United Shippers, Inc. v. Superior Court, CLEARINGS-BAY

• Decision Date: 10 March 1980
• Docket Number: CLEARINGS-BAY
• Citation: 104 Cal.App.3d 359,162 Cal.Rptr. 871
• Court: California Court of Appeals Court of Appeals
• Parties: UNITED SHIPPERS, INC., a California Corporation d/b/a United Shippers Association, Assignee and Plaintiff, on behalf of itself and its Assignors, Petitioner, v. SUPERIOR COURT, CITY AND COUNTY OF SAN FRANCISCO, Respondent; TRANSPORTAREA et al., Real Parties in Interest. Civ. 47544.

Page 871

162 Cal.Rptr. 871

104 Cal.App.3d 359

UNITED SHIPPERS, INC., a California Corporation d/b/a United Shippers Association, Assignee and Plaintiff, on behalf of itself and its Assignors, Petitioner, v. SUPERIOR COURT, CITY AND COUNTY OF SAN FRANCISCO, Respondent TRANSPORT CLEARINGS-BAY AREA et al., Real Parties in Interest.

Civ. 47544.

Court of Appeal, First District, Division 3, California.

March 10, 1980.

Law Offices of Jerrold N. Offstein, Jerrold N. Offstein, Jane C. Van Praag, San Francisco, for petitioner.

Adams, Duque & Hazeltine, James H. Fleming, John H. Brinsley, Robert M. Mitchell, San Francisco, Jones, Meiklejohn, Kehl & Lyons, Leslie R. Kehl, Denver, Colo., for real parties in interest T.I.M.E.-DC, Inc. and Redball Motor Freight, Inc.

Feldman, Waldman & Kline, Leland R. Selna, Jr., George G. Weickhardt, San Francisco, for real party in interest Lee Way Motor Freight, Inc.

Overton, Lyman & Prince, Carl J. Schuck, Frederick A. Clark, John D. McCurdy, Los Angeles, for real parties in interest Transport Clearings-Bay Area, Acme Transp., Inc., Airway Trucking Co., Alltrans Express U.S.A., Alltrans, Inc., Associated Freight Lines, Beckman Express & Warehouse Co., Garrett Freightlines, Inc., Haslett Co., Hughes Air Corp. d/b/a Hughes Airwest, IML Freight, Inc., Armand Karp, Milne Truck Lines, Inc., Madison Moffat, ONC Freight System, Pacific Motor Trucking Co., Pozas Bros. Trucking Co., Kenneth L. Ravey, Sammons Trucking, Inc., Southern Pacific Air Freight, Inc., Thunderbird Freight Lines, A. P. Uniack, Virginia Appalachian Lumber Corp., Transport Clearings of Los Angeles, Driskell Trucking, Inc., Griley Freightlines, Thomas L. McGuire, Murphy Transp., Inc., Victorville-Barstow Truck Line, Eastern Airlines, Inc., East Texas Motor Freight, Inc., Watkins Motor Lines, Inc. and Edward A. Lublin; Braniff Airways, Inc.

Kent E. Whittaker, Terrence Ahern, Kirk H. Doan, Hillix, Brewer, Hoffhaus & Whittaker, Kansas City, Mo., Robert E. Gooding, Jr., Steven L. Mayer, Ann V. Brick, Howard, Prim, Rice, Nemerovski, Canady & Pollak, A Professional Corp., San Francisco, for real parties in interest Navajo Freight Lines, Inc. and The Santa Fe Trail Transp. Co.

FEINBERG, Associate Justice.

The facts are simple. Petitioner filed a complaint in the court below. Real parties in interest (real parties) demurred. The demurrer had a chequered history but, suffice it to say, that on January 15, 1979, it was argued. On January 19, 1979, the clerk of the superior court filed a dismissal of the action without prejudice, upon a written request therefor by petitioner, pursuant to Code of Civil Procedure section 581, subdivision (1). ¹ Two days later, respondent superior court issued an order restraining the clerk from proceeding with the dismissal, i. e., entering it upon the judgment roll. Shortly thereafter, petitioner sought relief by way of an extraordinary writ from this court. Its petition was denied as "premature." Thereafter, respondent held a hearing to determine whether it had jurisdiction to rule on the demurrer, i. e., had the action been "dismissed." Respondent concluded it had jurisdiction and thereafter sustained the demurrer without leave to amend. Ultimately, respondent entered a judgment of dismissal, following which, this petition for prohibition or, in the alternative, certiorari or mandate was filed.

Real parties contend that at the hearing on January 15, 1979, the demurrer was submitted and the court had made a "tentative" ruling. Petitioner contends otherwise. In our view, this issue is irrelevant in determining whether petitioner had an absolute right to a dismissal on January 19, 1979. We shall assume, therefore, that real parties are correct and that the demurrer had been submitted prior to the petitioner's request for a dismissal.

Does a plaintiff have the absolute right to dismiss an action after a demurrer to his complaint has been submitted to the court for decision, assuming that in all other aspects such a dismissal complies with the conditions imposed by section 581, subdivision (1)?

Our answer is that the plaintiff does have such a right.

Section 581, subdivision (1) provides in relevant part 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, . . . A trial shall be deemed to be Actually commenced at the beginning of the opening statement of the plaintiff or his counsel, and if there shall be no opening statement, then at the time of the administering of the oath or affirmation to the first witness, or the introduction of any evidence." (Emphasis added.)

It appears to us that the plain meaning of the statute is that a plaintiff has a right to dismiss his action even though a demurrer to the complaint has been argued and submitted. At a hearing on a demurrer, there is no "opening statement" as that phrase is understood in law. Certainly, no witness is sworn nor evidence offered. We do not see how the Legislature reasonably could have made it more plain than it did.

Real parties rely on two cases primarily, Goldtree v. Spreckels (1902) 135 Cal. 666, 67 P. 1091 and Berri v. Superior Court (1955) 43 Cal.2d 856, 279 P.2d 8.

In the Goldtree case, the Supreme Court held that the submission of a demurrer to the court constituted a trial within the meaning of section 581, subdivision (1) As it then read for, the court held, there could be two kinds of trials, a trial on the law as in a demurrer or a trial on the facts.

But section 581, subdivision (1) then read in pertinent part as follows:

"An action may be dismissed . . . in the following cases: 1. By the plaintiff, by written request to the clerk, . . . At any time before trial, . . . " (Emphasis added.)

It was by amendment in 1947 that section 581, subdivision (1) was amended to its present form. Thus, now and since 1947, the section speaks of the "actual commencement of trial" and defines that phrase as we have set forth heretofore. The Legislature is presumed to be aware of case law when it amends a statute upon which there is such case law. (Stafford v. Realty Bond Service Corp. (1952) 39 Cal.2d 797, 805, 249 P.2d 241; Whitley v. Superior Court (1941) 18 Cal.2d 75, 78-79, 113 P.2d 449.) In amending section 581, subdivision (1), as it did, the Legislature must have intended, among other things, to change the rule of Goldtree. See Parenti v. Lifeline Blood Bank (1975) 49 Cal.App.3d 331, ...