Berri v. Superior Court In and For City and County of San Francisco

• Decision Date: 28 January 1955
• Citation: 43 Cal.2d 856,279 P.2d 8
• Court: California Supreme Court
• Parties: Ines BERRI, individually and as Administratrix of the Estate of Silvio Berri, Deceased, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, Melvyn I. Cronin, Judge thereof, and Martin Mongan, County Clerk of the City of County of San Francisco, State of California, Respondents, Bank of America (Eureka, California), Del Norte County Bank (Crescent City, California), Bank of America National Trust and Savings Association (Crescent City, California), Bank of America National Trust and Savings Association (San Francisco, California), National Bank Italy Company, a corporation, Corporation of America(Home Savings Bank) (Eureka, California), Liberty Bank (Crescent City, California), Bank of Italy National Trust and Savings Association, Home Savings Branch (Eureka, California), Charles Maffia, T. A. Greig, R. H. Pearce, Victor K. Meedom, E. B. Campbell, James F. De Martinal, R. P. A. Everhard, et al., Real Parties in Interest. S. F. 19059.

Page 8

279 P.2d 8

43 Cal.2d 856

Ines BERRI, individually and as Administratrix of the Estate of Silvio Berri, Deceased, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, Melvyn I. Cronin, Judge thereof, and Martin Mongan, County Clerk of the City of County of San Francisco, State of California, Respondents, Bank of America (Eureka, California), Del Norte County Bank (Crescent City, California), Bank of America National Trust and Savings Association (Crescent City, California), Bank of America National Trust and Savings Association (San Francisco, California), National Bank Italy Company, a corporation, Corporation of America(Home Savings Bank) (Eureka, California), Liberty Bank (Crescent City, California), Bank of Italy National Trust and Savings Association, Home Savings Branch (Eureka, California), Charles Maffia, T. A. Greig, R. H. Pearce, Victor K. Meedom, E. B. Campbell, James F. De Martinal, R. P. A. Everhard, et al., Real Parties in Interest.

S. F. 19059.

Supreme Court of California, In Bank.

Jan. 28, 1955.

Rehearing Denied Feb. 24, 1955.

Alfred J. Hennessy, San Francisco, for petitioner.

Samuel B. Stewart, Jr., Christopher M. Jenks and Arthur V. Toupin, San Francisco, for respondents and real parties in interest.

CARTER, Justice.

This case involves the interpretation of section 583 of the Code of Civil procedure. ¹ On April 21, 1948, plaintiff commenced an action. First and second amended complaints were filed before befendants appeared. Defendants' demurrers to plaintiff's second, third and fourth amended complaints were sustained with leave to amend. On March 4, 1953, the court made an order sustaining, without leave to amend, defendants' demurrer to the fifth amended complaint, 48 days before the expiration of the five-year period after commencement of the action. No judgment was ever entered. On April 10, 1953, plaintiff filed notice of appeal from that order. The appeal was dismissed on November 9, 1953, by the District Court of Appeal. ² On October 19, 1953, after the five-year period had expired, plaintiff allegedly discovered that no judgment had been entered on the order sustaining the demurrer, and he presented a judgment to the court for signing and entry. The court refused, stating it throught a formal motion for entry of a judgment should be made inasmuch as the five years had elapsed. Defendants served and filed a notice of motion (November 12, 1953) to dismiss the action on the ground that it had not been brought to trial within five years of the commencement of the action as required by section 583, supra. That motion is now pending as the trial court deferred ruling thereon pending the decision in the instant proceeding. Plaintiff, petitioner here, seeks mandamus against the court and clerk thereof to compel the entry of judgment pursuant to the order sustaining the demurrer.

With regard to the running of the five-year period, it has been held that the determination or a hearing on a demurrer to the complaint is not a trial within the meaning of section 583 of the Code of Civil Procedure and hence the action is subject to dismissal after the five-year period has expired unless the ruling on demurrer is a final determination of the case. Where the demurrer or demurrers were sustained but leave to amend was given: De Roode v. County of Placer, 112 Cal.App.2d 859, 247 P.2d 390; Anderson v. City of San Diego, 118 Cal.App.2d 726, 258 P.2d 842; Breakstone v. Giannini, 70 Cal.App.2d 224, 160 P.2d 887; Meier v. Superior Court of Orange County, 55 Cal.App.2d 675, 131 P.2d 554; where demurrer pending: Jackson v. De Benedetti, 39 Cal.App.2d 574, 103 P.2d 990; where the demurrer was overruled: Perrin v. Miller, 35 Cal.App. 129, 169 P. 426. When the demurrer has been sustained and judgment of dismissal has been entered there has been a trial and the action is not subject to dismissal under section 583. Smith v. City of Los Angeles, 84 Cal.App.2d 297, 190 P.2d 943; see Erganian v. Brightman, 13 Cal.App.2d 696, 57 P.2d 971.

However, in cases involving the right of the plaintiff to voluntarily dismiss 'before trial' under section 581 of the Code of Civil Procedure it has been held that he could not dismiss after a demurrer had been sustained without leave to amend but before judgment because the case had been brought to trial. See Goldtree v. Spreckels, 135 Cal. 666, 67 P. 1091; London v. Morrison, 99 Cal.App.2d 876, 222 P.2d 941; Gibbon v. Justice's Court of City and County of San Francisco, 81 Cal.App. 396, 253 P. 961; Provencher v. City of Los Angeles, 10 Cal.App.2d 730, 52 P.2d 983, judgment of dismissal entered; contra Home Real Estate Co. v. Winnants, 39 Cal.App. 643, 179 P. 534. And it has been said generally in defining a trial that it is the determination of an issue of law or fact; a demurrer of course calls for the determination of an issue of law only. City of Pasadena v. Superior Court of Los Angeles County, 212 Cal. 309, 298 P. 968; O'Day v. Superior Court of Los Angeles County, 18 Cal.2d 540, 116 P.2d 621; Redington v. Cornwell, 90 Cal. 49, 27 P. 40; Tregambo v. Comanche Mill & Mining Co., 57 Cal. 501; Booth v. County of Los Angeles, 69 Cal.App.2d 104, 158 P.2d 401; see Code Civ.Proc., §§ 588-591, defining issues and mode of determination. But in Superior Oil Co. v. Superior Court of Kings County, 6 Cal.2d 113, 56 P.2d 950, the court held that an action was not brought to trial within the meaning of section 583 where a hearing had been had on an application for a preliminary injunction in an action for an injunction, the court stating that a trial is a trial of issues of fact with the purpose of determining the case on the merits.

It is clear that where there has been a judgment of dismissal after demurrer sustained without leave to amend or leave to amend is granted but plaintiff fails to amend within the time allowed, the action is finally terminated by the judgment because there is no longer any pending undetermined action to dismiss. It should also be clear that an action is not subject to dismissal where issues of law leading to its final determination have been submitted. If that were not true, then an action presented on stipulated facts could be dismissed even though it had been submitted for decision on those facts. See Martin v. Gibson, 48 Cal.App.2d 449, 119 P.2d 1012. The essential thing is that the action be brought to a stage where final disposition is to be made of it. Actions can be finally disposed of by an order sustaining a demurrer and the entry of an ensuing judgment dismissing the action. It is true that an order sustaining a demurrer without leave to amend is not appealable as it is not the final judgment in the case (see authorities cited supra) and that the trial court may reconsider its ruling after such an order but before judgment and come to a different conclusion. Bank of America Nat. Trust and Savings Ass'n v. Superior Court of Los Angeles County, 20 Cal.2d 697, 128 P.2d 357; Frantz v. Mallen, 204 Cal. 159, 267 P. 314; Davis v. Stroud, 52 Cal.App.2d 308, 126 P.2d 409; De La Beckwith v. Superior Court of Colusa County, 146 Cal. 496, 80 P. 717. Ordinarily, in the absence of a request for a reconsideration, after a demurrer is sustained without leave to amend, as here, no formal motion to dismiss the action is necessary. The entry of a judgment of dismissal follows as a matter of course. It is only by the entry of the judgment that plaintiff is in a position to test the correctness of the court's ruling since there is no appeal from a ruling on a demurrer but only from the ensuing judgment. Michaels v. Mulholland, 115 Cal.App.2d 563, 564, 252 P.2d 757. Where a demurrer has been sustained without leave to amend, or the time given to amend has expired, the matter has reached such a stage that a final determination of the action is contemplated, and hence section 583 does not require a dismissal because of the lapse of five years since the commencement of the action. There is nothing in the instant case to indicate other than that the case is to be finally disposed of on issues of law by way of demurrer. Cf. Superior Oil Co. v. Superior Court of Kings County, supra, 6 Cal.2d 113, 56 P.2d 950.

It is suggested that mandamus is not the proper remedy as other remedies are adequate and the trial court did not have an opportunity to pass on the question. But the trial court refused to have the judgment entered after demurrer was sustained without leave to amend and no appeal would lie from that refusal. While it did suggest that plaintiff file a formal motion for the entry of judgment, that was only to present the issue of whether the five years had run between the commencement of the action and the trial, if any, was had. Defendants presented that issue to the court by their motion to dismiss. If that motion had been denied defendants could obtain relief by mandamus, Superior Oil Co. v. Superior Court of Kings County, supra, 6 Cal.2d 113, 56 P.2d 950; 16 Cal.Jur.2d, Dismissal, etc., § 67, but the validity of the order sustaining the demurrer would still not have been determined. Of course, if defendants' motion were granted, a judgment of dismissal would have been entered and plaintiff could have appealed from it, but that is not the situation presented here. This is a case where mandamus is necessary to put plaintiff in a position to test on appeal the propriety of an order sustaining a demurrer without leave to amend and there must be a judgment entered in order to do that.

Inasmuch, however, as the trial court may change its ruling on the demurrer, as no judgment has been entered, the trial court is hereby directed to render judgment, or if it deems advisable, give consideration to a re-examination of its ruling. In case it does the latter, however, the action is not subject to dismissal because under the above reasoning there has been, in effect, a partial trial of the action and...