Roski v. Superior Court

• Decision Date: 25 May 1971
• Citation: 95 Cal.Rptr. 312,17 Cal.App.3d 841
• Court: California Court of Appeals Court of Appeals
• Parties: Edward P. ROSKI, Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent, TRAVELERS INSURANCE COMPANY, Real Party in Interest, Oscar E. Shaw, Intervenor; Real Party in Interest. Civ. 38141.

Page 312

95 Cal.Rptr. 312

17 Cal.App.3d 841

Edward P. ROSKI, Petitioner, v. SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent TRAVELERS INSURANCE COMPANY, Real Party in Interest Oscar E. Shaw, Intervenor; Real Party in Interest.

Civ. 38141.

Court of Appeal, Second District, Division 4, California.

May 25, 1971.

Hearing Denied July 21, 1971.

Murchison, Cumming, Baker & Velpmen, and Joseph Di Giulio, Los Angeles, for petitioner.

Milton Wasserman, Los Angeles, for intervenor-real party in interest, Oscar E. Shaw.

No appearance for real party in interest, Travelers Insurance Company, or for respondent court.

KINGSLEY, Associate Justice.

Intervenor and real party in interest Shaw (hereinafter 'Shaw') was injured on July 13, 1967, when he fell through the ceiling of a building owned by Petitioner Roski and his partners, while Shaw was working thereon as an employee of Virco Manufacturing Company. Virco was insured for workmen's compensation coverage by Travelers Insurance Company (hereinafter 'Travelers'), the other real party in interest herein. Pursuant to its policy with Virco, Travelers made compensation payments to Shaw.

Travelers then filed an action against petitioner and his copartners for reimbursement on the ground of negligence on the part of such defendants which allegedly caused the accident. This action, filed July 3, 1968, was Los Angeles Superior Court case number 935202: Travelers Insurance Company v. Roski, et al. The answers of petitioner and his codefendants were filed on or about August 6, 1968. Settlement negotiations between Travelers and the defendants resulted in the filing by Travelers and the entry of a voluntary dismissal pursuant to Code of Civil Procedure, section 581, subdivision (1), in the civil register on March 27, 1970.

On September 23, 1970, Shaw filed a document entitled 'Notice of Motion to Vacate and Set Aside Dismissal of Action; and for Order Permitting Oscar E. Shaw, the Real Party in Interest, to file his Complaint in Intervention for Personal Injuries.' After continuances, the matter of the motion came on for hearing and, on December 23, 1970, the respondent court, purportedly, pursuant to Code of Civil Procedure section 473, granted the motion to vacate the dismissal and granted leave to Shaw to file his complaint in intervention. Thereafter petitioner filed a motion to vacate the order granting the motion to vacate the dismissal. This was heard by the court and denied on March 9, 1971.

Petitioner Roski now seeks, in this court, a writ of mandate to compel respondent court to vacate the order setting aside the voluntary dismissal and a writ of prohibition against any further proceedings in case number 935202. We issued an alternative writ of mandate; a return has been filed and the matter has been argued before us. For the reasons hereinafter set forth we direct the issuance of a peremptory writ of mandate; since the effect of that writ will be to terminate case number 935202, we deny the petition for a writ of prohibition as unnecessary.

Even though more than one year had elapsed since the date of the injury, Roski was still entitled to intervene in the action brought by Travelers, so long as that action remained pending. (Labor Code, § 3853.) He was entitled to written notice of the Travelers action (Labor Code, § 3853), and, also, to notice of any release or settlement of the Travelers action. (Labor Code, § 3860, subd. (a).) ¹

Shaw had received the written notice of the Travelers action, as required by section 3853, on December 8, 1968; his deposition in that action was taken on December 17, 1968. However, he did not exercise, or attempt to exercise, his right to intervene in that action until September 23, 1970--thirty months after the action was filed, six months after it had been dismissed and five months after he admits knowledge of the dismissal. ²

Shaw's attorney, Wasserman, telephoned to Travelers' attorney, Kean, some two days before the settlement of the case. There is a dispute between the attorneys as to what was said at the time of the telephone call, Wasserman claiming that he told Kean that he was going to file a complaint in intervention. Kean states that Wasserman telephoned him to advise that he was going to reopen Shaw's case with the Workmen's Compensation Appeals Board. Kean claims that he advised Wasserman that he, Kean, did not represent Travelers before the Workmen's Compensation Appeals Board and that Wasserman should take the matter up with Travelers Insurance office in Torrance. Kean further states that he advised Wasserman of the settlement negotiations with Roski and his codefendants, and that those negotiations were currently going on and would continue and that it appeared that a settlement had been reached.

In any event, on or about April 20, 1970, Shaw attempted to file a complaint in intervention and found that the main action had been dismissed with prejudice as to all defendants on March 27, 1970.

Petitioner contends that respondent court acted in excess of or without jurisdiction in ruling upon the motion to vacate dismissal and in issuing its order to vacate the dismissal theretofore entered in Travelers v. Roski, Los Angeles Superior Court case number 935202.

The contentions of petitioner seem to be correct. The pertinent provisions of section 581 of the Code of Civil Procedure read as follows:

'An action may be dismissed in the following cases:

'1. By plaintiff, by written request to the clerk, filed with the papers in the case * * * at any time before the actual commencement of trial * * *; provided, that a counterclaim has not been set up, or affirmative relief sought by the cross-complaint or answer of the defendant.

'* * *int

'5. The provisions of subdivision 1, of this section, shall not prohibit a party from dismissing with prejudice * * * any cause of action at any time before decision rendered by the court. Provided, however, that no such dismissal with prejudice shall have the effect of dismissing a counterclaim or cross-complaint filed in said action or of depriving the defendant of affirmative relief sought by his answer therein.'

The term 'defendant,' as used in that section, applies to an intervenor in the action if he has sought affirmative relief against a party to the action. (In re Mercantile Guaranty Co. (1968) 263 Cal.App.2d 346, 350, 69 Cal.Rptr. 361.)

In the case at bench, as of March 27, 1970, there was no pleading on file seeking affirmative relief within the meaning of Code of Civil Procedure section 581 and plaintiff therefore had an absolute right to dismiss, and the dismissal was effective as of that date. Accordingly, the court was thereafter without jurisdiction to act upon any motion that Shaw might file. It is a well settled proposition of law that, where a plaintiff has filed a voluntary dismissal of an action pursuant to Code of Civil Procedure section 581, subdivision (1), the court is without jurisdiction to act further in the action. (Eddings v. White (1964) 229 Cal.App.2d 579, 583, 40 Cal.Rptr. 453; Egly v. Superior Court (1970) 6 Cal.App.3d 476, 481--483, 86 Cal.Rptr. 18; Klinghoffer v. Barasch (1970) 4 Cal.App.3d 258, 262, 84 Cal.Rptr. 350.) As this court declared, in a case coming within this statute, where no affirmative relief has been sought in the pleadings, the privilege of dismissing belongs to the plaintiff and may be exercised by him without the knowledge of the other parties or the consent of the court. (Wilson v. L.A. County Civil Service Com. (1954) 126 Cal.App.2d 679, 273 P.2d 34; Nickola v. Superior Court (1952) 111 Cal.App.2d 620, 621, 245 P.2d 20.)

The provisions of Code of Civil Procedure section 473 cannot be relied upon for relief by Shaw nor does that remedial section clothe respo...