Olson v. Superior Court In and For Sacramento County

• Decision Date: 25 June 1969
• Citation: 274 Cal.App.2d 311,79 Cal.Rptr. 136
• Court: California Court of Appeals Court of Appeals
• Parties: Allan T. OLSON, Ben G. Petrucci; Allan T. Olson and Ben G. Petrucci, Co-Partners doing business in the name and style of North American Waste Disposal Service, and NAWDSCO, a corporation, Petitioners, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SACRAMENTO, Respondent; The COUNTY OF SACRAMENTO, Real Party in Interest. Civ. 12149.

Page 136

79 Cal.Rptr. 136

274 Cal.App.2d 311

Allan T. OLSON, Ben G. Petrucci; Allan T. Olson and Ben G. Petrucci, Co-Partners doing business in the name and style of North American Waste Disposal Service, and NAWDSCO, a corporation, Petitioners, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SACRAMENTO, Respondent The COUNTY OF SACRAMENTO, Real Party in Interest.

Civ. 12149.

Court of Appeal, Third District, California.

June 25, 1969.

Colley & McGhee, by Nathaniel S. Colley, Sacramento, for petitioners.

John Heinrich, County Counsel, Sacramento, and Clyde Small, Redding, for real party in interest.

BRAY, Associate Justice (assigned).

Petitioners seek a writ of mandate against the respondent Sacramento County Superior Court, praying that the Superior Court be directed to annul its memorandum and order allowing the filing of an amended cross-complaint, the County of Sacramento being the real party in interest. ¹

QUESTION PRESENTED

Did the trial court have jurisdiction after granting a judgment on the pleadings in favor of petitioners on the cross-complaint and after appeal therefrom to grant a motion to file an amended cross-complaint?

RECORD

On February 10, 1965, petitioners filed a civil action against the County in respondent Superior Court for damages for wrongful breach of a certain garbage collection franchise agreement. On April 13, 1966, County filed its answer and separately a cross-complaint. On December 14, 1967, petitioners, as cross-defendants, filed a 'Notice of Motion for Summary Judgment for Cross-Defendants on Cross-Complaint, For Order Stricking Affirmative Defense to Complaint and For Judgment For Cross-defendants on the Pleadings.'

On May 10, 1968, the trial judge filed a memorandum to the effect that the cross-complaint cause of action was barred by the provisions of section 340, subdivision 1, Code of Civil Procedure, and stated that '(t)he motion for judgment upon the pleadings in regard to the cross-complaint will be granted.'

On July 9, 1969, and before any judgment was entered, the County filed 'Motion For New Trial on Order Granting Motion For Judgment on the Pleadings Against Cross-Complaint and to Vacate On September 19, the County filed a notice of appeal from this judgment. On September 21, petitioners' counsel wrote a letter to the trial judge calling his attention to the fact that the County had appealed, and pointing out that the court no longer had jurisdiction to pass on the motions made by the County.

and Set Aside Any Judgment Entered Thereon; Or, In The Alternative, For Leave to Amend Said Cross-Complaint.' Said motion was accompanied by a proposed amended cross-complaint but no affidavit of merits. Both motions were argued orally and in writing and on July 10, 1968, 'Judgment on the Pleadings on Cross-Complaint' [274 Cal.App.2d 313] was filed. This denied petitioners' motion to strike the affirmative defense, but granted petitioners' judgment on the pleadings as to the cross-complaint.

On October 2, 1968, the County Counsel wrote to the trial judge to the effect that it was necessary to appeal from the judgment on the pleadings to protect the record 'in view of your ruling on our Motion for New Trial' and that the court still had jurisdiction to pass on the 'pending motion' (evidently referring to the motion to file an amended cross-complaint).

On October 30, the judge filed a memorandum in which he stated 'that the matter which is still pending has not been passed upon by this Court and therefore the Court determines that it does have jurisdiction as to the alternative motion for Permission to File an Amended Cross-Complaint. The Court has reviewed the proposed cross-complaint and believes that it now cures the defects in the original cross-complaint. Therefore the Court now determines that the Defendant may file the amended cross-complaint. Had this matter been presented fully to the Court prior to the signing of the Order for Judgment on the Pleadings, the Court would at that time have permitted the amendment.'

NO JURISDICTION

It is clear that on the filing of an appeal from the judgment on the pleadings the court lost jurisdiction to pass upon a motion made prior to the judgment. This is not a proceeding under section 473, Code of Civil Procedure, to set aside a judgment for mistake, inadvertence, surprise or excusable...