Clovis Ready Mix Co. v. Aetna Freight Lines

• Decision Date: 02 May 1972
• Citation: 101 Cal.Rptr. 820,25 Cal.App.3d 276
• Court: California Court of Appeals Court of Appeals
• Parties: CLOVIS READY MIX COMPANY, a California corporation, Plaintiff and Appellant, v. AETNA FREIGHT LINES, a corporation, and Douglas L. Wood, Defendants and Respondents. AETNA FREIGHT LINES, a corporation, Cross-Complainant and Respondent, v. CLOVIS READY MIX COMPANY, a California corporation, Cross-Defendant and Appellant. Civ. 13078.

Page 820

101 Cal.Rptr. 820

25 Cal.App.3d 276

CLOVIS READY MIX COMPANY, a California corporation, Plaintiff and Appellant, v. AETNA FREIGHT LINES, a corporation, and Douglas L. Wood, Defendants and Respondents.

AETNA FREIGHT LINES, a corporation, Cross-Complainant and Respondent, v. CLOVIS READY MIX COMPANY, a California corporation, Cross-Defendant and Appellant.

Civ. 13078.

Court of Appeal, Third District, California.

May 2, 1972.

Robert T. Moulton and Byron C. Finley, Los Angeles, for Clovis Ready mix co.

Raymond, Noriega & Clifford, Bakersfield, for Aetna Freight Lines and Douglas Wood.

WHITE, ^* Associate Justice.

Plaintiff Clovis Ready Mix Company appeals after order of the court dismissing its complaint and order of the court granting defendant Aetna's motion for partial summary judgment on the cross-complaint as to the question of liability.

The questions raised on this appeal are stated by Aetna to be as follows: (1) Did the trial court err in ruling that Clovis' complaint is barred by the terms of Code of Civil Procedure section 439 ¹; and (2) did the court err in granting partial summary judgment on the liability issue of Aetna's cross-complaint against Clovis.

FACTS

The complaint filed in this action recites that a Peterbilt two-axle tractor and double trailers belonging to plaintiff Clovis collided with a two-axle tractor and double trailers belonging to defendant Aetna on or about January 26, 1966. Clovis further alleged that the defendants 'so negligently entrusted, manager (sic), maintained, drove and operated their said motor vehicle' that the accident occurred. The complaint concluded asking damages in the sum of $7,761.99 for reasonable cost of repairs, tow charges and reprivation of use.

Aetna filed its answer raising an affirmative defense to the effect that a prior lawsuit involving the same parties and accident had been previously filed in the Superior Court of Fresno County. That lawsuit had been dismissed and a dismissal with prejudice as to all defendants had been filed. The answer further alleged that Clovis had to assert in the earlier lawsuit any claims it might have against Aetna under the terms of Code of Civil Procedure section 439.

Aetna filed a cross-complaint for damages to its vehicle, and then Aetna filed a motion to dismiss Clovis' complaint and for partial summary judgment on its cross-complaint. The motion to dismiss was based on the ground that Clovis' complaint was barred pursuant to Code of Civil Procedure section 439; the motion for summary judgment was made on the ground that the negligence of Clovis Ready Mix and its employee and the lack of negligence (contributory negligence) on the part of Aetna's employee, Douglas Wood (and therefore Aetna), has been established conclusively by virtue of collateral estoppel. The motions were made on the basis of the declarations submitted with the records and documents in Fresno Superior Court action No. 132202.

The declaration of Richard C. Mallery recited that he had been retained by Douglas Wood to prosecute his claim for personal injuries against Clovis Ready Mix and its driver, Bobby Obenosky, arising out of the truck collision on January 26, 1966; Obenosky and Clovis appeared in this action and filed an answer to the complaint; no counterclaim and no cross-complaint were filed by either Obenosky or Clovis; shortly after instigation of the lawsuit, it was settled by payment to Wood and his wife of the sum of $17,800 by Clovis and Obenosky. Thereafter, Mallery caused to be filed in the Fresno County personal injury action a request for entry of dismissal with prejudice as to all named defendants. The entry of dismissal with prejudice was duly made.

The 'Release of All Claims' executed by Wood and his wife contained a clause reciting: 'It is understood and agreed that this settlement is the compromise of a doubtful and disputed claim, and that the payment made is not to be construed as an admission of liability on the part of the party or parties hereby released, and that said releasees deny liability therefor and intend merely to avoid litigation and buy their peace.'

Douglas Wood, driver of Aetna's vehicle, filed a declaration to the effect he was an employee of Aetna; he was hauling a load of freight for Aetna in Kern County on January 26, 1966; he collided with a truck owned by Clovis and driven by Bobby Obenosky; he sustained injuries; a personal injury action on his behalf against Clovis and Obenosky was filed and thereafter settled for the sum of $17,800.

Preliminarily, counsel for the respective parties have now come to the realization that this appeal is premature. This realization conforms to the court's conclusion that Clovis' appeal is in part from the order of the court granting Aetna's partial summary judgment on the issue of liability. Code of Civil Procedure section 437c provides specifically that: 'If it appear that such defense applies only to a part of the plaintiff's claim, or that a good cause of action does not exist as to a part of the plaintiff's claim, or that any part of a claim is admitted or any part of a defense is conceded, the court shall, by order, so declare, and the claim or defense shall be deemed established as to so much thereof as is by such order declared and the cause of action may be severed accordingly, and the action may proceed as to the issues remaining between the parties. No judgment shall be entered prior to the termination of such action . . ..' It therefore appears that the propriety of the trial court's action granting the partial summary judgment on the cross-complaint may only be considered on an appeal from the final judgment which has yet to be rendered in this case. 'Where trial is bifurcated and only the issue of damages remains to be tried, appeal from first part of judgment is premature.' (Swaffield v. Universal Ecsco Corp. (1969) 271 Cal.App.2d 147, 173--174, 76 Cal.Rptr. 680, 697; see also Louie Queriolo Trucking, Inc. v. Superior Court (1967) 252 Cal.App.2d 194, 199, 60 Cal.Rptr. 389.)

Secondly, Clovis' appeal from the order of the trial court directing dismissal of its complaint is also premature. '(A)n appeal will be dismissed where a purported final judgment is rendered on a complaint without adjudicating the issues raised by cross-complaint.' (6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, § 46, p. 4060.) The authorities clearly hold that an action in which cross-complaint or counterclaim is also filed is not one wherein a multiplicity of final judgments may result. (Sjoberg v. Hastorf (1948) 33 Cal.2d 116, 118, 199 P.2d 668; Nicholson v. Henderson (1944) 25 Cal.2d 375, 381, 153 P.2d 945; Bodine v. Superior Court (1962) 209 Cal.App.2d 354, 361--362, 26 Cal.Rptr. 260; Verdier v. Verdier (1962) 203 Cal.App.2d 724, 22 Cal.Rptr. 93; Smith v. Smith (1962) 209 Cal.App.2d 343, 344, 25 Cal.Rptr. 837.)

Therefore, it is concluded that Clovis' purported appeals from the order of the trial court that its complaint be dismissed and from the order of the trial court granting partial summary judgment to Aetna should be dismissed, unless such a disposition is unwarranted under all of the circumstances.

Counsel for the respective parties, at oral argument, have noted that this accident happened in 1966 and that the appeal has been pending since February 1970. They, furthermore, explain that their respective briefs have discussed fully the merit of their respective contentions, and that they would perfer to waive any jurisdictional defects here (see Lopes v. Capital Company (1961) 192 Cal.App.2d 759, 13 Cal.Rptr. 787) and have us dispose of the appeal on the merits to avoid further delay upon the filing of our remittitur, further trial and another appeal on the same grounds as are before us now.

Upon being informed by the court that the jurisdictional defect could not be waived, counsel for the respective parties stipulated at oral argument that we 'treat the appeal, the record and the briefs as a petition for a writ.' We are mindful of our limitations insofar as advisory decisions are concerned, but we are also impressed with our duty to see that justice is administered in a practical fashion with the least possible delay. Insofar as this case is concerned, we are not able to take the same measures as in Shepardson v. McLellan (1963) 59 Cal.2d 83, 27 Cal.Rptr 884, 378 P.2d 108, and the cases therein cited (p. 89, 27 Cal.Rptr. 884, 378 P.2d 108), but we are aided by the philosophy expressed there, that is, to avoid any procedural obstacles that would have been "unnecessarily dilatory and circuitous." (Id. at p. 88, 27 Cal.Rptr. 884, 378 P.2d 108.) We are justified in disposing of the procedural problems in a businesslike fashion in the interests of justice and to prevent unnecessary delay.

We are aided also by the recent (May 10, 1971) opinion of Justice Mosk in Vasquez v. Superior Court, 4 Cal.3d 800, 94 Cal.Rptr. 796, 484 P.2d 964, in that there petitioners, plaintiffs in the trial court, sought a writ of mandate to require the trial court to vacate its order sustaining the demurrers to their first cause of action and to order the court to allow them to proceed to try the first cause of action for fraud as a class action. The Supreme Court held that the petitioners there did not have an adequate remedy by appeal because such a course would violate the rule that an appeal may be taken only from a final judgment (Code Civ.Proc., § 904.1) and proceeded to entertain and grant the petition for mandate. Here, the same cause precludes our considering the appeal on the merits, but for the same reason we accept the stipulation of counsel, treat the record as being a petition for a writ of mandate and dispose of the matter in what we deem to be a practical manner and in the interests of justice. In so doing, it should be noted that if we did not let our views be known, and if we were not to act other than to dismiss the appeal as premature, further delay and...