Opinion
Rehearing Denied April 24, 1963.
For Opinion on Hearing, see 36 Cal.Rptr. 33, 387 P.2d 833.
Vizzard, Baker, Sullivan & McFarland, Allan H. McFarland, Bakersfield, for appellants.
Borton, Petrini, Conron, Brown & Condley, George A. Brown, Bakersfield, for respondents.
CONLEY, Presideng Justice.
Two appeals, consolidated by stipulation, stem from this unlawful detainer action; the first is from an order striking a cross-complaint; the second is from the judgment restoring the premises to plaintiff as prayed.
For many years prior to the death of plaintiff's husband, Ray Knowles, he and the defendant, James E. Robinson, operated farming property as partners near Arvin, in Kern County. The decedent owned or leased the land, and the appellant farmed it, living with his wife in a house located on the premises. After the death of Mr. Knowles this arrangement was continued between his widow and Mr. Robinson for a period of time, when, allegedly to permit her to continue to draw social security unembarrassed, she induced Mr. Robinson to change the ostensible form of their legal relationship by becoming lessor, and he lessee of the same property. Mr. Robinson contends that he was fraudulently induced to execute legal documents to that end. Be that as it may, Mrs. Knowles, as lessor, gave notice to Mr. Robinson after a few months' time that the lease was terminated, and upon defendant's refusal to move, she brought the present action in unlawful detainer against him. The complaint was filed on January 8, 1962. Defendants in turn interposed a demurrer which was overruled, an answer and cross-complaint and a first amended cross-complaint. Respondents moved to strike the cross-action, and Judge Lambert granted the motion. Appellants appealed on the theory that because they had joined a new party at the time of filing the cross-complaint and the ruling would finally eliminate such additional party, they had a right to question the propriety of the holding by an immediate appeal. This court having denied the application for a writ of supersedeas, the court below proceeded to try the case, and awarded judgment in favor of plaintiff.
The first appeal, 5 Civil No. 143, can be disposed of in short order. The rule in this state is positive that if timely objection is interposed, no cross-complaint or counterclaim is allowable in an unlawful detainer action. The reason is clearly stated by the authorities; an unlawful detainer action is a summary proceeding designed to secure rapid possession of premises which are wrongfully withheld from the lessor or owner, and permission to file a cross-complaint or counterclaim would introduce numerous irrelevant factors which would only serve to defeat a rapid decision of the right of possession. Lakeside Park Association of Kelseyville v. Keithly, 43 Cal.App.2d 418, 422, 110 P.2d 1055, 1058, briefly reviews this principle:
'The rule is firmly established in California that neither a cross-complaint nor a counterclaim may be properly filed in a suit for unlawful detention of property, even though the alleged cause therein contained grows out of the subject matter involved in the original suit. Schubert v. Lowe, 193 Cal. 291, 223 P. 550; Knight v. Black, 19 Cal.App. 518, 527, 126 P. 512; Rydell v. Beverly Hills Printing & Pub. Co., 88 Cal.App. 216, 262 P. 818; 15 Cal.Jur. 865, § 292. The reason for this rule is that the statute provides for the action of unlawful detainer as a summary proceeding, to secure possession of premises which are wrongfully withheld from the owner, and that the injecting of other issues extrinsic to the right of possession may defeat the very purpose of the statute.'
However, in that case, as in many others where the issue has arisen, the plaintiff did not make timely objection to the cross-complaint; no motion to strike was made, and the issues presented by the pleading having been determined by the trial court without objection, the appellate court did not interfere. The same principle is recognized and the same practical result obtained in Garfinkle v. Montgomery, 113 Cal.App.2d 149, 155, 248 P.2d 52, 56:
'While normally a cross-complaint and counterclaim [are] not permissible in an unlawful detainer action, Woods-Drury, Inc., v. Superior Court, 18 Cal.App.2d 340, 344, 63 P.2d 1184; D'Amico v. Riedel, supra [95 Cal.App.2d 6, 212 P.2d 52], yet, since the trial of the cross-complaint went to a nonsuit without any objection, we shall consider the appellants' contention in regard thereto properly before us on this appeal.'
D'Amico v. Riedel, 95 Cal.App.2d 6, at page 8, 212 P.2d 52, at page 53, cited by appellant as sustaining the rule allowing a defendant in an unlawful detainer action to dispute a lease by cross-complaint when he did not take possession under the case, in fact says:
'The cases cited by defendants do not sustain their contentions. It is the general rule that neither a counterclaim nor cross-complaint is permissible in an action in unlawful detainer. The reason for the rule is that since the action is a summary proceeding designed especially for the purpose of a speedy means of recovering possession of real property, tenants withholding the premises in violation of the covenants of their lease cannot through means of a cross-complaint or counterclaim frustrate the extraordinary remedy In the instant case the objection to the cross-complaint was timely; there was no element shown by the pleadings at the time of the ruling that would justify any qualification of the general rule, and the order striking the cross-complaint was proper.
After the appeal was perfected in 5 Civil No. 143, plaintiff made a motion in the court below to advance the cause for trial; Judge Lambert granted the motion for advancement. At that time it was pointed out to the court that defendant had filed a memorandum on February 13, 1962, asking that the cause be set for trial and estimating the time necessary for trial as three days, the time necessary for pretrial conference as 20 minutes and demanding a jury. Judge Lambert made a minute order on February 19, 1962, holding that no pretrial conference was required.
On February 23, 1962, counsel for the defendants filed an affidavit of merits, again requesting pretrial and a jury and stating that two days were necessary for the trial. On March 2, 1962, Judge Lambert made the following minute order:
'Good cause appearing therefor, it is by the Court ORDERED that the above entitled cause be, and the same is hereby set for Pre-Trial on April 19, 1962, at 9:30 A.M. in Department One and for trial the same day at 10:00 A.M.'
Also, on March 2 an 'Order and Notice of Order for Pre-Trial Conference' setting pretrial for April 19, 1962, at 9:30 a. m. in department one of the court was filed and a copy mailed to counsel.
On April 19, 1962, the day that the matter was set for pretrial conference at 9:30 a. m. and trial at 10 a. m. defendant was in court with his attorney; counsel for the respective parties went into chambers with Judge Main where defendant called attention to his pretrial statement; in paragraph 3 of that document a trial by jury was demanded, and it was estimated that the case would take two days. In paragraph 2 of the statement it was said that the defendants had not completed the depositions of one defendant until April 10, 1962 (approximately one week before the date of the trial), and that the taking of such depositions had developed other evidence, and a continuance of the case for sufficient time to complete discovery proceedings was requested. The pretrial statement pointed out that the previously mentioned appeal was pending on the cross-complaint, and a continuance was asked until the Fifth District Court of Appeal could hear that appeal.
After discussion with counsel, the court declared that this meeting constituted a pretrial conference and that the parties must immediately try the case; the trial lasted two days and was submitted to the court for decision without a jury in attendance.
On May 11, 1962, findings of fact, conclusions of law and a judgment were filed; the judgment gave plaintiff the possession of the premises, declared that the lease between the parties was forfeited and canceled as of December 31, 1961, and that any partnership between the parties had been terminated as of December 31, 1960, subject to an accounting between the parties; plaintiff was given judgment for $325 with interest, plus costs.
The rules relating to pretrial were almost totally disregarded over the protests and objections of counsel for the appellant. The pretrial conference was set for the same day as the trial, preceding it by only a few minutes; no conference was actually held within the meaning of the rules; there was no pretrial conference order, and the trial followed immediately upon the termination of the discussion of counsel and the court relative to pretrial. We must necessarily determine whether this fundamental disregard of the requirement of pretrial procedure must result in a reversal of the judgment. The respondent contends that no prejudicial effect followed this lapse, because he offered to stipulate that In J. C. Penney Co. v. Superior Court, 52 Cal.2d 666, 670, 343 P.2d 919, 921, it is said:
'It is true that, with certain minor exceptions * * * the pretrial conference is now an essential part of the trial procedure in 'every civil case in which a memorandum to set is filed.''
American Home Assurance Co. v. Essy, 179 Cal.App.2d 19, 22, 3 Cal.Rptr. 586, 588, holds:
'When a case is called for trial the judge should ascertain if a pretrial conference has been held, and if none has been held he should not proceed with the trial until one has been held.'
It would be an idle act to multiply citations on the necessity of observing pretrial requirements. Orders are orders; rules are rules; laws are laws. And the courts must enforce them, unless Dogberry's charge to the watch is to be imitated:
"Dog. You shall comprehend all vagrom men. You are to bid any man stand, in the prince's name.
"Sec. Watch. How if a' will not stand?
"Dog. Why, then, take no note of him, but let him go; and presently call the rest of the watch together and thank God you are rid of a knave." ('Much Ado About Nothing,' Act III, Scene 3, quoted in the dissenting opinion of Mr. Jujstice McFarland in People v. Amer, 151 Cal. 303, 313, 90 P. 698, 702.)
The applicable California Rules of Court with emphasis added to those portions which have particular significance on this appeal are as follows:
'Rule 208. Cases in which a pretrial conference shall be held
'A pretrial conference shall be held in every civil case in which a memorandum to set is filed, except cases set for trial under rules 221 and 222.'
'Rule 209. Setting for pretrial conference
'(a) At least once a month as many cases as feasible on the Civil Active List requiring a pretrial conference shall be assigned times and places for a pretrial conference during such period as will enable the setting of these cases for trial after this conference within the period provided in rule 220(a). This setting for pretrial conference shall: (i) be by or under the supervision of the presiding judge, if any * * *.
'(b) The clerk shall place on the Civil Active List the time and place of the pretrial conference assigned to cases on that list.'
'Rule 210. Duties of attorneys in respect to pretrial conferences
'(a) Each party appearing in any case shall attend the pretrial conference by counsel, or if none, in person, and shall have a thorough knowledge of the case, * * *.
'(b) * * *
'(c) They shall prepare and submit to the pretrial conference judge, at or before the conference, a joint written statement of the matters agreed upon and a joint or separate written statement of the factual and legal contentions to the made as to the issues remaining in dispute.'
'Rule 212. The pretrial conference
'(a) At the pretrial conference, whether in the courtroom or in chambers, * * *
* * *
'(2) Any amendments to the pleadings to be made by consent or by order of the judge upon application of a party at such conference in respect to any amendment to the pleadings not previously passed upon by any judge, and fixing the time within which amended pleadings shall be filed;
* * *
* * *
'(6) Whether the court has jurisdiction to act in the case as now or hereafter provided by law and, if not, by consent to transfer or to dismiss the case accordingly;
'(7) Whether the depositions, inspection of writings and other discovery proceedings, and the physical examinations, if any, have been completed under rule 210; and, if not, the fixing of time limits therefor;
* * *
* * *
'(9) Re-estimating the time for trial after inquiry whether a jury trial is to be had; and
'(10) Assigning the date and place of the trial in accordance with rule 220.'
'Rule 214. The pretrial conference order
'(a) The pretrial conference judge shall prepare and sign a pretrial conference order at, or within five days after, the pretrial conference. This order shall contain:
'(1) A concise and descriptive statement of: (i) the nature of the case; (ii) the matters agreed upon or admitted, and a list of exhibits marked in evidence or for identification or as authenticated by consent of the parties; and (iii) the factual and legal contentions made by each party as to the issues remaining in dispute; and
'(2) A concise and descriptive statement of every ruling and order of the judge at the pretrial conference.
* * *
* * *
'(c) The pretrial conference order shall be given to, and such number of copies typed by, an official reporter or reporter pro tempore, or a secretary or stenographer, of the court, as the pretrial conference judge, under the supervision of the presiding judge, if any, may direct. The reporter or reporter pro tempore or secretary or stenographer shall perform this work without charge to any party to the case and the reporter or reporter pro tempore in addition to the compensation otherwise provided by law, may, on order of the judge, be compensated by the county for the transcription time necessary to perform such stenographic assistance at the rates prescribed by Government Code section 69950.'
'Rule 215. Service and filing of pretrial conference order
'(a) The clerk shall serve a copy of the pretrial conference order by mail upon each attorney in the case. A certificate of this mailing shall be filed by the clerk.
'(b) Within five days after such service of the copy of the pretrial conference order any attorney may serve upon all other attorneys in the case, and file with the clerk, a request for correction or modification of this order. The pretrial judge may deny, grant or provide for a hearing on such request and cause notice of his action to be given to each attorney in the case. After the five-day period, or after disposition of a request for correction or modification if such request is made, the pretrial order shall be filed in the case.'
'Rule 216. Effect of pretrial conference order
'When filed, the pretrial conference order becomes a part of the record in the case and, where inconsistent with the pleadings, controls the subsequent course of the case unless modified at or before trial to prevent manifest injustice. Any motion so to modify before 'Rule 220. Setting for trial after pretrial conference
'(a) Every case required to be pretried shall be set for trial for a place and time not earlier than the time of filing of the pretrial order and as nearly as possible not later than five weeks after the pretrial conference, giving priority to those cases entitled thereto under the law. This setting for trial shall be by the pretrial judge subject to the supervision or order of the presiding judge, if any.
'(b) The clerk shall enter on the Civil Active List the time and place of the trial assigned to cases on that list. He shall give at least five days' notice by mail of the time and place of trial in each case to all parties appearing therein, except where the time and place of the trial is fixed at the pretrial conference.'
The plaintiff did not file a 'separate written statement of the factual and legal contentions to be made as to the issues remaining in dispute.' (Rule 210(c).) Actually, no pretrial conference was in fact held, although the judge presiding seemed to believe that his discussion with counsel was a proper substitute for it. No pretrial conference order was made, and the provision with respect to the time lapse between the date for the conferences and the trial were wholly disregarded. The court forced the defendant to proceed to trial over his objection and without observance of the skeletal requirements of this essential procedure.
Could it be said that these multiple errors were cured by plaintiff's tender of a stipulation (which was not accepted) that the stricken cross-complaint might be considered as an affirmative defense added to the answer? We believe not. A stipulation is an agreement between counsel made in formal fashion, either in writing or in open court and entered in the minutes. (Code Civ.Proc., § 283.) One side alone cannot stipulate to anything; it takes two to stipulate. As stated in 46 California Jurisprudence 2d, Stipulations, section 12, page 23:
'From the fact that stipulations are agreements, it follows that a requisite of a valid stipulation is that there be an assent to its terms, * * *'
The record, fairly and carefully considered, shows that no stipulation was in fact entered into by the parties and that the court's finding that there was such a stipulation is not correct. Similarly, it cannot be said that the denial of the right of defendant's counsel to control his own case as to pleading and proof is rendered harmless merely because plaintiff produced evidence and secured findings on defenses that might have been set up by defendants if the proposed stipulation tendered by plaintiff had been accepted.
Although it was improper to file a cross-complaint and, as has already been pointed out, proper on the part of the court to strike such pleading when timely objection was made, the alleged underlying matters referred to in that pleading could properly be set up as affirmative defenses in an unlawful detainer action. And this was what the defendants sought to do; notice was given to that effect in their statement of the issues filed before the pretrial conference, and the record shows that counsel for plaintiff conceded that they might properly do so. It then became the duty of the trial court to permit the amendment of defendants' answer to set forth their claim that Mr. Robinson had possession of the real property prior to the lease and that the lease itself was void by reason of fraud on the part of the plaintiff.
In 30 California Jurisprudence 2d, Landlord and Tenant, section 370, at page 504, it is said:
'A tenant who is sued in unlawful detainer for holding over after expiration And 30 California Jurisprudence 2d, Landlord and Tenant, section 371, page 505, states:
'The rule that a tenant who does not enter under the lease but is already in possession is not estopped to deny the landlord's title has no application in an unlawful detainer action, except that the tenant may show that he was induced to accept the lease by fraud of the landlord, which, if proved, would destroy the relation of landlord and tenant and remove the estoppel.' (Emphasis added.)
This right to dispute a lease when the tenant alleges that he does not take possession under it is recognized in Sands v. Eagle Oil & Refining Co., 83 Cal.App.2d 312, 321, 188 P.2d 782, 787:
'Appellants' contention that respondent as lessee whose possession was not disturbed could not question the title of the purported lessor is without merit. Fraud or misrepresentations used to induce the lessee to enter into the lease relieve him from the estoppel to dispute the lessor's title. Kearney Investment Co. v. Golden Gate Ferry Co., 198 Cal. 560, 563, 564, 246 P. 322.'
The principle is again stated in Kearney Investment Co. v. Golden Gate Ferry Co., 198 Cal. 560, 563-564, 246 P. 322, 323, as follows:
'Neither is the defendant precluded from setting up such title by the general rule that a tenant is estopped to deny his landlord's title. There is a well-recognized exception to the general rule, namely, where the lessee was induced by the false and fraudulent representations of the lessor to enter into the lease such fraud and misrepresentations relieve the lessee of the estoppel to dispute the lessor's title. This is so because the relation of landlord and tenant arises out of contract, and this, like other contracts, may be avoided by fraud. Tewksbury v. Magraff, 33 Cal. 237, 245. See, also, Gray v. Whitla, 70 Okl. 288, 174 P. 239, 2 A.L.R. 356, and note.'
Defendant had a right to plead in his own way and to attempt to prove these alleged facts which, if true, might constitute a valid defense. He was denied this right.
Appellant's additional claim that he was denied the right to a jury trial by reason of the court's failure to hold a proper pretrial conference is without merit. Defendants waived a jury by failure to deposit a jury fee as required by section 631, subdivision 5, of the Code of Civil Procedure.
Because of the failure of the court to recognize the binding effect of the pretrial conference rules, the judgment must be reversed. But the reporter's transcript shows that during the pendency of the action all of the real property described in the complaint, except the dwelling house and several small outhouses used in connection with it, consisting of a garage, a washhouse, a tool room and a shed, was voluntarily surrendered by the defendants and is now occupied by a new lessee, one Donald L. Barcley. As the object of an unlawful detainer action is to recover possession of real property, if the possession is voluntarily surrendered to the plaintiff by the defendant, the function of the action as to such surrendered property becomes nil. The reversal must therefore be restricted to the property still held by the defendants at the time of the trial. Respondent further alleges in her brief that there is also proof of the voluntary surrender of the dwelling house and attached outbuildings because the return of the constable attached to the writ of possession state: 'Defendant Accordingly, in 5 Civil No. 143, the court's order striking the cross-complaint is affirmed, respondents to recover their costs on appeal. The judgment in case number 5 Civil 182, as applied to the dwelling house on the real property described in the complaint, the garage, the washhouse, the tool room, the shed and sufficient land in the immediate vicinity of said buildings to permit the convenient and unharried occupancy thereof, together with the use of existing roadways to afford access thereto, is reversed and otherwise said judgment is affirmed, appellants to recover their costs on appeal.
RALPH M. BROWN and STONE, JJ., concur.