ROSELEAF CORPORATION v. CHIERIGHINO (1962)

Upon petition for rehearing respondent argues inter alia that the pre-trial order precluded this court from basing its decision upon § 580d, Code of Civil Procedure, because that was a separate defense which was not pleaded and hence was waived, and this court could not gratuitously revive an affirmative defense thus waived or consider one which was not recognized by the pretrial order. This argument cannot be sustained.

A proposition of law upon which a defendant relies is not a separate or an affirmative defense. The truth is that the fourth amended complaint when read in the light of § 580d does not state a cause of action and defendant's general demurrer thereto should have been sustained. Absence of a cause of action is always available to defendant even if not mentioned in the lower court. (Code Civ.Proc. § 434; Horacek v. Smith, 33 Cal.2d 186, 191, 199 P.2d 929; Wilson v. Sharp, 42 Cal.2d 675, 677, 268 P.2d 1062.) The real trouble with this case is that counsel for both sides overlooked § 580d. The trial judge overlooked it and neither counsel set him straight on the matter.

We find nothing in the rules relating to pre-trial (Rules 208–218 of Cal. Rules of Court) intended to affect this fundamental right to raise the point of want of a cause of action and nothing designed to do away with the principle stated in Desny v. Wilder, 46 Cal.2d 715, 729, 299 P.2d 257, 263: ‘This court, of course, is not bound to accept concessions of parties as establishing the law applicable to a case.’ Commeford v. Baker, 127 Cal.App.2d 111, 116, 273 P.2d 321, 324: ‘The courts render judgment on the basis of the law as applied to the established facts, and if these warrant a judgment for the [defendant], relief may not justly be denied for the sole reason that case was made under an erroneous theory.’ San Francisco Lumber Co. v. Bibb, 139 Cal. 325, 326, 73 P. 864, 865: ‘Counsel, under section 1138 of the Code of Civil Procedure, may agree as to the facts, but they cannot control this court by stipulation as to the sole, or any, question of law to be determined under them. When a particular legal conclusion follows from a given state of facts, no stipulation of counsel can prevent the court from so declaring it.’ To the same effect are People v. Jones, 6 Cal.2d 554, 555–556, 59 P.2d 89; Owen v. Herzihoff, 2 Cal.App. 622, 624, 84 P. 274; People v. Singh, 121 Cal.App. 107, 111, 8 P.2d 898; Valdez v. Taylor Automobile Co., 129 Cal.App.2d 810, 819–821, 278 P.2d 91; Duncan v. Garrett, 176 Cal.App.2d 291, 294, 1 Cal.Rptr. 459; Merchants Fire Assur. Corp. v. Retail Credit Co., Inc., 206 A.C.A. 53, 60, 23 Cal.Rptr. 544. Had the Judicial Council intended to do away with such fundamental propositions when adopting the pre-trial rules, it certainly would not have done so indirectly and by dubious inference. Indeed, Rule 218 provides: ‘A pretrial conference order * * * may be reviewed on appeal from a final judgment in the case.’

Examination of the pre-trial proceeding at bar discloses no attempt to foreclose the question of whether plaintiff has a cause of action or whether it is precluded by § 580d, Code of Civil Procedure. The judge's order incorporates and adopts the joint pre-trial statement of counsel ‘as a statement of the general nature of the case’; ‘[i]t is a general statement and for the purpose of orienting the trial judge and not a complete statement of all the matters.’ The court also said: ‘Returning now to the ultimate issues of fact and law remaining in dispute; the question arose as to whether the fourth of those with respect to Section 580A [580a] should be taken up in the Law and Motion Department of this court and as to the effect with respect to such taking up of a motion which was made for a summary judgment and denied. The undersigned has taken the position that this is a matter that should be heard in the trial court, and suggests to the trial judge that he hear this matter first as sort of a ‘plea in bar.’ * * * [E]ach counsel will be prepared to discuss with the trial judge prior to the start of the case any points that he, after consideration of this order and the attached and adopted pre-trial statement, feels should be discussed. * * *' The joint statement lists among the ultimate issues of fact and law remaining in dispute: ‘1. Whether the enforcement of any of the three notes is barred by the provisions of Section 580 of the Code of Civil Procedure. * * * 4. Whether all three causes of action are barred by the provisions of Section 580A [580a], C.C.P. relating to the time within which an action must be brought.’ The reference in paragraph 1 to § 580, Code of Civil Procedure fairly construed may be held not to relate to § 580 (which concerns the extent of relief that may be granted), but to the moratorium statute—§§ 580a, 580b, 580c and 580d, in the aggregate. Specific references to § 580a are such as to suggest the time limitation upon an action for a deficiency judgment and plaintiff's basic claim ‘that Section 580A [580a] is likewise not applicable since plaintiff is not seeking a deficiency judgment.’ Section 580b is not mentioned in the joint statement or in the court's order, nor is § 580d. The reference to § 580 was apparently used to embrace them as well as § 580a.

We find no inconsistency between the pre-trial order and the pleadings. We also find no merit in respondent's present contention.

Rehearing denied.

I would grant the petition for rehearing.

ASHBURN, Justice.

FOX, P. J., concurs.