DART INDUSTRIES INC v. COMMERCIAL UNION INSURANCE COMPANY (1995)

When a trial judge dies before issuing a properly requested statement of decision, Code of Civil Procedure section 635 does not authorize another judge to sign a judgment in conformity with the minute order announcing the court's tentative decision.  (Raville v. Singh (1994) 25 Cal.App.4th 1127;  see Armstrong v. Picquelle (1984) 157 Cal.App.3d 122.)   We reverse the judgment.

BACKGROUND

Appellant Dart Industries, Inc. was sued in hundreds of “DES” (diethylstilbestrol) personal injury lawsuits based on its predecessor's distribution of the drug from the 1940s through the 1960s.   Dart's insurers, including respondent Commercial Union Insurance Company (as successor to Employers' Liability Assurance Corporation, Ltd.), denied coverage and refused to provide a defense.   In 1984 Dart sued Commercial (and others not involved in this appeal) for declaratory relief.   While it is undisputed that Commercial had insured Dart from 1946 to 1951, the original and all copies of Commercial's policy have been lost and some witnesses are unavailable.

Following a bench trial,¹ the trial court entered a minute order announcing its tentative ruling in favor of Commercial.   The order stated:  “[P]laintiff has failed to prove the limits of liability on the lost policy either per accident or occurrence, per individual or the aggregate limits of the policy.  [¶] Judgment is ordered for defendant Commercial․  [¶] Counsel for the defendant shall prepare the proposed judgment to be submitted to this Court within ten days․”

The minute order said nothing about whether Commercial had a duty to defend.   Dart filed a timely request for a statement of decision on certain issues.   (Code Civ.Proc., § 632.) ²  Commercial requested that the statement of decision cover certain other issues as well.   After Commercial filed its proposed statement of decision, Dart moved to extend the 15-day objection period.  (Cal.Rules of Court, rule 232(d), (g).) ³  Before ruling on the motion, however, the trial judge died.   The presiding judge reassigned the case to Judge Loren Miller.

Dart asked Judge Miller to declare a mistrial due to the impossibility of obtaining a statement of decision from the trial judge who had heard the case.   As an alternative to a new trial, Dart offered to submit the matter to Judge Miller for his de novo decision based on the trial transcripts.

Commercial opposed the mistrial motion and moved to have Judge Miller sign a judgment based on the minute order announcing the court's tentative decision.   Commercial cited section 635 as authority and submitted extensive legislative history materials regarding that statute.

Judge Miller denied the motion for mistrial and entered judgment for Commercial Union under section 635.   Dart moved for a new trial, but the motion was denied.   This appeal followed.

ISSUES

(I) Dart contends the late trial judge's failure to enter the statement of decision requires a reversal of the judgment.

(II) Alternatively, Dart contends the judgment is not supported by substantial evidence.

DISCUSSION

I

Section 635 states:  “In all cases where the decision of the court has been entered in its minutes, and when the judge who heard or tried the case is unavailable, the formal judgment or order conforming to the minutes may be signed by the presiding judge of the court or by a judge designated by the presiding judge.”

The resolution of this appeal, like that in Raville v. Singh, supra, 25 Cal.App.4th 1127, depends upon whether the decision of the court was entered in its minutes.   Commercial contends it was, citing the minute order announcing the court's decision in favor of Commercial.   But Raville, a case from this district in which the trial judge also had died before issuing the requested statement of decision, held that the minute order “was only reflective of the tentative decision of the court.”  (Id. at p. 1131, fn. omitted.)

Raville cited with approval Armstrong v. Picquelle, supra, 157 Cal.App.3d 122, a Fourth District decision involving a trial judge who had retired before issuing the requested findings and conclusions.   The Armstrong court held that another judge is not authorized in that situation to sign a statement of decision and enter judgment.

Under Raville and Armstrong, the court below was prohibited from signing the judgment conforming to the minute order announcing the court's tentative decision.

Commercial, however, criticizes Armstrong for its “totally insufficient” analysis of the legislative history of the 1981 amendments to sections 632 and 635.   Commercial also criticizes Raville for accepting Armstrong's analysis.   Commercial contends the 1981 amendment to section 635 authorized the court below to enter judgment notwithstanding the trial judge's unavailability to issue the requested statement of decision.

The 1981 amendment to section 632 replaced the requirement of findings of fact and conclusions of law with the current statement of decision procedure.   As amended, section 632 provides that after trying questions of fact, the court shall announce its “tentative decision” and the parties shall have 10 days to request a statement of decision.  “Issuance of a statement of decision upon a party's request once the trial judge has announced a tentative decision is ․ made mandatory in section 632.”  (Armstrong v. Picquelle, supra, 157 Cal.App.3d at p. 127, emphasis added.)

Similarly, rule 232(a) provides that the minute order announcing the trial court's findings is a tentative decision:  “On the trial of a question of fact by the court, the court shall announce its tentative decision by an oral statement, entered in the minutes, or by a written statement filed with the clerk․  [¶] The tentative decision shall not constitute a judgment and shall not be binding on the court․” ⁴

Before the 1981 amendment to section 635, the statute plainly prohibited another judge from signing a judgment where the trial judge was unavailable to issue the required findings and conclusions.   The prior statute stated:  “ ‘In all cases where findings of fact and conclusion of law are not required or have been waived and the decision of the court has been entered in its minutes, and when the judge who heard or tried the case is unavailable, the formal judgment or order conforming to the minutes may be signed by the presiding judge of the court.’  (Italics added.)”  (Armstrong v. Picquelle, supra, 157 Cal.App.3d at p. 126.)   Commercial contends the deletion of the highlighted language from the 1981 amended version of section 635 indicates a legislative intent to change the law.   According to Commercial, the statutory deletion permits another judge to enter judgment despite the unavailability of the trial judge to issue the requested statement of decision.

While in general an amendment deleting an express provision gives rise to the presumption that the Legislature intended to change the law (Kern County Water Agency v. Belridge Water Storage Dist. (1993) 18 Cal.App.4th 77, 86), here the presumption is unwarranted.   Amended section 635 is not reasonably susceptible to Commercial's interpretation.   It does not permit another judge to sign the judgment when the court's “tentative decision” has been entered in its minutes.   It requires a “decision” of the court entered in the minutes.   The distinction between “tentative decision” and “decision” is critical.  “[I]t is an accepted rule of statutory construction that ‘[w]hen the Legislature “has employed a term or phrase in one place and excluded it in another, it should not be implied where excluded.”  [Citations.]’  [Citation.]”  (In re Marriage of Dick (1993) 15 Cal.App.4th 144, 166.)   If the Legislature had wanted to permit another judge to sign the judgment based on the “tentative decision” of the unavailable trial judge, it could have expressly so provided.   But since it did not, we will not imply such a provision.

Armstrong correctly held the statutory deletion did not expand the authority of other judges to sign judgments when the trial judge is unavailable.   According to Armstrong, section 635 “was amended in order for it to conform to 1981 legislative amendments of section 632, which eliminated the requirement of findings of fact and conclusions of law and provided in their stead that upon the request of any party appearing at the trial, made within 10 days after the court announces a tentative decision, or if the trial has lasted more than one day, made before the submission of the matter for decision, the court shall issue a statement of decision explaining the factual and legal basis for its decision.  (See 1981 Summary Digest, Cal.Statutes and Amendments to the Codes, ch. 900 at p. 271.)”   (Armstrong v. Picquelle, supra, 157 Cal.App.3d at pp. 126-127, fn. omitted.)

Armstrong further noted that when viewed in context, the amendments did not eliminate the requirement that a statement of decision must be issued upon a party's request once the trial court has issued a tentative decision.  “To interpret section 635 to allow a presiding judge to enter judgment on the basis of a tentative decision entered in the minutes would strip the parties of their section 632 right to a statement of decision after the trial judge's tentative ruling.   The legislature could not have intended to take away with one hand what it gave with the other.”  (Armstrong v. Picquelle, supra, 157 Cal.App.3d at p. 127.)

Commercial's interpretation of section 635, on the other hand, would implicitly repeal section 632's mandate that the trial court must issue a statement of decision upon a timely request.   It is “ ‘an established rule of statutory construction that similar statutes should be construed in light of one another․  “[A]pplication of the rule that statutes in pari materia should be construed together is most justified, and light from that source has the greatest probative force, in the case of statutes relating to the same subject matter that were passed at the same session of the legislature, especially if they were passed or approved or take effect on the same day․” ’  [Citation.]   When as in the present case both statutes are part of the same bill, enacted and chaptered together, the rule requiring the courts to reconcile the statutes is even more compelling, for neither can be viewed as an implied repeal of the other.  [Citation.]”  (International Business Machines v. State Bd. of Equalization (1980) 26 Cal.3d 923, 932, fn. omitted.)

Armstrong also pointed out that because a court's tentative decision is not binding, “[n]o legal judgment could be entered by the presiding judge on the basis of the trial judge's tentative ruling.”  (Armstrong v. Picquelle, supra, 157 Cal.App.3d at p. 128.)  Armstrong concluded the 1981 amendment to section 635 did not implicitly overrule several pre-amendment cases (Swift v. Daniels (1980) 103 Cal.App.3d 263 [appellate court held presiding judge was not authorized to sign findings of fact and conclusions of law after trial judge was incapacitated], Mace v. O'Reilley (1886) 70 Cal. 231 [no judgment could be entered after trial judge's term expired before he had signed findings and conclusions] ).  (Armstrong v. Picquelle, supra, 157 Cal.App.3d at p. 128.)

The distinction between a “tentative decision” and the “decision” of the court is further illustrated by reading rule 232 in conjunction with sections 632 and 635.   After a bench trial lasting more than a day, the court enters a minute order announcing its “tentative decision.”  (§ 632;  rule 232(a).)   Thereafter, if a statement of decision is not requested or has been waived and a written judgment is required, the parties have several 10-day periods within which they may prepare a proposed judgment, file objections thereto, or appear at a hearing.  (Rule 232(e).)   The court must then sign the judgment within 10 days after expiration of the objections period, or within 10 days after a hearing if one is held.  (Ibid.)

According to Commercial's position, if the trial judge were to become unavailable before the expiration of the objections period, another judge would be entitled to enter judgment based on the minute order announcing the court's tentative decision.   But rule 232(e) plainly states that the trial court must await the expiration of the objections period before signing the judgment, and that “[t]he judgment so filed shall constitute the decision upon which judgment shall be entered pursuant to section 664 of the Code of Civil Procedure.”  (Emphasis added.)  Section 664 states in relevant part:  “․ If the trial has been had by the court, judgment must be entered by the clerk, in conformity to the decision of the court, immediately upon the filing of such decision.   In no case is a judgment effectual for any purpose until entered.”  (Emphasis added.)

“ ‘․ [A]ll parts of a statute should be read together and construed in a manner that gives effect to each, yet does not lead to disharmony with the others.’  [Citation.]”  (Cousins v. Weaverville Elementary School Dist. (1994) 24 Cal.App.4th 1846, 1854.)   Read together, the statutory scheme regarding statements of decisions and judgments shows that “the decision of the court” is entered after the “tentative decision” is issued, and thus the two cannot be the same.   When a party timely requests a statement of decision following entry of the tentative decision, section 632 makes it mandatory for the trial court to issue a statement of decision.   Until a statement of decision is issued, there is no “decision of the court” which provides the basis for another judge to sign a judgment under section 635.   Any other interpretation would disrupt the statutory scheme.

Commercial criticizes Armstrong for its “totally insufficient” analysis of the legislative history of the 1981 amendments to sections 632 and 635.   Commercial states in its respondent's brief:  “․ [T]he Armstrong court based its whole discussion of the legislative intent behind ․ [section] 635 on the single document entitled ‘1981 Summary Digest, Calif.Statutes and Amendments to the Codes Ch. 900 at p. 271 [.]’  (Armstrong v. Picquelle, [supra,] 157 Cal.App.3d at [pp.] 126-127 [.] )  A copy of this document is attached to the Joint Appendix at pages 467-468.   Review of this document shows not only that the Armstrong court failed to address either the general intent of AB 1684 or the legislature's specific decision not to put the words ‘Statement of Decision’ in ․ [section] 635, but also shows that the Armstrong court failed to consider essentially all of the legislative intent materials, which materials were available to it and are now part of the Joint Appendix in this action.  (JA 490-556)  These failures erode the foundation for the entire Armstrong opinion.”

Commercial further states:  “․ [W]hile the Armstrong court stated that ․ [section] 635 ‘was amended in order for it to conform to the 1981 legislative amendments of section 632’ (Armstrong v. Picquelle, [supra,] 157 Cal.App.3d at [p.] 126), the opposite is in fact the case.   The 1981 amendment to ․ [section] 632, replacing the phrase ‘findings of fact and conclusions of law’ with the phrase ‘Statement of Decision,’ was expressly proposed for inclusion in ․ [section] 635 by the State Bar of California to the Judiciary Committee and was expressly rejected by the Committee.  (JA 543-552)  It is, therefore, clearly erroneous to conclude, as the Armstrong court did, that ․ [section] 635 was amended to ‘conform to’ the language of ․ [section] 632.”

Commercial's criticism, however, ignores the fact that Armstrong's failure to refer to other legislative intent materials was completely proper.  “ ‘When statutory language is ․ clear and unambiguous there is no need for construction, and courts should not indulge in it.’  [Citation.]”  (People v. Laiwa (1983) 34 Cal.3d 711, 723.)   The phrases “tentative decision” and “decision of the court” are terms of art which have definite legal meaning and may not be construed as being interchangeable.

Even considering the rejection by the Judiciary Committee of the phrase “statement of decision” which was proposed for inclusion in section 635, we would not reach a different result.   Despite the omission of that phrase, section 635 plainly limits another judge's ability to enter judgment to cases where there is a “decision of the court.”   Such does not exist here because a “tentative decision” is not the equivalent of a “decision of the court.”

The trial court thus was not authorized to enter judgment under section 635.   We do not reach the remaining issue of sufficiency of the evidence.

DISPOSITION

We reverse the judgment.   Appellants are to recover costs.

FOOTNOTES

1.   The matter went to trial after this Division reversed a dismissal order based on the five-year statute.  (Dart Industries, Inc. v. Commercial Union Insurance Company (Feb. 28, 1992) B047651 [nonpub. opn.].)

2.   All further statutory references are to the Code of Civil Procedure.

3.   All further rule references are to the California Rules of Court.

4.   “Court rules ․ have the force of positive law and are as binding as procedural statutes so long as they do not transcend legislative enactments or constitutional guarantees.  [Citation.]”  (In re Juan C. (1993) 20 Cal.App.4th 748, 752-753.)

ORTEGA, Associate Justice.

SPENCER, P.J., and MASTERSON, J., concur.