Simmons v. Superior Court In and For Santa Barbara County

• Decision Date: 24 June 1959
• Citation: 52 Cal.2d 373,341 P.2d 13
• Court: California Supreme Court
• Parties: C. K. SIMMONS, Petitioner, v. SUPERIOR COURT of the State of California IN AND FOR SANTA BARBARA COUNTY, Respondent, Santa Barbara Ice & Cold Storage Co. (a Corporation) et al., Real Parties in Interest. L. A. 25320.

Page 13

341 P.2d 13

52 Cal.2d 373

C. K. SIMMONS, Petitioner, v. SUPERIOR COURT of the State of California IN AND FOR SANTA BARBARA COUNTY, Respondent Santa Barbara Ice & Cold Storage Co. (a Corporation) et al., Real Parties in Interest.

L. A. 25320.

Supreme Court of California, In Bank.

June 24, 1959.

Rehearing Denied July 22, 1959.

Price, Postel & Parma, H. Clarke Gaines and Gerald S. Thede, Santa Barbara, for petitioner.

No appearance for respondent.

Griffith & Thornburgh and Laselle Thornburgh, Santa Barbara, for real parties in interest.

TRAYNOR, Justice.

Petitioner commenced an action in the respondent court against the Santa Barbara Ice and Cold Storage Company and others. After the defendants' demurrer to a second amended complaint was sustained with leave to amend, a 'Notice of Motion to Dismiss' was filed on the ground that petitioner had failed to amend his complaint within the time allowed by the court. The matter came on for hearing on August 27, 1956. Petitioner appeared at the hearing and stated that he elected to stand on the pleadings, but opposed the motion on the ground that the demurrer had been improperly sustained. The court then stated that it desired to check the file, and after doing so instructed the clerk, in chambers, that the motion to dismiss was granted. The order was entered in the minutes of the court on the same day. No notice appears to have been given petitioner or his counsel of the fact that the motion had been granted, and he states that he did not learn of the dismissal until March 18, 1957, almost five months after the time for appeal had expired. In this proceeding, petitioner seeks certiorari to review the order of dismissal on the grounds that the respondent court exceeded its jurisdiction by causing the order of dismissal to be entered in this manner, and that since he had no notice of the fact that the order had been entered, the remedy of appeal was not available to him.

Certiorari is available only when it can be shown that an inferior court has exceeded its jurisdiction and that 'there is no appeal, nor * * * any plain, speedy, and adequate remedy' open to the party seeking the writ. Code Civ.Proc. § 1068; Noble v. Superior Court, 109 Cal. 523, 526, 42 P. 155; Olcese v. Justice's Court, 156 Cal. 82, 84-88, 103 P. 317; Leach v. Superior Court, 215 Cal. 531, 534-535, 12 P.2d 1; Ivory v. Superior Court, 12 Cal.2d 455, 459-460, 85 P.2d 894; Redlands High School Dist. v. Superior Court, 20 Cal.2d 348, 351, 125 P.2d 490. The writ will not issue if the petitioner had a right of appeal from the order or judgment in question and permitted the time to lapse without perfecting an appeal. If there was an opportunity to appeal and it was lost through the neglect of the aggrieved party, the subsequent absence of this remedy cannot be asserted as a reason for issuing the writ. Leach v. Superior Court, 215 Cal. 531, 534-535, 12 P.2d 1; State Board of Equalization v. Superior Court, 9 Cal.2d 252, 255, 70 P.2d 482; Ivory v. Superior Court, 12 Cal.2d 455, 459-460, 85 P.2d 894; Howaldt v. Superior Court, 18 Cal.2d 114, 116-117, 114 P.2d 333; Phelan v. Superior Court, 35 Cal.2d 363, 370-371, 217 P.2d 951.

Under these rules it is clear that certiorari is not available to petitioner. The record shows that the order of dismissal was entered on August 27, 1956, and that petitioner was required to take his appeal within sixty days of that date. He offers no excuse for his failure to do so except that he did not have actual knowledge of the court's ruling. He offers no explanation for his failure to discover the court's order until March 18, 1957, except that the clerk did not send him notice. Such circumstances do not justify an exception to the general rules.

Petitioner was not entitled by law to any notice of the court's ruling, and the fact that he did not have actual notice of the ruling is therefore immaterial. Arens v. Superior Court, 45 Cal.2d 623, 625, 290 P.2d 257. It is a litigant's duty to protect his own record in each step of the proceedings, and his failure to do so, in the absence of reasonable justification, does not entitle him to an extension of the time for appeal by resort to a writ of certiorari. See In re Estate of Hanley, 23 Cal.2d 120, 122-124, 142 P.2d 423, 149 A.L.R. 1250; Palomar Refining Co. v. Prentice, 47 Cal.App.2d 572, 573, 118 P.2d 322. No circumstances are disclosed that would justify petitioner's failure to keep himself informed of the court's action on the motion to dismiss. He could have become aware of the court's ruling merely by checking the minutes of the court Even a telephone inquiry would have disclosed the status of the case. Such a minimum amount of diligence would seem to be particularly essential in a case like the present one, where the adverse party was entitled to have the order in question entered as a matter of course, and where, therefore, it was likely that a ruling would be forthcoming shortly. ¹ Having had an appeal available that was lost through the running of the time within which to appeal, petitioner may not now have certiorari to review the order of dismissal.

Petitioner's reliance on Elder v. Justice's Court, 136 Cal. 364, 68 P. 1022, and Grinbaum v. Superior Court, 192 Cal. 528, 221 P. 635, is misplaced. In each case extremely unusual circumstances existed that were held to justify issuance of the writ, even though there was a right to appeal in the first instance. In the Elder case, the aggrieved party not only had no notice of the fact that a default judgment had been entered against him, but had no notice or knowledge of the time fixed for trial of the dispute or that the matter had been called and the motion for default made and granted. In setting aside the judgment, the court held that certiorari was a proper remedy since the statutory requirement for notice of the day fixed for trial (Code Civ.Proc. § 850) had not been complied with and defendant had acted with diligence as soon as he learned that the default judgment had been entered against him. It does not appear that the defendant was negligent in failing to discover entry of the judgment, which, for some unexplained reason, did not occur until over four years after the action was commenced. In the Grinbaum case the petitioner was adjudged insane in a proceeding in which she did not appear. She was given no notice of the original proceedings or of the application for the order or of the hearing thereon, as required by statute. Code Civ.Proc. §§ 1763, 1793. In answer to the contention that certiorari was not a proper remedy to review the order because of the fact that an appeal had been available, the court stated: '(I)t is obvious from the state of this record that the petitioner neither had nor was in any condition to receive notice of the making of such order or of the defects in the same during the statutory time when such appeal might have been taken.' 192 Cal. at page 556, 221 P. at page 647. Only two other cases have been found that hold that certiorari is a proper remedy when the right to appeal has been lost by the running of time due to lack of knowledge of the fact that judgment had been entered. Lee v. Small Claims Court, 34 Cal.App.2d 1, 92 P.2d 937; O'Kuna v. Small Claims Court, 81 Cal.App. 588, 254 P. 291. Neither case holds, however, that lack of knowledge, in itself, is sufficient justification for issuance of the writ. In neither case is it suggested that the petitioner was in any way negligent in failing to discover that judgment had been entered against him. In light of the fact that both cases involved small claims judgments, where the time for appeal was extremely short ² and where litigants are not permitted to be represented by counsel, there was reasonable justification for the failure of the aggrieved party to discover the entry of judgment. (See 1 Witkin, California Procedure, 235; 36 Cal.L.Rev. 558, 568.) These cases are all clearly distinguishable from the present one, where the reason for petitioner's lack of knowledge of the order of dismissal was merely his failure to keep himself informed of the status of the case.

Moreover, in causing the order of dismissal to be entered in the minutes by oral direction from chambers, the court did not exceed its jurisdiction. The order was entered in the minutes of the court on the same day that the motion to dismiss was made, after the matter had been properly noticed and a hearing had been held in which the parties appeared, in accordance with the judge's instructions to his clerk. Petitioner contends that the trial judge lacked the authority to order in chambers that the dismissal be entered in the minutes without filing a formal written order to that effect. In support of this contention petitioner relies on a statement in United Railroads of San Francisco v. Superior Court, 197 Cal. 687, 242 P. 701, that an order granting a new trial can only be made by oral pronouncement in open court or by filing a formal written order signed by the judge. In that case, a motion for new trial was granted by a formal written order duly signed and filed by the judge. It was urged that an order granting such a motion could not be effective unless the judge 'betake himself to the courtroom in which the hearing had been had and there mount the bench and formally and audibly pronounce an order granting the motion for a new trial, and that by no other method could such an order be lawfully rendered.' 197 Cal. at page 692, 242 P. at page 703. The court rejected this contention and held that, in addition to the suggested method, the method followed by the trial judge was entirely proper. Any statement in that opinion implying that these two methods are exclusive, however, is dicta, since to decide the matter under consideration it was necessary for the court to hold only that the method there employed was proper or improper. Incidental statements of conclusions not necessary to the...