People v. Cimarusti

• Decision Date: 24 May 1978
• Citation: 146 Cal.Rptr. 421,81 Cal.App.3d 314
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Appellant, v. Tony CIMARUSTI et al., Defendants and Respondents. Civ. 17958.

Page 421

146 Cal.Rptr. 421

81 Cal.App.3d 314

PEOPLE of the State of California, Plaintiff and Appellant, v. Tony CIMARUSTI et al., Defendants and Respondents.

Civ. 17958.

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

May 24, 1978.

As Modified on Denial of Rehearing June 15, 1978.

Hearing Denied July 20, 1978.

Evelle J. Younger, Atty. Gen, E. Clement Shute, Jr., Asst. Atty. Gen., Herschel T. Elkins and Michael R. Botwin, Deputy Attys. Gen., for plaintiff and appellant

Charles J. Crozier, Los Angeles, for defendants and respondents.

OPINION

MORRIS, Associate Justice.

Plaintiff has filed this appeal from two orders issued by the trial court in a consumer protection action. The first of these orders is a minute order dated March 7, 1977, ordering plaintiff to modify a stipulation for judgment agreed to by plaintiff and defendants Tony Cimarusti and Ralph Cimarusti. The second order, filed April 28, 1977, denied with prejudice plaintiff's motion to specially set the case for trial.

The Facts

On August 5, 1975, the People of the State of California filed a consumer protection action against Tony Cimarusti and Ralph Cimarusti, copartners dba Manar Furniture, and Sam Cohen. The complaint alleged violations of Business and Professions Code section 17500 (deceptive statements), Business and Professions Code section 17507 (failing conspicuously to identify merchandise), and Civil Code section 3369 (unfair competition) in connection with a "going out of business" sale being conducted by defendants. The plaintiff sought injunctive relief, civil penalties, and costs.

The trial, originally set for November 9, 1976, was continued, on motion of Cohen's attorney, to February 16, 1977. Prior to November 9, 1976, plaintiff and defendants Ralph Cimarusti and Tony Cimarusti agreed to the provisions of a stipulation for judgment. Pursuant to the request of the Cimarustis, the stipulation for judgment was not executed until the morning of the continued trial date. On February 16, 1977, prior to the taking of any evidence and without trial or adjudication of any fact or law, the stipulation for entry of final judgment was signed by plaintiff's counsel, by the defendants personally, and by their counsel.

The case then proceeded to trial as to the defendant Cohen only. On March 7, 1977, following the trial, the trial court issued a minute order wherein the court found that "(a)s to the defendant Samuel Cohen . . . the advertisements run by the defendants in the Los Angeles Times and the Santa Ana Register were misleading and deceptive," granted injunctive relief, and imposed a civil penalty of $2,500 against defendant Sam Cohen. The minute order continued as follows: "The Court finds the stipulation for judgment entered into by the defendants Tony Cimarusti and Ralph Cimarusti provides for a penalty in excess of the severity of the offense committed by said defendants, and the Court orders the Attorney General to modify said stipulations and judgments to provide for a fine in the sum of $1,000.00 each and eliminate the provision for attorney's fees and costs, other than those actually incurred as legal costs."

At a meeting on March 16, 1977, in the court's chambers, the trial judge renewed his refusal to sign the proposed stipulated final judgment, stating his reasons, which may be summarized as follows: that he did not believe that the case amounted to much, that he thought the $2,500 assessed against Cohen was huge for the kind of activity conducted, and that he reduced the amount as to the Cimarustis because he thought they "were just passive businessmen that hired Sam Cohen to do what he could to get rid of some merchandise for them and Sam followed his own business practice and operated that way."

The attorney for defendants refrained from participating in any manner in the dialogue between plaintiff's counsel and the court at the March 16, 1977 meeting.

Thereafter, plaintiff, refusing to prepare a different stipulation for judgment, moved to have the matter set for trial as to the brothers Cimarusti. On April 28, 1977, plaintiff's motion was denied with prejudice.

No judgment was ever signed by the court pursuant to the stipulation for judgment of February 16, 1977, and no other stipulation was ever agreed upon by the parties.

Discussion

I. Appealability of the Judgment

We are immediately confronted with the threshold question of the appealability of the orders appealed from. The right of appeal is wholly statutory. No judgment or order is appealable unless it comes within one of the classes enumerated in the statutes. (See Code Civ.Proc., § 904.1; 6 Witkin, Cal.Procedure (2d ed. 1971) Appeal, § 30, p. 4045.) Neither of the orders entered herein is within any of the classes enumerated. However, plaintiff contends that the March 7 and April 28 orders are tantamount to a dismissal of plaintiff's case or an injunction prohibiting plaintiff from prosecuting its case, since they prevent plaintiff from obtaining a judgment by either stipulation or trial. An order of dismissal is a final judgment and is appealable, and an order granting or refusing an injunction is appealable. (Code Civ.Proc., § 904.1, subds. (a) and (f).)

We do not agree with plaintiff's interpretation of the orders. The orders prevent plaintiff from obtaining a judgment only if plaintiff refuses to obey the order of March 7 directing plaintiff's attorney to modify the stipulation for judgment pursuant to the court's order. Because the March 7 minute order directed that a written judgment be prepared, the minute order is not appealable. California Rules of Court, rule 2(b)(2) provides: "The date of entry of an appealable order which is entered in the minutes shall be the date of its entry in the permanent minutes, unless such minute order as entered expressly directs that a written order be prepared, signed and filed, in which case the date of entry shall be the date of filing of the signed order." (Emphasis added.)

The effect plaintiff complains of, to wit, plaintiff's inability to obtain a judgment, results from plaintiff's refusal to comply with the March 7 order. We agree with plaintiff that, given that refusal, the plaintiff is left in a state of limbo where it cannot obtain a judgment either by trial or stipulation. Therefore, the crucial issue that plaintiff seeks to have resolved and is entitled to have resolved is the validity of the order of March 7, 1977. If that order was in excess of the court's jurisdiction, then plaintiff was entitled, upon the court's refusal to sign the judgment as stipulated, to have the matter set for trial as to the Cimarustis. Furthermore, if plaintiff was thus entitled to have the matter set for trial, then the order of April 28, 1977, which denied with prejudice plaintiff's motion to set, was an act in excess of the court's jurisdiction.

These orders can be tested by a writ pursuant to Code of Civil Procedure section 1068, which provides as follows: "A writ of review may be granted by any court, except a municipal or justice court, when an inferior tribunal . . . exercising judicial functions, has exceeded the jurisdiction of such tribunal . . . and there is no appeal, nor, in the judgment of the court, any plain, speedy, and adequate remedy."

The writ of review or certiorari ¹ may issue even though the judicial tribunal has jurisdiction of the subject matter and person, if it is contended that the tribunal acted in excess of its jurisdiction. (See 5 Witkin, Cal.Procedure (2d ed. 1971) Extraordinary Writs, § 28, p. 3802.) In Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, at page 291, 109 P.2d 942 at page 948, the California Supreme Court stated: "Speaking generally, any acts which exceed the defined power of a court in any instance, whether that power be defined by constitutional provision, express statutory declaration, or rules developed by the courts and followed under the doctrine of stare decisis, are in excess of jurisdiction, in so far as that term is used to indicate that those acts may be restrained by prohibition or annulled on certiorari." (Emphasis added.)

Plaintiff contends that the trial court exceeded its jurisdiction in ordering the Attorney General to modify a stipulation agreed upon by the parties, and in refusing with prejudice plaintiff's motion to set the case for trial. There is no appeal provided from either order. Since plaintiff seeks to have these orders annulled, certiorari is the appropriate remedy. (See Fountain Water Co. v. Superior Court (1903) 139 Cal. 648, 73 P. 590.)

Recognizing that the orders are of doubtful appealability, plaintiff has asked that this court treat this appeal as a petition for writ of mandate.

Although we have concluded that certiorari rather than mandate is the appropriate method of review in this case, we have concluded that the authorities cited by plaintiff in support of its request are equally persuasive in support of treating the appeal as a petition for a writ of review. In Branham v. State Farm Mut. Auto. Ins. Co. (1975) 48 Cal.App.3d 27, 121 Cal.Rptr. 304, the defendant attempted to appeal from an order directing the parties to arbitrate. The order to arbitrate being interlocutory and nonappealable the court could have dismissed the appeal. Instead, the court elected to treat the appeal as a petition for writ of mandate and disposed of the case on its merits. (Id., at pp. 32-33, 121 Cal.Rptr. 304.) In Clovis Ready Mix Co. v. Aetna Freight Lines (1972) 25 Cal.App.3d 276, 101 Cal.Rptr. 820, the court, confronted with an attempted appeal from a nonappealable order, accepted the stipulation of counsel for the respective parties to treat the record as being a petition for a writ of mandate and disposed of the matter in what the court deemed "a practical manner and in the interests of justice." (Id., at pp. 281-282, 101 Cal.Rptr. at p. 823.) So also, this court, in U. S. Financial v. Sullivan (1974) 37 Cal.App.3d 5, ...