Pigeon Point Ranch, Inc. v. Perot

• Decision Date: 26 February 1963
• Citation: 28 Cal.Rptr. 865,379 P.2d 321,59 Cal.2d 227
• Court: California Supreme Court
• Parties: , 379 P.2d 321 PIGEON POINT RANCH, INC., Plaintiff and Appellant, v. Edward S. PEROT et al., Defendants and Respondents. L. A. 27012.

Page 865

28 Cal.Rptr. 865

59 Cal.2d 227, 379 P.2d 321

PIGEON POINT RANCH, INC., Plaintiff and Appellant, v. Edward S. PEROT et al., Defendants and Respondents.

L. A. 27012.

Supreme Court of California, In Bank.

Feb. 26, 1963.

Schauer, Ryon & McIntyre and Robert W. McIntyre, Santa Barbara, for plaintiff and appellant.

Schramm, Raddue & Seed, Edward W. Schramm and Dale E. Hanst, Santa Barbara, for defendants and respondents.

GIBSON, Chief Justice.

Plaintiff corporation is seeking to recover corporate funds allegedly misused by its officers. Defendant Perot was the president and a director of the corporation; defendant Duncan was its secretary and treasurer. The complaint prays for judgment against Perot on the first three counts in the amounts of $1,437.14, $868.65 and $1,000. The fourth count seeks recovery from Perot and Duncan in the amount of $1,250. General demurrers were sustained with leave to amend as to the first, second and third causes of action, and overruled as to the fourth. Plaintiff filed a written declination to amend, and the court granted defendants' motion to dismiss the first three counts. A judgment of dismissal as to those counts was then entered.

Plaintiff appealed to the District Court of Appeal, and defendants moved to dismiss the appeal on the ground that the judgment was not appealable. They argued that the judgment left the fourth count of the complaint still pending in the superior court and that for this reason it did not dispose of the entire case and was not a 'final judgment' within the meaning of section 963 of the Code of Civil Procedure, which permits an appeal from such a judgment. The motion was denied without a written opinion, and a petition for hearing in the Supreme Court based upon the same ground was also denied. The District Court of Appeal then in a written opinion held that the judgment was appealable, considered the merits, and reversed the judgment. (Cal.App., 23 Cal.Rptr. 667.) This court granted a hearing.

Defendants now repeat the identical contention that they made in support of their motion to dismiss the appeal. A number of decisions have held that when a motion to dismiss an appeal is denied by an appellate court prior to consideration of the merits of the appeal, the decision, after expiration of time for rehearing and for review by a higher court, constitutes a final determination on the question of appealability. (George v. Bekins Van & Storage Co., 33 Cal.2d 834, 850-851, 205 P.2d 1037; Easton v. Ash, 18 Cal.2d 530, 539, 116 P.2d 433; Tyrrell v. Baldwin, 78 Cal. 470, 471-472, 21 P. 116; White v. Sweeney, 138 Cal.App.2d 199, 202, 291 P.2d 77; Cowen v. Cowen, 100 Cal.App.2d 366, 371, 223 P.2d 666; Hartfield v. Alderete, 26 Cal.App. 604, 605, 147 P. 991; Edwards v. Brockway, 16 Cal.App. 626, 631, 117 P. 787; see People v. Randazzo, 48 Cal.2d 484, 488, 310 P.2d 413.) The opinions in two of the cases, Randazzo and Hartfield, refer to the rule as an application of the doctrine of the law of the case, and, although the other decisions do not discuss the matter, it is clear the rule is based on that doctrine rather than on res judicata. Accordingly, it is subject to the various qualifications which have been made with respect to law of the case, such as the requirements that the point of law involved must have been necessary to the prior decision, that the matter must have been actually presented and determined by the court, and that application of the doctrine will not result in an unjust decision. (DiGenova v. State Board of Education, 57 Cal.2d 167, 178-180, 18 Cal.Rptr. 369, 367 P.2d 865; Vangel v. Vangel, 45 Cal.2d 804, 809-810, 291 P.2d 25, 55 A.L.R.2d 1385; Tomaier v. Tomaier, 23 Cal.2d 754, 757, 146 P.2d 905.)

Defendants, relying upon Bettencourt v. Bank of Italy etc. Ass'n, 216 Cal. 174, 180, 13 P.2d 659, assert that the doctrine is not applicable here because the denial of their motion by the District Court of Appeal was without written opinion, because the decision was rendered before transmittal of the record to that court, and because the question of appealability goes to the jurisdiction of the court. Although that case lends support to their position, it has not been followed in any of the decisions relating to this question. Moreover, one of the grounds upon which the opinion was based, i. e., the existence of a jurisdictional issue, was directly rejected in Gore v. Bingaman, 20 Cal.2d 118, 121, 124 P.2d 17, where we held that law of the case would apply even though it was contended that absence of jurisdiction rendered the decision on the prior appeal a nullity.

The other reasons urged by defendants for refusing to apply the doctrine are, in effect, a contention that the decision of the District Court of Appeal on the motion to dismiss should be treated as merely interlocutory in view of the circumstances under which it was made. The court, however, was presented with only one question, namely, appealability of the judgment, and, in the interests of orderly administration of justice, the denial of the motion, made without qualification, should be interpreted as a final determination. The court, if it had so desired, could have granted leave to renew the motion (see Tyrrell v. Baldwin, supra, 78 Cal. 470, 471-472, 21 P. 116) or declared that the denial was without prejudice. The absence of such a qualification would ordinarily lead the parties to believe that none was intended, and they should be entitled to rely upon the decision.

The fact that, as noted above, the doctrine of law of the case will not be applied so as to do an injustice will be ample protection to the parties if any unfairness would result. The application of the doctrine here will not result in injustice or unfairness but, to the contrary, will enable us to promptly dispose of the only issues involved on the merits, i. e., whether the first three counts of the complaint state causes of action. Bettencourt v. Bank of Italy etc. Ass'n, supra, 216 Cal. 174, 13 P.2d 659, is overruled insofar as it is inconsistent with these views.

The first cause of action alleges as follows: Perot, on behalf of himself and others whom he...