LEGAUX v. SUPERIOR COURTS OF SAN FRANCISCO AND ALAMEDA COUNTIES

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

Lester LEGAUX, Petitioner, v. The SUPERIOR COURTS OF SAN FRANCISCO AND ALAMEDA COUNTIES, Respondents;

Martha G. BERGER et al., Real Parties in Interest. James C. DEMERY, Petitioner, v. The SUPERIOR COURTS OF SAN FRANCISCO AND ALAMEDA COUNTIES, Respondents; Martha G. BERGER et al., Real Parties in Interest.

Civ. 34673, 35484.

Decided: March 25, 1975

Lawrence E. Mullally, Inc., Allen B. Ellis, Oakland, for petitioner Legaux. Sedgwick, Detert, Moran & Arnold P. Beach Kuhl, San Francisco, for petitioner Demery. Barbagelata, Carmazzi, Arnold & Kent, Barbagelata Law Corp., Robert D. Barbagelata, San Francisco, for real parties in interest.

In 1 Civil 34673, petitioner Lester Legaux seeks a writ of ‘mandate and/or prohibition’ which would require respondent Alameda County Superior Court to dismiss a personal injury action in which he is a defendant or, in the alternative, to transfer the cause to respondent San Francisco Superior Court; and which would restrain respondent San Francisco Superior Court, in the latter event, from taking any further action in the cause other than to dismiss it. Petitioner James C. Demery, a codefendant in the same action, seeks identical relief in 1 Civil 35484.

FACTS

The action arises from an automobile accident which occurred in Alameda County on January 1, 1970. Real parties in interest Martha G. Berger and Glenn C. Berger commenced the action in respondent San Francisco Superior Court on December 30, 1970, naming petitioners and others as defendants.

In December, 1972, petitioner Demery (one of the defendants in the action) moved for an order changing the venue to Alameda County. It having been shown that none of the defendants resided in the City and County of San Francisco, respondent San Francisco Superior Court granted the motion, and entered a formal order transferring the cause to respondent Alameda County Superior Court for trial, pursuant to section 395, subdivision (a), and section 397, subdivision 1, of the Code of Civil Procedure.1 The order was entered on January 2, 1973, and no review thereof was sought in this court. (See § 400.)

The file in the action thereafter remained in respondent San Francisco Superior Court because no one pain the costs and fees of transfer as provided in section 399.2 On January 4, 1974, petitioner Legaux served and filed in that court a notice of motion for an order dismissing the action pursuant to section 581b, upon the ground that he costs and fees had not been paid for one year after entry of the transfer order on January 2, 1973.3 The motion was noticed for hearing on January 17, 1974. Real parties belatedly paid the costs and fees on January 14. The clerk of respondent San Francisco Superior Court transferred the file to respondent Alameda County Superior Court by placing it in the mail on January 15.

When petitioner Legaux' motion for dismissal came on for hearing in respondent San Francisco Superior Court on January 17, 1974, that court denied it upon the ground that the court did ‘not have jurisdiction.'4 Petitioners and other defendants in the action thereupon moved respondent Alameda County Superior Court for an order dismissing it or, in the alternative, retransferring it to respondent San Francisco Superior Court for dismissal. The motion having been denied, petitioners commenced the present proceedings against both courts.

Petitioners rely upon the rule that dismissal of an action under section 581b is mandatory where the court in which it was commenced has ordered its transfer to another county pursuant to section 397, subdivision 1, and where the plaintiff had not paid the transfer costs within one year from the entry of the transfer order. Subject to some possible exceptions which do not appear here,5 the rule cited is well established. (§ 581b; Bechtel Corp. v. Superior Court (1973) 33 Cal.App.3d 405, 408, 109 Cal.Rptr. 138 and cases there cited; Grime v. Superior Court (1974) 39 Cal.App.3d 46, 49, 113 Cal.Rptr. 850.) The problem with applying the rule in the present case originates with the fact that the file in the action had left the possession of respondent San Francisco Superior Court (‘the court in which the action . . . was originally commenced,’ as described in section 581b: see fn. 3, ante) before petitioner Legaux' motion to dismiss had been heard. It was this fact which apparently prompted the San Francisco court to deny the motion on January 17, 1974, upon the ground that the court was without jurisdiction to act upon it. (See the minute order quoted in fn. 4, ante.)

Defending the January 17 order, real parties rely upon the language of section 581b which requires dismissal, for nonpayment of transfer fees, only by ‘the court in which the action . . . was originally commenced,’ and two decisions. (Moore v. Superior Court, supra, 13 Cal.App.3d 869, 92 Cal.Rptr. 23; Refrigeration Discount Corp. v. Superior Ct. (1949) 91 Cal.App.2d 295, 204 P.2d 932.) This point reiterates respondent San Francisco Superior Court's conclusion that jurisdiction to dismiss the action left that court when the file did. Secondly, real parties cite the same statutory language and the Moore decision for the successive proposition that respondent Alameda County Superior Court had no jurisdiction to dismiss the action because it was not ‘the court in which the action . . . was originally commenced.’

According to these two arguments in combination, we are to ignore the clear mandate of section 581b requiring dismissal (Bechtel Corp. v. Superior Court, supra, 33 Cal.App.3d 405 at p. 408, 109 Cal.Rptr. 138 at p. 138; Grime v. Superior Court, supra, 39 Cal.App.3d 46 at p. 49, 113 Cal.Rptr. 850), under the peculiar circumstances of this case, for lack of jurisdiction in either of the respondent courts. The anomalous result urged by real parties cannot be permitted; petitioners are entitled to appropriate relief.

The flaw in real parties' first point is that petitioner Legaux had served and filed his notice of motion to dismiss the action, pursuant to section 581b, before the file had left respondent San Francisco Superior Court. The motion was actually ‘made’ when the notice was served and filed; only its disposition was pending when the San Francisco court's file was mailed to Alameda County. (§ 1005.5.)6

The Moore decision is thus distinguishable: in that case, the defendants attempted to file notice of a section 581b motion to dismiss in the transferor court after the file had been shipped to the transferee court, the clerk of the transferor court accordingly declined to permit the notice to be filed, and the motion never reached that court for consideration. (See Moore v. Superior Court, supra, 13 Cal.App.3d 869 at p. 871, 92 Cal.Rptr. 23.)7

The other decision cited by real parties on their first point (Refrigeration Discount Corp. v. Superior Ct., supra, 91 Cal.App.2d 295, 204 P.2d 932) is also distinguishable. Its holding that a transferor court lacks post-transfer jurisdiction to act in a cause states only the general rule to that effect (id., at pp. 295–296, 204 P.2d 932), to which jurisdiction to dismiss under section 581b is a specific exception. (London v. Morrison (1950) 99 Cal.App.2d 876, 879, 222 P.2d 941.)

We conclude that respondent San Francisco Superior Court had jurisdiction to act upon petitioner Legaux' motion to dismiss when the motion was called for hearing on January 17, 1974. This jurisdiction was not terminated by the physical departure of the file, on January 15, after the motion had been ‘made’ and was pending. (See § 1005.5 as quoted in fn. 6, ante.)

The court would properly have declined to exercise its jurisdiction in the absence of the file for reference purposes, but that jurisdiction was not dependent upon physical possession of the file. The correct action by the San Francisco court would have been to continue the motion to dismiss and to recall the file from Alameda County for the purpose of exercising the jurisdiction it had not lost. This step would not have presented jurisdictional problems as to the year-old transfer order, because it would not have required or suggested vacating that order. It the transferee court had declined to return the file despite the propriety of doing so on the basis of judicial comity between counties, resort to this court was available to command such action.

It thus appears that respondent San Francisco Superior Court erred on January 17, 1974, in concluding that it had no jurisdiction to grant petitioner Legaux' motion, and in thereafter failing to discharge its mandatory duty to dismiss the action; a peremptory writ of mandate should therefore issue from this court to compel performance of that duty. (Grime v. Superior Court, supra, 39 Cal.App.3d 46 at p. 49, 113 Cal.Rptr.850.)

By reason of this result, we need not reach real parties' argument (their second point) that respondent Alameda County Superior Court was without jurisdiction to dismiss the action, except for the facts that that court still has the file in the action and that return of the file to San Francisco is required to effectuate dismissal of the action there. On this subject, real parties further cite Moore for their position that mandate will not lie against respondent Alameda County Superior Court, for the purpose mentioned, because that court has no ‘duty’ to return the file.

We said in Moore that the transferee court had no ‘duty’ to return the file to the transferor court (see Moore v. Superior Court, supra, 13 Cal.App.3d 869 at p. 874, 92 Cal.Rptr. 23), but that case is again distinguishable for two reasons. First, the tranferor court was not a party to the Moore proceeding and it is a party here. Secondly, we were referring in Moore to the fact that the transferee court had no statutory ‘duty’ to return the file to the transferor court. If that is true here, respondent Alameda County Superior Court nevertheless has the further ‘duty’ to return the file to the transferor court because we mandate it to do so, as a party to these proceedings, by way of implementing the transferor court's concurrent mandate (herein ordered) to dismiss the action. (See Bechtel Corp. v. Superior Court, supra, 33 Cal.App.3d 405 at p. 412, 109 Cal.Rptr. 138.)

Real parties have also contended that the one-year period within which section 581b required them to pay the transfer costs and fees, under pain of dismissal of their action upon failure to do so, did not commence to run because they were not served with ‘written notice’ of the San Francisco court's order of January 2, 1973, changing the venue to Alameda County. The authorities cited for this argument are section 400 and Magee v. Superior Court (1973) 34 Cal.App.3d 201, 109 Cal.Rptr. 758.

Under section 400, the time within which an order changing venue may be challenged, by petitioning the appropriate Court of Appeal for a writ of mandate, does not commence to run until at least ‘10 days after service of a written notice of the order.'8 Failure to serve such notice may therefore toll the period within which the order may be challenged by a reviewing court, and we stated no more than that in the Magee decision. (See Magee v. Superior Court, supra, 34 Cal.App.3d 201 at p. 211 [fn. 3], 109 Cal.Rptr. 758.) It does not follow that failure to serve the notice tolls the one-year period within which section 581b requires the transfer fees to be paid. The sanction of dismissal for failure to pay them within that period is provided only by that section, which states that the action shall be dismissed if they have not been paid for one after ‘the entry of’ the order for transfer, not after written notice thereof. (See the text of § 581b as quoted in fn. 3, ante.)

It is ordered that a peremptory writ of mandate issue directing respondent Alameda County Superior Court to retransfer the action, and the file therein, to respondent San Francisco Superior Court.

It is ordered that a peremptory writ of mandate issue directing respondent San Francisco Superior Court to dismiss the action upon receipt of the file therein.

The difficulties presented in the present case flow from a conflict between the holding of this court in Moore v. Superior Court (1970) 13 Cal.App.3d 869, 92 Cal.Rptr. 23, and the combined effect of Code of Civil Procedure, sections 399 and 581b. Similar difficulties will be encountered by counsel and the courts in future cases, and I would prefer forthrightly to overrule the Moore holding.

I concur in the determination of the majority to issue writs of mandate compelling retransfer and dismissal of the action.

FOOTNOTES

1.  Except where otherwise indicated, statutory references herein are to the Code of Civil Procedure.

2.  As pertinent here, section 399 provides:‘399. When an order is made transferring an action . . . under any of the provisions of this title, the clerk . . . shall, after expiration of the time within which a petition for writ of mandate could have been filed pursuant to Section 400 of this code, or if such petition is filed after judgment denying the writ becomes final, and upon payment of the costs and fees, transmit the pleadings and papers therein . . . to the clerk . . . of the court to which the same is transferred. . . . When the transfer is sought solely, or is ordered, because the action . . . was commenced in a court other than that designated as proaper by the provisions of this title, such costs and fees shall be paid by the plaintiff before such transfer is made; and if, in any such case, the defendant has pain such costs and fees at the time of filing his notice of motion, the same shall be repaid to him, upon the making of such order. If such costs and fees have not been so paid by the plaintiff within five days after service of notice of such order, then any other party interested therein, whether named in the complaint as a party or not, may pay such costs and fees, and the clerk shall thereupon transmit the papers and pleadings therein as if such costs and fees had been originally paid by the plaintiff . . ..’ (Emphasis added.)

3.  Section 581b provides:‘581b. No action heretofore or hereafter commenced, where the same was not originally commenced in the proper court, and which has been ordered transferred to the proper court, shall be further prosecuted, and no further proceedings shall be had therein, until the fees and costs of the transfer thereof and of filing the papers in the court to which transferred have been paid, as provided in Section 399 of this code; and all such actions heretofore or hereafter commenced must be dismissed by the court in which the action or proceeding was originally commenced, on its own motion, or on the motion of any party interested therein, whether named in the complaint as a paerty or not, where the costs and fees of making up the transcript or papers or for transmission of the same to the clerk or judge of the court to which it is ordered transferred, or of filing the papers anew, have not been so paid for one year after the entry of the order for transfer.’ (Emphasis added.)

4.  The documents filed in the present proceedings state differing versions of the action taken by respondent San Francisco Superior Court on this occasion. Both petitioners allege that the court ‘declined to hear the motion because the court file had been transferred to Alameda County and thus it had no papers on which to render a decision’ (emphasis added), but petitioner Legaux further declares that the San Francisco judge ‘ruled that since the clerk had transferred the file documents to Alameda County he [the judge] had no jurisdiction to rule on the motion.’ Real parties stated that the judge ‘declared that the court file had already been transferred to Alameda County, that he had no file and/or papers before him, and that he lacked jurisdiction to render a decision in this matter at that time.’ (Emphasis added.) Because of this disparity and its materiality, we examined the San Francisco court's records (of which we may and do take judicial notice: Evid.Code, §§ 452 [subd. (b)], 459.) Its minute order, entered under the caption of the action on January 17, 1974, states: ‘Motion to dismiss for failure to pay fees and costs of transfer—Denied on ground court does not have jurisdiction.’

5.  E. g., the tolling of the one-year payment period by an appeal or a proceeding for writ of mandate, or estoppel or waiver. (See Moore v. Superior Court (1970) 13 Cal.App.3d 869, 872–873, 92 Cal.Rptr. 23 and cases there cited.)

6.  Section 1005.5 provides in pertinent part:‘A motion upon all the grounds stated in the written notice thereof is deemed to have been made and to be pending before the court for all purposes, upon the due service and filing of the notice of motion, but this shall not deprive a party of a hearing of the motion to which he is otherwise entitled . . .’

7.  Because Moore is readily distinguishable, we need not consider whether our pertinent holding in that case warrants reconsideration under the unusual circumstances of this one. (See Moore v. Superior Court, supra, 13 Cal.App.3d 869 at p. 875, 92 Cal.Rptr. 23 [dissenting opinion by Christian, J.]; 4 Witkin, California Procedure (2d ed. 1971) Proceedings Without Trial, § 123, pp. 2790–2791.)

8.  As pertinent, section 400 provides: ‘When an order is made by the superior court granting or denying a motion to change the place of trial, the party aggrieved by such order may, within 10 days after service of a written notice of the order, or within such additional time not exceeding 20 days as the court may within the original 10 days allow, petition the court of appeal for the district in which the court granting or denying the motion is situated for a writ of mandate requiring trial of the case in the proper court. . . .’

RATTIGAN, Acting Presiding Justice.

EMERSON, J.,* concurs.