Pellandini v. Pacific Limestone Products, Inc.
| Court | California Court of Appeals |
| Writing for the Court | DEVINE; DRAPER, P.J., and SALSMAN |
| Citation | 54 Cal.Rptr. 290,245 Cal.App.2d 774 |
| Parties | Donald C. PELLANDINI et al., Plaintiffs and Appellants, v. PACIFIC LIMESTONE PRODUCTS, INC., Defendant and Respondent. Civ. 22962. |
| Decision Date | 21 October 1966 |
Page 290
v.
PACIFIC LIMESTONE PRODUCTS, INC., Defendant and Respondent.
Division 3, California.
[245 Cal.App.2d 775] Dal Poggetto & Chown, Sonoma, for appellants.
Mary Moran Pajalich, Roderick B. Cassidy, Timothy E. Treacy, San Francisco, for the Public Utilities Commission of the State of California as amicus curiae in support of the contentions of the appellants.
Murphy & Adams, Santa Cruz, for respondent; William G. Filice, San Jose, of counsel.
DEVINE, Justice.
Appellants, operators of a trucking company, and respondent manufacturer made a written contract which purported to be one of purchase and sale of limestone products. The Public Utilities Commission found, however, on hearing, that the contract was one for transportation and not for sale, and that it was a device by which appellants undercharged respondent. The commission ordered appellants to bring action against respondent to recover the undercharges.
Appellants, having defended the contract before the commission, were thus placed in the unenviable position of collecting alleged undercharges on a theory diametrically opposed to their own. It would be unfair to say that the suit was collusive. But
Page 291
surely we may agree with appellants' own statement in their brief, that they have been 'less than enthusiastic' in their pursuit of the litigation. Appellants say that their reluctance is because of their honest belief that the suit was improper, unwarranted and unjust, and brought about only by the prodding of the Public Utilities Commission. (We give this brief recital, not because it goes to the merits of [245 Cal.App.2d 776] the case, which have been decided by the commission, but merely to show the perspective of the litigation.)Appellants' complaint does not allege that there actually were undercharges, but makes reference to the order of the Public Utilities Commission directing appellants to take legal action to collect undercharges. At the trial, appellants' counsel told the court of the decision of the commission but presented the case largely as a trial de novo and presented Mr. Pellandini, whose testimony was, as without doubt it had been before the commission, wholly favorable to the proposition that the contract was one of sale. The president of respondent, a small, family corporation, had testified before the commission, and he testified before the court, the purport of his testimony being that the contract was not of mere transportation but was genuinely one of sale. The judge expressed his awareness of the fact that the proceeding was not completely adversary and remarked upon the difficult position in which appellants found themselves. The court decided, in direct opposition to the position of the commission, that the contract was not one of transportation but one of sale.
Appeal was taken. We permitted counsel for the Public Utilities Commission to file an amicus curiae brief and respondent to answer it.
Judicial Notice of the Commission's Order
In the superior court, the decision of the commission was not introduced in evidence, nor was it called to the judge's attention for the specific purpose of his taking judicial notice of it. Counsel for the commission ask us to take judicial notice on appeal of the order. This, of course, is within the power of the court. (Code Civ.Proc., § 1875, subd. 3; Witkin, Cal. Evidence, p. 56; 3 Witkin, Cal. Procedure, p. 2230.) Respondent does not question this but argues that the court should not exercise its power because appellants did not offer the order of the commission to the trial judge so that he could take judicial notice of it.
We deem it eminently proper for this court to take judicial...
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Hickey v. Roby
...& Tel. Co. v. Superior Court etc., 60 Cal.2d 426, 430, 34 Cal.Rptr. 673, 386 P.2d 233; Pellandini v. Pacific Limestone Products, Inc., 245 Cal.App.2d 774, 777, 54 Cal.Rptr. 290), nor may any court of this state except the Supreme Court make any order or decision which interferes with the co......
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South Bay Transportation Co. v. Gordon Sand Co., H002385
...521; cf. Church v. Public Utilities Com. (1958) 51 Cal.2d 399, 401, 333 P.2d 321; Pellandini v. Pacific Limestone Products, Inc. (1966) 245 Cal.App.2d 774, 779, 54 Cal.Rptr. 290.) The 1970 enactment of a three-year limitations period in Public Utilities Code section 3671 does not affect the......
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R. E. Tharp, Inc. v. Miller Hay Co.
...parties' billing procedure (Gardner v. Rich Mfg. Co., 68 Cal.App.2d 725, 158 P.2d 23; Pellandini v. Pacific Limestone Products, Inc., 245 Cal.App.2d 774, 54 Cal.Rptr. 290). Thus, it is manifest that plaintiff's proffered evidence was at variance with the pleadings and that the trial court c......
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Citizens Utilities Co. v. Superior Court
...is conceded that we may take judicial notice of the decisions of the Commission. (See Pellandini v. Pacific Limestone Products, Inc., 245 Cal.App.2d 774, 776, 54 Cla.Rptr. 290; People v. Northwestern Pac. R. Co., supra, 20 Cal.App.2d 120, 122, 66 P.2d 697.) The decision directs that hearing......
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Hickey v. Roby
...& Tel. Co. v. Superior Court etc., 60 Cal.2d 426, 430, 34 Cal.Rptr. 673, 386 P.2d 233; Pellandini v. Pacific Limestone Products, Inc., 245 Cal.App.2d 774, 777, 54 Cal.Rptr. 290), nor may any court of this state except the Supreme Court make any order or decision which interferes with the co......
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South Bay Transportation Co. v. Gordon Sand Co., H002385
...521; cf. Church v. Public Utilities Com. (1958) 51 Cal.2d 399, 401, 333 P.2d 321; Pellandini v. Pacific Limestone Products, Inc. (1966) 245 Cal.App.2d 774, 779, 54 Cal.Rptr. 290.) The 1970 enactment of a three-year limitations period in Public Utilities Code section 3671 does not affect the......
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R. E. Tharp, Inc. v. Miller Hay Co.
...parties' billing procedure (Gardner v. Rich Mfg. Co., 68 Cal.App.2d 725, 158 P.2d 23; Pellandini v. Pacific Limestone Products, Inc., 245 Cal.App.2d 774, 54 Cal.Rptr. 290). Thus, it is manifest that plaintiff's proffered evidence was at variance with the pleadings and that the trial court c......
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Citizens Utilities Co. v. Superior Court
...is conceded that we may take judicial notice of the decisions of the Commission. (See Pellandini v. Pacific Limestone Products, Inc., 245 Cal.App.2d 774, 776, 54 Cla.Rptr. 290; People v. Northwestern Pac. R. Co., supra, 20 Cal.App.2d 120, 122, 66 P.2d 697.) The decision directs that hearing......