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BERRI v. SUPERIOR COURT IN AND FOR CITY AND COUNTY OF SAN FRANCISCO

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

BERRI v. SUPERIOR COURT IN AND FOR CITY AND COUNTY OF SAN FRANCISCO et al.*

No. 16051.

Decided: March 08, 1954

Alfred J. Hennessy, San Francisco, for petitioner. Samuel B. Stewart, Jr., Christopher M. Jenks and Arthur V. Toupin, San Francisco, for respondents.

Petition for writ of mandate to compel entry of judgment in the superior court by either the trial judge or the clerk of the court.

The question presented is primarily whether a superior court clerk must enter judgment automatically upon the entry of an order sustaining a demurrer without leave to amend.

Record.

April 21, 1948, the complaint was filed. A first and second amended complaint was filed prior to the appearance of the real parties in interest. Thereafter their demurrers to the second, third and fourth amended complaints were sustained with leave to amend. March 4, 1953, an order sustaining their demurrer to the fifth amended complaint without leave to amend was entered in the minutes of the court. This was approximately one and a half months prior to the expiration of five years from the filing of the complaint. (See Code Civ.Proc. § 583 providing for dismissal after five years.) April 10, still prior to the expiration of the five year period, petitioner filed notice of appeal. About October 19th (and after the five year period had expired) petitioner discovered that no judgment had been entered. Petitioner presented a form of judgment to the trial judge for signing and entry. Petitioner alleges that he refused because the five years had expired. The judge states that he stated that he wanted a formal motion for entry to be made so that all parties could be heard on the propriety of entering judgment at that late date. November 9, 1953, we dismissed the appeal as prematurely brought. November 16, petitioner demanded that the superior court clerk enter the judgment. He refused. There is pending in the trial court a motion to dismiss the action because of the expiration of the five year period, which motion is held in abeyance awaiting the result of this petition.

Order Sustaining Demurrer Without Leave Is Not Rendition of Judgment.

Petitioner contends that it is and cites many cases as well as the code sections to the effect that where judgment is rendered its entry is ministerial and must be automatically entered by the clerk. Therefore, she contends, the clerk having failed to perform his mandatory duty, the five year period is extended until he does. Petitioner cited no cases holding that the entry of such an order constitutes the rendition of a judgment, although threre are some early authorities seeming to hold to that effect. Lang v. Superior Court, 71 Cal. 491, 12 P. 306, 416; Gallardo v. Reed, 49 Cal. 346; Le Breton v. Stanley Contracting Co., 15 Cal.App. 429, 114 P. 1028; Litch v. Kerns, 8 Cal.App. 747, 97 P. 897. Moreover, reason and the later authorities are to the contrary. Originally a party against whom a demurrer had been sustained without leave to amend could not appeal without first moving the trial court for leave to amend. Thus the trial court still had judicial control over its action in sustaining the demurrer, which control existed until judgment was entered. This judicial control is completely inconsistent with the theory that the making of the order constitutes the rendition of a judgment, or that the entry of the judgment following the order is merely ministerial. Since the adoption of section 472c, Code of Civil Procedure, in 1939, the motion to amend is no longer required. However, until the judgment is entered, the control of the proceedings is still in the judge, who can set aside or change the order if he sees fit. Taliaferro v. Wampler, 118 Cal.App.2d 391, 257 P.2d 674, held in effect that neither a minute order nor a written order sustaining a demurrer without leave to amend constitutes a judgment for appeal purposes. In addition, there must be a judgment. What the court said in De La Beckwith v. Superior Court, 146 Cal. 496, 80 P. 717, concerning the sustaining of a demurrer with leave to amend, applies equally to an order sustaining a demurrer without leave,—that it is not a judgment but may form the basis for rendering a judgment, and that until judgment is actually rendered the court may reconsider its ruling. See also American Nat. Ins. Co. v. Yee Lim Shee, 9 Cir., 104 F.2d 688, where the court applied the same rule to an order sustaining demurrer without leave to amend. In Davis v. Stroud, 52 Cal.App.2d 308, 126 P.2d 409, we said: ‘The court had jurisdiction at any time prior to judgment to reconsider its ruling sustaining the demurrer without leave to amend (21 Cal.Jur. 124; 9 Cal.Jur. [10-Yr.] Supp. 221).’ 52 Cal.App.2d at page 315, 126 P.2d at page 413. In Frantz v. Mallen, 204 Cal. 159, 267 P. 314, in holding that the trial court had jurisdiction to permit the amendment of a complaint after order sustaining demurrer without leave to amend and before judgment entered, the court referred to the order as an ‘interlocutory order.’ 204 Cal. at page 161, 267 P. at page 315. Rendition of the judgment is a function of the court and is strictly judicial in nature. ‘Mandamus will not lie to compel a clerk to perform a service which involves the exercise of judicial power * * *.’ 5 Cal.Jur. 229.

Time Consumed by Demurrers.

Petitioner contends that in computing the five year period, the time during which the trial court had the various demurrers under submission must be deducted. This contention has been decided flatly and adversely to petitioner's position in Breakstone v. Giannini, 70 Cal.App.2d 224, 229, 160 P.2d 887.

As the rendition of a judgment in this case is a matter of judicial action, the clerk has no authority to enter such a judgment until it is rendered by the trial judge; therefore mandamus will not lie to compel the clerk to enter a judgment. No formal motion was made requesting the trial judge to render a judgment. Were the question of the expiration of the five year period absent in this case, mandamus would not lie to compel the judge to render a judgment until a motion requesting him to do so had been made and improperly denied. For this reason as well as the fact that the five year period has expired and the judge could not properly now render judgment, mandamus will not lie to compel the judge to do so.

The alternative writ is discharged and the petition is denied.

BRAY, Justice.

PETERS, P. J., and FRED B. WOOD, J., concur.

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