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KENNALEY v. SUPERIOR COURT OF SAN MATEO COUNTY

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

KENNALEY v. SUPERIOR COURT OF SAN MATEO COUNTY et al.*

No. 16134.

Decided: March 25, 1954

Sidney L. Berlin, Redwood City, for petitioner. Hancock, Elkington & Rothert, San Francisco, Frank V. Kington, Redwood City, for respondents.

On November 2, 1953, petitioner Kennaley conmmenced an action against Frank D. Hill, et al., in the Superior Court of San Mateo County, based on the wrongful arrest, detention and prosecution of petitioner by said Hill and others, occurring on August 31, 1953. Petitioner's first amended complaint was filed on November 24, 1953; the answer and cross-complaint of defendant Hill was filed on January 6, 1954.

On January 7, 1954, petitioner filed a notice of motion to dismiss the cross-complaint on the ground that no surety bond had been deposited as required by § 830 et seq., Code of Civ.Proc. relating to actions for libel and slander. It is alleged that the cause of action stated in the cross-complaint is for slander, and on the face of it, it apparently is.

Sec. 830, Code of Civ.Proc. provides that ‘Before issuing the summons in an action for libel or slander, the clerk shall require a written undertaking on the part of the plaintiff in the sum of five hundred dollars ($500), with at least two competent and sufficient sureties, specifying their occupations and residences, to the effect that if the action is dismissed or the defendant recovers judgment, they will pay the costs and charges awarded against the plaintiff by judgment, in the progress of the action, or on an appeal, not exceeding the sum specified. An action brought without filing the required undertaking shall be dismissed.’ (Emphasis ours.)

On January 19, 1954, petitioner's motion to have the cross-complaint dismissed was denied. No undertaking has been filed. Petitioner alleges that he has no remedy by appeal and that unless prohibited, the Superior Court will proceed with the trial of the cause.

Petitioner relies chiefly on Shell Oil Co. v. Superior Court, 2 Cal.App.2d 348, 37 P.2d 1078, 1081. In that case a writ of prohibition was issued restraining the court from proceeding until adequate bonds were filed in a libel suit against Shell Oil Co. It was there held that ‘While it is not necessary in order to vest jurisdiction in the trial court in the first instance that the plaintiff shall file a bond for costs in a libel suit, and it is true that the defendant may waive that undertaking (citation) after the defendant has duly moved the court to require the furnishing of bonds, it will be deemed to constitute an excess of authority for the court to proceed to try the cause without requiring an adequate undertaking to be first filed.’

Petitioner does not show that he moved the court to require cross-complainant to furnish sureties, but simply moved to dismiss.

If the Shell Oil Co. case is equally good authority for dismissal of a cross-complaint in slander as it is for an action in slander, then the writ should be granted. Petitioner quotes the definition of ‘action’ in § 22, Code of Civ.Proc., as ‘an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.’ This definition is broad enough to include a cross-complaint.

Respondent points out that § 830, Code Civ.Proc. begins, ‘Before issuing the summons in an action for libel or slander, the clerk shall require a written undertaking on the part of the plaintiff * * *.’ No summons is to be issued by the clerk in the case of a cross-complaint against plaintiff. Under Code of Civ.Proc., § 442, a summons is issued only when new parties are brought in by cross-complaint.

Respondent admits that there is a paucity of authority on this subject, but contends that petitioner is asking this court to add to and substitute words in § 830. Courts should construe the law as it is enacted. Pacific Coast, etc., Bank v. Roberts, 16 Cal.2d 800, 805, 108 P.2d 439; In re Estate of Hobart, 82 Cal.App.2d 502, 507, 187 P.2d 105; People v. Knowles, 35 Cal.2d 175, 183, 217 P.2d 1.

This is evidently the first time the question has been raised in a state court as to whether § 830 applies to cross-complaints. However, the identical question arose in the United States District Court in California in Keller Research Corp. v. Roquerre, 1951, 99 F.Supp. 964. There cross-complaints for libel were filed against plaintiff. It was held that the statute was not merely a procedural device, that it was applicable in Federal Court, and cross-complainants were required to file undertakings in the sum of $500 within 5 days or the cross-complaints would be dismissed. Plaintiff's motion there was in the alternative, to require the bond to be filed or the action to be dismissed. The court did not discuss the language of the statute, but apparently assumed that it applied to cross-complaints as well as to complaints, and relied on the Shell Oil Co. case for authority, which of course, does not involve cross-complaints. The court does discuss the purpose of the statute—which is to prevent the indiscriminate filing of libel suits because of malice, or merely to embarrass a defendant. The same reasoning is applicable to cross-complaints.

We conclude that a Peremptory Writ of Prohibition should issue herein restraining the lower court from taking any further proceeding in connection or with respect to said cross-complaint unless within 15 days from the date this decision becomes final the cross-complainant Frank Hill executes and files a surety bond as provided for by § 830 et seq., Code of Civ.Proc.

Let the writ issue as specified.

I regret that I feel compelled to dissent. A reading of sections 830 and 832 of the Code of Civil Procedure satisfies me that the Legislature did not intend to require, and has not required, that the bond provided for in section 830 be furnished by a defendant who files a cross-complaint against the plaintiff for libel or slander.

Section 830 provides: ‘Before issuing the summons in an action for libel or slander, the clerk shall require a written undertaking on the part of the plaintiff * * * to the effect that if the action is dismissed or the defendant recovers judgment, they will pay the costs and charges awarded against the plaintiff * * *. (Emphasis mine.)

Section 832 provides: ‘Within 10 days after the service of the summons, any defendant may give to the plaintiff or his attorney notice that he excepts to the sureties * * *.’ (Emphasis mine.)

The emphasized language shows that the requirement of a bond is only placed on a plaintiff. The bond is required to be filed ‘Before issuing the summons'. No summons issues on a cross-complaint against a plaintiff. The exception to the sureties may be made by any defendant, under sec. 832, ‘Within 10 days after the service of the summons'. Where no summons is required this measure of time can have no application. It seems particularly significant that the whole procedure is tied to the issuance and service of summons.

In People v. White, 122 Cal.App.2d 551, 265 P.2d 115, we reiterated the settled rule that courts may not rewrite statutes to conform to an assumed intention of the legislature which cannot be found in the language of the statute.

Admittedly the U. S. District Judge in Keller Research Corp. v. Roquerre, D.C., 99 F.Supp. 964, did not discuss the language of the statute, but assumed that it applied to a cross-complaint for libel or slander. The language of the statute, as I have pointed out, does not support this assumption.

I would deny the writ of prohibition.

KAUFMAN, Justice.

NOURSE, P. J., concurs.

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