Ryerson v. Riverside Cement Co.

• Decision Date: 23 October 1968
• Parties: David F. RYERSON et al., Plaintiffs and Respondents, v. RIVERSIDE CEMENT COMPANY, etc., Defendants and Respondents, People of the State of California, Intervener and Appellant. Civ. 8989.
• Court: California Court of Appeals Court of Appeals

Page 595

72 Cal.Rptr. 595

266 Cal.App.2d 789

David F. RYERSON et al., Plaintiffs and Respondents, v. RIVERSIDE CEMENT COMPANY, etc., Defendants and Respondents, People of the State of California, Intervener and Appellant.

Civ. 8989.

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

Oct. 23, 1968.

[266 Cal.App.2d 791] Reid, Babbage & Coil, Enos C. Reid and Michael H. Clepper, Riverside, for defendant and respondent Riverside Cement Co.

[266 Cal.App.2d 790] Mary Moran Pajalich, and John C. Gilman, San Francisco, for the Public Utilities Commission, for appellant and intervener.

OPINION

TAMURA, Associate Justice.

The People, on relation of the Public Utilities Commission, appeal from an order denying its motion for leave to intervene in an action brought by plaintiffs Ryerson and Phillips, doing business as Phillips Trucking Co. (Phillips), a highway permit carrier, against defendant Riverside Cement Company (Riverside) to recover alleged undercharges for certain shipments made in 1957.

The history of this protracted litigation may be summarized as follows:

In 1958 the Public Utilities Commission (Commission) conducted an investigation into the operations and practices of Phillips and found that it had undercharged Riverside for certain shipments of gypsum rock by charging multiple lot rates without issuing shipping documents in conformity with Commission tariffs. The applicable regulation, known as Item 85-A, Minimum Rate Tariff No. 2, provided in substance that before a multiple lot shipment may qualify for the rates prescribed therefor, the entire shipment must be available and tendered at one time, a single shipping document must be issued prior to or at the time of the first pickup and the entire shipment must be picked up within two days. Following a hearing the Commission rendered its decision and order directing Phillips to review its past records to determine whether undercharges in addition to those found by the Commission occurred and to take such action as may be necessary to collect them.

Pursuant to that order, Phillips reviewed its records and filed the present undercharge action on April 29, 1959. The complaint alleged that for certain shipments made in 1957 Phillips had undercharged defendant Riverside in the sum of $17,003.81, and prayed for a declaration of the rights and obligations of the parties under the Commission's decision and order. Riverside denied the undercharges and cross-complained for a decree to reform the manifest freight bills issued by Phillips to conform with Item 85-A of the Commission's tariff regulations alleging that by mutual mistake the documents failed to conform with the oral agreement of the parties respecting the terms and conditions of the shipments and that had they so conformed they would have met Commission requirements so as to qualify the shipments for the lower multiple lot rates.

Thereafter Phillips and Riverside filed an agreed statement of facts in which they stipulated that in 1957 they entered into an oral agreement for Phillips to haul gypsum rock from Plaster City, California to Ora Grande, California, in sufficient quantities to meet the shipper's requirements, estimated at 600 tons per week; that they agreed that the shipments were to be made in accordance with applicable Commission regulations; that Phillips hauled 412 shipments in grounds of 3, 4, 5 and sometimes 6 within a 48-hour period; that Riverside paid the rate applicable to multiple lot shipments; that the 412 shipments, together with 9 shipments investigated by the Commission, if treated as separate shipments, would have resulted in an undercharge of $17,003.81; that if the shipments were treated as multiple lot shipments in accordance with the oral agreement of the parties, no undercharges would have resulted; and that Phillips' failure to issue proper shipping documents was the result of a mutual mistake.

The court made findings in accordance with the agreed statement and on October 14, 1960, entered a decree ordering reformation of the manifest freight bills issued by Phillips and adjudged that Phillips take nothing by its complaint.

On August 16, 1961, the People, on relation of the Commission, filed an independent equitable action to vacate the judgment in the undercharge action, alleging in substance that the freight bills issued by Phillips were not the result of a mistake, that the agreed statement and judgment were collusive and that the court exceeded its jurisdiction in granting the relief decreed. Defendant's demurrer to the complaint was sustained, judgment of dismissal was entered and the People appealed. ¹

This court reversed the judgment. (People ex rel. Public Util. Com. v. Ryerson, 241 Cal.App.2d 115, 50 Cal.Rptr. 246 (March 1966).) We held that the complaint alleged facts sufficient to entitle the People to equitable relief for extrinsic fraud and for lack of jurisdiction in the court below to enter its decree reforming the shipping documents on the basis of the agreed statement. The Supreme Court denied a hearing and the matter was remanded to the superior court. ²

On March 20, 1967, the People, on relation of the Commission, filed a petition for leave to intervene, together with a complaint in intervention and a demurrer to the cross-complaint, in the principle undercharge action. The complaint in intervention alleged in substance that Phillips had failed to collect the full amount of the established minimum rate for the shipments in question, that Phillips and Riverside filed the agreed statement to frustrate collection of undercharges, and that Phillips has an unconditional duty to collect undercharges in the sum of $17,003. An ex parte order granting leave to intervene was initially entered, that order was vacated without prejudice to a noticed application, and upon a noticed application intervention was denied. The People appealed from the order denying intervention. The order is an appealable order. (Bowles v. Superior Court, 44 Cal.2d 574, 582, 283 P.2d 704).

Section 387 of the Code of Civil Procedure provides that '(a)t any time before trial' any person who has an interest in the matter in litigation may intervene in an action. We previously held that the preservation of the integrity of the Commission's order directing collection of the undercharges constituted a sufficient interest to entitle the People to intervene in the principle undercharge action. (People ex rel. Public Util. Com. v. Ryerson, supra, 241 Cal.App.2d 115, 120, 50 Cal.Rptr. 246.) Defendant Riverside, however, urges that intervention was sought too late because the judgment had become final long before the application was made.

Although the statute requires that intervention be 'before trial,' it has been construed as presupposing a valid trial. In Johnson v. Hayes Cal Builders, Inc., 60 Cal.2d 572, 35 Cal.Rptr. 618, 387 P.2d 394, a motion to intervene, though made five months after entry of a default judgment, was held to be timely where intervention was sought on the ground that the judgment was void on its face. The People contend that under the applicable law announced by this court in People ex rel. Public Util. Com. v. Ryerson, supra, 241 Cal.App.2d 115, 50 Cal.Rptr. 246, the judgment in the present undercharge action is void on its face and that, hence, the fact that the judgment had become final did not preclude intervention.

In People ex rel. Public Util. Com. v. Ryerson, supra, we held that an allegation that the judgment in the undercharge action was based upon a stipulation between the carrier and the shipper that the failure of the carrier to issue shipping documents in compliance with Commission regulations was the result of a mistake on the part of the carrier alleged facts sufficient to show that the court exceeded its jurisdiction in granting the relief decreed. We noted that section 1759 of the Public Utilities Code prohibits any court, except the Supreme Court, from exercising jurisdiction to review, reverse, correct, or annul any order or decision of the Commission or to interfere with the Commission in the performance of its official duties and concluded:

'To hold that the shipping documents can be 'reformed' on the facts set forth in the stipulation and in the manner decreed would not only nullify the decision and order of the commission but would virtually render ineffective Item 85-A of the tariff regulation. For the foregoing reasons, the judgment was in excess of the court's...