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


Civ. 13207.

Decided: February 18, 1942

Edmund Nelson, G. L. Berrey, Freston & Files, and James A. McLaughlin, all of Los Angeles, for petitioner. Mitchell, Silberberg, Roth & Knupp and Livingston & Livingston, all of Los Angeles, for respondent.

Upon rehearing and a reconsideration of the questions involved, no good reason has been found to alter the decision of this court previously rendered herein. However, in order to point out more clearly the reasons for the decision it is advisable to revise to some extent the former opinion [117 P.2d 733, 734].

“By this proceeding petitioner seeks a review of an order of the superior court permitting an amendment as to the first two causes of action set forth in a first amended complaint in an action entitled Herbert Hellman Aronson, et al, v. Bank of America National Trust & Savings Association, et al, L. A. Superior Court No 409371, brought against petitioner for an alleged conversion of certain shares of bank stock. The complaint in question consisted of four counts, each based upon a separate alleged conversion of stock, and the order granting plaintiffs leave to amend their first two counts was made upon motion of plaintiffs therefor after a general demurrer to the entire complaint had been sustained without leave to amend further, the action had been dismissed, an appeal had been taken from the judgment of dismissal, and the appellate court had upheld the sustaining of the demurrer without leave to amend as to the first two counts of the complaint but had reversed the judgment of dismissal upon the ground that the third and fourth counts of the complaint stated a cause of action. See Aronson v. Bank of America Nat. Trust & Sav. Ass'n, 42 Cal.App.2d 710, 109 P.2d 1001, 1007.” In the opinion there handed down the appellate court pointed out: “The instant action is the second such between the same parties and for the same cause. A general demurrer to plaintiff's complaint in the first action was sustained without leave to amend, the cause was dismissed and the judgment of dismissal was affirmed by the Supreme Court of this state on October 4, 1937, the opinion being reported in Aronson v. Bank of America, etc., Assn., 9 Cal.2d 640, 72 P.2d 548. The facts which form the basis of appellants' complaint are briefly summarized in that opinion. * * * Before the affirmance of the judgment in the former action and on November 28, 1936, the present action was commenced by appellants and the complaint therein was thereafter amended on June 18, 1937, and again on May 21, 1938, after which respondent bank put in an appearance and interposed its demurrer.” [42 Cal.App.2d 710, 109 P.2d 1003]

“In its opinion the appellate court stated: ‘It should be mentioned in passing that the complaint is far from a model of pleading and is in no sense concise. It is clear, however, that no attempt has been made to set out more than one cause of action in each count.

“ ‘In view of the fact that the allegations of the first and second counts of the complaint reveal a situation wherein no cause of action would lie against respondent bank or its predecessor the trial court did not err in refusing to grant leave to plaintiffs to amend those counts, but for the reasons above given the court erred in sustaining the demurrer to the third and fourth counts and in dismissing the action.

“ ‘The judgment of dismissal is therefore reversed with directions to the trial court to grant appellants leave to file an amended complaint if they are so advised.’

“Respondent contends that the effect of the judgment of reversal was to vacate the order sustaining the demurrer to plaintiffs' complaint and to place the action in exactly the same situation it occupied before there was any ruling on the demurrer. Respondent also contends that certiorari will not lie in the present instance because the question here presented may be reviewed upon an appeal from a final judgment in the action now pending.” It is also argued that the error, if any, committed by the trial court in permitting the amendment to the first and second causes of action in the complaint was merely one committed within the exercise of the jurisdiction of the court and did not constitute an act in excess of jurisdiction.

“It is undoubtedly true that the propriety of the trial court's action in granting plaintiffs leave to amend their first two causes of action, after reversal of the judgment of dismissal, could be reviewed on an appeal from a final judgment in the action; although of itself the order in question is not an appealable order under section 963 of the Code of Civil Procedure. It has been generally held that even if the order in question is not appealable, certiorari will not lie if the effect of the order can be reviewed and nullified by an appeal from the final judgment. Bryant v. Superior Court, 16 Cal.App.2d 556, 562, 61 P.2d 483; Hughson v. Superior Court, 120 Cal.App. 658, 8 P.2d 227. But in Bottoms v. Superior Court, 82 Cal.App. 764, 777, 256 P. 422, the trial court had vacated an order granting a continuance. The continuance had been granted on the ground that one of counsel was a member of the legislature attending a session thereof. Certiorari was sought to review the order vacating the order of continuance. It was held that while such an order would be reviewable on appeal from a final judgment in the action, the circumstances obviously required a more speedy and adequate remedy. It should be noted that the Bottoms case presented a situation where the effect of the order in question could not be nullified on an appeal from the final judgment. The continuance having been vacated and the action having been tried, the party aggrieved could be afforded no real remedy on an appeal from the final judgment. It could hardly be said that justice would be done by reversing the final judgment and remanding the cause to be tried all over again because the trial court had refused a continuance.

“Bryant v. Superior Court, supra, was concerned with the review of an order vacating orders allowing claims against an estate. At page 562 of 16 Cal.App.2d at page 486 of 61 P.2d, in that case the court stated: ‘The order under review is not an appealable order. (Cases cited.) It has been held that even so, if the effect of an order can be reviewed and nullified by an appeal from the judgment, certiorari will not lie. (Citing Hughson v. Superior Court, supra.) Relying on this principle of law, respondents claim that petitioners have a plain, speedy, and adequate remedy at law, as they can again present their claim to one of the judges of the superior court for allowance; if disallowed in whole or in part, a suit to enforce the claim may be prosecuted, and, if an adverse judgment is had, an appeal lies therefrom. Prior to the order vacating these claims, they stood as acknowledged debts against the estate. The approval of a claim against an estate is prima facie evidence of its validity, and the burden of showing invalidity is cast upon those who contest it. (Citing authority.) It is apparent, therefore, that the effect of the order vacating the orders allowing the claims cannot be reviewed or nullified by the method suggested by respondents.’

“In Stanton v. Superior Court, 202 Cal. 478, at p. 490, 261 P. 1001, at page 1005, a case having to do with the review of a void order setting aside a judgment, it is said: ‘To require review to be by appeal of every unauthorized order or judgment attacking the proceedings by which the regular judgment was given and made would seriously embarrass, if not destroy, the efficiency of our whole legal system.’

“Section 1068 of the Code of Civil Procedure provides that a writ of review may be granted when jurisdiction has been exceeded ‘and there is no appeal, nor, in the judgment of the court, any plain, speedy, and adequate remedy’. The conditions on which such a writ may be granted have been held to be separate and concurrent. See Monterey Club v. Superior Court, 44 Cal.App.2d 351, 112 P.2d 321.

Accordingly, in order to afford a remedy by certiorari under the code, two requisite elements must be present, aside from that of excess of jurisdiction, namely: (a) No appeal; (b) No other plain, speedy and adequate remedy. Where there is a direct appeal from the order in question under section 963 of the Code of Civil Procedure, certiorari will not lie in any event. Stoddard v. Superior Court, 108 Cal. 303, 41 P. 278; Monterey Club v. Superior Court, supra.

Likewise, as already seen from the authorities heretofore cited, certiorari will not lie if the effect of the order can be reviewed and nullified on an appeal from the judgment, even though the order itself is not appealable. * * *

“Bottoms v. Superior Court and Bryant v. Superior Court furnish examples of instances in which a subsequent review on appeal would not nullify the effect of the order in question.”

In the instant situation, respondent concedes that if counts I and II of the complaint constituted the only counts then the decision on appeal would have ended the matter and plaintiffs would not then have been privileged to return to the trial court and apply for permission to make further amendment. But, according to respondent, because the complaint contained two additional counts which were held good on appeal, requiring a reversal of the judgment of dismissal, the plaintiffs were given an opportunity to make another effort to propose a good amendment to the insufficient counts. Respondent claims that the demurrer was to the complaint as a whole and not to each separate count thereof, but the record reveals this to be untrue. Petitioner, in separate paragraphs, demurred generally not only to the entire complaint but to each separate count thereof as well. The demurrer was in proper form to reach not only the complaint as a whole but each separate count thereof. Petitioner was entitled to so demur (Sec. 431, Code of Civil Procedure) and was entitled to a ruling on the demurrer according to its merits. See Wigman v. Superior Court, 74 Cal.App. 132, 239 P. 427. To this end, each separate count of the complaint must be considered separately; and the number of counts contained in a complaint cannot affect the ruling upon a demurrer to any single count. It follows, therefore, that the effect of sustaining a demurrer to any separate count of a complaint is the same, whether the complaint contains one count or a hundred. If the decision on appeal, to the effect that petitioner's demurrer to the first two counts of the complaint was properly sustained without leave to amend, would have finally disposed of those counts had they been the only counts in the complaint, such a ruling would likewise constitute a final disposition of the matter even where the complaint contained other counts held to be good. Respondent's argument to the contrary is without foundation.

Since the decision on appeal from the judgment of dismissal had the effect of finally disposing of the first two counts of the complaint, upon the return of the case to the trial court that court was without authority to proceed further as to the first two counts and was thus without jurisdiction to grant a further amendment thereto. See Anderson v. Great Republic Life Insurance Co., 41 Cal.App.2d 181, 106 P.2d 75; and see Fortenbury v. Superior Court, 16 Cal.2d 405, 106 P.2d 411, as to the meaning of the term “jurisdiction” in modern jurisprudence.

Moreover, the appellate court was without power to direct the trial court to allow plaintiffs to amend the counts of their complaint to which petitioner's demurrer was held properly sustained. The appellate court, having determined that the demurrer to the first two counts was properly sustained without leave to amend, had no other course than to affirm the judgment as to those two counts. It could not, under the circumstances, reverse the judgment as to those counts in order to allow plaintiffs to amend. Mulford v. Cohn, 18 Cal. 42, 46; People v. Jackson, 24 Cal. 630; Davie v. Board of Regents, 66 Cal.App. 693, 702, 227 P. 243; Gibbons v. Scott, 15 Cal. 284; Sutter v. City and County of San Francisco, 36 Cal. 112, 117. The decision on appeal reversing the judgment of dismissal was therefore necessarily limited to the sufficient counts of the complaint and the direction to allow plaintiffs to amend their complaint could not be interpreted as applying to any but the counts of the complaint held to be sufficient.

The order of the trial court allowing the amendment of the first two counts of the complaint, after the ruling sustaining demurrers thereto without leave to amend had been upheld on appeal is no different in principle than an order allowing an amendment of a complaint and the reopening of a case after a final judgment upon the merits had been so upheld. In such a situation it would manifestly destroy the efficiency of the legal system to compel a defendant to submit to a second trial and a second appeal before the unwarranted action of the court could be reviewed. Throughout its argument respondent ignores the fact that here an appeal had already been had and the question finally determined. It would be unconscionable to say in such case that the unsuccessful party had the right to return to the trial court notwithstanding, start in all over again, and compel the prevailing party to submit to a trial and await the final outcome thereof before obtaining redress for the unwarranted reopening of litigation in the face of a valid judgment disposing of the same. If such action were permitted every lawsuit could be perpetual. Under the circumstances here presented substantial justice requires a review of the matter upon certiorari.

It follows from the foregoing that the order of the trial court granting permission to amend the first two counts of the complaint in the pending action, after the sustaining of a demurrer thereto had been upheld on appeal, was void. Accordingly, the order of the trial court purporting to grant plaintiffs leave to amend the first two counts of their complaint should be and the same is therefore annulled.

DORAN, Justice.

YORK, P. J., and WHITE, J., concurred.

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