Winzler & Kelly v. Superior Court

Decision Date22 May 1975
Citation48 Cal.App.3d 385,122 Cal.Rptr. 259
CourtCalifornia Court of Appeals Court of Appeals
PartiesWINZLER & KELLY, Consulting Engineers, a corporation, and John Winzler, individually, Petitioners, v. The SUPERIOR COURT of the State of California, FOR the COUNTY OF HUMBOLDT, Respondent; Leland LIPSCOMB and Thomas Reynolds, Real Parties in Interest. Civ. 35824.

Jones & Wilson by George W. Coleman, Los Angeles, for petitioners.

Dunne, Phelps & Mills, San Francisco, for real parties in interest.

MOLINARI, Presiding Justice.

Petitioners Winzler & Kelly, a corporation, and John Winzler, individually, seek a writ of mandate compelling respondent court to grant any or all of the following of petitioners' motions: Motion to compel execution, acknowledgment and filing of satisfaction of judgment or for an order ordering the entry of satisfaction of judgment without acknowledgment of satisfaction; motion to dismiss; motion for summary judgment. Alternatively petitioners seek a writ of mandate and/or prohibition commanding respondent court to desist and refrain from proceeding further with two superior court actions brought, respectively, by Leland Lipscomb and Thomas Reynolds (hereinafter referred to collectively as 'plaintiffs') against petitioners Mercer-Fraser Co., a corporation (hereinafter 'Mercer-Fraser'), Humboldt Bay Municipal Water District (hereinafter 'Humboldt') and Winzler & Kelly and Kennedy Engineers, a joint venture (hereinafter the 'Joint Venture'). When referred to collectively the defendants to said action will be designated as 'defendants.'

An alternative writ of mandate was issued by this court and a return and answer has been filed by Lipscomb, Reynolds and Mercer-Fraser. Although plaintiffs are the real parties in interest it appears from the record that the real party is Mercer-Fraser to whom plaintiffs have assigned all of their right, title and interest in their cause of action.

On July 24, 1967, plaintiffs filed an action in respondent court against defendants for damages for personal injuries alleged to have been sustained as the result of defendants' negligence. A verdict was rendered against defendants in favor of Lipscomb in the amount of $794,704.60 and in favor of Reynolds in the amount of $22,874.50 and judgment was entered upon the verdict on March 16, 1970.

On May 22, 1970, Mercer-Fraser paid Reynolds the full amount of his judgment and paid Lipscomb $520,000 in partial satisfaction of his judgment. On May 25, 1970, Mercer-Fraser filed its notice of claim for contribution in respondent court and moved for issuance of a writ of execution against petitioner Winzler & Kelly in aid of its claim for contribution.

Two appeals were taken from the judgment. A notice of appeal was filed by plaintiffs on June 1, 1970, and by Winzler & Kelly on June 5, 1970. Sufficient stay bonds on appeal were posted by Winzler & Kelly. Thereafter, on October 1, 1970, Mercer-Fraser's motion for issuance of execution in aid of contribution was denied without prejudice.

On October 1, 1973, Division Three of this court affirmed the judgments in favor of plaintiffs against Mercer-Fraser and Humboldt; reversed the judgment against the Joint Venture with directions to enter judgment in its favor; and reversed the judgment against petitioners and remanded plaintiffs' actions against petitioners for a new trial. The decision on appeal became final on December 1, 1973.

On or about December 21, 1973, Mercer-Fraser filed a document entitled 'Declaration in Support of Application for Writ of Mandate in Aid of Contribution.' In this declaration it was stated that on March 22, 1970, Mercer-Fraser paid $520,000 to Lipscomb in partial payment, discharge and satisfaction of his judgment and satisfied Reynolds' judgment by full payment, discharge and satisfaction of said judgment. The declaration also stated, upon information and belief, that Humboldt had paid the sum of $274,704.60, being the balance of the judgment entered in Reynolds' favor on March 16, 1970.

On January 23, 1974, plaintiffs filed and served a 'Memorandum That Civil Case is at Issue' requesting that a date be set for jury retrial as to petitioners' liability. Petitioners then filed on March 7, 1974, and served on all parties, a 'Notice of Motion and Motion to Compel Execution, Acknowledgment and Filing of Satisfaction of Judgment, or for an Order Ordering the Entry of Satisfaction of Judgment be Made Without Acknowledgment of Satisfaction; Motion to Dismiss; Motion for Summary Judgment.' This motion was denied and it was ordered that a date be set for the retrial of plaintiffs' actions against petitioners. In its ruling respondent court noted that if petitioners were found liable to plaintiffs on the retrial petitioners would become joint tortfeasor judgment debtors with Mercer-Fraser and Humboldt and that there would be a right of contribution among them. 1 The instant proceedings then ensued.

Petitioners contend that the payment by Humboldt and Mercer-Fraser to plaintiffs of the amount of damages adjudicated by the judgment entered on March 16, 1970, amounts to satisfaction of the judgment and precludes plaintiffs from pursuing the action against petitioners. As a consequence they submit that respondent court abused its discretion in denying their motions to compel acknowledgment and filing of satisfaction of judgment.

Mercer-Fraser contends that we are required to deny the petition because the final decision of Division Three of this court on the appeal from the judgment is the law of the case and we are, therefore, bound by its mandate that the case must be retried on the issue of petitioners' liability. It is apparent from a reading of the opinion articulating the decision rendered by Division Three that the issues here presented were not before that court. The parties to these proceedings so concede.

The applicable rule is that where a decision has been rendered by an appellate court and the case is returned upon a reversal and a second appeal comes to the appellate court directly or intermediately, the reviewing court on the second appeal will not inquire into the merits of the first decision. (People v. Shuey, 13 Cal.3d 835, 841, 120 Cal.Rptr. 83, 533 P.2d 211; People v. Durbin, 64 Cal.2d 474, 477, 50 Cal.Rptr. 657, 413 P.2d 433.) This rule is subject to the qualification that the point involved must have been necessary to the prior decision, that the matter must have been actually presented and determined by the court, and that the application of the doctrine will not result in an unjust decision. (People v. Shuey, supra, 13 Cal.3d at p. 848, 120 Cal.Rptr. 83, 533 P.2d 211; Pigeon Point Ranch, Inc. v. Perot, 59 Cal.2d 227, 231, 28 Cal.Rptr. 865, 379 P.2d 321.)

In the light of these principles we conclude that petitioners are not foreclosed from urging the issues here presented. The points here involved were not necessary to the prior decision nor were they actually presented and determined by the reviewing court. The issue as to whether the partial satisfaction of Lipscomb's judgment and the full satisfaction of Reynolds' judgment rendered the appeal moot was not presented on the appeal, nor was the reviewing court presented with the question whether the payments to Lipscomb and Reynolds operated as a complete release or a satisfaction of the plaintiffs' cause of action against all defendants. We observe that while the appeal was pending the payment to Lipscomb was only in partial satisfaction of his judgment. Under all the circumstances the issues presented to us are not amenable to disposition under the law of the case.

We observe, initially, that the manner in which a satisfaction of judgment is to be entered and the duties of parties and attorneys under such circumstances are provided for in Code of Civil Procedure section 675. 2 This statute, in pertinent part, provides: 'Whenever a judgment is satisfied in fact, otherwise than upon an execution, the party or attorney must give such acknowledgment, or make such endorsement, and, upon motion, the court may compel it, or may order the entry of satisfaction to be made without it.'

A court's compulsion of satisfaction of judgment has been upheld on review. (Chambreau v. Coughlan, 263 Cal.App.2d 712, 717, 69 Cal.Rptr. 783; Schwartz v. California Claim Service Ltd., 52 Cal.App.2d 47, 51, 125 P.2d 883; LaFleur v. M. A. Burns Lumber Co., 188 Cal. 321, 328, 205 P. 102; Bartneck v. Dunkin, 1 Cal.App.3d 58, 62, 81 Cal.Rptr. 428.) No case has come to our attention which directs a lower court to compel the giving of a satisfaction of judgment by a reluctant plaintiff whose judgment has been paid in full or to order such an entry on its own motion.

It is, of course, the general rule that mandamus cannot be used to control the discretion of an inferior court or court officers, but where a court refuses to perform a clear duty, unmixed with discretionary power or the exercise of judgment, mandamus will issue. (O'Bryan v. Superior Court, 18 Cal.2d 490, 496, 116 P.2d 49; Taliaferro v. Locke, 182 Cal.App.2d 752, 755, 6 Cal.Rptr. 813; W. A. Rose Co. v. Municipal Court, 176 Cal.App.2d 67, 74, 1 Cal.Rptr. 49.) Accordingly, in the present case if petitioners are entitled as a matter of law to the entry of a satisfaction of judgment and the exercise of discretion is not involved such entry may be compelled by mandamus notwithstanding the permissive language of section 675. (See Baird v. Smith, 216 Cal. 408, 410, 14 P.2d 749; W. A. Rose Co. v. Municipal Court, supra; California etc. Co. v. Superior Court, 13 Cal.App. 65, 70, 108 P. 882; and see Goodenough v. Superior Court, 18 Cal.App.3d 692, 697, 96 Cal.Rptr. 165.)

Mercer-Fraser contends that the respondent court's denial of petitioners' motion to compel an acknowledgment of satisfaction of judgment and its order that the trial proceed against petitioners are...

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