Conway v. Municipal Court

• Decision Date: 08 July 1980
• Citation: 107 Cal.App.3d 1009,166 Cal.Rptr. 246
• Court: California Court of Appeals Court of Appeals
• Parties: Lloyd CONWAY, Petitioner and Respondent, v. MUNICIPAL COURT of the State of California FOR the BEVERLY HILLS JUDICIAL DISTRICT, Respondent, SECURITY PACIFIC NATIONAL BANK, a National Banking Association, formerly known as Security First National Bank, a National Banking Association, Real Party in Interest and Appellant. Civ. 55757.

Page 246

166 Cal.Rptr. 246

107 Cal.App.3d 1009

Lloyd CONWAY, Petitioner and Respondent, v. MUNICIPAL COURT of the State of California FOR the BEVERLY HILLS JUDICIAL DISTRICT, Respondent SECURITY PACIFIC NATIONAL BANK, a National Banking Association, formerly known as Security First National Bank, a National Banking Association, Real Party in Interest and Appellant.

Civ. 55757.

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

July 8, 1980.

Steven Mitchell Neimand, Los Angeles, for petitioner and respondent Lloyd Conway.

Iverson, Yoakum, Papiano & Hatch by Patrick McAdam and Scott Parks LeTellier, Los Angeles, for real party in interest and appellant.

No appearance by respondent Municipal Court of the State of California for the Beverly Hills Judicial Dist.

GALE, Associate Justice. ^*

The real party in interest herein, appellant Security Pacific National Bank (Bank), appeals from the judgment of the superior court granting a writ of mandate commanding the municipal court of Beverly Hills Judicial District to vacate and set aside a default judgment taken against petitioner Lloyd Conway (Conway).

FACTS

The Bank brought suit against Conway in the municipal court. The issues were joined and the matter set for trial on April 13, 1977. On February 8, 1977, Conway was at the office of his attorney Mr. Nungesser (Nungesser) and was then informed that the trial of the matter was set for April 13, 1977. Conway made no attempt thereafter to contact Nungesser and Nungesser attempted several times thereafter to contact Conway by telephone but was unsuccessful.

Conway did not appear on the date of trial. When Nungesser arrived at the courtroom, he waved to a clerk whom he believed knew him and went out to call Conway. No one answered for Conway on the first calendar call and the matter was placed on second call. There was no answer for Conway on second call and the matter was thereafter sent out for prove-up as a default. Judgment was entered against Conway and in favor of the Bank on April 29, 1977, for the sum of $4,575.06.

On or about August 23, 1977, Conway filed a notice of motion and motion to vacate the default and set aside the judgment. The motion was denied on September 16, 1977. On October 31, 1977, Conway filed a motion for reconsideration of the order denying the previous motion to vacate the default and set aside the judgment. The motion to reconsider was denied on or about December 2, 1977. On December 27, 1977, Conway filed a petition for writ of mandamus in the Appellate Department of the Superior Court for the County of Los Angeles. Conway filed a notice of appeal, dated January 4, 1978, from the denial of the motion to reconsider. The appeal was also filed in the Appellate Department of the Superior Court.

The mandamus proceeding was transferred to a single judge, who was assigned to the Appellate Department of the Superior Court, before whom it was heard and by whom judgment was rendered in respect thereto. The petition prayed for a writ of mandate commanding the municipal court to vacate the entry of default and set aside the default judgment taken against Conway. The Bank filed its answer to the petition.

At the time the petition came on to be heard, Conway was in default in respect to his appeal, in that he had not caused the clerk's transcript to be prepared. ¹ The court granted the petition and ordered a peremptory writ of mandate to issue. The writ commanded the municipal court to vacate the entry of default and set aside the default judgment taken against Conway. The Bank appeals from the granting of the writ.

The court made findings of fact and conclusions of law and in its conclusions set forth: "2. The existence of a right of appeal from the Municipal Court's decision does not prohibit this Court from granting an extraordinary writ."

CONTENTIONS

The Bank contends that relief by way of writ of mandate was not available to Conway as Conway had a direct right of appeal from the order denying his motion to set aside the default and vacate the judgment. The Bank urges that by reason of Conway's right to appeal that Conway had a plain, speedy, and adequate remedy at law. The Bank further contends that the conduct of Conway and Nungesser was such that relief from the default was not justified under Code of Civil Procedure section 473 and that the court erred in granting the writ of mandate.

SUMMARY

The order of the municipal court denying Conway's motion to set aside the default and vacate the judgment taken against him was an appealable order. Conway had a direct right of appeal from the order. Therefore, he had a plain, speedy, and adequate remedy at law and mandamus would not lie. The municipal court had acted by refusing to set aside the default and in doing so exercised its discretion in respect to a question of fact. The municipal court's discretion could not be interfered with by writ of mandate. The superior court erred in redetermining the facts and granting the writ of mandate.

1. The Order of the Municipal Court Was An Order that Was Immediately Appealable; Therefore, Conway had a Plain, Speedy, and Adequate Remedy at Law.

The order of the municipal court denying Conway's motion was appealable. (Code Civ.Proc., § 904.2(b); First Small Business Inv. Co. v. Sistim, Inc. (1970) 12 Cal.App.3d 645, 648, 90 Cal.Rptr. 798; Sanford v. Smith (1970) 11 Cal.App.3d 991, 998, 90 Cal.Rptr. 256; Knudson v. Superior Court (1968) 267 Cal.App.2d 876, 879, 73 Cal.Rptr. 513.) Conway was in fact aware of his remedy by way of direct appeal and filed a notice of appeal. In its determination, the superior court recognized Conway's right of appeal in its conclusions of law.

Mandamus may not be resorted to as a substitute for an adequate legal remedy by appeal. (Lincoln v. Superior Court (1943) 22 Cal.2d 304, 311, 139 P.2d 13; Andrews v. Police Court (1943) 21 Cal.2d 479, 480, 133 P.2d 398; Irvine Gibson (1941) 19 Cal.2d 14, 16, 118 P.2d 812; McPherson v. City of Los Angeles (1937) 8 Cal.2d 748, 752, 68 P.2d 707; Petaluma etc. Dist. v. Superior Court (1924) 194 Cal. 183, 184, 228 P. 24.) Mandamus is not available where there is a remedy by way of appeal unless petitioner can show some special reason why the remedy afforded by appeal is rendered inadequate by the particular circumstances of the case. (Phelan v. Superior Court (1950) 35 Cal.2d 363, 370, 217 P.2d 951; Lincoln v. Superior Court, supra, 22 Cal.2d at p. 311, 139 P.2d 13.) However, doubts as to whether relief by way of mandamus is warranted should be resolved in favor of denial of review. (Whitney's at the Beach v. Superior Court (1970) 3 Cal.App.3d 258, 266, 83 Cal.Rptr. 237.)

The remedy of appeal may be held inadequate where there is no direct appeal from the ruling and the party adversely affected by the ruling would be compelled to proceed through trial and appeal from the final judgment. (State Farm etc. Ins. Co. v. Superior Court (1956) 47 Cal.2d 428, 432, 304 P.2d 13; Tide Water Assoc. Oil Co. v. Superior Court (1955) 43 Cal.2d 815, 820, 279 P.2d 35; Providence Baptist Church v. Superior Ct. (1952) 40 Cal.2d 55, 60, 251 P.2d 10; Hollister Canning Co. v. Superior Court (1972) 26 Cal.App.3d 186, 193, 102 Cal.Rptr. 713; State of California v. Superior Court (1968) 263 Cal.App.2d 396, 398, 69 Cal.Rptr. 683; National Union Fire Ins. Co. v. Superior Court (1967) 252 Cal.App.2d 568, 573-574, 60 Cal.Rptr. 535.) In such matters the inadequacy of the appeal as a remedy arises from the fact that the right of appeal is not immediate, i. e., the appeal must wait the outcome of the trial. Where the right of appeal is not immediate the delay and the expense of trial might in many instances involve great prejudice. In such situations the trial, or a retrial, may be avoided by issuance of the writ of mandate.

2. Mandamus Will Not Lie to Force the Municipal Court to Exercise its Discretion in a Particular Manner.

A court may be compelled to act jurisdictionally, but having acted, mandamus will not lie to control its exercise of discretion, i. e., it will not lie to force an exercise of discretion in a particular manner. (Lincoln v. Superior Court, supra, 22 Cal.2d at p. 313, 139 P.2d 13; O'Bryan v. Superior Court (1941) 18 Cal.2d 490, 496, 116 P.2d 49; Hilmer v. Superior Court (1934) 220 Cal. 71, 73, 29 P.2d 175.)

In considering the effect of mandamus and in holding that the trial court had no discretion to overrule petitioner's demurrer, the court in Babb v. Superior Court (1971) 3 Cal.3d 841, 851, 92 Cal.Rptr. 179, 479 P.2d 379, 385, stated: "Although it is well established that mandamus cannot be issued to control a court's discretion, in unusual circumstances the writ will lie where, under the facts, that discretion can be exercised in only one way. (Citation.)" (Italics added.) The court continued by making it clear that it employed the use of prerogative writs to review rulings on pleadings "with extreme reluctance" and in most cases the rulings on such interim orders are to be reviewed on appeal from the final judgment. (Ibid.; see also Burrus v. Municipal Court (1973) 36 Cal.App.3d 233, 236, 111 Cal.Rptr. 539.)

3. The Municipal Court Properly Exercised its Discretion in Refusing to Set Aside Conway's Default.

The judge of the municipal court had discretionary power to set aside the default under the remedial provisions of Code of Civil Procedure section 473. The municipal court judge's exercise of such discretion could not be disturbed unless there was a clear showing of abuse. (McNeil v. Blumenthal (1938) 11 Cal.2d 566, 567, 81 P.2d 566; Fidelity Fed. Sav. & Loan Assn. v. Long (1959) 175 Cal.App.2d 149, 152, 345 P.2d 568; Tearney v. Riddle (1944) 64 Cal.App.2d 783, 787, 149 P.2d 387.) The moving party, Conway, had the burden of proving he was entitled to the relief. (Northridge Financial Corp. v. Hamblin (1975) 48 Cal.App.3d 819, 822, 122 Cal.Rptr. 109.)

Neither mistake, inadvertence, or neglect will warrant...