Barba v. Superior Court for Los Angeles County

• Decision Date: 25 January 1966
• Citation: 49 Cal.Rptr. 60,239 Cal.App.2d 572
• Court: California Court of Appeals Court of Appeals
• Parties: Marcos BARBA and Bonifacio Romero, Petitioners, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent; ARROW CHEVROLET, INC., a corporation, and Caryl N. Lehman, Real Parties in Interest. Civ. 30138.

Page 60

49 Cal.Rptr. 60

239 Cal.App.2d 572

Marcos BARBA and Bonifacio Romero, Petitioners, v. The SUPERIOR COURT of the State of California FOR the COUNTY OF LOS ANGELES, Respondent ARROW CHEVROLET, INC., a corporation, and Caryl N. Lehman, Real Parties in Interest.

Civ. 30138.

District Court of Appeal, Second District, Division 3, California.

Jan. 25, 1966.

Bennet Olan, Beverly Hills, for petitioners.

No appearance for respondent.

Smith & Wilson and Andrew V. Smith, Los Angeles, for real parties in interest.

FRAMPTON, Justice pro tem. ^*

Mandate to compel the respondent court to set aside its judgment dismissing petitioners' complaint and to grant permission to amend the complaint and pretrial order.

Petitioners are plaintiffs in an action numbered 806878 filed on October 26, 1962, in the respondent court entitled 'MARCOS BARBA and BONIFACIO ROMERO Plaintiffs vs ARROW CHEVROLET CO. and CARYL N. LEHMAN Defendants'.

Although the defendant Arrow Chevrolet, Inc., a corporation, was not properly named in the complaint, it filed its answer under its true name and will, therefore, be referred to herein under its true corporate name.

The action is for damages for personal injuries alleged to have been sustained as the result of an automobile accident which occurred on October 29, 1961, on a public highway in the County of Los Angeles. It appears from the pleadings that at the time of the accident, plaintiff Marcos Barba was operating a 1958 Chevrolet automobile in which plaintiff Bonifacio Romero was riding as a passenger, and that the Barba vehicle came in contact with the automobile owned by the defendant Arrow Chevrolet, Inc., which was then being operated by the defendant Caryl N. Lehman.

The first cause of action relates to injuries claimed to have been sustained by the plaintiff Marcos Barba. The second cause of action relates to injuries claimed to have been sustained by plaintiff Bonifacio Romero. It is alleged in paragraph II of the first cause of action that 'At all times herein mentioned, defendant Caryl N. Lehman was the driver of that certain 1961 Chevrolet-4 door automobile, registered owner being Arrow Chevrolet Co., said automobile bearing California license No. RECP. D 139860, and said automobile was at the time and place of the accident hereinafter alleged being driven and operated by the defendant.'

Paragraph III sets forth the place of the accident. Paragraph IV alleges negligence on the part of Lehman in the operation of her vehicle causing it to collide with the rear of the vehicle then being driven by the plaintiff Barba. Paragraph V alleges that 'As a direct and proximate result of defendant's negligence, carelessness and unlawful conduct as aforesaid, and by reason of the collision so negligently caused by the defendant, Caryl N. Lehman (and owner, Arrow Chevrolet Co.) Marcos Barba was hurt and injured in his health * * *.'

The second cause of action incorporates paragraphs I, II, III, IV and V of the first cause of action. The prayer is for damages against both defendants named.

On March 7, 1963, the defendant Arrow Chevrolet, Inc., filed its answer in which it admitted ownership of the vehicle driven by the defendant Lehman and 'further specifically denies that defendant, Caryl N. Lehman, was negligently driving the described automobile owned by this answering defendant or acted in any manner other than cautious and prudent.'

There is no specific allegation in the complaint that Lehman, at the time and place of the accident, was driving the vehicle owned by the defendant Arrow Chevrolet, Inc. with the latter's permission, express or implied. This allegation was necessary in order to hold the owner of the vehicle responsible for all purposes of civil damages in the event that the driver was found negligent and such negligence was the proximate cause of injury to a third person. (Veh.Code, § 17150.)

No separate answer was filed on behalf of the defendant Lehman. However, on November 9, 1965, in open court, an oral stipulation was entered into and recorded on the minutes, to the effect that the answer of the defendant Arrow Chevrolet, Inc., a corporation, be deemed to be the answer of the defendant Caryl N. Lehman. It was further provided in this oral stipulation that it should be reduced to writing and filed with the proper filing fees prior to the conclusion of this case by counsel for the defendant. It was further stipulated that the pretrial order be deemed applicable to the defendant Lehman. The foregoing stipulation was entered into by the attorneys who had represented the corporation defendant from the date of the latter's appearance in the action.

On October 30, 1964, the cause was pretried and a joint pretrial statement was presented and adopted by the court as part of the pretrial order. The joint statement was signed by the attorneys representing the defendant Arrow Chevrolet, Inc., a corporation, and such signature appears over the printing on the form which reads 'Attorney(s) for defendant(s),' which would indicate that they were, at the time of pretrial, also representing the defendant Lehman. In the joint pretrial statement, under the heading '1. AGREED OR ADMITTED MATTERS.*' appears the following, 'The matters herein set forth are admitted by the pleadings, by answers to requests for admissions (C.C.P. Sec. 2033), or otherwise admitted: * * *' The double asterisks call attention to the following paragraph in the bottom margin of page 1 of the joint statement form as follows '** [As pointed out in par. A, II, (a) of the check list, if any of the items are 'not applicable' or 'disputed', it should be so stated. If 'disputed', the factual contentions with respect to such items should be set forth in 'Statement of Legal and Factual Contentions' (par. 9).]' Under the caption 'AGREED OR ADMITTED MATTERS' there appears amongst other things, the following two items. 'j.) Permissive use Not in issue' and 'k.) Agency Not in issue.' On the separate pretrial statement submitted by the defendants and adopted by the court in its pretrial order, there appears under the caption '1. FACTUAL ISSUES REMAINING IN DISPUTE AND CONTENTIONS WITH RESPECT THERETO * * * Defendant Contends:' the following, 'a. Defendant was not negligent. b. Defendant's negligence, if any, was not the proximate cause of plaintiff's injuries, if any. c. Nature and extent of injuries. d. Plaintiff suffered no damages. e. Plaintiff Marcos Barba was contributorily negligent. f. The contributory negligence of plaintiff, Marcos Barba is imputed to the plaintiff, Bonifacio Romero.' In the same separate pretrial statement there appears the following, 'LEGAL ISSUES REMAINING IN DISPUTE AND CONTENTIONS WITH RESPECT THERETO * * * 1. Negligence, 2. Proximate cause, 3. Damages, 4. Nature and extent of injuries, 5. Contributory negligence, 6. Imputed contributory negligence.'

On the separate pretrial statement filed on behalf of plaintiffs and adopted by the court in its pretrial order, appears the following, 'FACTUAL ISSUES REMAINING IN DISPUTE AND CONTENTIONS WITH RESPECT THERETO * * * Plaintiffs contend that defendant, CARYL LEHMAN, while driving her employer's vehicle carelessly and negligently and in violation of the right of way of...