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

Leah R. DVORIN, Petitioner, v. APPELLATE DEPARTMENT OF the SUPERIOR COURT, State of California, COUNTY OF LOS ANGELES, and Municipal Court of Los Angeles Judicial District, County of Los Angeles, State of California, Respondents; Irene THOMAS, Real Party in Interest.

Civ. 45439.

Decided: May 16, 1975

Leo Shapiro, Beverly Hills, for petitioner. Grayson & Gross, Inc., Marvin Gross and Jeffrey P. Berg, Los Angeles, for real party in interest. No appearance for respondent Court.

The facts of this case are not in dispute. On August 25, 1967, the real party in interest executed a promissory note, payable to petitioner. By its terms, the note was payable ‘on or before March 6, 1971.’ Interest on the amount of the note, calculated for the full term of the note, was prepaid. On March 17, 1970, the real party repaid the principal of the note. She thereafter sued in municipal court to recover the portion of the prepaid interest not earned before the payment date. Petitioner moved for summary judgment, which was granted. The real party appealed to the appellate department of the superior court. On November 7, 1974, that court, by a two-to-one vote, reversed the summary judgment and remanded the case with directions to enter judgment for real party.

Pursuant to Rule 63, California Rules of Court, the appellate department certified its opinion to us. We denied transfer. Thereafter, petitioner instituted the present proceeding for a writ of review to annul the order of the appellate department. After consideration, we denied the petition, saying:

‘The present petition raises no issue not already determined by this court in its order of November 21, 1974, denying certification, except the contention that the Appellate Department erred in directing the Municipal Court to enter judgment for plaintiff in the absence of a motion in the trial court by plaintiff for that relief. Even if petitioner is correct that the Appellate Department erred, if its order is corrected, such a motion would promptly be made and as promptly be granted. We will not engage in that kind of useless formality.

The petition is denied.'

Petitioner then sought hearing in the Supreme Court. That court, on January 29, 1975, issued its order as follows:

‘Petition for hearing granted and matter transferred to this court and retransferred to the Court of Appeal, Second District, Division Four, with directions to issue a writ of review to be heard before that court when the proceeding is ordered on calendar. (See Southern Pacific Co. v. Fish (1958) 166 Cal.App.2d 353, 358–359 [333 P.2d 133].)’

That order determines, finally insofar as this case is concerned, the propriety of the use of a writ of review to pass on the validity of the portion of the appellate department's mandate directing the entry of a summary judgment in favor of the real party in interest. (5 Witkin, California Procedure (2d ed. 1971), Extraordinary Writs, § 44, pp. 3817–3819.) However, this proceeding involves only that portion of the appellate department's mandate;1 review does not lie to correct errors of fact or law made by a lower court. (5 Witkin, California Procedure (2d ed. 1971), § 28, pp. 3802–3803.)

Pursuant to the directions of the Supreme Court, we have issued a writ of review and we have considered the issue before us in light of the case cited by the Supreme Court.

We adhere to our former position. In the Fish case, as here, the plaintiff appealed from a summary judgment in favor of the defendant. The holding was that the affidavits filed by the defendant did not satisfy the requirements of the statute on summary judgment. In passing, the court took notice of a suggestion by plaintiff that a summary judgment should be entered in its favor. That suggestion was rejected, on the ground that the special remedy of summary judgment could be used only by a moving party, based on affidavits submitted by that party. (Southern Pacific Co. v. Fish (1958) 166 Cal.App.2d 353, 358–359, 333 P.2d 133.) However, unlike the present case, no court in that case had passed on the propriety of a summary judgment for the plaintiff. Here, however, at this juncture, the real party's right, as a matter of law, to recover the unearned interest has been decided by the appellate department. The judgment of that court has long since become final and is the law of the case. As we point out above, the decision on the merits is not reviewable in this proceeding.

It follows that, in this case, were we to direct the appellate department to substitute a simple reversal for its reversal with directions, real party would, on remand, promptly make her motion for summary judgment and the municipal court, under the compulsion of the law of the case, would have no choice but promptly to grant that motion. All that we would or could accomplish would be to add to the burdens of two already crowded courts for no ultimate purpose except to satisfy purely formal provisions. To do that flies in the face of article VI, section 13, of the California Constitution.

The petition is denied.


1.  The petition herein before us raises only the issue of the jurisdiction of the appellate department to order a summary judgment in favor of plaintiff.

KINGSLEY, Associate Justice.

JEFFERSON, Acting P. J., and DUNN, J., concur.