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. |
George N. Sheild, Ronald E. Hothem, George Applegate, San Francisco, for petitioner.
Henry Jacobsen, Jr., San Francisco, for real party in interest.
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.
An order denying a motion for summary judgment is not appealable.
The statute(Code Civ.Proc., former § 963, subd. 1;cf.§ 904.1, as added by Stats.1968, Ch. 385, § 2, p. 812)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: * * *
(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, (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,
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.'...
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeStart Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

Start Your 3-day Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting

Start Your 7-day Trial
-
Reader's Digest Assn. v. Superior Court
...Cal.Rptr. 338; Iversen v. Superior Court (1976) 57 Cal.App.3d 168, 170-171, 127 Cal.Rptr. 49; see Whitney's at the Beach v. Superior Court (1970) 3 Cal.App.3d 258, 265-266, 83 Cal.Rptr. 237.)3 The court referred to this footnote in Wolston v. Reader's Digest Assn. Inc. (1979) 443 U.S. 157, ......
-
Fisherman's Wharf v. Superior Court
...of discretion. Under these circumstances, obtaining relief by means of mandate may be proper. (Whitney's at the Beach v. Superior Court (1970) 3 Cal.App.3d 258, 265-266, 83 Cal.Rptr. 237.) In summary, if the court permits this case to go to trial based on erroneous rulings of law, substanti......
-
Isaacs v. Huntington Memorial Hospital
...ownership, possession, or control has been unequivocally established, summary judgment is proper. (Whitney's at the Beach v. Superior Court (1970) 3 Cal.App.3d 258, 269, 83 Cal.Rptr. 237; Bill v. Superior Court (1982) 137 Cal.App.3d 1002, 1014-1015, 187 Cal.Rptr. 625; Petersen v. City of Va......
-
Nbcuniversal Media, LLC v. Superior Court of L. A. Cnty.
...right of a party to an order or to the relief which the court has refused, the writ will lie.’ ” (Whitney's at the Beach v. Superior Court (1970) 3 Cal.App.3d 258, 265, 83 Cal.Rptr. 237, quoting California Pine Box & Lbr. Co. v. Superior Court (1910) 13 Cal.App. 65, 70, 108 P. 882.) “A defe......