People v. Gordon

• Decision Date: 30 July 1951
• Citation: 105 Cal.App.2d 711,234 P.2d 287
• Parties: PEOPLE v. GORDON et al. Civ. 14640, 14696.
• Court: California Court of Appeals Court of Appeals

Page 287

234 P.2d 287

105 Cal.App.2d 711

PEOPLE v. GORDON et al.

Civ. 14640, 14696.

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

July 30, 1951.

Paul I. Myers, Los Altos, for appellant.

Edmund G. Brown, Atty. Gen., Richard H. Perry, Deputy Atty. Gen., for respondent.

NOURSE, Presiding Justice.

Defendant appeals in an action by the People to enjoin certain alleged violations of the Unfair Trade Practices Act, Bus. and Prof.Code, § 17000 et seq., to wit, the selling of articles or products at less than cost in the manner prohibited in § 17043 of that code and the practice of using articles or products as 'loss leaders' prohibited in § 17044. The court granted without notice to defendant a temporary restraining order dated February 15, 1950. Defendant's motion to dissolve said order was denied after hearing on February 20, 1950. On April 3, 1950, after further hearing an order was entered in the minutes reading: 'Cause herein, having been heretofore heard and submitted, the Court now makes its order granting a Preliminary Injunction to enjoin the defendant from selling below invoice or replacement cost, which ever is lower, subject to the exceptions on 'below cost' sales as set forth in the Business & Professional Code, Section 17050.'

On April 13, 1950, notice of appeal from said three orders was filed, which appeal is numbered 14640. On May 25, 1950, the court filed a formal preliminary injunction, dated May 24th of wider extent than the minute order. Over and above selling below cost it enjoins offering for sale, distributing or offering to distribute, giving away or offering to give away or advertising with the intent to sell, distribute or give away and also engaging in the practice of using any article or product as a 'loss leader.' 'Cost' and 'loss leader' are defined in detail.

From this formal injunction defendant appealed separately on June 30, 1950, which appeal is numbered 14696. The two appeals were consolidated by order of the court.

The first question presented is whether the minute order of April 3, 1950 or the formal order of May 24th is the final and appealable decision. Appellant contends that, as the minute order contained no direction for the preparation of a written order and no findings were required, this order under Rule 2(b)(2) of the Rules on Appeal finally disposed of the plaintiff's application and that the formal preliminary injunction is to be disregarded as a nullity, citing Pessarra v. Pessarra, 80 Cal.App.2d 965, 183 P.2d 279. Such would certainly be the case if the court could validly dispose of the application for a preliminary injunction by the minute order. In Eisenberg v. Superior Court, 193 Cal. 575, 579, 226 P. 617, the Supreme Court citing from Holtum v. Greif, 144 Cal. 521, 525, 78 P. 11, said: "the decision of the trial court having been once made after regular submission of the motion its power is exhausted--it is functus officio." See also Holden v. California Emp., etc., Comm., 101 Cal.App.2d 427, 225 P.2d 634; 14 Cal.Jur. 283. Moreover the appeal taken from the minute order would at any rate have divested the trial court of further jurisdiction in the same matter. Sacks v. Superior Court, 31 Cal.2d 537, 540, 190 P.2d 602. However the question remains whether the trial court could make its decision by a minute order or whether it could act only by making a formal written order. 'The problem is one of trial court procedure, independent of the Rules on Appeal, since Rule 2 prescribing the time to file notice of appeal does not come into operation until there is an appealable judgment or order.' Gwinn v. Ryan, 33 Cal.2d 436, 437, 202 P.2d 51, 52.

In Wheeler v. Superior Court, 82 Cal.App. 202, 255 P. 275, where also there was a minute order and a written order for a temporary injunction it was held that the minute order, incomplete as to the terms, could not be the basis of an injunction but that only the formal written order could have such effect, the court stating, 82 Cal.App. at page 209, 255 P. at page 278: 'It is true that in some instances orders may rest upon the clerk's minutes, but it is also true that others require some formulation by the judge. This is particularly so in the case of injunctions. An injunction should contain sufficient information on its face to apprise the party upon whom it is served of what he is restrained from doing. In ordinary actions at law, it is the rule that the signature of the judge is not necessary to the validity of the judgment, but it has been the almost invariable rule in this state for decrees in equity to be so signed. (Citation.) There are many judgments whose entry involves nothing more than clerical or ministerial duties, such as a judgment for the recovery of specific real or personal property, or a fixed amount of damages, or one which is rendered generally that the plaintiff is not entitled to recover from the defendant. In such cases, the mere order for judgment is all that is needed for the clerk, but in many other actions, and especially those of an equitable nature, the form of the judgment and the character of relief that is to be granted are as much a subject for the exercise of judicial power as is the determination of the party in whose favor judgment is to be rendered.'

The Wheeler case was cited by the Supreme Court in Wutchumna Water Co. v. Superior Court, 215 Cal. 734, 737, 12 P.2d 1033, where it was held that while it has been declared to be an almost invariable rule that decrees in equity are signed by the judge, where the judge is satisfied that relief upon an application for a preliminary injunction may be granted in the language of the prayer or motion there is no rule statutory or otherwise, which requires that he make and sign a decision in writing, and the entry of his order, announced orally in open court, in the clerk's minute-book makes the decision a matter of record. We conclude from those authorities that an order for a preliminary injunction can be validly made by minute order if said order by reference provides all required details of formulation but that otherwise a formal written order is essential. Comparison of the minute order and the formal written order in this case shows that the minute order neither by reference nor otherwise contains detailed formulation of the acts prohibited. There is therefore here not present a situation in which the minute order can be considered a final and appealable disposition of the application for a preliminary injunction. Rule 2(b)(2) of the Rules on Appeal cannot influence the conclusion. Although, as pointed out in Pessarra v. Pessarra, supra, said rule was adopted to do away with the embarrassing old rule under which the question whether a minute order was final and appealable or not depended on the often unexpressed intention of the trial court, the rule remained that an appeal from a minute order does not lie if the proceeding was of such character that a formal order was required independent of the intention of the trial court. In Hirschberg v. Oser, 82 Cal.App.2d 282, 287, 186 P.2d 53, it was held that an order confirming a sale under section 785, C.C.P. must contain matters such as a description of the property which never appear in a minute order, that it requires a detailed formal order, and that therefore rule 2(b)(2) has no application but rule 2(b)(3) relating to orders not to be entered in the minutes is the applicable rule so that the date of entry for the purpose of appeal is the date of filing of the order signed by the court. A similar reasoning and conclusion seem in general applicable to orders for a preliminary injunction. We hold that only the formal written preliminary injunction was the final and appealable decision of the court in this case.

Appellant attacks the injunction on the ground of unconstitutionality of the provisions of the Unfair Practices Act on which it is based. It is contended that the Unfair Practices Act violates the Commerce Clause of the Federal Constitution, art. 1, § 8, cl. 3, because it necessarily establishes floors for prices of goods, affects the quantity of interstate shipments, and therefore constitutes a burden on interstate commerce. It is contended, but with insufficient reference to the record, that the commodities specified in the complaint as having been sold below cost had moved in interstate commerce. Even if we assume that the goods here involved had so moved the contention is without merit. To invalidate a state statute under the Commerce Clause more is required than such vague generalities. The Unfair Practices Act does not purport to regulate interstate commerce but was passed in the exercise of the state police power and was held by our Supreme Court to be a legitimate and reasonable exercise of that power. See Wholesale Tobacco Dealers v. National, Etc., Co., 11 Cal.2d 634, 643, 82 P.2d 3, 118 A.L.R. 486, where the purpose of the act is also analyzed. In United States v. Food and Grocery Bureau of Southern California, D.C., 43 F.Supp. 966, 972, it is said with respect to said act: 'Certain it is that a State may, within its boundary, regulate trade practices, so as to prevent unhealthy competition.' In Parker v. Brown, 317 U.S. 341, 360, 63 S.Ct. 307, 318, 87 L.Ed. 315, Chief Justice Stone said: 'This Court has repeatedly held that the grant of power to Congress by the Commerce Clause did not wholly withdraw from the states the authority to regulate the commerce with respect to matters of local concern, on which Congress has not spoken. (Citations.) A fortiori there are many subjects and transactions of local concern not themselves interstate commerce or a part of its operations which are within the regulatory and taxing power of the states, so long as state action serves local ends and does not discriminate against the commerce, even though the exercise of these powers may materially affect it.' Undoubtedly our act serves local ends and...