Bill Benson Motors, Inc. v. Kozak

• Decision Date: 21 October 1965
• Citation: 48 Cal.Rptr. 123,238 Cal.App.2d Supp. 937
• Court: California Superior Court
• Parties: 238 Cal.App.2d Supp. 937 BILL BENSON MOTORS, INC., Plaintiff and Respondent, v. Mack KOZAK et al., Defendants. MACMORRIS SALES CORPORATION, etc., Defendant, Cross-Complainant and Appellant, v. BILL BENSON MOTORS, INC., Plaintiff, Cross-Defendant and Respondent. Mack KOZAK, Defendant, and Cross-Complaint, v. MACMORRIS SALES CORPORATION, etc., Morris Bowman, Defendants-Cross Defendants and Appellants. * Civ. A. 11173. Appellate Department, Superior Court, Los Angeles County, California

Page 123

48 Cal.Rptr. 123

238 Cal.App.2d Supp. 937

BILL BENSON MOTORS, INC., Plaintiff and Respondent, v. Mack KOZAK et al., Defendants.

MACMORRIS SALES CORPORATION, etc., Defendant, Cross-Complainant and Appellant, v. BILL BENSON MOTORS, INC., Plaintiff, Cross-Defendant and Respondent.

Mack KOZAK, Defendant, and Cross-Complaint, v. MACMORRIS SALES CORPORATION, etc., Morris Bowman, Defendants-Cross Defendants and Appellants. ^*

Civ. A. 11173.

Appellate Department, Superior Court, Los Angeles County, California.

Oct. 21, 1965.

Fairfield & Richman, Beverly Hills, for appellants.

Jerome S. Monosson, Hollywood, for respondent.

Mack Kozak, in pro. per.

PER CURIAM.

The defendant Morris Bowman and the defendant-and-cross-complainant Macmorris Sales Corporation appeal from that portion of the judgment below which adjudges that plaintiff Bill Benson Motors, Inc., have and recover from defendant Macmorris Sales Corporation the sum of $4,253.27 damages and $103.25 costs and which dismisses defendant Macmorris Sales Corporation's cross-complaint against plaintiff. The trial or hearing was had in the absence of said appellants pursuant to CCP., Sec. 594. The other defendant Mack Kozak of said appellants pursuant to C.C.P., Sec.

Appellants assign two grounds for appeal: (1) Macmorris Sales Corporation's cross-complaint ousted the case from the subject matter jurisdiction of the municipal court, and (2) the commissioner who heard or tried the case was not a duly constituted judge pro tempore and hence was not a competent judicial officer to decree the judgment.

The plaintiff's complaint against defendant Mack Kozak, Morris Bowman, and the Macmorris Sales Corporation was for money damages, alleging a breach of a contract whereby defendants agreed to purchase eleven automobiles for $28,650.00, from plaintiff, acknowledging a redelivery of the automobiles, but alleging a resultant loss of $5,000.00. All three of the aforementioned defendants answered.

Concurrently with his answer, defendant Kozak filed a pleading labelled 'cross-complaint' against his co-defendants Macmorris Sales Corporation and Morris Bowman and named a Celia Bowman as a third cross-defendant. Morris Bowman defaulted on this cross-complaint.

Concurrently with its answer, defendant Macmorris Sales Corporation also filed a pleading labelled 'cross-complaint for a permanent and preliminary injunction' against plaintiff Bill Benson Motors, Inc., who in turn answered the same.

Notice of trial was served on appellants on May 28, 1964, and pursuant to said notice the case came on for trial almost a full year later on May 14, 1965, when the case was called at 9:00 A.M. by Presiding Judge Francis A. Cochran in Division 1 (Master Calendar Dept.) of the Municipal Court. Defendant Mack Kozak appeared in propria persona and thereafter was present at all times during the trial. Attorney Max Gewirtz, an associate of Fairfield & Richman, appellants' attorneys of record, appeared with defendant Morris Bowman, who is also president of the defendant Macmorris Sales Corporation, and sought a continuance of the trial on grounds that attorney Joseph Fairfield who was scheduled to try the case was absent in Europe where he had gone with his fraternal group. Attorney Gewirtz had previously on October 5, 1964, represented appellants when plaintiff's counsel took the deposition of co-defendant Mack Kozak.

Judge Cochran denied a continuance of more than two hours and ordered appellants to be ready to proceed to trial at the 11:00 A.M. call of the calendar. In the course of leaving Division 1 after the 9:00 A.M. calendar call, attorney Gewirtz told plaintiff's counsel that he (Gewirtz) was leaving the courthouse with his client (Morris Bowman) and would not appear at the 11:00 A.M. calendar call. And when appellants failed to appear at 11:00 A.M., Judge Cochran transferred the case to Division 6 of the Municipal Court 'to be heard as a default'.

Upon their arrival in Division 6, plaintiff's counsel and defendant Kozak appearing in propria persona signed a stipulation that Municipal Court Commission Herbert Hargrave hear the case as a Judge pro tempore of the Municipal Court. Trial then proceeded pursuant to C.C.P., Sec. 594 with defendant Kozak present, but in the absence of appellants. Evidence oral and written was taken. Thereafter judgment was rendered and entered 'that plaintiff Bill Benson Motors, Inc., recover from defendant Macmorris Sales Corp. the sum of $4,253.27 damages * * * together with costs in the sum of $103.25' and 'Both cross-complaints dismissed'.

The clerk's minutes show: (1) the complaint against defendant Kozak was dismissed on plaintiff's motion, (2) Kozak's cross-complaint was dismissed on Kozak's motion, and (3) Macmorris Sales Corporation's cross-complaint against plaintiff was dismissed for lack of prosecution on plaintiff's motion.

With this background, we return to a consideration of appellants' first assigned ground of appeal, namely, ouster of jurisdiction.

The complaint alleges a breach of contract and asks for money damages in the amount of $5,000.00; the case at this stage was an action at law within the exclusive original jurisdiction of the municipal court. (C.C.P., Sec. 89, Subd. 1(a).)

The cross-complaint of defendant Macmorris Sales Corporation was against the plaintiff only. While it was labelled a 'Cross-complaint for a permanent and preliminary injunction' all it sought was that the drafts (11 Automobile Purchase Drafts) mentioned by plaintiff in Paragraph VIII of its complaint be taken up by the court for safekeeping pending litigation and destruction thereafter by the clerk, so as to prevent plaintiff from negotiating same. This is relief which a court of law (as distinguished from equity) customarily gives in course of rendering a money judgment on contracts involving written instruments. Where rights on a written instrument are merged into a judgment, the clerk is under a duty to take up such instruments and to note such merger on the instruments. (Calif.Rules of Court, Rule 522.) In fact, such notation stamp has been put on the said eleven drafts which were introduced in the trial as part of Exhibit 1.

In the determination of subject matter (equity or common law) jurisdiction, the courts are not bound by labels put on a pleading (Fearey v. Gough (1943) 61 Cal.App.2d 778, 779, 143 P.2d 711), nor by the caption of the pleading or prayer (Hutchason v. Marks (1942) 54 Cal.App.2d 113, 114, 128 P.2d 573), but by its substance (Philpott v. Superior Court (1934) 1 Cal.2d 512, 526, 36 P.2d 635, 95 A.L.R. 990).

Even if the request for a permanent injunction be deemed one appropriately addressed to the equitable power of the court, it is defensive in nature and any equitable defense is within the jurisdiction of the municipal court. (C.C.P., Sec. 89, subd. 2.) Temporary and preliminary injunctions ancillary to an action otherwise within the jurisdiction of the municipal court are granted to that court by C.C.P., Sec. 89, subd. 1(g).

Both the matters set up by cross-complainant Macmorris Sales Corporation and cross-complainant Kozak are purely defensive in nature and within the ambit of the rulings in Jacobson v. Superior Court (1936) 5 Cal.2d 170, 53 P.2d 756 and Gardenswartz v. Equitable Life Assurance Society of United States (1937) 23 Cal.App.2d Supp. 745, 68 P.2d 322.

So far as the cross-complaint of Kozak is concerned, appellants are in no position to raise any issue with reference to same on this appeal; the notice of appeal insofar as dismissal of cross-complaints are concerned limits itself to 'dismissing the cross complaint of cross complaint (sic) Macmorris Sales Corporation'. Moreover, Kozak's cross-complaint was dismissed on Kozak's motion. But even considered on its merits, it is in substance no more than a precautionary elaboration of the Third affirmative defense of his answer that he was merely the known agent of a disclosed principal, and hence tantamount to only a request for indemnity across and against co-defendants Macmorris Sales and Morris Bowman in the event that the court should find against him on plaintiff's complaint. It is not a request for declaratory relief.

We, therefore, conclude that the case properly remained in the municipal court for trial and adjudication on its merits.

We further conclude that appellants' second assigned ground of appeal is without merit: (1) Commissioner Hargrave was duly constituted a Judge pro tempore of the Municipal Court, and (2) if we be in error upon his qualification as a judge pro tempore, he in his capacity qua commissioner was duly authorized by law to hear and adjudicate this case.

Each commissioner of the Municipal Court of the Los Angeles Judicial District must possess the same qualifications as the law requires of a judge of that court. (Govt. Code, Sec. 72,706). And such a commissioner has the...