FUNERAL DIRECTORS ASS OF LOS ANGELES AND SOUTHERN v. BOARD OF FUNERAL DIRECTORS AND EMBALMERS OF CALIFORNIA ET AL ARMSTRONG ET AL INTERVENERS

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District Court of Appeal, Second District, Division 2, California.

FUNERAL DIRECTORS ASS'N OF LOS ANGELES AND SOUTHERN California v. BOARD OF FUNERAL DIRECTORS AND EMBALMERS OF CALIFORNIA ET AL. (ARMSTRONG ET AL., INTERVENERS).

Civ. 13713.

Decided: October 28, 1942

W. L. Pollard, of Los Angeles, for appellant. Frank J. Barry, of Los Angeles, for respondents. Morse Craig, of Los Angeles, and Moody & Whitney, of Glendale, for interveners and respondents.

The question for decision in this case is whether the Supreme Court's ex parte denial of a petition for a writ of mandate containing substantially the same allegations and exhibits as those later presented in the petition to the superior court is res judicata of the subsequent action.

Pursuant to its statutory duty upon the filing of a complaint, the respondent board, as then constituted, ordered the “Armstrong Family,” respondents in intervention herein, to appear before the board on the 28th day of July, 1938, to show cause why their license should not be revoked. Following a hearing, they were found guilty as charged, and their license was suspended for ninety days. On the following twelfth day of September, the Armstrongs petitioned the superior court (action No. 431–959) for a writ of mandate directing the board and its members to cease interfering with the conduct of their business. The alternative writ was issued but after trial on May 5, 1939, a hostile judgment was entered against the Armstrongs on December 14, 1939, denying the writ of mandate. An appeal was taken to the District Court of Appeal, was dismissed on the 18th day of March, 1941, pursuant to the motion of appellants there. On the same day the Board of Funeral Directors modified its original “sentence” imposed upon the Armstrongs by suspending their license for ninety days, and holding in abeyance the execution of such suspension for one year upon terms prescribed in the order of modification.

Thereafter, on July 2, 1941, appellant herein filed its petition for writ of mandate in the Supreme Court (L.A., 17996). Such action, as stated in the petition, was brought to contest the right of the board to modify a sentence imposed by it. The petition recited all of the facts commencing with the complaint filed against the Armstrong family, included the citation issued thereon, the findings and “Judgment and Sentence” of the board; recited the filing of, and attached as exhibit, the petition for writ of mandate to the superior court (No. 431959); recited the trial of the action in department 33 of the superior court and the findings and decision thereon denying a peremptory writ; recited the appeal from the last mentioned judgment (action No. 431959) to the District Court of Appeal and the dismissal of such appeal on motion of appellants; recited the action of the board on the 18th of March, 1941, in modifying its original judgment as above outlined. In the same petition appellant alleged that at the time of the order of the modification of the sentence no evidence was taken and that during the intervening years the personnel of the board had changed with the exception of Director Howell. Attached to the petition to the Supreme Court was a copy of the findings of the decision of the superior court in action No. 431959 as well as the excerpt from the minutes of the meeting of the board held on the 18th day of March, 1941, showing that at the time of the modification of the original judgment, the executive secretary of the Funeral Directors Association, appellant here, protested the action of the board in making such modification. On July 17, 1941, the Supreme Court denied the petition.

Thereafter on the 22d day of August, 1941, appellant presented its petition to the superior court demanding that a writ of mandate issue against respondent board directing that it desist from attempting to revoke, modify, suspend or alter its judgment of July 30, 1938. The petition so presented contained substantially all of the facts alleged in the petition of appellant to the Supreme Court in (L.A., 17996) and nothing more. A hearing upon the alternative writ was set for the 24th day of September, 1941.

Upon the day of the hearing on the alternative writ, respondents filed a special answer alleging that the order made by the Supreme Court on the 17th day of July, 1941, was res judicata of the matters contained in the petition about to be heard by the superior court. Thereafter by stipulation of the parties, the Armstrong family were allowed to file a plea in intervention whereby they denied a portion of the complaint and included the plea of res judicata by virtue of the Supreme Court's order. On the 24th day of February, 1942, the superior court determined that the Supreme Court's order denying the mandate was res judicata and ordered that the alternative writ be discharged and that the peremptory writ be denied.

In considering the question presented it is to be observed that the parties to the present action and in that before the Supreme Court were identical; the issues were identical; the exhibits attached to the petition in the Supreme Court are attached to the petition before us. There is substantially no difference between the record presented to the Supreme Court and that before this court, except that the petition now under consideration has attached to it a copy of the petition filed in the Supreme Court. No evidence is suggested that might have altered or varied the conclusion to be derived from the pleadings and exhibits. In this state of the record can we say that, because the Supreme Court did not write an opinion at the time of denying the petition, its order was not a final judgment?

It is urged that the Supreme Court might have based its order upon any one of seven possibilities, namely: (1) that it did not regard mandate a proper remedy; (2) that it might have considered that a trial on the merits in the superior court was the proper remedy; (3) that it might have deemed the matter lacking in importance for the exercise of original jurisdiction; (4) that it might have considered the pleadings defective; (5) that it might have considered the action prematurely brought; (6) that it might have held that it was without jurisdiction, and (7) it might have found other technical defects. But a judgment upon or in respect to the legal condition or relation of a person is conclusive upon such condition or relation. (§ 1908, Code Civ.Proc.) It is presumed that a judicial record correctly determines the rights of the parties. (§ 1963, subd. 17, Code Civ.Proc.) The basis of the doctrine of res judicata is to prevent vexatious litigation and to rest upon one decision of a controversy. Miller & Lux, Inc., v. James, 180 Cal. 38, 179 P. 174. Where facts vital to the controversy have been determined as between the parties litigant a judgment based upon such finding is forever binding in every court between the parties and their privies. In re Estate of Harrington, 147 Cal. 124, 81 P. 546, 109 Am.St.Rep. 118. A fact alleged in a pending action was adjudicated in the former action if the same fact was necessary to the first decision. People v. City and County of San Francisco, 27 Cal. 655. A judgment is conclusive as to every matter “coming within the legitimate purview of the original action.” In re Estate of Bell, 153 Cal. 331, 95 P. 372, 376; Helpling v. Helpling, 50 Cal.App. 676, 195 P. 715. The exhibits attached to the petition presented to the Supreme Court disclose conclusively that it had jurisdiction and that the pleadings were not defective. Also, the brief order of denial indicated that it was with prejudice.

It is true that in thé determination of causes decisions of appellate courts should be in writing containing the grounds of decision. (Const., art. VI, § 24.) But such requirement applies to decisions where the court has assumed jurisdiction and to those controversies that have been tried in an inferior court and transferred by appeal to the appellate court. In the exercise of its original jurisdiction the Supreme Court is not an appellate court. Where an original proceeding is presented to that court upon a declaration of all of the facts favorable to the petitioner, and relief is denied, no amount of words or reasons can render more effective such order of denial. If his petition is granted a trial follows the return on the alternative writ when the court's decision is evidenced by an opinion.

Appellant argues that in the absence of a hearing and written decision the denial of the petition by the Supreme Court was a mere dismissal and therefore could not be res judicata, citing Campanella v. Campanella, 204 Cal. 515, 269 P. 433; and Gonsalves v. Bank of America, Nat. T. & S. Ass'n, 16 Cal.2d 169, 105 P.2d 118. But each of these cases was dismissed in the superior court before a trial on the merits. The holding in each was that a mere dismissal is not a judgment on the merits. In the case of Goddard v. Security Title Insurance & Guarantee Co., 14 Cal.2d 47, 92 P.2d 804, the action was dismissed following the sustaining of a demurrer because of technical defects and not because of irremedial substance. Of course, if an order denying relief is not based upon a consideration of the merits it is not an adjudication of the pleaded matters, but they may be subsequently presented to a proper court. Where all of the facts are pleaded and the court had jurisdiction, it must be presumed that a denial of relief was a judgment upon such facts. § 1908, supra; In re Estate of Bell, supra. The denial was necessarily an adjudication. The court's failure to file an opinion did not affect the quality or finality of its order; neither was the efficacy and force of its judgment diminished thereby. People v. Hadley, 66 Cal.App. 370, 226 P. 836; Reilly v. Police Court, 194 Cal. 375, 228 P. 860; Napa Valley Electric Co. v. Railroad Comm., 251 U.S. 366, 40 S.Ct. 174, 64 L.Ed. 310. The Reilly case held that the denial ex parte and without a written opinion of an original application for a writ, other than of habeas corpus, is a final adjudication that upon the facts alleged in the application the petitioner is not entitled to the writ prayed for.

It was subsequently recognized as the rule by this court in Gubin v. Superior Court, 104 Cal.App. 331, 333, 285 P. 1071, 1072, which held that the conclusion in Reilly v. Police Court, supra, “cannot be doubted.” Such method of adjudicating the meaning of statutes and constitutional provisions is the frequent practice of the Supreme Court.

Judgment affirmed.

MOORE, Presiding Justice.

W. J. WOOD, J., and McCOMB, J., concurred.

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