Kennaley v. Superior Court, County of San Mateo

• Decision Date: 22 October 1954
• Citation: 43 Cal.2d 512,275 P.2d 1
• Court: California Supreme Court
• Parties: Thomas H. KENNALEY, Petitioner, v. SUPERIOR COURT of the State of California, In and For the COUNTY OF SAN MATEO. Frank D. Hill, Real Party in Interest. S. F. 19071.

Page 1

275 P.2d 1

43 Cal.2d 512

Thomas H. KENNALEY, Petitioner, v. SUPERIOR COURT of the State of California, In and For the COUNTY OF SAN MATEO Frank D. Hill, Real Party in Interest.

S. F. 19071.

Supreme Court of California, In Bank.

Oct. 22, 1954.

Sidney L. Berlin, Redwood City and Byron J. Snow, Santa Clara, for petitioner.

Hancock, Elkington & Rothert, San Francisco, and Frank V. Kington, Redwood City, for respondent and real party in interest.

TRAYNOR, Justice.

Petitioner Kennaley brought an action for damages against Frank D. Hill for assault and battery, false arrest, and malicious prosecution. Hill filed an answer and a cross-complaint alleging a cause of action for slander, which occurred as part of the transaction set forth in the complaint as the foundation of petitioner's claim. Petitioner then filed a notice of motion to dismiss the cross-complaint on the ground that no undertaking had been filed by the cross-complainant as required by section 830 of the Code of Civil Procedure. ¹ The motion was denied, and petitioner applies for a writ of prohibition.

The writ of prohibition may issue, if there is no other adequate remedy and the lower court is proceeding in excess of its jurisdiction. Code Civ.Proc. §§ 1102, 1103; Housing Authority of City of Eureka v. Superior Court, 35 Cal.2d 550, 556, 219 P.2d 457.

Petitioner does not have another adequate remedy, if the court is required under section 830 to compel the filing of the undertaking or dismiss the action. The order denying petitioner's motion to dismiss was not appealable. (Code Civ.Proc., § 963.) Although it could be reviewed on an appeal from a final judgment, that relief would be inadequate. If petitioner were forced to trial without the required security and had to await relief on an appeal from the final judgment, he would not have the benefit of the security 'in the progress of the action,' and the purpose of the statute would be defeated.

We therefore reach the question whether the court is proceeding in excess of its jurisdiction in refusing to dismiss the cross-complaint upon the cross-complainant's failure to file an undertaking pursuant to section 830. A court acts in excess of its jurisdiction, as that term is used in determining whether the writ of prohibition will issue, if it acts in violation of a statute defining its powers. Abelleira v. District Court of Appeal, 17 Cal.2d 280, 291, 303, 109 P.2d 942, 132 A.L.R. 715. Section 830 provides that an action for slander 'shall be dismissed', if an undertaking is not filed, and it is clear that prohibition will lie in cases where the plaintiff in a slander action, after timely objection, fails to file the required undertaking. Shell Oil Co. v. Superior Court, 2 Cal.App.2d 348, 352 et seq., 37 P.2d 1078; see Abelleira v. District Court of Appeal, supra, 17 Cal.2d 288, 289, 109 P.2d 942. Although the filing of an undertaking is not necessary to vest jurisdiction in the first instance, and the defendant can waive the undertaking, Shell Oil Co. v. Superior Court, supra, 2 Cal.App.2d 348, 353-354, 37 P.2d 1078; cf. Bried v. Superior Court, 11 Cal.2d 351, 354, 79 P.2d 1091, no question of waiver is involved here, for the motion to dismiss was filed the day after the filing of the cross-complaint. We must therefore determine whether section 830 applies to a cross-complaint for slander as it does to a complaint alleging such a cause of action.

The undertaking provided for in section 830 must be filed 'Before issuing the summons in an action for libel or slander'. (Italics added.) Section 832 provides 'Within 10 days after the service of the summons, any defendant may give to the section 830, the filing of the undertaking to the sureties * * *.' (Italics added.) Thus both sections speak of the undertaking in connection with the summons, and under the plain language of section 830, the filing to the issuing of the is made a condition to the issuing of the summons. No such condition applies to a cross-complainant, for no summons issues on a cross-complaint unless new parties are brought in. (Code Civ.Proc. § 442.)

Petitioner stresses the last sentence of section 830, 'An action brought without filing the required undertaking shall be dismissed', and , relying on section 22 of the Code of Civil Procedure ² and McKean v. German-American Savings Bank, 118 Cal. 334, 341, 50 P. 656, contends that the word 'action' therein includes a cross-complaint. The sentence in section 830 on which petitioner relies, however, must be read with the rest of the section. The sentence expressly refers to an action brought without filing the 'required' undertaking, which is the undertaking required as a condition to issuing the summons. Since issuing summons is not required on a cross-complaint such as we have here, the undertaking is not required.

Petitioner contends that the purpose of section 830 is to prevent the indiscriminate filing of defamation actions in bad faith to embarrass a defendant, Smith v. McDermott, 93 Cal. 421, 29 P. 34, and that cross-complaints are included within that purpose. Cross-complaints, however, are filed only after a defendant has been brought into court by the...