Thomasian v. Superior Court In and For City and County of San Francisco

• Court: California Court of Appeals
• Writing for the Court: FRED B. WOOD; PETERS, P. J., and BRAY
• Citation: Thomasian v. Superior Court In and For City and County of San Francisco, 265 P.2d 165, 122 Cal.App.2d 322 (Cal. App. 1953)
• Decision Date: 30 December 1953
• Docket Number: No. 15840,15840
• Parties: . District Court of Appeal, First District, Division 1, California

Page 165

265 P.2d 165

122 Cal.App.2d 322

THOMASIAN v. SUPERIOR COURT IN AND FOR THE CITY AND COUNTY OF SAN FRANCISCO et al.

No. 15840.

District Court of Appeal, First District, Division 1, California.

Dec. 30, 1953.

Lange & Rockwell, San Francisco, for petitioner.

Cooley, Crowley & Gaither, San Francisco, for respondent.

FRED B. WOOD, Justice.

This proceeding involves (1) the jurisdiction, if any, of a municipal court to allow an amendment of a complaint which increases the amount of the demand beyond the $3,000 jurisdictional limit of that court, (2) the validity of the judgment rendered by the superior court, or of its appellate department, annulling, upon writ of review, the municipal court order which allowed the amendment, and (3) the jurisdiction of this court to review the action of the superior court in an original proceeding as distinguished from an appeal from the superior court judgment.

A brief summary of the significant events as they occurred in the municipal and superior courts will facilitate the discussion of these questions. August 14, 1952, petitioner Thomasian filed in the municipal court, San Francisco, a complaint against Crowe Glass Company, a corporation, alleging that he was injured March 10, 1952, while on defendant's premises as a business invitee, and that his injury was caused by the negligence of the defendants to his damage in the sum of $3,000.

March 30, 1953, the plaintiff filed a notice of motion for leave to file an amended complaint increasing the amount of the ad damnum clause to $15,000 for general damages, in addition to special damages, and for an order to transfer the cause to the superior court. His affidavit in support of the motion stated that when he filed the original complaint the exact nature, extent, and permanency of his injuries were not known; that since that date it had developed that the injuries were more serious in nature, some of them permanent in character and that medical treatment would be required for an indefinite further time and could not reasonably be expected to afford a complete recovery.

April 3, 1953, these motions were heard by and submitted to the municipal court which, on April 28th, announced its decision granting them.

April 30, 1953, the defendant filed with the superior court of the city and county of San Francisco a petition for a writ of review alleging that the municipal court had made and entered its order granting said motion to amend and that such was an act in excess of the jurisdiction of the municipal court. That petition, upon filing in the superior court, was given a civil appeal number (No. 2271 1/2). ¹ Thereupon an order for the writ to issue was signed and filed by a judge of the superior court who was also a judge of the appellate department thereof. The order directed that a writ issue commanding the municipal court 'to certify and return to this Court (Appellate Dept)' the pleadings, papers and other matters on file therein for review 'by this Court' and requiring respondent meanwhile to desist from further proceedings including but not limited to the transfer of the cause. The writ was issued pursuant to this order, returnable May 8, 1953, requiring the respondent court to 'certify and return to this Court (Appellate Dept)' the indicated pleadings, papers and other matters on file. May 1, 1953, defendant gave plaintiff written notice that the writ of review, served therewith, would be returned and the hearing would be had therein 'in the court room of the above entitled Court, Appellate Department thereof.'

May 4, 1953, a written order of the municipal court, signed by a judge of that court, was filed granting plaintiff's motion for leave to file his proposed complaint and ordering that the cause be transferred to the superior court, costs of transfer to be borne by the plaintiff. This order then concluded with this statement, 'Motion granted and order made the 28th day of April, 1953, and presented for signature and signed this 4th day of May, 1953.'

May 13, 1953, a document designated 'Memorandum Opinion in re Petition for Writ of Review,' signed by the presiding judge of the appellate department (the other two judges of that department concurring and signing) was filed. In this document the court discussed the issue of law presented by the petition for the writ; held that the municipal court had no jurisdiction to make the order in question and that there was no appeal from the order or other appropriate remedy other than by writ of review; and concluded 'that the petition for writ of review should be and it is hereby granted. It is therefore ordered that the order of the Municipal Court granting the amendment to the complaint so as to increase the amount of the prayer beyond the jurisdiction of the said court be and the same is hereby annulled.'

This document although labelled 'memorandum opinion' has all of the characteristics of a final judgment in the review proceeding. No findings of fact were necessary. There was no issue of fact to be tried.

It further appears from a copy of the register of actions of the appellate department, superior court, San Francisco (certified May 26, 1953), that all of these review proceedings were entered in the register of the appellate department, namely: petition filed 4/30/53; writ issued 4/30/53; notice of return of writ of review filed 5/1/53; submitted 5/8/53; order of lower court annulled 5/13/53; remitittur issued and receipt filed 5/13/53. There is no entry indicating that this judgment has been entered in the judgment book.

Thereafter the clerk gave Thomasian written notice of the decision in the review proceedings. This notice was entitled 'In the Superior Court of the State of California, in and for the City and County of San Francisco, Appellate Department' and was identified by the case name and the designation 'On appeal from Municipal Court, No. 2271- 1/2.' It read as follows: 'In the above entitled matter order amending complaint annulled on the 13th day of May, 1953.'

I. The Validity and Reviewability of the Judgment Rendered in the Superior Court.

The petition for writ of review in the superior court instituted an original proceeding which was within the jurisdiction of that court. As such, it invoked the general powers of the superior court, not the powers of the appellate department thereof. If that proceeding was conducted in the exercise of the general powers of the superior court and its judges, the judgment rendered would not be subject to collateral attack. A mere error of law, if committed in a proceeding of which a court has jurisdiction, does not of itself divest the court of jurisdiction to pronounce judgment. Cellulose Package Mfg. Co. v. Calhoun, 166 Cal. 513, 515-516, 137 P. 238, attempt of debtor to impeach a judgment, in a suit brought upon the questioned judgment; Gray v. Hall, 203 Cal. 306, 313-317, 265 P. 246, mandamus unavailable to review a judgment which had become final, even though the judgment would have been reversible upon appeal and the defect appeared upon the face of the record; Wells Fargo & Co. v. City, etc., of S. F., 25 Cal.2d 37, 40-44, 152 P.2d 625, motion to vacate judgment, made after expiration of the six-month period allowed by § 473, C.C.P., and in the absence of extrinsic fraud or mistake. Furthermore, certiorari is not available for the review of an appealable judgment or order, C.C.P., § 1068 and the 'writ of prohibition cannot be used to review proceedings already completed.' Big Jim Mines, Inc. v. Superior Court, 9 Cal.2d 503, 504, 71 P.2d 67. Accordingly, if the judgment here in question was rendered in the exercise of the general powers of the superior court, it would be appealable, and reviewable only upon appeal. Petitioner states in one of his briefs that it has not yet been entered in the judgment book of the superior court. If he is correct in this, his remedy would seem to lie first in the superior court by appropriate application for the making of such an entry.

However, the judgment in question was actually rendered by the appellate department of the superior court in the purported exercise of the jurisdiction of the appellate department; hence, in excess of the jurisdiction of that department and void.

The appellate department of the superior court was established pursuant to express constitutional sanction: 'The superior courts shall have appellate jurisdiction in such cases arising in municipal and in justices and other inferior courts in their respective counties or cities and counties as may be prescribed by law. The Legislature may, in addition to any other appellate jurisdiction of the superior courts, also provide for the establishment of appellate departments of the superior court in any county or city and county wherein any municipal court is established, and for the constitution, regulation, jurisdiction, government and procedure of such appellate departments.' Art. VI, § 5; last amended, 1928; Emphasis added.

The legislature exercised this authority by adding sections 77a and 77b to the Code of Civil Procedure, Stats.1929, ch. 475, p. 836. Section 77a declared that in the superior court of every county having three or more superior court judges wherein any municipal court is established 'there shall be a department thereof to be known and designated as 'Appellate department of the superior court,' and which shall consist of three judges of such superior court, who shall be designated by the chairman of the judicial council, and who, in addition to their other duties, shall serve as such for the period specified in the order of designation, and one of whom shall be designated by the chairman of the judicial council as presiding judge thereof.' As amended by Stats.1949, ch. 1516, p. 2698, effective at and after November 7, 1950, operative in January, 1952; later carried into the Government Code as § 69540 without substantial change by Stats.1953, ch. 206, p. 1238 at...