supreme Court of California, in Bank

Page 968

217 P.2d 968

35 Cal.2d 389

TOMALES BAY OYSTER CORPORATION v. SUPERIOR COURT IN AND FOR CITY AND COUNTY OF SAN FRANCISCO.

S. F. 17963.

Supreme Court of California, in Bank.

May 9, 1950.

Fabian D. Brown, San Francisco, for petitioner.

Fred N. Howser, Attorney General, Chas. W. Johnson and William L. Shaw, Deputy Attorneys General, for respondent and real party in interest.

GIBSON, Chief Justice.

Petitioner seeks a writ of prohibition to stay further proceedings under a cross-pleading filed by the California Employment Stabilization Commission in an action brought by petitioner against the commission.

On January 4, 1943, petitioner commenced an action to recover $20 unemployment insurance contributions paid under protest, alleging that it was not an employer subject to the Unemployment Insurance Act. Gen.Laws, Act 8780d. On March 13, 1943, the commission filed a pleading, entitled 'Answer and Counterclaim,' which set forth a cause of action 'by way of counter-claim' for further taxes and penalties due in the sum of $1,474.02, together with interest and costs. Immediately thereafter the parties entered into a stipulation that petitioner might have ten days after written notice to answer or otherwise plead to 'defendant's cross-complaint.' On February 18, 1948, the commission gave notice to plead 'to the cross-complaint,' and petitioner's answer was filed on February 27. The trial was commenced on March 5, 1948, 'upon the pleading of defendant,' and the commission introduced evidence, both oral and documentary, in support of its claim and rested its case. The cause was then continued at petitioner's request until April 23, at which time petitioner's cause of action upon its complaint was dismissed on motion by the commission based on section 583 of the Code of Civil Procedure. ¹ The trial was completed on the issues raised by the commission's pleading, and judgment was entered for petitioner. The commission, however, was granted a new trial on December 16, 1948, and no appeal was taken from this order.

When the cause was called for retrial, on February 17, 1949, petitioner moved to dismiss the action set forth in the commission's pleading on the ground that it had not been brought to trial within five years after petitioner's complaint was filed. Trial on the commission's pleading, however, had been commenced within five years after it was filed, and the motion was denied. Petitioner then applied for a writ of prohibition to prevent respondent superior court from proceeding with the trial. An alternative writ was issued and further proceedings were stayed pending determination of whether the application for a peremptory writ should be granted.

Petitioner contends that the commission's pleading was merely a counterclaim and a part of the answer which fell which dismissal of the complaint, and that the trial court had no jurisdiction to proceed with the trial because there was nothing before it. He also argues in effect that trial on the cross-pleading was barred under section 583 of the Code of Civil Procedure because the five year period had run against the complaint.

A preliminary question is presented as to the propriety of the use of the writ to test the jurisdiction of the court to proceed with the trial. It would seem clear that if the commission's pleading fell with dismissal of the complaint, leaving nothing before the trial court, it was without jurisdiction to proceed. Likewise, if the court is proceeding erroneously after expiration of the time prescribed by section 583 of the Code of Civil Procedure, it is acting in excess of its jurisdiction, and prohibition will lie to prevent a retrial of the action if there is no other plain, speedy and adequate remedy at law. Cf. Superior Oil Co. v. Superior Court, 6 Cal.2d 113, 56 P.2d 950; Andersen v. Superior Court, 187 Cal. 95, 97, 200 P. 963; White v. Superior Court, 126 Cal. 245, 58 P. 450; Rio Del Mar County Club v. Superior Court, 84 Cal.App.2d 214, 190 P.2d 295.

The problem presented here was, of course, not included as a ground of the commission's motion for a new trial, nor was it ruled on by the court in granting the motion. It therefore could not be considered upon an appeal from the order granting a new trial. See Byxbee v. Dewey, 128 Cal. 322, 60 P. 847; Holmes v. Warren, 145 Cal. 457, 460, 78 P. 954; 2 Cal.Jur. 828-830. The order refusing to dismiss the action was not appealable, and to compel petitioner to submit to an unwarranted retrial of the cause, and then appeal from the judgment if adverse to it, would not afford speedy or adequate relief. Andersen v. Superior Court, 187 Cal. 95, 97, 200 P. 963; see also Superior Oil Co. v. Superior Court, 6 Cal.2d 113, 119, 56 P.2d 950. The writ may therefore be used to test the jurisdiction of the trial court.

In considering petitioner's contention that the commission's cross-pleading fell with the dismissal of the complaint and that trial of the cross-action was barred under section 583 of the Code of Civil Procedure, we must look to the character of the pleading and the purposes of the section. When the commission's pleading was filed it was denominated a counterclaim, but thereafter it was called and treated as a cross-complaint. The nature and character of a pleading, however, is to be determined from its allegations, regardless of what it may be called by the parties, and it has been held that when a pleading meets the requirements of both a counterclaim and a cross-complaint the court may, in its discretion, treat it as either, to the end that substantial justice may be done. Schrader v. Neville, 34 Cal.2d 112, 207 P.2d 1057; Terry Trading Co. v. Barsky, 210 Cal. 428, 434, 292 P. 474; see 10 So.Cal.L.Rev. (1937) 415, 420, 477-448.

The commission's pleading seeks both to defeat petitioner's demand and to recover a money judgment in excess of that demand. Under section 438 of the Code of Civil Procedure, a counterclaim 'must tend to diminish or defeat the plaintiff's recovery and must exist in favor of a defendant and against a plaintiff between whom a several judgment might be had, * * *' and it has been held that it may include the right to affirmative relief for damages where the original complaint prayed for a money judgment. Todhunter v. Smith, 219 Cal. 690, 693, 28 P.2d 916; Terry Trading Corp. v. Barsky, 210 Cal. 428, 438, 292 P. 474. A counter-claim may arise out of the transaction set forth in the complaint as the foundation of plaintiff's claim, and if it does the defendant must set it up or be forever barred. Code Civ.Proc. § 439; see Schrader v. Neville, 34 Cal.2d 112, 207 P.2d 1057. The pleading of the commission therefore comes within the definition of a counterclaim. However, it also falls within the requirements for a cross-complaint. Section 442 of the Code of Civil Procedure provides that a cross-complaint may be filed whenever the defendant seeks affirmative relief against any party relating to or depending upon the transaction or matter upon which the action is brought. The relief sought by the commission related to the same transaction or matter upon which the action was brought, and the pleading is thus within the express wording of the statute.

It follows that the commission's claim is one which could have been pleaded either as a counterclaim or as a cross-complaint. Under such circumstances, as we have seen, the court may treat it as either, and here, since the commission's pleading meets the requirements for a cross-complaint, and the parties treated it as a cross-complaint after it...