A. L. Castle, Inc. v. San Benito County

• Decision Date: 03 June 1964
• Citation: 227 Cal.App.2d 602,38 Cal.Rptr. 855
• Court: California Court of Appeals Court of Appeals
• Parties: A. L. CASTLE, INC. and Thomas S. Castle Farms, a limited partnership, by Thomas S. Castle, general partner, Plaintiffs and Appellants, v. COUNTY OF SAN BENITO, Defendant and Respondent. Civ. 21192.

Page 855

38 Cal.Rptr. 855

227 Cal.App.2d 602

A. L. CASTLE, INC. and Thomas S. Castle Farms, a limited partnership, by Thomas S. Castle, general partner, Plaintiffs and Appellants, v. COUNTY OF SAN BENITO, Defendant and Respondent.

Civ. 21192.

District Court of Appeal, First District Division 1, California.

June 3, 1964.

Hession, Robb. Creedon, Hamlin & Kelly, Richard T. Lemmon, San Mateo, for appellants.

Popelka, Graham & Hanifin, by Bernard J. Allard, San Jose, for respondent appellants.

BRAY, Presiding Justice

Plaintiffs appeal from "JUDGMENT ON ORDER SUSTAINING DEMURRER WITHOUT LEAVE TO AMEND."

QUESTIONS PRESENTED.

1. Is the judgment appealable?

2. Does the County of San Benito have immunity under Civil Code section 22.3 in this action based on negligence?

RECORD

The complaint seeks damages for the destruction of tomato seed and cauliflower seed corps caused by the alleged negligence of defendant San Benito County in the use of chemical solutions.

Defendant filed an answer and cross-complaint. In its answer "AS AND FOR A FURTHER, SEPARATE DEFENSE AND BY WAY OF GENERAL DEMURRER TO THE COMPLAINT" defendant alleged that the complaint did not state a cause of action. The court signed an order on Novmeber 1, 1962, sustaining the demurrer without leave to amend on that ground, and stating "The County has immunity under civil code section 22.3".

On November 13 an order was signed by the judge and entered on November 14, which order recited that defendant's demurrer to plaintiffs' complaint had been sustained without leave to amend on November 1, and then stated "NOW THEREFORE, IT IS ORDERED, ADJUDGED AND DECREED that plaintiffs take nothing by this action." A JUDGMENT ON ORDER SUSTAINING DEMURRER WITHOUT LEAVE TO AMEND" dated November 25 was entered November 27. This judgment recited the sustaining of the demurrer without leave to amend on November 1 and there stated, "NOW , THEREFORE, IT IS ORDERED, ADJUDGED AND DECREEED that plaintiffs * * * take nothing by this action from said defendant COUNTY OF SAN BENITO." Thereafter plaintiffs filed "NOTICE OF APPEAL" stating that they appealed from the order filed November 14, 1962, "sustaining the demurrer of the defendant County of San Benito without leave to amend and ordering, adjudging and decreeing that plaintiffs take nothing by this action.

1. ORDER APPEALABLE.

Defendant contends that the order filed November 14 referred to in plaintiffs' notice of appeal is a nonappealable order. (See 3 Witkin, Cal.Procedure, Appeal, § 19, p. 2162, Supp. p. 714.) Defendant is correct. However, the judgment entered a few days later, November 27, is appealable. The California courts in an endeavor to permit a dissatisfied litigant to have his day in court upon appeal now interpret notices of appeal liberally and where it is evident from the notice of appeal that the appellant intended to appeal from an appealable order and that the respondent has not been injured, the courts have construed the notice of appeal to apply to the appealable order or judgment if there is such of record. Thus, in Smith v. Smith (1954), 126 Cal.App.2d 194, 272 P.2d 118, where the notice of appeal referred to the nonappealable order sustaining demurrer without leave to amend, and where a judgment on that order was of record, the court stated: "Since no appeal lies from an order sustaining demurrer, Taliaferro v. Wampler, 118 Cal.App.2d 391, 257 P.2d 674, we interpret the notice of appeal as intended to take an appeal from the judgment as that is what the parties have assumed." (P. 195 of 126 Cal.App.2d, p. 119 of 272 P.2d.)

Collins v. City & County of San Franciso (1952), 112 Cal.App.2d 719, 247 P.2d 362, dealt with a similar situation. The notice of appeal recited that the appeal was taken from the order sustaining demurrer without leave to amend. This court, stating that "notices of appeal should be liberally construed to permit, if possible a hearing on the merits" 112 Cal.App.2d (p.722, 247 P.2d 364) held that the notice of appeal was effective as to the judgment entered on that order. (Beazell v. Schrader (1963), 59 Cal.2d 577, 580, 30 Cal.Rtpr. 534, 381 P.2d 390; see also Luz v. Lopes (1960), 55 Ca.2d 54, 59-60, 10 Cal.Rptr. 161, 358 P.2d 681; Witkin, Cal.Procedure Supp. pp. 762-763.)

In Futlick v. F.W. Woolworth Co. (1957), 149 Ca.App.2d 296, 308 P.2d 405, the notice of appeal stated that the appeal was from the order sustaining demurrer without leave to amend, and the court refused to consider it as an appeal from the judgment later entered. This decision is contra to those above mentioned, and does not discuss Smith or Collins, supra, both of which cases were decided prior to Futlick. Futlick is based primarily upon Schmidt v. Townsend (1951), 103 Cal.App.2d 185, 229 P.2d 488, which is referred to in Collins, supra, 112 Cal.App.2d page 722, 247 P.2d 352, but not followed.

In Estate of Roberson (1952), 114 Cal.App.2d 267, 250 P.2d 179, it was held that a notice of appeal from orders denying motion for nonsuit, motion for directed verdict, motion for judgment notwithstanding the verdict, motion for new trial and from verdict of the jury, were all nonappealable matters. The notice made no mention of the judgment which had been entered two months previously. In the notice to prepare clerk's and reporter's transcript, a large number of documents and proceedings were requested, but the judgment was not included. The court dismissed the appeal on the ground that this notice of appeal could not be construed to be and appeal from the judgment, saying (114 Cal.App.2d p. 270, 250, P.2d 181): "The most that can be said concerning this notice, respecting an appeal from the judgment, is that the who prepared it thought he had theretofore appealed from the judgment by appealing from the verdict. In our opinion, it would open the door to all manner of abuses to hold that a substantial compliance with this rule here appears, insofar as an appeal from the judgment is concerned." The rule set forth in Luz v. Lopes, supra, and Beazelll bv.. Schrader, supra, is more consonant with the liberal interpretation which should be put on notice of appeal. We prefer to follow that rule rather than that of Futlick or Robertson. We therfore interpret the notice of appeal in this case to apply to the judgment.

2. GOVERNMENTAL IMMUNITY.

Plaintiff's cause of action accured in May, 1960. February 27, 1961, the Supreme Court's decision in Muskopf v. Corning Hospital Dist. (1961), 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457, became final. Plaintiffs filed this action on May 5, 1961. By section 22.3 Civil Code, enacted by States. 1961, ch. 1404, P. 3209 § 1, the Muskopf decision was suspended and sovereign immunity was again made the rule of decision in this state during the effective period of the statute. ¹ Section 22.3, Civil Code, expired by its terms on the 91st day after the adjournment of the regular session of the 1963 Legislature. That session adjourned on June 21, 1963, made the expiration date on or about September 22, 1963.

Prior to the expiration date of section 22.3, Civil Code, the Legislature enacted sections 810 et seq. of the Government Code which were effective September 20, 1963. These sections deal comprehensively with the subject of sovereign immunity. Whether defendant county is now subject to sit in conformity with these sections had not been passed upon by the court below and consequently is not before the court here. The issue confronting this court is whether the action previously instituted was improperly dismissed with prejudice on the ground that defendant had immunity under section 22.3, Civil Code, as it then existed.

In Corning Hospital Dist. v. Superior Court (1962), 57 Cal.2d 488, 20 Cal.Rptr. 621, 370 P.2d 325, the plaintiff had suffered injuries sustained in 1958 allegedly as a result of the defendant hospital's negligence. The Supreme Court in Muskopf had decided that the doctine of governmental immunity no longer applied to the defendant public agency, reversing a judgment in favor of the defendant against the plaintiff. Thereafter, the defedant hospital petitioned the Supreme Court for a writ of mandate preventing the Superior Court from proceeding with the action after the Muskopf descision. The Suprme Court granted the writ, holding, inter alia, that the statute of 1961 (Civ.Code § 22.3, and the remaining portion of the act, see supra) suspended all causes of action against public agencies which occurred before February 27, 1961. (P. 494, of 57 Cal.2d, page 626 of 20 Cal.Rptr., page 330 of 370 P.2d: "The procedure by which the temporary suspension of causes of action is to be accomplished must, of course, give full effect to the legislative intent without impairing the orderly administration of justice. Absent further legislation, cases coming within the statue should be continued and not brought to trial until after the specified date in 1963. In the interim the parties may file pleading if they desire and may resort to proceedings for the discovery and perpetuation of evidence in accordance with the section of the Code of Civil Procedure (§ 2016 et seq.) relating to that subject."

In Lattin v. Coachella Valley County Water Dist. (1962), 57 Cal. 2d 499, 20 Cal. Rptr. 628, 370 P.2d 332, the Supreme Court reversed a judgment on the pleadings in favor of the defendant on the ground that such judgment should not have been rendered in view of the 1961 legislation. See Robinson v. Smith (1962), 211 Cal.App.2d 473, 486, 27 Cal.Rptr. 536 where the court reversed a judgment based on an order sustaining a demurrer without leave to...