Albermont Petroleum, Limited v. Cunningham

• Citation: 9 Cal.Rptr. 405,186 Cal.App.2d 84
• Court: California Court of Appeals
• Decision Date: 03 November 1960
• Parties: ALBERMONT PETROLEUM, LIMITED, a corporation, Plaintiff and Respondent, v. C. D. CUNNINGHAM and Lee F.Healy, Defendants, C. D. Cunningham, Appellant. Civ. 24626.

Page 405

9 Cal.Rptr. 405

186 Cal.App.2d 84

ALBERMONT PETROLEUM, LIMITED, a corporation, Plaintiff and Respondent, v. C. D. CUNNINGHAM and Lee F.Healy, Defendants, C. D. Cunningham, Appellant.

Civ. 24626.

District Court of Appeal, Second District, Division 1, California.

Nov. 3, 1960.

Robert M. Devitt, Long Beach, for appellant.

Verne E. Robinson, So. Pasadena, and William A. Sherwin, Los Angeles, for respondent.

LILLIE, Justice.

On December 24, 1958, plaintiff corporation sued defendants Cunningham and Healy on a $25,000 promissory note due December 4, 1958, executed by them on September 5, 1958. The complaint alleged that the note was given in consideration of a dismissal with prejudice of a suit for $100,000 brought by plaintiff against defendants, then pending in the United States District Court entitled 'Albermont Petroleums, Limited, a corporation, vs. Lee Healy and C. D. Cunningham.' The answer filed January 28, 1959, denied all allegations of the Complaint including the execution of the note, but admitted 'that there were negotiations and an agreement was reached between the parties on or about that date (September 5, 1958).' (Para. II.)

A second note for $25,000, excuted by defendant at the same time under the same circumstances and in accord with an oral stipulation of dismissal of the federal action by plaintiff with prejudice, having become due March 5, plaintiff on April 13, 1959, filed a supplemental complaint to which an answer was filed April 21, 1959, in almost the same language of defendants' first pleading.

Interrogatories were answered by defendant Cunningham on July 13, 1959, in which he admitted under oath, among other things, that he and Healy were defendant in the federal action; that on September 5, 1958, in Robinson's office, there were negotiations consisting of '(D)iscussions between N. P. Powell, my (his) then attorney George Hart, and Vern (sic) E. Robinson,' out of which arose an agreement between plaintiff and defendants consisting of '(T)he execution of two notes in favor of Albermont Petroleums, Limited, and the (D)ismissal of the action (federal)'; and, that he signed both notes sued upon, no part of which principal or interest has been paid.

On August 17, 1959, plaintiff filed and served on defendants notice of motion for summary judgment together with supporting affidavits to which were attached various documentary proofs of plaintiff's corporate capacity, and memorandum of points and authorities. The motion was set for hearing on August 25, 1959. On that day, just before the hearing, defendant Cunninghan presented to the court for filing, and for its consideration, affidavits in opposition to the motion for summary judgment (asserting that fraud consisting of a forged document was the procuring cause and consideration for the promissory notes sued on and that discovery of the forgery was not made until immediately before the execution of the affidavits), certain exhibits in support of the affidavits and a memorandum of points and authorities. The court refused to permit them to be filed, stating that 'there was a rule of that court (law and motion department) which required the filing of all such documents prior to 12:00 noon of the day preceding the hearing.' Defendant pointed out that the several affidavits he sought to file alleged there was fraud based on a forged document which had induced the signing of the notes sued upon which presented an issue of fact, which fraud he had not discovered until just before the affidavits were executed; and requested a continuance in order that he might comply with the rule and the matter might be properly presented and considered by the court. Defendant's counsel advised the court that he had not known of the rule referred to, was not familiar with the same, and had not previously appeared in the law and motion department. The motion for continuance was denied and the court proceeded to hear the motion for summary judgment, granted the same, ordered the answer stricken and directed judgment be entered for plaintiff.

On October 21, 1959, defendant served and filed notice of motion to vacate and set aside the judgment under Section 473, Code of Civil Procedure, together with supporting affidavits setting forth the time and manner of discovery of the forgery and counsel's unfamiliarity with rule (6), memorandum of points and authorities, proposed answer to the complaint setting up forgery as a defense and all of the counter affidavits and documents defendant had presented to the court for filing on the plaintiff's motion for summary judgment, which the court refused to permit him to file. The hearing on the motion was had October 29, 1959; the motion was denied. On November 16, 1959, defendant moved the court to reconsider its previous ruling of October 29, which motion was denied.

Defendant Cunningham appeals from the judgment and the orders denying motion to vacate the summary judgment and denying motion to reconsider, neither of which constitutes a final order. He contends that the trial court erred--in refusing to permit the filing of, and give consideration to, his affidavits in opposition to the motion for summary judgment; in denying his request for continuance that he might be able to conform to rule (6); and in granting summary judgment on a note which the affidavits and pleadings of the moving party show was not due upon commencement of the action.

The motion for summary judgment was heard in department 66 of the Superior Court, locally known as the law and motion department. The authority relied upon by the court in refusing to permit the filing of the counter affidavits was designated by it as 'a rule of that court,' and provides: '(6) All points and authorities and affidavits, other than those filed concurrently with the motion or demurrer, should be filed directly with the court clerk in the law and motion department in which the matter is pending not later than noon of the day preceding the day of the hearing.'

The power inherent in courts of record to make rules of procedure which do not conflict with constitutional or legislative provisions has long been recognized (People v. Jordan, 65 Cal. 644, 4 P. 683; Ex parte Garner, 179 Cal. 409, 177 P. 162) and subsequently confirmed by legislative enactment (Section 68070, Government Code). Under this statutory provision '(E)very court of record may make rules for its own government of its officers not inconsistent with law or with the rules adopted and prescribed by the Judicial Council * * * '; and local courts adopting rules under this section shall file copies thereof with the Judicial Council and the clerk of the court. Section 68071. However, the 'rule-making' field has been mostly occupied by the Judicial Council which derives its powers to '(A)dopt or amend rules of practice and procedure for the several courts not inconsistent with laws that are now or that may hereafter be in force,' from the California Constitution (Art. 6, Sec. la). From these statutory and constitutional sources have developed various formulated procedural practices regulating the business of our courts--local Rules of the Superior Court, and Rules for Superior Courts adopted by the Judicial Council (33 Cal.2d 1; Deering's Code of Civil Procedure, Appendix, p. 72; West's Annotated California Codes, volume 23) which, if they do not transcend legislative enactments or constitutional provisions, have the force of positive law binding on the court and parties as procedural statutes. Cantillon v. Superior Court, 150 Cal.App.2d 184, 309 P.2d 890; Helbush v. Helbush, 209 Cal. 758, 290 P. 18; Lane v. Superior Court, 104 Cal.App. 340, 285 P. 860; Kuhn v. Ferry and Hensler, 87 Cal.App.2d 812, 197 P.2d 792.

However, aside from the rules promulgated by local Superior Courts in accord with Sections 68070, 68071, and those of state-wide application formally adopted by the Judicial Council under constitutional provision, is that portion of our court procedure consisting of informal practice or usage written and unwritten, evolved from local custom or policy and acknowledged as 'the common law' of the court based upon the 'implied power' of a judge to alter, construe, amplify or modify existing rules or create new procedure. People v. Jordan, 65 Cal. 644, 651, 4 P. 683, 685. Such practices, especially if unpublished and relating to a particular department or court, are often discoverable only by inquiry among those familiar with them. Their enforceability depends on a variety of factors--their effect on the rights of the litigants--whether they defeat the ends of justice--(People v. Williams, 32 Cal. 280; Baxter v. Boston-Pacific Oil Co., 81 Cal.App. 187, 253 P. 185)--their reasonableness and purpose in facilitating the business of the court (Helbush v. Helbush, 209 Cal. 758, 290 p. 18)--and their relation to any statutory or constitutional provision in the same or a related field. Turesky v. Superior Court, 97 Cal.App.2d 838, 218 P.2d 784; Henry v. Willett, 60 Cal.App. 244, 212 P. 698; Conae v. Conae, 109 Cal.App.2d 696, 241 P.2d 266; Klokke Investment Company v. Superior Court, 39 Cal.App. 717, 179 P. 728.

Rule (6) is neither written, in the sense that it is included in a book or pamphlet publishing a codified list or collection of court rules available to those in the general law practice, nor unwritten, in the sense that it has never been published and is merely a practice grown out of custom or usage and circulated by word of mouth. But it does appear daily in several local legal publications at the beginning of the calendar in the law and motion department, as one of nine paragraphs consisting of a 'Notice to Attorneys' advising lawyers of the manner in which business is conducted in the law and motion department; these nine paragraphs inform lawyers of where, when and in what manner their law and motion matters will be disposed. Rule (60) has never been submitted to, or...