HARDY v. PACIFIC OCEAN POPEYE INC

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Court of Appeal, Second District, Division 4, California.

Lionel HARDY, Petitioner, v. The SUPERIOR COURT of Los Angeles County, Respondent, PACIFIC OCEAN POPEYE, INC., etc., Real Party in Interest.

No. B048478.

Decided: January 18, 1991

René Korper, Hollywood, for petitioner. De Witt W. Clinton, County Counsel, and Frederick R. Bennett, Asst. County Counsel, for respondent. No appearance for real party in interest.

 The question presented in this mandate proceeding is whether section 396 of the Code of Civil Procedure 1 authorizes a superior court judge to divest that court of its subject-matter jurisdiction over an action by a pretrial “fact-based” finding that the plaintiff's claim could not yield a judgment meeting the court's amount-in-controversy jurisdictional minimum.

We conclude that section 396 confers no such authority and that the decision in Campbell v. Superior Court (1989) 213 Cal.App.3d 147, 261 Cal.Rptr. 509, holding otherwise, is incorrectly decided.   In our view section 396 makes the operative complaint or petition determinative of superior court subject-matter jurisdiction.  Section 396 does not provide for evidentiary jurisdictional hearings and the fifth paragraph thereof exempts the superior court from the general rule that jurisdiction may be divested by a failure of proof “at the trial or hearing.”

FACTS

By complaint filed in superior court, plaintiff alleges that he suffered extensive physical and emotional injuries, when, after consuming a substantial portion of the fried chicken he had purchased at defendant's restaurant, he discovered that it was a dead rat that had been coated with batter and deep-fried.   This discovery caused plaintiff severe emotional distress, a chronic aversion to meat and other foods, and chronic emotional anxiety leading to physical disability and loss of employment.   Plaintiff's statement of personal injury damages (Code Civ.Proc., §§ 425.10 and 425.11) claims $50,000 in general damages.2  A jury trial was demanded.

At a status conference respondent ruled, based upon the status-conference questionnaires, that the case did not meet the amount-in-controversy jurisdiction of the superior court.   The case was ordered transferred to municipal court.

DISCUSSION

Respondent's transfer of the underlying action was based upon Campbell v. Superior Court (1989) 213 Cal.App.3d 147, 261 Cal.Rptr. 509, which holds that superior court judges may conduct pretrial evidentiary “hearings” to determine the maximum monetary damages a plaintiff will be able to prove at trial.   If it appears to the judge that the damages recoverable at trial will not meet the superior court's amount-in-controversy minimum, the judge may transfer the case to municipal court.

We disagree with Campbell, supra, on several grounds.

First, we believe Campbell's construction of section 396 is in direct conflict with our Supreme Court's construction of the statute and the long-established case-law rule, that superior court subject-matter jurisdiction is determined exclusively from the good-faith allegations of the complaint and is not affected by a subsequent failure of proof “at trial or hearing.”

Second, we believe Campbell's construction of the fifth paragraph of section 396 gives insufficient consideration to the fundamental principle of subject-matter jurisdiction that a trial court may not exercise subject-matter jurisdiction over a case after determining that it lacks such jurisdiction.   It also ignores the system of trial court jurisdiction created by the California Constitution which does not provide for concurrent jurisdiction between superior and municipal courts.

Third, Campbell attributes a meaning to the term “or hearing,” in the second paragraph of section 396, that is inconsistent with and unsupported by the legislative history of the statute.

Fourth, we view Campbell as improperly transforming the “amount in controversy” test of subject-matter jurisdiction into an “actual value of the action” test.

Fifth, we find Campbell construes section 396 in a manner that unnecessarily impinges upon the constitutional right of civil litigants to have a jury determine the amount of personal injury damages.

Sixth, we believe that Campbell incorrectly transforms the test stated in the second paragraph of section 396 (requiring transfer where “․ the determination of the action or proceeding, ․ will necessarily involve the determination of questions not within the jurisdiction of the court, ․”), into a pretrial subjective valuation by a judge.

The holding of Campbell v. Superior Court, supra, 213 Cal.App.3d 147, 261 Cal.Rptr. 509, turns on its construction of the second and fifth paragraphs of section 396.

Campbell interprets the “at trial, or hearing” language in the statute's second paragraph, as authorizing superior court judges to conduct “other hearings” (i.e., hearings preceding the ultimate trial on the merits) to evaluate the maximum monetary damages that could reasonably be awarded by a jury or court after trial.  Campbell concludes that if it “appears to” a judge that this maximum amount does not meet the superior court's jurisdictional minimum, then the judge may order transfer to municipal court and preclude a superior court jury from fixing damages.

Campbell, supra, 213 Cal.App.3d at page 151, 261 Cal.Rptr. 509, acknowledges the established “general rule” that amount-in-controversy subject-matter jurisdiction of the superior court is determined by the good-faith allegations and prayer of the complaint.   However, it views the second paragraph of section 396 as contemplating post-complaint, fact-based divestments of such jurisdiction “at the trial or other hearing.”   From this Campbell concludes that the superior court's subject-matter jurisdiction, initially fixed by the good-faith allegations in the complaint or petition, is subject to divestment upon a pretrial factual valuation of the true maximum worth of the action.  (213 Cal.App.3d at pp. 151–152, 261 Cal.Rptr. 509.)

Campbell holds that such divestment of jurisdiction by failure of proof “as determined at trial or hearing” is not precluded by the language of the fifth paragraph of section 396 because the phrase “Nothing herein shall be construed to require the superior court to transfer ․” merely creates “discretion” in that court to retain the action for hearing, determination and entry of judgment.  (Campbell v. Superior Court, supra, 213 Cal.App.3d at p. 152, fn. 2, 261 Cal.Rptr. 509, emphasis added.)

Campbell attempts to reconcile its statutory construction with two contrary decisions (Davis v. Superior Court (1972) 25 Cal.App.3d 596, 599–601, 102 Cal.Rptr. 238, and Depretto v. Superior Court (1981) 116 Cal.App.3d 36, 39, 171 Cal.Rptr. 810) that follow the settled rule that the allegations and prayer of the complaint exclusively determine superior court amount-in-controversy jurisdiction and that jurisdiction is not affected by a subsequent failure of proof.

Campbell reasons:  “Both opinions [Davis, supra, and Depretto, supra ] resolve the transfer issue by reciting the general rule, without delving into the meaning of the statutory language permitting a fact-based transfer, and without discussion of the permissibility of the transfer in the case before the court.   Indeed, both decisions imply, contrary to the statutory language, that a trial court cannot transfer a case which prays for superior court damages regardless of the actual value as assessed at a trial or hearing.   We must disagree with any such implication;  under the language of section 396 the trial court may, in its discretion and under appropriate circumstances, evaluate the facts of a case and determine that a verdict within the limits of superior court jurisdiction will not be had.”  (Campbell v. Superior Court, supra, 213 Cal.App.3d at p. 152, 261 Cal.Rptr. 509, fns. omitted.)

The Campbell construction of the fifth paragraph of section 396, as permitting divestment of superior court jurisdiction upon failure of proof “as determined at trial or hearing,” is contrary to the construction given to section 396 by our Supreme Court.  (Sellery v. Ward (1942) 21 Cal.2d 300, 304–306, 131 P.2d 550;  Silverman v. Greenberg (1938) 12 Cal.2d 252, 254, 83 P.2d 293.)

A comparison of the cases decided before and after the 1933 amendment of section 396 (substituting provisions controlling subject-matter jurisdiction in place of the territorial-jurisdiction and venue provisions previously contained in that section) demonstrates that section 396 has, since that amendment, uniformly been construed by our Supreme Court to continue in effect or codify the preexisting case-law rule.   Nothing in these cases suggests the statute was intended to drastically alter the case-law rule.

The settled case-law rule from 1855 to 1933 was that superior court amount-in-controversy and nature-of-the-case subject-matter jurisdiction 3 lies exclusively in the good-faith allegations of the operative complaint or petition and is not subject to divestment upon failure of proof at trial.   (Jackson v. Whartenby (1855) 5 Cal. 94, 94–95;  Dashiell v. Slingerland (1882) 60 Cal. 653, 655;  Rodley v. Curry (1898) 120 Cal. 541, 542–543, 52 P. 999;  Becker v. Superior Court (1907) 151 Cal. 313, 316–318, 90 P. 689;  Gardiner v. Royer (1914) 167 Cal. 238, 244, 139 P. 75.)

Jackson v. Whartenby, supra, 5 Cal. at pages 94–95, involved a challenge to trial court jurisdiction where the damages proved at trial fell below the minimum amount-in-dispute specified for jurisdiction.  Jackson affirmed the judgment, holding:  “Section 6 of the sixth Article of the Constitution [former California Constitution], provides that ‘the District Courts [the trial-court predecessors of superior courts] shall have original jurisdiction in law and equity in all civil cases where the amount in dispute exceeds two hundred dollars, exclusive of interest.’   The amount here in dispute, as appears from the record, was eight hundred and fifty-one dollars, and the action seems to have been commenced [in the District Court] in good faith for that amount.   Where an action has been commenced in a District Court in good faith for a sum greater than two hundred dollars, exclusive of interest, a judgment may be rendered for an amount less than the sum prescribed by the Constitution limiting the jurisdiction of the Court in the commencement of the action.”

In Rodley v. Curry (1898) 120 Cal. 541, 52 P. 999, the complaint demanded damages meeting the superior court's amount-in-controversy jurisdictional minimum but, at trial, plaintiff acknowledged a miscalculation in his accounting that reduced his provable claim below the jurisdictional amount.  Rodley affirmed the monetary judgment, stating, at page 543, 52 P. 999:  “It is so well settled that the amount for which judgment is demanded in the complaint determines the jurisdiction of the court that no authorities need be cited.   Any other rule would be fraught with uncertainties and mischiefs beyond the power of anticipation.”

In 1914 the rule was again succinctly stated in Gardiner v. Royer, supra, 167 Cal. at page 244, 139 P. 75:  “Jurisdiction of the cause attaches at the time of the commencement of the action, and cannot be divested by the establishment to the satisfaction of the court of a defense to the whole or any portion of the claim, whether by demurrer, or by evidence at trial.”   Gardiner appears to be the Supreme Court's last word on the point prior to the 1933 amendment of section 396.

After amendment of section 396 in 1933, the Supreme Court and Courts of Appeal continued to apply the same case-law rule, that factual failures of proof at trial do not divest the superior court of jurisdiction as determined by the complaint.

The cases explicitly (Sellery v. Ward, supra, 21 Cal.2d 300, 305, 131 P.2d 550, and Cook v. Winklepleck (1936) 16 Cal.App.2d Supp. 759, 763–765, 59 P.2d 463 (cited with approval on this point in Silverman v. Greenberg, supra, 12 Cal.2d at p. 254, 83 P.2d 293) and implicitly (Silverman v. Greenberg, supra ) find the second and fifth paragraphs of section 396 to perpetuate this rule.

Silverman v. Greenberg, supra, 12 Cal.2d 252, 83 P.2d 293, appears to be the first Supreme Court case, after the 1933 amendment of section 396, to address the question of divestment of superior court subject-matter jurisdiction upon a failure of proof at trial.  Silverman involved a failure at trial to prove entitlement to a type of cause which, as pleaded in the complaint, brought the action within exclusive superior court jurisdiction.

In Silverman plaintiffs filed a complaint in superior court alleging entitlement to money had and received in an amount below the superior court jurisdictional minimum.   But they also sought, via a cause in equity (not within municipal court jurisdiction), to quiet title to real property.   After trial, judgment quieting title was entered in defendant's favor and plaintiffs were awarded damages in an amount below the court's jurisdictional minimum.   On appeal the judgment was challenged on the theory that superior court subject-matter jurisdiction was divested (and transfer to municipal court mandated) upon plaintiffs' failure to prove entitlement to equitable relief or damages meeting the superior court's jurisdictional criteria.

Silverman points out that for purposes of subject-matter jurisdiction the amount-in-controversy and type-of-action criteria are counterparts subject to identical rules.

Silverman holds that “[t]he test of the jurisdiction of a court is to be found in the nature of the case as made by the complaint and the relief sought, and the fact that a plaintiff does not succeed in establishing all that he claims does not oust the court of its jurisdiction to give judgment for so much as is established.  (Becker v. Superior Court [1907] 151 Cal. 313 [90 P. 689];  Gardiner v. Royer [1914] 167 Cal. 238, 244 [139 P. 75];  Cook v. Winklepleck [1936] 16 Cal.App.2d Supp. 759, 763 [59 P.2d 463].)”   (Silverman v. Greenberg, supra, 12 Cal.2d at p. 254, 83 P.2d 293.)

Silverman's citation to Becker, supra, and Gardiner, supra, manifests the view that the case-law rule preceding the 1933 revision of section 396 was carried over into, or codified in, the revised statute.   This view is also reflected in Silverman's citation, with approval, of the discussion of this point in Cook v. Winklepleck, supra, 16 Cal.App.2d Supp. 759, 59 P.2d 463.   (Silverman v. Greenberg, supra, 12 Cal.2d at p. 254, 83 P.2d 293.)

Cook v. Winklepleck, supra, 16 Cal.App.2d Supp. 759, 59 P.2d 463, contains a clear recognition that the case-law rule, proscribing divestment of superior court jurisdiction for failure of proof, is continued in section 396.   Cook construes section 396, as it read after its 1933 revision, in the context of a declaratory relief action, as to which exclusive superior court jurisdiction attached for lack of a statute conferring jurisdiction in the municipal court.

Cook holds that the superior court erred in transferring an action to municipal court where an amended complaint had fixed superior court jurisdiction (by alleging a cause for declaratory relief) but at trial plaintiff proved entitlement only to monetary damages below the superior court's jurisdictional minimum.  (Cook v. Winklepleck, supra, 16 Cal.App.2d Supp. at pp. 764–765, 59 P.2d 463.)

Cook points out:  “By the terms of that part of section 396 above quoted [the provisions requiring transfer when a lack of jurisdiction appears on the face of the original complaint], jurisdiction for the purpose of transfer must be determined by the complaint.   In this respect the section sets up the same rule which has been established by judicial decision as to the mode of determining jurisdiction generally.  (Citations.)”  (Cook v. Winklepleck, supra, 16 Cal.App.2d Supp. at p. 763, 59 P.2d 463.)  (Emphasis and text in brackets added.)

Cook holds, “The fact, however, that the court, acting upon the evidence, thus exercised its discretion against the granting of declaratory relief did not alter the nature of the action brought therefor from one for declaratory relief which was within the sole jurisdiction of the superior court, to one for the incidental relief asked for, that is, the recovery of a sum of money, ․ Such a result would have followed if the complaint, while alleging facts sufficient to bring the case within section 1060 [declaratory relief cause], had also shown by its allegations that declaratory relief was not necessary or proper at the time under all the circumstances, in which case the action would in truth have been merely one for the consequential relief of damages and so within the jurisdiction of the municipal court.  [Citations.]  Here the principle is the same as in the cases where it has been held that the superior court does not lose jurisdiction of a case properly brought there because the judgment rendered is below the jurisdictional limit in amount.  (Citing, Gardiner v. Royer, supra, 167 Cal. 238, 244 [139 P. 75], inter alia.)”   (Cook v. Winklepleck, supra, 16 Cal.App.2d Supp. at pp. 764–765, 59 P.2d 463.)

Cook underscores its observation of continuity of the rule by finding Becker v. Superior Court, supra, 151 Cal. 313, 317, 90 P. 689, to be “the same in principle but still more closely analogous on its facts.”   (Cook v. Winklepleck, supra, 16 Cal.App.2d Supp. at p. 765, 59 P.2d 463.)

In Sellery v. Ward, supra, 21 Cal.2d 300, 131 P.2d 550, the Supreme Court squarely holds that superior court amount-in-controversy jurisdiction fixed by the complaint is not divested by a failure of proof.  Sellery finds section 396 to yield the same result as the established case-law rule.

In Sellery the superior court complaint alleged several causes seeking different monetary amounts due upon a joint venture.   Several of the causes individually, and all the causes combined, sought monetary relief meeting the superior court's amount-in-controversy minimum.   At trial, upon a statement by the trial court that it would award damages on the first cause and that plaintiffs should abandon their other causes, trial proceeded only as to the first cause.   Judgment was entered on the first cause in an amount less than the superior court jurisdictional minimum.   The other causes were voluntarily dismissed.   On appeal the judgment was challenged on the ground that superior court subject-matter jurisdiction had been divested upon plaintiffs' failure to prove entitlement to damages within superior court jurisdiction.

Sellery v. Ward, supra, 21 Cal.2d at page 304, 131 P.2d 550, holds:  “The superior court clearly had jurisdiction.  [¶] Where the action is brought in good faith and the cause of action stated is within the jurisdiction of the court in which it is commenced, the mere fact that the judgment is for less than the jurisdictional amount of the court does not establish that it was without jurisdiction.  [Citations.]  Ordinarily the relief claimed when the action is instituted determines the jurisdiction of the court over the subject matter for the entire proceeding.  [Citations.]”

Sellery continued:  “The situation in the instant case is no different from the ordinary case in which the relief granted by the judgment is of an amount or character which if it appeared to be the matter in controversy when the action was instituted the court would lack jurisdiction.   In such a case the court has jurisdiction if the relief sought is within the jurisdiction of the court when the action is commenced.”  (Sellery v. Ward, supra, 21 Cal.2d at page 305, 131 P.2d 550.)

Sellery finds this controlling rule stated in Rodley v. Curry, supra, 120 Cal. 541, 52 P. 999, and expressly finds the same rule and result to be indicated by the second and fifth paragraphs of section 396 [which were then substantively identical to their present formulations].  (Sellery v. Ward, supra, 21 Cal.2d at pp. 305–306, 131 P.2d 550.)

Sellery points out that its construction of section 396 is not contrary to a 1927 Court of Appeal decision or a 1935 Supreme Court decision requiring transfer to municipal court.   Those cases involved an original complaint or an amended complaint that did not attach jurisdiction because they did not demand relief meeting the superior court amount-in-controversy minimum.  (Sellery v. Ward, supra, 21 Cal.2d at p. 306, 131 P.2d 550.)

Silverman, supra, and Sellery, supra, demonstrate that the operative, good-faith pleading is the exclusive test of superior court subject-matter jurisdiction and no subsequent failure of proof divests that jurisdiction.   No “alternative” mini-trial fixing the value of the case (as suggested by Campbell, supra ) need be “delved into” because such alternative is proscribed by law.

In Davis v. Superior Court, supra, 25 Cal.App.3d 596, 599–601, 102 Cal.Rptr. 238, a superior court judge at a pretrial conference made the determination that one personal injury plaintiff's damages could not amount to the court's amount-in-controversy minimum.   The case was ordered transferred to municipal court.

By writ of mandate the Davis court vacated the transfer order.  Davis holds that, under controlling Supreme Court decisions, amount-in-controversy jurisdiction is definitively established by the good-faith allegations and prayer of the operative complaint.   A judge may not disregard the prayer in the complaint unless such claim is patently made in bad faith.   A superior court judge may not determine, as a matter of law, the maximum damages that a trier of fact might award for personal pain and suffering.   Such determination is “peculiarly the function of the trier of the facts.”  (Davis v. Superior Court, supra, 25 Cal.App.3d at p. 601, 102 Cal.Rptr. 238.)  Davis was followed in Depretto v. Superior Court, supra, 116 Cal.App.3d at p. 39, 171 Cal.Rptr. 810.)

 Departing from the uniform case-law construction of section 396, the 1989 Campbell decision, supra, 213 Cal.App.3d 147, 261 Cal.Rptr. 509, was the first in the then 56–year life of section 396 to hold that superior court subject-matter jurisdiction fixed by the complaint or petition is subject to divestment upon a subsequent failure of proof at trial or other evidentiary hearing.4

If, as the cases hold, section 396 does not permit divestment of superior court jurisdiction by a failure of proof at the trial, then the statute does not permit such divestment by failure of proof at a pretrial hearing.5

Perhaps the most fundamental conceptual disagreement we have with Campbell centers upon its construction of the fifth paragraph of section 396.   Campbell construes that paragraph as contemplating divestment of superior court subject-matter jurisdiction by post-pleading failure of proof “at the trial or other hearing,” and as conferring “discretion” in the superior court as to whether or not to continue to exercise jurisdiction.

 The California Constitution, article VI, section 10 provides:  “Superior courts have original jurisdiction in all causes except those given by statute to other trial courts.”   Section 86, subdivision (a)(1) of the Code of Civil Procedure gives municipal courts jurisdiction “[i]n all cases at law in which the demand, exclusive of interest, or the value of the property in controversy amounts to twenty-five thousand dollars ($25,000) or less, ․”  Thus, the superior court is the trial court of exclusive general jurisdiction and all matters must be filed with that court unless the operative pleadings reveal that jurisdiction lies in a lower court by virtue of an express statutory exception to the superior court's general jurisdiction.

 Under this system, superior courts have no concurrent subject-matter jurisdiction with municipal or justice courts within their territorial jurisdiction.   Thus, superior courts have exclusive subject-matter jurisdiction of an action where the amount-in-controversy exceeds the municipal court's statutory maximum or where no statute confers municipal court jurisdiction over the particular type of action or proceeding.   Conversely, when a statute confers municipal or justice court subject-matter jurisdiction of a case (amount in controversy $25,000 or less), the statute divests the general jurisdiction of the superior court.  (Cambra v. Justice's Court (1935) 4 Cal.2d 445, 447, 49 P.2d 1121;  (Glass v. Bank of America etc. Assn. (1936) 17 Cal.App.2d 645, 646–647, 62 P.2d 764;  2 Witkin, Cal.Procedure (3d ed. 1985) Courts, § 166, p. 192.)

 Conversely, if the superior court has exclusive original subject-matter jurisdiction under section 10, article VI of the Constitution, it has no authority to decline to exercise it and transfer to municipal court.   (Temple v. Superior Court (1886) 70 Cal. 211, 212, 11 P. 699;  Cahill v. Superior Court (1904) 145 Cal. 42, 46, 78 P. 467;  Hennessey v. Superior Court (1924) 194 Cal. 368, 228 P. 862;  Cook v. Winklepleck (1936) 16 Cal.App.2d Supp. 759, 762–763, 767–768, 59 P.2d 463, cited with approval in Silverman v. Greenberg (1938) 12 Cal.2d 252, 254, 83 P.2d 293.)

 Our conclusion is consistent with the decision of the Supreme Court in the leading case on jurisdiction in the fundamental sense:  Abelleira v. District Court of Appeal (1941), 17 Cal.2d 280, 109 P.2d 942.  Abelleira defines lack of jurisdiction in the fundamental sense as “an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.”  (17 Cal.2d at p. 288, 109 P.2d 942.)   An example is “where the type of proceeding or the amount in controversy is beyond the jurisdiction defined for that particular court by statute or constitutional provision.”  (Ibid., emphasis added.)   Just as a court cannot adjudicate a case over which it lacks jurisdiction in the fundamental sense, it also cannot transfer a case over which it does have such authority to another court which does not.   As we have seen, the amount in controversy element of fundamental jurisdiction is determined by good faith pleadings, not by a pretrial factual evaluation or by the outcome of the case.

Campbell finds authority for “discretionary subject-matter jurisdiction” construction in broad language in Wexler v. Goldstein (1956) 146 Cal.App.2d 410, 414, 304 P.2d 41 (discussed in 2 Witkin, Cal.Procedure (3d ed. 1985) Jurisdiction, § 329, pp. 745–746, and followed without analysis in People v. Pacific Employers Ins. Co. (1973) 36 Cal.App.3d 296, 300, 111 Cal.Rptr. 350).6  We do not read Wexler as the authority claimed by Campbell.

Wexler involves complex and unique procedural facts.   The action commenced in municipal court and was transferred to superior court when a cross-complaint was filed containing a count for damages exceeding the municipal court's jurisdictional maximum.   In superior court a demurrer to the punitive damages count of the first amended cross-complaint was sustained with leave to amend, but plaintiff failed to amend before trial commenced.   Defendant moved to retransfer the action to municipal court for lack of superior court jurisdiction.   The motion was denied and judgment was entered for plaintiff in an amount below the minimum for superior court jurisdiction.   During the pendency of defendant's motion for new trial, the superior court entered a nunc pro tunc order striking the challenged count in the cross-complaint as of the date trial had commenced.   The court then granted the new trial motion, based on divestment of jurisdiction when the punitive damages count was dismissed nunc pro tunc, and retransferred the action to municipal court.

On appeal from the orders granting new trial and retransferring to municipal court, the Wexler court holds that the superior court had discretion, per the fifth paragraph of section 396, to retain the action despite the divestment of jurisdiction by the dismissal of the punitive damages count “at trial” via the nunc pro tunc order.

Wexler recognizes the general divestment provisions of the second paragraph of section 396.   Then, focusing upon the phrase “[n]othing herein requires the superior court to transfer ․” in the fifth paragraph, Wexler casts a novel construction upon that paragraph:  “The effect of this [fifth] paragraph is to qualify the second paragraph of section 396 as to superior courts only.   It gives such courts the discretion either to transfer back to the municipal courts or retain jurisdiction where what would otherwise be a lack of jurisdiction is ‘determined at the trial or hearing’ ” (Wexler v. Goldstein, supra, 146 Cal.App.2d at p. 414, 304 P.2d 41.)

Wexler concludes its analysis by reasoning that the divestment of superior court jurisdiction was subject to the discretionary-transfer provision of the fifth paragraph of section 396 because, by virtue of the nunc pro tunc order, the lack of jurisdiction on the pleadings was “determined at the trial.”  (Wexler v. Goldstein, supra, 146 Cal.App.2d at p. 415, 304 P.2d 41.)

We first point out that on its facts Wexler involved a divestment of superior court jurisdiction solely on the basis of the failure of the pleadings to attach jurisdiction, rather than upon any evidentiary determination at the trial divesting jurisdiction shown on the face of the pleadings.   Thus, even accepting Wexler's determination that its unique facts come within the domain of the fifth paragraph of section 396, Wexler still is no authority for the Campbell “fact-based” transfer at a pretrial evidentiary hearing.

Campbell's reliance upon the “at the trial or hearing” language in the second paragraph of section 396 also fails as a sound foundation for the conclusion that the statute provides for special pretrial evidentiary “jurisdiction” hearings.

Campbell does not consider the statutory history of section 396 with regard to the addition of the phrase “or hearing” to the statute.

The circumstance of the addition of the phrases “or petition” and “or hearing” to the statute in 1935 does not manifest an intention to authorize mini-trials for divestment of jurisdiction.

As amended in 1933 (Stats.1933, ch. 744, § 7, p. 1841), section 396 applied to an “action or proceeding” but referred to the initial determination of subject-matter jurisdiction “as determined by the complaint.”  (Emphasis added.)   The statute recognized subsequent divestment of jurisdiction only by “the verified pleadings, or at the trial.”  (Emphasis added.)

The 1935 amendment to section 396 (Stats.1935, ch. 722, § 1, p. 1947) added the new terms “or petition” and “or hearing.”   Subject matter jurisdiction was now to be determined initially either “by the complaint or petition.”   (Emphasis added.)   Facts requiring a subsequent divestment of jurisdiction could now appear either “from the verified pleadings, or at the trial, or hearing.”  (Emphasis added.)   The amendment also restructured the statute from two large paragraphs to its present 8–paragraph configuration.   No substantive changes were made in 1935.   Other minor changes, not relevant to our inquiry, were made by subsequent amendments.

The 1935 addition of “or petition” and “or hearing” reflects nothing more than a legislative housekeeping effort to accommodate the differences between “proceedings” and “actions” within the scope of the statute.   Special proceedings are, unlike common law actions, often commenced by petition, rather than complaint;  the ultimate determination of a proceeding is often denominated a “hearing” rather than a trial.  (See generally Code Civ.Proc., §§ 21–23, 308, 422.10, 426.60, 429.10, 1069, 1086, 1094, 1103, 1276, 1281.2, 1855.)   This explanation is far more reasonable than the Campbell construction.

The “amount in controversy” test has long controlled the monetary limit of superior court subject-matter jurisdiction.  (Gardiner v. Royer, supra, 167 Cal. at p. 244, 139 P. 75;  Sellery v. Ward, supra, 21 Cal.2d at pp. 304–305, 131 P.2d 550;  Davis v. Superior Court, supra, 25 Cal.App.3d at pp. 599–601, 102 Cal.Rptr. 238;  In re Marriage of Siller (1986) 187 Cal.App.3d 36, 47, 231 Cal.Rptr. 757;  2 Witkin, Cal.Procedure (3d ed. 1985), Jurisdiction, §§ 18, 19, pp. 384–387.)

We believe that Campbell v. Superior Court, supra, 213 Cal.App.3d 147, 261 Cal.Rptr. 509, mistakenly equates the settled “amount in controversy” jurisdictional standard with a “true value of the case” standard.  Campbell thus permits superior court judges to make pretrial fact-based adjudications that a jury or trial judge could not reasonably award plaintiff sufficient damages to meet the court's jurisdictional minimum.   This is irreconcilable with the settled rule that it is “the amount in controversy” claimed in good faith on the face of the complaint, that is determinative.7

The “true value of the case” test was squarely rejected as early as 1882 in Dashiell v. Slingerland, supra, 60 Cal. 653, 654–657.   We will not belabor the obvious point that the standard followed in Dashiell's is identical to today's well-settled “amount in controversy” standard.  (2 Witkin, Cal.Procedure (3d ed. 1985), Jurisdiction, §§ 18–19, pp. 384–386.)

Code of Civil Procedure section 1032, subdivision (d), penalizes a plaintiff who cannot prove damages meeting the superior court minimum.   It bars recovery of costs by such a plaintiff.   Clearly, this is an inadequate deterrent, but the solution is action by the Legislature not an arbitrary transfer of cases by the trial court.

 If the case before us is proven at trial, a jury might conclude that the emotional consequences of the injurious event alleged in the complaint are so egregious that a jury verdict in excess of $25,000 is warranted.   Respondent did not suggest that the complaint was in bad faith and transfer cannot be legally justified.

Campbell's construction impinges upon a plaintiff's right to have a jury or trial judge, acting as fact finder, fix the amount of damages for physical and emotional injury.

Schwartz v. Cal. Claim Service, supra, 52 Cal.App.2d 47, 125 P.2d 883, relies on Barry v. Edmunds (1886) 116 U.S. 550, 6 S.Ct. 501, 29 L.Ed. 729, which confirmed the rule against denial of trial court amount-in-controversy jurisdiction by reason of a large, unfixed exemplary damages claim.   In support of its holding Barry points out that “[i]n no case is it permissible for the court to substitute itself for the jury, and compel a compliance on the part of the latter with its own view of the facts in evidence, as the standard and measure of that justice, which the jury itself is the appointed constitutional tribunal to award.”  (116 U.S. at p. 565, 6 S.Ct. at 509;  accord, Davis v. Superior Court, supra, 25 Cal.App.3d at pp. 600–601, 102 Cal.Rptr. 238.)

 In the case before us, were we to follow Campbell, supra, we would conclude that respondent abused its discretion in ruling that the maximum damages that could be awarded by a jury would necessarily be less than the superior court's jurisdictional minimum.

Ingestion of a dead rat is an event that can scarcely be regarded as incapable of inflicting significant long-term psychological trauma.   A victim of such an event could reasonably suffer prolonged emotional consequences and require long-term psychological treatment.

Here plaintiff submitted the declaration and report of his treating psychiatrist diagnosing plaintiff as suffering from “acute post traumatic stress syndrome” resulting from his ingestion of the dead rat.   The report summarizes plaintiff's claim of inability to eat meats or other foods for a significant period after the incident;  digestive dysfunction;  extreme anxiety;  insomnia;  nightmares;  general psychological dysfunction;  loss of employment, and recurring visual flashbacks of the event.   The prognosis was reported as poor, with a recommendation of weekly psychiatric treatment for eight to twelve months ($200 per treatment) for an estimated maximum psychiatric expense of $12,000.   Plaintiff had incurred $1,260 in psychiatric expenses as of July 22, 1988.

Even under Campbell v. Superior Court, supra, 213 Cal.App.3d 147, 261 Cal.Rptr. 509, respondent abused its discretion since on these facts, which were not refuted below, the ultimate trier of fact could reasonably find that plaintiff suffers and will continue to suffer severe long-term emotional distress and incur medical expenses justifying a judgment exceeding the $25,000 jurisdictional minimum of the superior court.

CONCLUSION

We conclude that respondent clearly abused its discretion by failing to follow clearly controlling law.   Let a peremptory writ issue directing respondent to vacate its order of February 8, 1990, transferring the underlying action to the municipal court, and to thereafter resume superior court proceedings according to law.

This court's temporary stay order of May 25, 1990, restraining all further municipal court proceedings on the underlying action (except for orders necessary to retransfer it to superior court), shall remain in effect until this decision becomes final as to this court.

I concur in the judgment but dissent as to the legal reasoning of the majority.   Contrary to their express finding, I feel that the decision in Campbell v. Superior Court (1989) 213 Cal.App.3d 147, 261 Cal.Rptr. 509, is correctly decided and well reasoned.

In Campbell, supra, the court held at pages 151–152, 261 Cal.Rptr. 509:  “This oft-cited general rule, however, must be read in tandem with the specific language of section 396, which provides for transfer to a court of competent jurisdiction when, subsequent to the filing of the complaint, it ‘appears' from the pleading or at a ‘trial’ or ‘hearing’ that the host court lacks jurisdiction over the cause.   Witkin notes that transfer can occur in two instances:  the first where the lack of jurisdiction is evident upon filing of the complaint due to the amount of damages claimed, and the second ‘where the proceeding is originally commenced in ․ a court with jurisdiction under the allegations of the complaint or petition, and the lack of jurisdiction over the complaint ․ appears thereafter, either (1) from the verified pleadings, or (2) at the trial or other hearing.’  [Citation.]  The statutory language obviously provides for some form of a comparative evaluation of the actual facts of the case and the allegations of the complaint and the damages claimed in the prayer.  [Citation.]”

The court went and held the following at pages 152–153, 261 Cal.Rptr. 509:  “Although the statute simply states that it must ‘appear’ to the trial court that it lacks jurisdiction, a transfer to municipal court must not be made unless the lack of jurisdiction is clear.   A transfer deprives the plaintiff of the forum of original choice, and, unless set aside on review, precludes the plaintiff from proving damages greater than those available in an inferior court.  [Citations.]  A decision to transfer made without proper evaluation of the facts and circumstances of the case, or motivated by a desire to diminish court caseloads, would violate a plaintiff's interests.”

The trial court held a status conference in the case at bar.   Based upon questionnaires used at said conference, it held the case failed to meet the amount-in-controversy jurisdiction of the superior court.   The matter was transferred to municipal court.   As set forth in the majority opinion, the case involved the consumption of a substantial portion of a dead rat that had been coated with batter and deep-fried.   Plaintiff had assumed he was eating chicken and the discovery of the true nature of the substance led to great emotional and physical problems.   Plaintiff's statement of personal injury damages claimed $50,000 in general damages.   The status conference was not reported, but petitioner avers that there were serious ongoing emotional problems and that petitioner would prove general damages in excess of $50,000.   This conference was held on February 8, 1990.   A May 19, 1988 report by a Dr. Brian P. Jacks, psychiatrist, sets forth a telling portrait of petitioner's problems leading to a Post Traumatic Stress Disorder.   Petitioner avers that at the hearing, the real party in interest, Pacific Ocean Popeye, Inc., stated that the case was not worth over $25,000 and should be transferred to municipal court.

It appears that the trial court made a decision to transfer this case to municipal court “without proper evaluation of the facts and circumstances of the case” which is proscribed by the Campbell case, supra, 213 Cal.App.3d at page 153, 261 Cal.Rptr. 509.   In short, the trial court abused its discretion.

Two other well reasoned cases which support the legal approach taken in the Campbell case, supra, are Williams v. Superior Court (1989) 216 Cal.App.3d 378, 384–385, 264 Cal.Rptr. 677, and Williams v. Superior Court (1990) 219 Cal.App.3d 171, 176–177, 268 Cal.Rptr. 61.

FOOTNOTES

1.   The pertinent provisions of section 396 are the second and fifth (unnumbered) paragraphs.Second paragraph:  “If an action or proceeding is commenced in or transferred to a court which has jurisdiction of the subject matter thereof as determined by the complaint or petition, and it thereafter appears from the verified pleadings, or at the trial, or hearing, that the determination of the action or proceeding, or of a cross-complaint, will necessarily involve the determination of questions not within the jurisdiction of the court, in which the action or proceeding is pending, the court, whenever such lack of jurisdiction appears, must suspend all further proceedings therein and transfer the action or proceeding ․, to a court having jurisdiction thereof.”Fifth paragraph:  “Nothing herein shall be construed to require the superior court to transfer any action or proceeding because the judgment to be rendered, as determined at the trial or hearing, is one which might have been rendered by a municipal or justice court in the same county or city and county.”All future statutory references are to the Code of Civil Procedure unless otherwise specified.

2.   Since enactment of sections 425.10 and 425.11 of the Code of Civil Procedure, the amount of personal injury damages claimed may not be stated in the complaint and must instead be specified in a separate pleading upon defendant's request.   This procedural revision does not alter the jurisdictional rule.

3.   The California Constitution, article VI, section 10, provides:  “Superior courts shall have original jurisdiction in all causes except those given by statute to other trial courts.”   Section 86, subdivision (a)(1) of the Code of Civil Procedure sets an amount-in-controversy jurisdictional maximum upon municipal courts (now $25,000, exclusive of interest), and municipal courts have no statutorily conferred jurisdiction over various equitable causes or certain types of proceedings.

4.   Pertinent rules of statutory construction compel the conclusion that this holding is erroneous.   Generally, it is to be assumed that the Legislature, in enacting or amending a statute, was aware of existing judicial decisions and common-law rules.  (Keeler v. Superior Court (1970) 2 Cal.3d 619, 625, 87 Cal.Rptr. 481, 470 P.2d 617;  Kimball v. Union Water Co. (1872) 44 Cal. 173, 174.)   It will not be presumed that the Legislature intended to overthrow long-established principles of law unless the intention is made clear by express declaration or by necessary implication.  (Williams v. Los Angeles Metropolitan Transit Authority (1968) 68 Cal.2d 599, 603–604, 68 Cal.Rptr. 297, 440 P.2d 497;  County of Los Angeles v. Frisbie (1942) 19 Cal.2d 634, 644, 122 P.2d 526.)   Finally, a uniform judicial construction of a statute, acquiesced in by the Legislature for a number of years, should be adhered to unless demonstrated to be clearly erroneous.  (People v. Hallner (1954) 43 Cal.2d 715, 719, 277 P.2d 393.)

5.   We are aware that both Williams v. Superior Court (1989) 216 Cal.App.3d 378, 264 Cal.Rptr. 677, and Williams v. Superior Court (1990) 219 Cal.App.3d 171, 268 Cal.Rptr. 61, follow Campbell.   We are also aware that Walker v. Superior Court (1989) 269 Cal.Rptr. 73, 790 P.2d 237 rejected Campbell and that the Supreme Court has granted review in Walker.We need not discuss the two Williams decisions because they merely reiterate and adopt the Campbell analysis and do not address the primary criticisms we raise against that analysis.   The single paragraph in Williams, supra, 219 Cal.App.3d 171, at 178, 268 Cal.Rptr. 61, devoted to criticizing Walker, supra, is in our view wholly unpersuasive.   The citation thereat to St. James Church v. Superior Court (1955) 135 Cal.App.2d 352, 356, 287 P.2d 387, does not address the critical issues.Neither are we dissuaded from rejecting Campbell by the Supreme Court's grant of review in Walker, supra.  Walker does not raise the more fundamental criticisms we level against Campbell's holding that section 396 authorizes superior courts to conduct pretrial evidentiary hearings for divestment of subject-matter jurisdiction.   We believe that these additional points reveal fundamental flaws in the Campbell analysis and must be considered in resolving the controversy created by Campbell and its progeny.

6.   The quoted section of Witkin is a summary of the statute in its general context as it applies to all trial courts:  superior, municipal, and justice.   The cited section does not discuss the special rule, applicable exclusively to the superior court, precluding divestment of jurisdiction upon a failure of proof at trial.   Another section of the Witkin text summarizes the special rules applicable to the superior courts.  (See 2 Witkin, op. cite supra, § 19, p. 386.)

7.   While there are numerous references to puffing in order to meet the statutory minimum, the courts have not tended to find claims exaggerated in bad faith nor is this an issue in the case before us.   (Schwartz v. Cal. Claim Service (1942) 52 Cal.App.2d 47, 56–57, 125 P.2d 883;  2 Witkin, Cal.Procedure (3d ed. 1985), Jurisdiction, §§ 25–26, pp. 392–394.)

ARLEIGH M. WOODS, Presiding Justice.

EPSTEIN, J., concurs.