Harris v. Board of Ed. of City and County of San Francisco

• Decision Date: 22 July 1957
• Citation: 152 Cal.App.2d 677,313 P.2d 212
• Court: California Court of Appeals Court of Appeals
• Parties: Milton D. HARRIS, as Administrator of the Estate of Wensinger F. Mahoney, deceased, Plaintiff and Respondent, v. BOARD OF EDUCATION OF the CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Appellants. George H. LEARNED, Plaintiff and Respondent, v. BOARD OF EDUCATION OF the CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Appellants. Civ. 17219.

Page 212

313 P.2d 212

152 Cal.App.2d 677

Milton D. HARRIS, as Administrator of the Estate of Wensinger F. Mahoney, deceased, Plaintiff and Respondent, v. BOARD OF EDUCATION OF the CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Appellants.

George H. LEARNED, Plaintiff and Respondent, v. BOARD OF EDUCATION OF the CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Appellants.

Civ. 17219.

District Court of Appeal, First District, Division 2, California.

July 22, 1957.

Hearing Denied Sept. 18, 1957.

Dion R. Holm, City Atty. of City and County of San Francisco, George E. Baglin, Deputy City Atty., San Francisco (Irving G. Breyer, San Francisco, of counsel), for appellants.

Piccirillo & Wolf, San Francisco, for respondent Learned.

Sullivan, Roche, Johnson & Farraher, San Francisco, for respondent Harris.

O'DONNELL, Justice pro tem.

This is an appeal from an order which vacated a prior order of dismissal of the above entitled actions.

It is unnecessary for the purposes of this appeal to detail the history of this litigation which dates back to the year 1929. A brief resume should suffice. More detailed recitals of the background of these actions will be found in Learned v. Board of Education, 37 Cal.App.2d 561, 99 P.2d 1100, and Harris v. Board of Education, 72 Cal.App.2d 43, 163 P.2d 883.

Respondents, as assignees of some 2,200 school teachers, brought these actions to recover portions of the teachers' salaries which had been withheld by the appellant board. In 1931, pursuant to stipulation, an interlocutory judgment was entered in favor of respondents decreeing that they were entitled to recover the monies so withheld. The judgment provided that the amount of recovery should be determined by an accounting. Appellants paid the portions of the withheld salaries that were admittedly due and respondents executed a partial satisfaction of judgment. Thereafter, a referee was appointed by the court to render an accounting. Difficulties were encountered, both in retaining the services of referees and in arriving at a satisfactory accounting procedure. Some of these difficulties are reflected in the two prior appeals above referred to.

Subsequent to 1931, hearings were held somewhat sporadically regarding the accounting provisions of the 1931 judgment, and those provisions were twice amended by court order. During this period also some test accountings were made. In 1947, and again in 1949, respondents filed notices of motion to modify the second amended order relative to further accounting. On each such occasion, appellants filed an affidavit of Irving G. Breyer in opposition to the motion. No action was taken on either of those motions. In 1951, respondents filed a similar notice of mition. Appellants thereupon filed an affidavit of Irving G. Breyer entited, 'Affidavit of Irving G. Breyer in Opposition to Affidavits of Louis M. Piccerillo and D. E. Pomeranz, and in Support of Motion to Dismiss.' This affidavit was substantially the same as those filed in 1947 and 1949. The affidavit, after reciting some of the accounting difficulties and differences, concludes with the request that the entire proceedings be dismissed because (1) no money is due plaintiffs, (2) plaintiffs are guilty of laches, (3) plaintiffs have ignored the court's order directing the adoption of an accounting formula, (4) the judge who issued the accounting order has retired, and (5) there is no acting referee. Appellants' motion came up for hearing in March 1952. No evidence was presented at the hearing. The hearing consisted only of a discussion among court and counsel of the history of the litigation and the contentions of the respective parties. During the discussion appellants' counsel commented that they had a motion to dismiss pending. At the conclusion of the discussion it was agreed that all counsel would collaborate in preparing a written summary of the litigation and the issues involved for the information of the court. In April 1952, appellants submitted such a summary, entitling it 'History of Litigation and Issues Involved' and in its concluding paragraphs they again urged a dismissal of the actions on substantially the same grounds mentioned in Breyer's 1951 affidavit. In May 1953, more than a year later, respondents presented their version of the case in a writing entitled 'Plaintiffs' Memorandum in Support of Motion for Modification of Order and for Order of Reference.' In this memorandum respondents made no reference to appellants' argument that the actions should be dismissed. A few days later appellants addressed a letter to the trial judge, directing a copy thereof to respondents' counsel, in which they again urged a dismissal of the actions. On February 15, 1954, the following minute order was entered: 'In these actions heretofore submitted, the Court ordered the motions to dismiss actions granted.' On July 2, 1954, respondents filed their notice of motion to vacate the order of dismissal, and on June 6, 1955, the court granted the motion and vacated the order of dismissal.

It is appellants' basic contention that the order of dismissal was regularly made and that the trial court had thereby exhausted its jurisdiction over the actions and therefore was without power to vacate the dismissal. On the other hand, respondents' basic contention is that no valid motion to dismiss was ever before the court, and that therefore the court had no jurisdiction to order the dismissal of the actions, and thus could properly vacate the void order of dismissal.

An order of the trial court dismissing an action is a final judgment. Southern Pac. R. Co. v. Willett, 216 Cal. 387, 14 P.2d 526. When such an order is regularly made the trial court has no power to correct it or set it aside. Stevens v. Superior Court, 7 Cal.2d 110, 59 P.2d 988. But where the trial court lacks jurisdiction to make the order, as in a situation where requisite notice has not been given to the plaintiff, it may be vacated by that court at any time thereafter. Svistunoff v. Svistunoff, 108 Cal.App.2d 638, 239 [152 Cal.App.2d 681] P.2d 650; Irons v. Superior Court, 10 Cal.App.2d 523, 52 P.2d 553; Also see Key System Transit Lines v. Superior Court, 36 Cal.2d 184, 222 P.2d 867, and Minardi v. Collopy, Cal.App., 308 P.2d 744.

With respect to their purported motion to dismiss, appellants concede that the notice of motion required by section 1010 of the Code of Civil Procedure was not given. They contend, however, that the several affidavits of Breyer in which dismissal of the actions was urged put respondents on notice that they were seeking a dismissal. They also point to the fact that during the 1952 hearing they directed the attention of the court and counsel to the pendency of a motion to dismiss. They further refer to the fact that in their subsequently filed 'History of Litigation, etc.' they again urged dismissal and that respondents in their reply memorandum made no protest. With respect to the motion to dismiss itself, appellants contend that a motion may be made in writing as well as orally, and that the 1951 affidavit of Breyer constituted a written motion to dismiss. Thus, they conclude that a motion to dismiss was before the court, that respondents had knowledge thereof and by their conduct waived formal notice, and that their motion to dismiss was thus regularly before the court.

It would appear that appellants are attempting to lift themselves by their own bootstraps. It will be remembered that the 1952 hearing was brought about by respondents' notice of motion to amend a prior order of court. That was the only motion that was noticed for hearing. During the course of the hearing the following colloquy was had:

'Mr. Breyer (appellants' counsel): Then we have our motion to dismiss.

'Mr. Dold (appellants' counsel): We have that also pending.

'Mr. Piccirillo (respondent's counsel): On what basis? On what basis have you got any right to dismiss?

'Mr. Breyer: It is all in our affidavit.

'Mr. Piccirillo: Have you a right to dismiss the order which Judge Van Nostrand made?

'Mr. Breyer: We have a right to make a motion on the basis of your non-compliance.

'Mr. Dold: And they come in every once in a while in court and set the matter.'

A few other similarly oblique references to their motion were made by appellants. That was all. No motion was made to the court, nor were the grounds of any such motion stated. In People v. Ah Sam, 41 Cal. 645, 650-651, the court said: 'A motion is properly an application for a rule or order, made viva voce to a Court or Judge. It is distinguished from the more formal applications for relief by petition or complaint. The grounds of the motion are often required to be stated in writing and filed. In practice, the form of the application itself is often reduced to writing and filed. But making out and filing the application itself is not to make the motion. If nothing more were done, it would not be error in ...