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

George SKAFF, Plaintiff and Appellant, v. SMALL CLAIMS COURT OF the LOS ANGELES JUDICIAL DISTRICT OF LOS ANGELES COUNTY et al., Defendants and Respondents.

Civ. 30558.

Decided: April 10, 1967

Silverton & Silverton and Lester A. Berman, Los Angeles, Cal., for appellant. Harold W. Kennedy, County Counsel, Donald K. Byrne, and Ronald D. Aubert, Deputies County Counsel, for respondents.

This is an appeal from an order denying an application for a writ of mandate with reference to a small claims court proceeding.

George Skaff, as plaintiff, filed an action in the small claims court, a division of the Municipal Court of the City of Los Angeles, against the Holiday Car Leasing Corporation, seeking $250 allegedly paid out by him to the defendant as a deposit for the delivery of a 1965 Chevrolet Impala Coupe automobile.   Holiday Car Leasing Corporation filed a counterclaim in said action wherein the latter requested payment from Skaff in the sum of $175 allegedly due for money paid by defendant at Skaff's instance and request for rental and insurance coverage on a 1964 Chevrolet Impala Coupe automobile which had been leased to Skaff.   At the hearing on July 19, 1965, plaintiff conceded that defendant was entitled to a $100 set-off for money expended for plaintiff's insurance coverage.   The judge made his order:  “That plaintiff take nothing on his complaint, and defendant-respondent HOLIDAY LEASING CORPORATION to take $175.00 plus interest on his counter-claim.”

Within 20 days Skaff attempted to file an appeal from the judgment with the clerk of the small claims court and was advised by the clerk that he could not file the appeal.

On September 16, 1965, Skaff filed a petition in the Superior Court of the County of Los Angeles for a writ of mandate to compel the small claims court to permit the filing of the appeal.   On September 21, 1965, the application for a writ of mandate was denied.   This appeal from that order was timely filed.

The question involved is whether a plaintiff in a small claims court has a right to appeal where a judgment on a counterclaim is made and entered against him in an action started by him in that court.

Section 117j of the Code of Civil Procedure provides in part:  “The judgment of said court shall be conclusive upon the plaintiff.   If the defendant is dissatisfied, he may, * * * appeal to the superior court of the county in which said court is held.  * * * ”

Small claims court were “ * * * established in order to offer a means of obtaining speedy settlement of claims of small amounts.   The theory behind its organization is that only by escaping from the complexity and delay of the normal course of litigation could anything be gained in a legal proceeding which may involve a small sum.   Consequently, the small claims court functions informally and expeditiously.   The chief characteristics of its proceedings are that there are no attorneys, no pleadings and no legal rules of evidence;  there are no juries, and no formal findings are made on the issues presented.   At the hearings the presentation of evidence may be sharply curtailed, and the proceedings are often terminated in a short space of time.   The awards—although made in accordance with substantive law—are often based on the application of common sense;  and the spirit of compromise and conciliation attends the proceedings.  [Citations.]

“An examination of the significant portions of the California statute creating a small claims court serves to emphasize its peculiarly informal character.   The action is commenced by an affidavit which states a claim for money due from the defendant, with no indication of the nature of the claim.  Code Civ.Proc., sec. 117b.   THe claim must be prosecuted and defended by the parties themselves without the aid of attorneys.  Code Civ.Proc. sec. 117g.   No formal pleading, other than the claim and notice, is necessary, and the hearing and disposition of all such actions is informal, ‘with the sole object of dispensing speedy justice between the parties.’  Code Civ.Proc., sec. 117h.   The judge or justice may also informally make any investigation of the controversy between the parties ‘either in or out of court and give judgment and make such orders as to time of payment or otherwise as may, by him, be deemed to be right and just.’  Code Civ.Proc., sec. 117g.   The judgment is conclusive upon the plaintiff;  only the defendant may appeal.   Code Civ.Proc., sec. 117j.”  (Emphasis added.)  (Sanderson v. Niemann, 17 Cal.2d 563, 573–574, 110 P.2d 1025, 1030.)

In Superior Wheeler C. Corp. v. Superior Court, 203 Cal. 384, at pages 386–387, 264 P. 488, at pages 488–489, where the court had under consideration the language of the statute presently in question, it is stated:

“ * * * The right of appeal is statutory and may be granted or withheld and, if given, is valid, provided the above-mentioned safeguards in the Constitution are not overthrown.  [Citation.]

“A word of explanation as to the structure and operation of the small claims court will be profitable at this point.   The court is presided over by a justice of the peace and is a summary method of expediting causes where the amount involved is $50 and less and arises upon a claim against a party residing in the township where the action is filed.   The ordinary jurisdiction of the justice's court is in nowise changed.   A cumulative remedy only is given to the plaintiff in certain classes of cases.   If a plaintiff desires the advantages of this abbreviated procedure he must lodge with the justice of the peace an affidavit setting forth the nature and amount of the claim, the fact that a demand for payment has been made, and the name and residence of the party indebted to him.   With this affidavit as a basis, the court makes an order fixing date and place of hearing and notifying the defendant to appear at said time and place with books, papers, and witnesses needed in his defense, the time for appearance to be not less than five nor more than fifteen days from date of the order.   Service of the order, which takes the place of summons, is made personally or by mail.   Upon the hearing date the cause is heard informally without the presence of attorneys on either side and without formal pleadings.   Writs of attachment and garnishment are denied the plaintiff also.   After the informal hearing judgment is entered as in other cases.

“Thus it will be seen that a quick and inexpensive method of trial and judgment is provided largely in the interest of complaining plaintiffs;  that the right of jury trial is denied the defendant in such cases and service by mail upon him is deemed sufficient without actual personal notice.  

These and perhaps other things are present showing the advantage plaintiff may have or may think he has over the defendant by resorting to this special remedy.   The plaintiff, in other words, comes under the yoke of this system voluntarily, but the defendant comes thereunder only by the strong arm of the law.   The parties therefore do not enter the forum upon equal terms.   If the plaintiff does not feel that he will be benefited by the procedure, he has the alternative of entering the regular jurisdiction of the justice's court, where the right of appeal is equal and reciprocal.   Having this unmistakable choice in the premises, we fail to find discrimination within the meaning of any of said constitutional provisions.   The advantage voluntarily accepted must be held a complete compensation for the loss of the right of appeal.”

(Emphasis added.)

The Legislature sets up the system of small claims courts in the nature of special proceedings to adjudicate expeditiously claims of small amounts.   The desire was to make the proceedings short and uncomplicated, with no jury and limited only by substantive rules of law and not technical rules of evidence.   The keynote to the whole system is simplicity.   Motions for new trials apparently are not entertained.

Had the Legislature been of the mind to provide for an appeal for a plaintiff it could readily have done so.   But to have done so would, in effect, provide a plaintiff with a right to proceed in the quick, economical small claims court and in case he lost there to still have substantially the same remedy he had before he went into the small claims court.

 We cannot see how the Legislature could have made it more clear than by saying “The judgment of * * * [the] court shall be conclusive upon the plaintiff.”   When a plaintiff chooses a small claims court he abandons his right of appeal.   Respondent aptly states in the brief:  “Appellant urges that he looks like a defendant, and searches into the jungle of intricacies in which those chameleons counterclaim and cross-complaints roam.

“Small Claims procedure should not be committed to that impenetrable thicket of confusion.   Procedure, and concepts should remain simple enough for the layman to comfortably deal with, for he is the one who must work with them.

“The legislature, anticipating the horror of the layman when confronted with the intricacies of counterclaim and cross-complaint, provided that no formal pleadings were required (C.C.P. Sec. 117(h)) and the sole object was dispensing speedy justice between the parties.”

 The right to appeal is statutory;  there is no constitutional right to an appeal and the judgment or order is not appealable unless it is expressly made so by statute.   See In re Conley, 244 Cal.App.2d 755, 53 Cal.Rptr. 321.*

It is stated in Efron v. Kalmanovitz, 185 Cal.App.2d 149 at page 157, 8 Cal.Rptr. 107 at page 112:

“ * * * Having provided for an appeal where security is ordered and not furnished under Corp.Code § 834, but having made no provision for an appeal where security is denied, it would appear that the Legislature intended that an order of denial should not be appealable.   The Legislature having failed to provide a right of appeal, we are not disposed to interstitially legislature in this area.  ‘If the statute is clear the court should enforce the legislative intent as disclosed by the statutes.   The courts cannot, or at least should not, through the guise of interpretation, make an order appealable that the legislature intended and provided should not be appealable.’   Peninsula Properties Co. v. County of Santa Cruz, 106 Cal.App.2d 669, 677, 235 P.2d 635, 639.”

This court should not attempt, under the guise of construction, to rewrite the law, to add something to it which was omitted or to delete something which was inserted.

 The Legislature provided for counterclaims in small claims courts and appreciating that such claims could and would be filed, it could have provided for the right of an appeal in the plaintiff in the event a counterclaim was filed.   It did not do so.

We are persuaded that plaintiff, under the circumstances of this case, has no right of appeal.

The judgment is affirmed.


FOOTNOTE.   Advance Report Citation:  244 A.C.A. 864.

FOURT, Associate Justice.

WOOD, P.J., and LILLIE, J., concur.