Horton v. Jones

• Decision Date: 28 July 1972
• Citation: 26 Cal.App.3d 952,103 Cal.Rptr. 399
• Court: California Court of Appeals Court of Appeals
• Parties: Harold L. HORTON et al., Plaintiffs and Respondents, v. Virgil L. JONES et al., Defendants and Appellants. Civ. 11628.

Page 399

103 Cal.Rptr. 399

26 Cal.App.3d 952

Harold L. HORTON et al., Plaintiffs and Respondents, v. Virgil L. JONES et al., Defendants and Appellants.

Civ. 11628.

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

July 28, 1972.

[26 Cal.App.3d 953] R. W. Levy, Fresno, for defendants and appellants.

William P. Camusi and G. Morgan Fitzwater, Los Angeles, for plaintiffs and respondents.

OPINION

GABBERT, Acting Presiding Justice.

This is an action for damage to real property caused by flooding occasioned by the alleged diversion by appellant Jones of the waters of McCoy Wash near Blythe, California. The trial was bifurcated and the sole issue of Liability was first tried before a jury. a verdict was returned in favor of respondents and against appellant Jones, holding him liable for the injuries suffered. (The Palo Verde Irrigation District was originally a second defendant; the jury brought in a verdict in favor of the District, holding it free of liability.) A judgment was purportedly entered by the clerk. Motions to vacate the judgment, for a new trial and for judgment notwithstanding the verdict were filed by appellant. The motion to vacate the judgment was granted, ostensibly for the reason the judgment, and the inclusion of costs therein, was entered prematurely because of the bifurcated nature of the trial. The motions for new trial and for judgment notwithstanding the verdict were denied. Notice of appeal from the order denying the motion for judgment notwithstanding the verdict was filed. There was no appeal from the denial of the motion for new trial. Normally, an appeal from an order denying a judgment notwithstanding the verdict is an appealable order. (Code Civ.Proc. § 904.1(d); Taylor v. Hawkinson, 47 Cal.2d 893, 895, 306 P.2d 797.)

However, we must consider whether such an order is appealable under the circumstances of this case. We are faced with the property of an intermediate appeal after denial of a motion for judgment notwithstanding the verdict in a bifurcated trial, following a verdict on liability but before trial of the issue of damages. We have been cited to no case specifically determining this question, nor have we found any through independent research. In their briefs no question was raised by the parties concerning the appealability of the order. We requested additional briefs from counsel seeking their arguments as to the applicability of the 'one final judgment rule' to this case.

Section 598 of the California Code of Civil Procedure, ¹ commonly known as the bifurcated trial rule, provides for determination of the negligence issue at a trial before evidence on the issue of damages is introduced. A principal reason for the rule is set out in Trickey v. Superior Court, 252 Cal.App.2d 650, 653, 60 Cal.Rptr. 761, 763, as follows:

'Code of Civil Procedure section 598 was adopted in 1963 as the result of Judicial Council recommendations. Its objective is avoidance of the waste of time and money caused by the unnecessary trial of damage questions in cases where the liability issue is resolved against the plaintiff. (17th Biennial Report, Judicial Council (1959) p. 30; 18th Biennial Report (1961) pp. 56--57; 19th Biennial Report (1963) p. 32; see also Committee on Adm. of Justice Report, 36 St.Bar J. p. 416 (1961).)'

Appellant argues in his letter brief that Code of Civil Procedure, section 904.1(d) provides that an appeal may be taken from an order denying a motion for judgment notwithstanding the verdict and that there is nothing in the statute to indicate the appelability of such an order depends upon the existence of a final judgment in the trial court. Appellant notes Code of Civil Procedure, section 629 provides in part in its last paragraph 'Where a new trial is granted to the party moving for judgment notwithstanding the verdict, and the motion for judgment notwithstanding the verdict is denied, the order denying the motion for judgment notwithstanding the verdict shall nevertheless be reviewable on appeal from said order by the aggrieved party.' Thus, he points out, the order denying a motion for judgment notwithstanding the verdict is appelable even though a new trial has been granted and there is no final judgment. The statement is true, however, a new trial may only be granted after All issues have been tried. It cannot be granted until after both phases of a bifurcated trial have been tried. (Mays v. Disneyland, Inc., 213 Cal.App.2d 297, 28 Cal.Rptr. 689; Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450, 20 Cal.Rptr. 321, 369 P.2d 937.) Thus, under Code of Civil Procedure, section 629, a motion for judgment notwithstanding the verdict cannot even properly be Made, until all the issues have been disposed of. It follows that an appeal cannot lie, since the motion cannot be properly entertained.

Appellant further contends that to carry out the objectives of the bifurcated trial statute, if his motion for judgment notwithstanding the verdict should have been granted, the time and expense involved in the trial of the issue of damages would be wasted. In this case, appellant estimates such trial will require three to four weeks of court time.

Respondents reply that Code of Civil Procedure, section 629 permits a motion for judgment notwithstanding the verdict to be made 'within the period specified by Section 659 of this code in respect of the filing and serving of notice of intention to move for a new trial.' They claim by reading the two sections (Code Civ.Proc. §§ 629 and 659) together, a motion for judgment notwithstanding the verdict can only be made when all the issues of a case are disposed of by verdict or decision. Respondents further contend that while Code of Civil Procedure, section 904.1(d) does permit an appeal from an order denying a motion for judgment notwithstanding the verdict, such section should be limited to an order resulting from a motion which had been filed after a determination of all the issues in a bifurcated trial situation in which liability has been found against the party charged.

Both parties express a desire to have this court dispose of the liability issue on its merits. However, if the attempted appeal is from a non-appealable order, it is the duty of this court on its own motion to dismiss the appeal. As set forth in Witkin, California Procedure, (2d ed.) Vol. 6, p. 4046:

'Since an appealable judgment or order is essential to appellate Jurisdiction, the parties cannot by any form of consent make a nonappelable order appelable. The court must of its own motion dismiss an appeal from such an order. (Citations omitted.)'

In the same text (p. 4046), Mr. Witkin additionally points out:

'The fundamental principles that subject matter jurisdiction cannot be created by consent, and that appellate jurisdiction is wholly dependent upon the existence of a judgment or order made appealable by statute . . . are occasionally forgotten when the parties do not raise the issue. Theoretically the court should always dismiss an appeal from a nonappealable order, on its own motion, without determining the merits, for lack of appellate jurisdiction. But it does not always do so: Sometimes the court first determines the merits in an elaborate advisory opinion which becomes a precedent, then dismisses the appeal . . . Sometimes it simply accepts (i.e., creates) appellate jurisdiction because it seems desirable to do so.'

We do not deem it desirable to attempt to create appellate jurisdiction in this case. We are of the opinion that the provisions of Code of Civil Procedure, section 598, providing for bifurcated trials, do not designate a 'judgment' of any sort as against a party on whom liability is imposed until the conclusion of the damages trial. Thus, a positive verdict of liability in such a trial merely has the same status as a partial verdict or finding and cannot be considered as having disposed of all the issues so as to permit an appeal after denial of a motion for judgment notwithstanding the verdict.

The 'one final judgment rule' has been denominated a basic principle of appellate practice. (See: Comment, Vol. 15, Hastings Law Journal, 93; Witkin, California Procedure (2d ed.) Vol. 6, p. 4050, et seq.) The codification of the rule is set out in Code of Civil Procedure, section 904.1: an appeal may be taken from a suprior court 'From a judgment, except (1) an interlocutory judgment, other than as provided in subdivisions (h), (i) and (j), (2) a judgment of contempt which is made final and conclusive by Section 1222, or (3) a judgment on appeal from a municipal court or a justice court or a small claims court.' As Witkin states in the above-cited reference: '. . . the intent of such statutes is to cofidy the Final judgment rule, or rule of One final judgment, a fundamental principle of appellate practice in the United States. The theory is that piecemeal disposition and multiple appeals in a single action would be oppressive and costly, and that a review of intermediate rulings should await the final disposition of the case. (Citations omitted.)'

The rule, in general, permits an appeal to be taken only from a final judgment which disposes of all the issues presented in the action. (Stockton Combined Harvester & Agricultural Works v. Glen's Falls Ins. Co., 98 Cal. 557, 577, 33 P. 633; Greenfield v. Mather, 14 Cal.2d 228, 233, 93 P.2d 100; Mays v. Disneyland, Inc., Supra, 213 Cal.App.2d 297, 299, 28 Cal.Rptr. 689.) Quite obviously, all issues in the case at bench were not disposed of on the first phase of the trial as to liability. The ultimate factual issue, that of damages, still remainded before the trial court for determination.

On the basis of reason we are convinced the denial of a motion for judgment notwithstanding the verdict does not give rise to any right of appeal when the motion is made on behalf of a party against whom liability is imposed on the first phase of a bifurcated trial pursuant to section...