Whitney's At for Beach v. Superior Court

• Decision Date: 06 January 1970
• Citation: 83 Cal.Rptr. 237,3 Cal.App.3d 258
• Court: California Court of Appeals
• Parties: WHITNEY'S AT THE BEACH, a corporation, Petitioner, v. The SUPERIOR COURT of the State of California, IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent. Robert HOVIS, Real Party in Interest. Civ. 26985.

Page 237

83 Cal.Rptr. 237

3 Cal.App.3d 258

WHITNEY'S AT THE BEACH, a corporation, Petitioner, v.The SUPERIOR COURT of the State of California, IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, RespondentRobert HOVIS, Real Party in Interest.

Civ. 26985.

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

Jan. 6, 1970.

George N. Sheild, Ronald E. Hothem, George Applegate, San Francisco, for petitioner.

Henry Jacobsen, Jr., San Francisco, for real party in interest.

SIMS, Associate Justice.

Petitioner, following the denial of its motion for summary judgment in an action pending in respondentcourt, seeks a peremptory writ of mandate ordering that court to dismiss the complaint and to enter summary judgment for petitioner.It is concluded that petitioner is entitled to seek review of the trial court's denial in proceedings of this nature, and that on the merits it is entitled to the peremptory writ which it seeks.

Propriety of the Writ of Mandamus

An order denying a motion for summary judgment is not appealable.'A judgment entered when a motion to strike the answer or dismiss the complaint is granted has all the qualities of a final judgment for thereby the proceeding is brought to an end; and except as it may be affected by appellate review the case is concluded and no further proceedings may be had.But if a motion to strike the answer or dismiss the complaint be denied, then the case goes forward to trial and ultimate judgment on the merits; such an order of denial possesses none of the attributes of a final judgment, nor is it one of the orders expressly made appealable by Code of Civil Procedure, section 963.'(Nevada Constructors v. Mariposa etc. Dist.(1952)114 Cal.App.2d 816, 817, 251 P.2d 53, 54.Accord: State of California v. Superior Court(1968)263 Cal.App.2d 396, 398, 69 Cal.Rptr. 683;Kaiser Foundation Hospitals v. Superior Court(1967)254 Cal.App.2d 327, 330, 62 Cal.Rptr. 330;Bricklayers & Masons Union No. 1 v. Superior Court(1963)216 Cal.App.2d 578, 582, 31 Cal.Rptr. 115;Haldane v. Haldane(1963)216 Cal.App.2d 12, 13, 30 Cal.Rptr. 793;Stanton v. Andrews(1959)170 Cal.App.2d 269, 270, 338 P.2d 529;Schulze v. Schulze(1953)121 Cal.App.2d 75, 83, 262 P.2d 646.)

The statute(Code Civ.Proc., former § 963, subd. 1;cf.§ 904.1, as added by Stats.1968, Ch. 385, § 2, p. 812)'states the Final judgment rule, or rule of One final judgment, a fundamental principle of appellate practice in the United States.The theory is that piecemeal disposition and multiple appeals in a single action would be oppressive and costly, and that a review of intermediate rulings should await the final disposition of the case.(SeeBank of America v. Superior Court(1942)20 Cal.2d 697, 701 * * *)'(3 Witkin, Cal. Procedure Appeal, § 10, p. 2151.See alsoPeople ex rel. Dept. Pub. Wks. v. Rodoni(1966)243 Cal.App.2d 771, 774, 52 Cal.Rptr. 857;andEfron v. Kalmanovitz(1960)185 Cal.App.2d 149, 154, 8 Cal.Rptr. 107.)If the policy against piecemeal disposition and multiple appeals in a single action is to be promoted, the use of extraordinary writs to review nonappealable orders must be closely circumscribed.In the case cited by the text writer the petitioner sought by proceedings in certiorari to annul an order of the superior court permitting the plaintiffs to amend two causes of action set forth in their complaint.As an alternative ground of decision the court stated as follows: 'Even * * * had the trial court exceeded its jurisdiction in permitting the amendments to be filed, certiorari would not lie to annul its order.This is so because the order granting leave to amend, while not directly appealable, is subject to review on appeal from the final judgment.(Citation.)Certiorari will not lie if the effect of the order sought to be annulled can be reviewed and nullified on an appeal from the final judgment, even though the order itself is not appealable.(Citations.) * * *

'Petitioner argues that the rule is here inapplicable because a review and nullification of the order on appeal from the final judgment would not be a plain, speedy and adequate remedy.It is urged that unless certiorari is permitted it will allow the plaintiffs, as the unsuccessful party to the prior appeal so far as the first two counts are concerned, to return to the trial court, start in all over again, and compel petitioner, as the prevailing party as to those two counts, to submit to a trial and await the final outcome before obtaining redress for the unwarranted reopening of the litigation.If such action is here permitted, says the petitioner, every lawsuit could be perpetual.It is therefore argued that substantial justice requires that relief be afforded by certiorari.

'This argument is unsound for several reasons * * * it would apply in some degree in every case where a trial court erroneously overruled a demurrer and compelled a defendant to proceed to trial.No one would contend that such order could be reviewed on certiorari.'(Bank of America v. Superior Court(1942)20 Cal.2d 697, at pp. 703--704, 128 P.2d 357, at p. 361.)

In Sjoberg v. Hastorf(1948)33 Cal.2d 116, 199 P.2d 668, the trial court denied the defendant's petition for an order that arbitration proceed and that plaintiff's action for the balance allegedly due on the contract between the parties be stayed.The court dismissed the defendant's appeal and observed, 'If appellants have a right to arbitration they may assert it on the appeal from the final judgment in the contract action.Thus no greater hardship will result than in any case where a party is forced to stand trial because of an erroneous ruling of the trial court.'(33 Cal.2d at p. 119, 199 P.2d at p. 670.)Similarly, in Fischer v. Superior Court(1930)105 Cal.App. 466, 287 P. 556, the court denied a writ of prohibition following the trial court's denial of an application to stay proceedings for an accounting which had been made on the ground that the contract between the parties provided for arbitration.The court, after finding against the petitioner on the merits, added, 'We believe the application for the writ of prohibition should be denied for the further reason that the respondentcourt has jurisdiction of the subject-matter of the action, and the jurisdiction to determine the question whether the issue involved in the pending suit is referable to arbitration is vested in the trial court by the provisions of sections 1283and1284 of the Code of Civil Procedure.The trial court has the right and power to decide this question, and, if it was not satisfied that the issue was referable, to so decide and to proceed thereupon to try the action.If the trial court decided erroneously, it was error committed in the exercise of its jurisdiction, to be reviewed upon appeal from the judgment.'(105 Cal.App. at p. 470, 287 P. at p. 557.See alsoPerego v. Seltzer(1968)260 Cal.App.2d 825, 829, 67 Cal.Rptr. 636(dictum).)

Nevertheless, it has been suggested that when an intermediate order prevents the plaintiff from proceeding on one of several causes of action on constitutional grounds, or upholds its right to proceed in the face of an objection on such grounds, that the ruling may be tested by mandamus or prohibition, as the case may be.(People ex rel. Dept. Pub. Wks. v. Rodoni, supra, 243 Cal.App.2d 771, 774--775, 52 Cal.Rptr. 857.)In several cases the propriety of an order denying a motion for a summary judgment has been reviewed in connection with a petition for relief by way of an extraordinary writ.In State of California v. Superior Court, supra, 263 Cal.App.2d 396, 69 Cal.Rptr. 683, a peremptory writ of prohibition restraining the trial court from proceeding to trial in a personal injury action was granted because the plaintiff, in connection with the hearing on the motion for summary judgment, failed to produce any substantial evidence from which it could be inferred that the state had the actual or constructive notice required by the provisions of the Government Code as a prerequisite to the imposition of liability (263 Cal.App.2d at pp. 399--401, 69 Cal.Rptr. 683).In Kaiser Foundation Hospitals v. Superior Court, supra, 254 Cal.App.2d 327, 62 Cal.Rptr. 330, the court granted an alternative, but denied a peremptory, writ of mandamus to compel the trial court to enter an order granting a motion for summary judgment.It found that the defense of res judicata, upon which the petitioner relied to establish the trial court's abuse of discretion in denying the motion, was not applicable because of lack of privity of parties(254 Cal.App.2d at p. 335, 62 Cal.Rptr. 330).In Phillips Aviation Co. v. Superior Court(1966)246 Cal.App.2d 46, 54 Cal.Rptr. 415, the court granted an alternative, but denied a peremptory writ of mandamus to require vacation of an order denying summary judgment.The reviewing court found that the trial court had properly determined that there was one or more triable issues of fact in connection with the petitioner's claim that it was the owner and entitled to the possession of a certain machine (246 Cal.App.2d at pp. 50--51, 54 Cal.Rptr. 415).In Bricklayers & Masons Union No. 1 v. Superior Court, supra, 216 Cal.App.2d 578, 31 Cal.Rptr. 115, a peremptory writ of prohibition restraining the trial court from conducting further proceedings in a civil action was granted because the subject matter of the action was within the exclusive jurisdiction of the National Labor Relations Board(216 Cal.App.2d at pp. 582--588, 31 Cal.Rptr. 115).

Where such relief is granted it must be predicated upon the following principles: 'Where an order is not appealable, but is reviewable only upon appeal from a subsequent judgment, various factors, such as expense of proceeding with a trial and prejudice resulting from delay, may operate to make that remedy inadequate.'(Phelan v. Superior Court(1950)35 Cal.2d 363, 370, 217 P.2d 951, 955.See alsoCode Civ.Proc. §§...