Cal-Vada Aircraft, Inc. v. Superior Court

• Decision Date: 28 March 1986
• Docket Number: CAL-VADA
• Citation: 179 Cal.App.3d 435,224 Cal.Rptr. 809
• Court: California Court of Appeals Court of Appeals
• Parties: AIRCRAFT, INC. and Michael A. Brown, Petitioners, v. The SUPERIOR COURT of Placer County, Respondent; U.S. FIRE INSURANCE COMPANY, Aviation Office of America, Inc., and Bussey, Cantor & Triplett Insurance Brokers, Inc., Real Parties in Interest. Civ. 24764.

Page 809

224 Cal.Rptr. 809

179 Cal.App.3d 435

CAL-VADA AIRCRAFT, INC. and Michael A. Brown, Petitioners, v. The SUPERIOR COURT of Placer County, Respondent U.S. FIRE INSURANCE COMPANY, Aviation Office of America, Inc., and Bussey, Cantor & Triplett Insurance Brokers, Inc., Real Parties in Interest.

Civ. 24764.

Court of Appeal, Third District, California.

March 28, 1986.

Borton, Petrini & Conron, Warren C. Wetteroth and Roy J. Gargano, Bakersfield, for petitioners.

Reid & Axelrod, Peter Axelrod and Neil D. Reid, San Francisco, for real party in interest U.S. Fire Ins. Co., Aviation Office of America.

Bronson, Bronson & McKinnon, Paul H. Cyril, Elliot L. Bien and Richard R. Dale, San Francisco, for real party in interest Bussey, Cantor & Triplett Insurance Brokers.

REGAN, Acting Presiding Justice.

In this case we decide whether a partial adjudication of issues pursuant to Code of Civil Procedure section 437c constitutes a "trial" under Code of Civil Procedure section 581, subdivision (a), the "voluntary dismissal" statute.

Petitioners Cal-Vada Aircraft, Inc., and Michael A. Brown (Cal-Vada) seek a writ of mandate to compel the trial court to vacate both its order setting aside Cal-Vada's voluntary dismissal of cross-defendant Bussey without prejudice and its subsequent order dismissing Bussey with prejudice. Prior to trial, Cal-Vada filed a voluntary dismissal pursuant to Code of Civil Procedure section 581, subdivision (a), ¹ dismissing

its cross-complaint against Bussey only, without prejudice. The trial court, ruling that an earlier partial summary adjudication constituted a commencement of the trial, set the voluntary dismissal aside and, on its own initiative, dismissed Bussey from the action with prejudice. Cal-Vada contends the trial court erred in concluding the order of partial summary adjudication of some, but not all, of the issues, was equivalent to the commencement of trial within the meaning of section 581, subdivision (a), and thus it was error to set aside Cal-Vada's dismissal of Bussey without prejudice and to enter a dismissal with prejudice. We agree and shall issue a writ of mandate commanding the trial court to vacate both its order setting aside the dismissal without prejudice and its order dismissing cross-defendant Bussey with prejudice.

FACTS

On May 22, 1982, William B. Layton, Jr., was killed in a crash of a seaplane chartered from Cal-Vada for the purpose of taking aerial photographs. At the time of the fatal crash, the pilot of the plane was Gregory Gojkovich, an employee of Cal-Vada, and who also was killed in the accident. The heirs of decedent Layton filed an action for wrongful death against Cal-Vada in the Superior Court of Placer County.

At the time of the accident, Cal-Vada was insured under a liability policy issued by U.S. Fire Insurance Company, Aviation Office of America, Inc., (U.S. Fire). Cal-Vada purchased the policy through an insurance broker, Bussey, Cantor & Triplett Insurance Brokers, Inc. (Bussey). Subsequently, U.S. Fire denied coverage for the fatal accident in which decedent Layton was killed, maintaining the insurance policy it issued to Cal-Vada did not provide coverage for the fatal accident because Gojkovich was not a named pilot in the policy. The heirs of Layton eventually entered into a stipulated judgment in the wrongful death action for $1,500,000, in exchange for a covenant not to execute, running in favor of Cal-Vada and an assignment of Cal-Vada's rights against the insurance companies.

On April 11, 1983, U.S. Fire filed an action in Placer County against Cal-Vada seeking declaratory relief. U.S. Fire alleged the policy issued to Cal-Vada did not provide coverage for the fatal accident because Gojkovich was not a named pilot in the policy. Cal-Vada filed both an answer denying the material allegations of the complaint and a cross-complaint naming both U.S. Fire and Bussey as cross-defendants.

In its cross-complaint, Cal-Vada alleged Gojkovich was covered by the policy by virtue of actions taken by Bussey according to past practices; that Bussey was the actual or ostensible agent of U.S. Fire; and that U.S. Fire was estopped from denying coverage by virtue of its own past actions. The cross-complaint alleged the policy was ambiguous as to the coverage provided to Cal-Vada and sought reformation.

In June 1983 Cal-Vada brought a separate action in the Alameda County Superior Court against the insurance agencies, real parties in interest in this case. By stipulation of the parties the Alameda Superior Court action was abated pending disposition of the declaratory relief action in Placer County.

On February 2, 1984, U.S. Fire, as plaintiff in the original action, moved the Placer County Superior Court for a summary judgment. The trial court ruled the policy was not ambiguous and the insurance company was entitled to an adjudication that Gojkovich was not included within the language of the coverage. The court also found that under the written agency agreement Bussey did not have actual authority to bind U.S. Fire to such coverage without its approval. However, the trial court found there was a factual dispute on the question of ostensible authority which could not be resolved by summary judgment. The trial court concluded the question On January 8, 1985, prior to the commencement of trial on the issues not disposed of by the court's order on U.S. Fire's motion for summary judgment, Cal-Vada filed a voluntary dismissal pursuant to section 581, subdivision (a) [formerly subdivision (1)--see footnote 1, ante], dismissing the cross-complaint against cross-defendant Bussey only, without prejudice. When the trial court's attention was drawn to the clerk's entry of the dismissal, the trial court set the dismissal aside.

of U.S. Fire's ostensible agency relationship with Bussey must be tried on its merits. ²

Cal-Vada then moved for reconsideration and the court heard argument on the question of the dismissal. The court concluded Cal-Vada could not voluntarily dismiss Bussey from the action because its ruling on U.S. Fire's motion for summary judgment constituted a commencement of the trial under section 581 and such a voluntary dismissal must be filed prior to commencement of trial. At the request of the court, Cal-Vada then agreed that the court could enter a dismissal of Bussey from the action with prejudice, on grounds Cal-Vada had abandoned its action as to Bussey (see § 581, subd. (d)), so that jury trial could proceed. The court and Cal-Vada agreed that the dismissal with prejudice would not eradicate Cal-Vada's objection to the court's vacating of Cal-Vada's prior voluntary dismissal without prejudice. Thereafter, the court dismissed Bussey from the action with prejudice.

U.S. Fire subsequently moved to dismiss the action against it on the ground that the dismissal with prejudice of the alleged ostensible agent precluded recovery against the principal. The court set the motion for hearing on February 13, 1985, with a jury trial ordered for March 5, 1985. Cal-Vada sought an alternative writ of prohibition or mandate to stay any further action or proceeding pending our review. On March 6, 1985, we issued that alternative writ, and set the matter for calendar in this court.

DISCUSSION

We consider here whether a hearing on a motion for summary judgment followed by an order of summary adjudication on some, but not all, of the issues raised in a complaint is a "trial," barring a plaintiff from filing a voluntary dismissal under section 581, subdivision (a). ³

As this is a right prescribed by statute, in order to curtail the plaintiff's privilege of dismissing his action voluntarily, "the defendant must clearly and specifically bring himself within the terms of the statute; i.e., request affirmative relief, or prove that plaintiff has made an opening statement, or that a witness has been sworn or evidence introduced." (Gherman v. Colburn (1971) 18 Cal.App.3d 1046, 1049, 96 Cal.Rptr. 424.) The question before us is whether trial had commenced before the voluntary dismissal was entered.

In this case, the trial court determined trial had commenced because there had been an order of summary adjudication on some, though not all of the issues, raised Cal-Vada then rejected the trial court's invitation to fully participate in the trial without waiving objection to the trial court's ruling, but stated it would offer no evidence against the brokers and seek no relief against them. The court thereupon found Cal-Vada had abandoned the action as to the brokers and entered a dismissal with prejudice pursuant to section 581, subdivision (d). ⁴

by the cross-complaint. In reconsidering its decision setting aside the dismissal, the court stated: "The question to me is whether or not by having that summary adjudication of issues the case proceeded to the equivalent of a trial, to the point where the dismissal provisions of 581, sub 1, would not apply.... [p] I think given the posture of the case in terms of the date, the fact it was set for trial on motion for summary adjudication, I will for that reason recognizing that there may be a problem with jurisdiction, I don't think so, given that and for those reasons I will stand by the previous order setting that aside, and order that that dismissal not be entered."

We must construe the pertinent provision of section 581, subdivision (a) which allows a plaintiff to dismiss "at any time before the actual commencement of trial, ..." The statute defines the three points at which a trial commences: (1) at the beginning of plaintiff's opening statement; (2) the administration of oath or affirmation to the first witness; or (3) introduction of any evidence. ( § 581, subd. (a).) This language strongly suggests that the "trial" that is "deemed to be actually commenced" is one where the court or a jury hears issues of fact. The judicial activities outlined in the section normally relate to a trial of...