Rooney v. Vermont Investment Corp.

• Decision Date: 02 November 1973
• Court: California Supreme Court
• Parties: , 515 P.2d 297 Peter ROONEY et al., Plaintiffs and Respondents, v. VERMONT INVESTMENT CORPORATION et al., Defendants and Appellants. L.A. 30088.

Page 353

110 Cal.Rptr. 353

10 Cal.3d 351, 515 P.2d 297

Peter ROONEY et al., Plaintiffs and Respondents, v. VERMONT INVESTMENT CORPORATION et al., Defendants and Appellants.

L.A. 30088.

Supreme Court of California,

In Bank.

Nov. 2, 1973.

Rehearing Denied Dec. 19, 1973.

Lawson M. Brown, Studio City, for defendants and appellants.

Lipsig, Rosenfield, Temkin & Leff, and Robert G. Leff, Beverly Hills, for plaintiffs and respondents.

John D. Maharg, County Counsel, and Robert C. Lynch, Deputy County Counsel, Los Angeles, as amici curiae on behalf of plaintiffs and respondents.

WRIGHT, Chief Justice.

Defendants appeal from a judgment and an order denying a motion to set aside that judgment. The validity of the judgment is challenged on the ground that the commissioner of the superior court who signed it did not have authority to do so and in any event erred in rendering it.

Plaintiffs sued on a promissory note received as partial consideration upon the purchase by defendants of a night club business. Defendants cross-complained for declaratory and injunctive relief. The parties and their attorneys thereafter executed a written 'Stipulation for Settlement' by which their original purchase arrangements were modified. Pursuant thereto defendants substituted a newly executed note providing for acceleration on default and a newly executed set of security instruments. The stipulation further provided that if defendants defaulted in making installment payments under the new note plaintiffs could give notice of default and file a declaration with the court stating the fact of such default and the balance due and that the court thereupon could enter judgment for the entire balance remaining unpaid plus attorney's fees and costs. ¹

Plaintiffs subsequently declared a default and, without any notice of hearing, presented the stipulation, declarations of the default and the amount of the balance due, and a proposed judgment to a commissioner of the Los Angeles County Superior Court. After examining the documents and related papers and the court file of the case, the commissioner signed the judgment as 'Judge, Superior Court, Pro Tem,' and the judgment was entered. ² A subsequent motion to set aside the judgment was denied. ³ Appeals have been taken from both the judgment and the order denying the motion. We granted a hearing to resolve, inter alia, issues concerning the extent of the powers of court commissioners. In summary, we hold:

1. The commissioner did not have the power to act as a temporary judge because no stipulation that he could so act had been entered into by the parties. (Cal.Const., art. VI, § 21; People v. Tijerina (1969) 1 Cal.3d 41, 48--49, 81 Cal.Rptr. 264, 459 P.2d 680.)

2. Rendition of a judgment in the terms stated and agreed upon in a written stipulation executed by the parties and filed in a pending civil action is among the 'subordinate judicial duties' that court commissioners may constitutionally be empowered to perform. (Cal.Const., art. VI, § 22.)

3. A superior court commissioner has power to render such a judgment in Los Angeles County and other counties to which Code of Civil Procedure section 259a, subdivision 6, applies, provided that the matter is among those that the court has ordered him to hear and determine. ⁴

4. The record before us, however, does not reflect that the court had ordered the commissioner to hear and determine the application for the present judgment or to hear and determine any class of matters which included such application.

5. Apart from questions of the commissioner's power, rendition of the judgment was error because the parties' stipulation did not set out all the essential terms of a judgment and did not authorize entry of judgment on plaintiff's ex parte application and without any notice of hearing.

6. The hearing and order on defendants' motion to set aside the judgment did not give due recognition to their right to have matters which were left open by the stipulation resolved in an adversary fact finding proceeding.

Preliminarily we note that two timely notices of appeal have been filed, one from the judgment itself, the other from the denial of the motion to set the judgment aside. Since the judgment was appealable (§ 904.1, subd. (a)), the order thereafter made denying the motion to set it aside also satisfies the requirements of an appealable order. ⁵ An order denying a motion to vacate an appealable judgment is generally not appealable if such appeal raises only matters that could be reviewed on appeal from the judgment itself. The reason for this general rule is that to allow the appeal from the order of denial would have the effect of allowing two appeals from the same ruling and might in some cases permit circumvention of the time limitations for appealing from the judgment. (Raff v. Raff (1964) 61 Cal.2d 514, 518, 39 Cal.Rptr. 366, 393 P.2d 678; Spellens v. Spellens (1957) 49 Cal.2d 210, 228--229, 317 P.2d 613.) But this reason does not apply to the present case in which the appeals from the judgment and from the denial of the motion to set the judgment aside, although taken by separate notices of appeal, are being heard together on a single record.

Moreover, an appeal from an order refusing to vacate a judgment will lie when the record available to the appellate court on such appeal raises issues which are not disclosed or could not be disposed of on appeal from the judgment itself. (Title Ins. & Trust Co. v. California Development Co. (1911) 159 Cal. 484, 488, 114 P. 838; Cope v. Cope (1964) 230 Cal.App.2d 218, 228, 40 Cal.Rptr. 917.) By considering and deciding the present appeal as one taken from the order denying defendant's motion to set aside the judgment, we can properly consider as part of the appellate record the declarations and memoranda filed in support of and opposition to the motion. These supporting documents illuminate such matters as the manner in which the judgment was applied for and was entered and the conflicting contentions of the parties concerning the meaning of the stipulation for settlement.

Motion to Dismiss Appeal

Plaintiffs have moved herein to dismiss both appeals on three grounds. First, they complain that the appeal is frivolous. It is not. Second, they contend that in the settlement stipulation defendants expressly waived all rights to appeal from any judgment entered under the stipulation. Such waiver, however, did not preclude an appeal to determine whether or not the judgment was authorized by the stipulation. (See Reed v. Murphy (1925) 196 Cal. 395, 399, 238 P. 78.) Third, they urged that on June 15, 1971, which was prior to entry of judgment, the corporate powers of defendant Vermont Investment Corporation were suspended under section 23302 of the Revenue and Taxation Code. The corporate powers were revived on June 20, 1972, 20 days after the suspension had been called to defendants' attention by the filing of plaintiffs' brief. The revival of corporate powers validated the procedural steps taken on behalf of the corporation while it was under suspension and permitted it to proceed with the appeal. (Peacock Hill Assn. v. Peacock Lagoon Construction Co. (1972) 8 Cal.3d 369, 105 Cal.Rptr. 29, 503 P.2d 285.)

Power of Court Commissioner to Act as a Temporary Judge

A fundamental substantive issue presented herein is whether the superior court commissioner was vested with judicial power at the time he purported to sign the judgment as an acting judge. The signature on the judgment is that of a court commissioner followed by the appellation, 'Judge, Superior Court, Pro. Tem.' On the date the judgment was signed and entered, the commissioner who signed the judgment was a duly appointed and acting commissioner of the Los Angeles County Superior Court. ⁶ A court commissioner may act as temporary judge only when the parties to the proceeding stipulate that he may do so. (Cal.Const., art. VI, § 21; Code Civ.Proc., § 259a, subd. 4; People v. Tijerina, supra, 1 Cal.3d 41, 48--49, 81 Cal.Rptr. 264, 459 P.2d 680.) No such stipulation is shown by the record.

The stipulation for settlement did not include a provision that a temporary judge might act for the court in hearing or determining an application for judgment or in rendering a judgment, and a stipulation specifying only the conditions under which a court may enter a judgment cannot be construed to be equivalent to a stipulation that judgment may be rendered by a court commissioner acting as a temporary judge. Nor are we here concerned with the conditions under which voluntary participation in a court proceeding before a commissioner may be tantamount to a stipulation that the commissioner serve as temporary judge (see People v. Surety Insurance Co. (1971) 18 Cal.App.3d Supp. 1, 95 Cal.Rptr. 925), as defendants in the instant case were not notified of any date of hearing and were not present at the presentation to the commissioner of plaintiffs' application for entry of the judgment.

Matter Assignable to Court Commissioners Pursuant to California Constitution, Article VI, Section 22

The commissioner's authority to render a stipulated judgment was not dependent on his qualifying as a temporary judge if in fact such authority to so act had been conferred upon him as a court commissioner. The fact that the judgment was signed by the commissioner followed by the notation, 'Judge, Superior Court, Pro Tem.' does not add or detract from its legal effect as the act of a court commissioner. (Lewis v. Neblett (1961) 188 Cal.App.2d 290, 298, 10 Cal.Rptr. 441.) Plaintiffs maintain that the commissioner had authority to render a stipulated judgment pursuant to section 259a, subdivision 6, under which court commissioners may be empowered to decide 'uncontested actions and proceedings.' (See fn. 7, infra.) In response, defendants assert that the issue of such authority has been resolved adversely to plaintiff's position in Mosler v. Parrington (1972) 25...