Page v. Insurance Co. of North America

• Decision Date: 30 December 1969
• Citation: 83 Cal.Rptr. 44,3 Cal.App.3d 121
• Court: California Court of Appeals Court of Appeals
• Parties: James D. PAGE, Plaintiff and Respondent, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant and Appellant. Civ. 34199.

Page 44

83 Cal.Rptr. 44

3 Cal.App.3d 121

James D. PAGE, Plaintiff and Respondent, v. INSURANCE COMPANY OF NORTH AMERICA, Defendant and Appellant.

Civ. 34199.

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

Dec. 30, 1969.

Hearing Denied Feb. 25, 1970.

Archbald, Zelezny & Spray, Malcolm Archbald and Kenneth L. Moes, Santa Barbara, for defendant and appellant.

Hathaway, Clabaugh & Perrett and E. E. Clabaugh, Jr., Ventura, for plaintiff and respondent.

HERNDON, Associate Justice.

Defendant Insurance Company of North America, hereinafter referred to as 'INA', appeals from an order entered October 4, 1968, setting aside a judgment dismissing this action. The judgment of dismissal was rested upon the ground that the first amended complaint upon which plaintiff-respondent had elected to stand, failed to state facts sufficient to constitute a cause of action. This order setting aside the judgment and granting respondent leave to file a second amended complaint was made some twenty months after the entry of the judgment of dismissal and approximately eight months after the decision of Division One of this court in Page v. Insurance Co. of North America, 256 Cal.App.2d 374, 64 Cal.Rptr. 89, affirming the judgment of dismissal.

The order under review was granted by the court below after a hearing upon the petition of respondent entitled 'Petition for Writ of Coram Nobis.' As we shall point out later in more detail, this order was sought and granted upon the ground that in July of 1968, after the affirmance of the judgment of dismissal, respondent had discovered new evidence upon the basis of which, as the court below apparently concluded, he could plead a cause of action. The order reads as follows:

'The petition of plaintiff for a Writ of Coram Nobis, having been heard and submitted to the Court and the Court having considered same, now causes to be filed its Memorandum of Opinion and ordering that the judgment heretofore entered on January 20, 1967 in Judgment Book 66 at Page 110 is set aside and plaintiff is allowed fifteen days from this date in which to file a second amended complaint.'

The decision in Page v. Insurance Co. of North America, Supra, begins by reciting the fact that the judgment of dismissal then under review had been entered after a demurrer to plaintiff's first amended complaint had been sustained with leave to amend and after plaintiff had filed his written election to stand on said complaint. The opinion further recites the fact that this action had arisen out of an accident in which three automobiles allegedly had been involved, one of them being plaintiff's, the second being the vehicle operated by the defendant Pickell, and the third being the so-called 'phantom vehicle.' The opinion states the basic problem then presented and summarizes the allegations of the first amended complaint as follows:

'One of the three automobiles involved (referred to subsequently as Car Three') has never been identified. Recovery from INA being sought under the uninsured motorist provisions of plaintiff's policy with that company, the basic problem is whether under the facts as pleaded a named defendant (Pickell), the operator of Car Two, and certain Doe defendants as operators and owners of Car Three, properly qualified as uninsured motorists as defined in section 11580.2, Insurance Code.

'According to the complaint as last amended, the accident occurred in the following manner: Plaintiff was driving his vehicle in a southeasterly direction on a designated highway; defendant Pickell was also driving his vehicle (Car Two) in the same direction on that highway. A certain 'phantom vehicle' (Car Three) crossed the center line of the subject highway while being operated in a northwesterly (or opposite) direction. To avoid colliding with the 'phantom vehicle' Pickell 'deliberately and negligently' drove his car into plaintiff's causing the damages complained of. While it is alleged that its operator was negligent, there is no allegation of any physical contact of the 'phantom vehicle' with either of the other two cars involved as expressly provided in the governing statute.' (Page 376, 64 Cal.Rptr., Page 91.)

Further in the course of the decision of the former appeal in this case the court discusses and rejects plaintiff's contentions to the effect that the requirements of section 11580.2 of the Insurance Code were fulfilled by the alleged fact that the accident was proximately caused by the negligent operation of the phantom car. Having previously pointed out that there was neither allegation nor contention that there had been any physical contact, direct or indirect, by the phantom vehicle with either of the other two vehicles involved in the accident, the court stated its conclusion as follows:

'The subject terminology (in section 11580.2) being incapable of the interpretation claimed by plaintiff, our duty is clear. Here there was no physical contact of any character, direct or indirect; nor can we extend or torture the ordinary meaning of the language used unless we assume (which we cannot do) that the Legislature did not know what it was saying and did not mean what it said. The court in People ex rel. Hamilton v. City of Santa Barbara, quoting from Anderson v. I. M. Jameson Corp., 7 Cal.2d 60, 67, 59 P.2d 962, said: "'This court has no power to rewrite the statute so as to make it conform to a presumed intention which is not expressed. This court is limited to interpreting the statute, and such interpretation must be based on the language used."' (205 Cal.App.2d 501, 504, 23 Cal.Rptr. 240, 242.)' (256 Cal.App.2d pages 379--380, 64 Cal.Rptr. page 93.)

Plaintiff sought to employ concurrently two separate procedural devices for the purpose of avoiding the finality of the judgment of dismissal and of its affirmance on appeal. On the same day that he filed his 'Petition for Writ of Coram Nobis' in the trial court, he filed in the Court of Appeal his 'Application to Recall Remittitur.' The petition filed in the trial court was supported by the same affidavits that were filed in support of the application seeking recall of the remittitur.

The ground upon which the indicated relief was sought in the trial court and in the appellate court was the same, namely, that subsequent to the affirmance of the judgment of dismissal, plaintiff had taken the deposition of the codefendant Pickell and thereby had discovered 'new facts formerly unavailable and unknown to exist which will establish contact within the meaning of the uninsured motorists provisions of plaintiff's policy.'

As stated in respondent's brief herein, the sum and substance of 'the newly discovered evidence concerning contact' is found in the following excerpt from a declaration of the defendant Pickell: 'That in July of 1968 during the depositions and a very detailed inquiry into the accident, I revealed to E. E. Clabaugh, Jr., attorney for Mr. Page, that as the (unidentified) vehicle crossed the center line and proceeded almost broadside, that vehicle was propelling rocks and other material which struck my car and also the Page vehicle. I believe the rocks or other material cracked Mr. Page's windshield.'

On August 19, 1968, the Court of Appeal denied plaintiff's application to recall the remittitur. Approximately six weeks later on October 4, 1968, the trial court granted plaintiff's petition and made the order from which this appeal is taken.

The sequence of events in the unusual procedural history of this case is indicated by the following chronology:

June 25, 1965: Date of accident.

June 21, 1966: Date of filing original complaint.

August 31, 1966: First amended complaint filed.

October 12, 1966: Demurrer of INA filed. It should be noted that as of this time defendant Pickell had appeared in the case and was represented by counsel.

November 14, 1966: Demurrer sustained with leave to amend.

January 11, 1967: Plaintiff filed election to stand on first amended complaint.

January 20, 1967: Judgment of dismissal filed.

February 20, 1967: Plaintiff served and filed notice of appeal.

November 27, 1967: Court of Appeal decision affirming judgment filed. (Page v. INA, Supra.)

January 24, 1968: Petition for hearing denied by the Supreme Court.

January 31, 1968: Remittitur filed.

July 18, 1968: Deposition of defendant Pickell taken by plaintiff.

August 5, 1968: Petition for Writ of Coram Nobis filed in trial court.

August 5, 1968: Application to Recall Remittitur filed in Court of Appeal.

August 19, 1968: Application to Recall Remittitur denied.

October 4, 1969: Petition for Coram Nobis granted and order made vacating judgment and allowing plaintiff to file a second amended complaint.

Appealability of the Order of October 4, 1968

Plaintiff's contention that the order from which this appeal is taken is non-appealable is so clearly mistaken that it deserves only very brief discussion. Since this order was made after the judgment of dismissal from which plaintiff took his unsuccessful appeal had become final, it obviously is 'a special order made after final judgment' within the meaning of former section 963(2) of the Code of Civil Procedure and certainly it is an order after a judgment made appealable by subdivision (a) of section 904.1 of the Code of Civil Procedure within the meaning of subdivision (b) of the same section which superseded section 963 effective November 13, 1968.

It has been held repeatedly that orders of this character are appealable as special orders made after final judgment. (Harth v. Ten Eyck, 12 Cal.2d 709, 87 P.2d 693; Yarbrough v. Yarbrough, 144 Cal.App.2d 610, 301 P.2d 426; Martin v. Board of Trustees, 37 Cal.App.2d 481, 99 P.2d 684; Phelan v. Superior Court, 35 Cal.2d 363, 217 P.2d 951; 3 Witkin, California Procedure, § 25, p. 2170.)

Trial Court Jurisdiction And Propriety of Remedy Invoked

Appellant has presented plausible arguments and has cited authorities in support of its contention that in view of...