Opinion
11-2-1956
Morris LAVINE, Plaintiff and Appellant, v. Roger JESSUP, Herbert Legg, Leonard Roach and William A. Smith, individually and as members and former members of the Los Angeles County Board of Supervisors; County of Los Angeles, a Public Corporation and Body Politic; Walt Briggs and Jack Hazzard, individually and as Partners and Sole Owners of the stock of the Civic Center Auto Park, Inc.; Civic Center Auto Park, Inc.; John Anson Ford, Keneth Hahn and Burton Chase, as Members of the Los Angeles County Board of Supervisors and individually; et al., Defendants. Roger Jessup, Herbert Legg, Leonard Roach, William A. Smith, Deceased; County of Los Angeles; Walter M. Briggs, sued as Walt Briggs; and Civic Center Auto Parks, a corporation, sued as Civic Center Auto Park, Inc., Respondents.* Civ. 21759.
Harold W. Kennedy, County Counsel, Iver E. Skjeie, Deputy County Counsel, Los Angeles, for respondents, Roger Jessup, Herbert Legg, Leonard Roach, William A. Smith, Deceased, and County of Los Angeles. Wm. J. Cusack, Los Angeles, for respondents, Walt Briggs, and Civic Center Auto Parks.
Morris LAVINE, Plaintiff and Appellant,
v.
Roger JESSUP, Herbert Legg, Leonard Roach and William A. Smith, individually and as members and former members of the Los Angeles County Board of Supervisors; County of Los Angeles, a Public Corporation and Body Politic; Walt Briggs and Jack Hazzard, individually and as Partners and Sole Owners of the stock of the Civic Center Auto Park, Inc.; Civic Center Auto Park, Inc.; John Anson Ford, Keneth Hahn and Burton Chase, as Members of the Los Angeles County Board of Supervisors and individually; et al., Defendants.
Roger Jessup, Herbert Legg, Leonard Roach, William A. Smith, Deceased; County of Los Angeles; Walter M. Briggs, sued as Walt Briggs; and Civic Center Auto Parks, a corporation, sued as Civic Center Auto Park, Inc., Respondents.*
Nov. 2, 1956.
Rehearing Denied Nov. 26, 1956.
Hearing Granted Dec. 19, 1956.
Morris Lavine, Los Angeles, in pro. per.
Harold W. Kennedy, County Counsel, Iver E. Skjeie, Deputy County Counsel, Los Angeles, for respondents, Roger Jessup, Herbert Legg, Leonard Roach, William A. Smith, Deceased, and County of Los Angeles.
Wm. J. Cusack, Los Angeles, for respondents, Walt Briggs, and Civic Center Auto Parks.
WHITE, Presiding Justice.
Respondents move to dismiss the appeal herein upon the ground that the notice of appeal from the order dismissing appellant's fourth amended complaint was filed more than 60 days after the entry of such order.
The record reflects that on November 8, 1955, the court granted the motions of respondents, Walter M. Briggs and Civic Center Auto Parks, a corporation, sued herein as Civic Center Auto Park, Inc., to dismiss appellant's fourth amended complaint and sustained without leave to amend, the demurrer of said respondents.
On the same date the court granted the motion of the remaining respondents 'to strike fourth amended complaint and/or to dismiss action', and also sustained, without leave to amend, the demurrer of said lastnamed respondents. The foregoing order was entered November 10, 1955.
On November 22, 1955 the court signed and filed its 'Judgment of Dismissal' which recited that the foregoing motions and demurrers having come on regularly for hearing on November 8, 1955, and 'the court having sustained said demurrers without leave to amend and having granted said motions by order duly made. Now Therefore, It Is Ordered, Adjudged and Decreed that plaintiff's Fourth Amended Complaint be, and the same is hereby stricken and the action dismissed' as to all respondents. This judgment was entered on November 28, 1955. On January 19, 1956, there was filed in the Office of the County Clerk of Los Angeles County, appellant's notice of appeal 'from the judgment and order filed November 22, 1955 and entered November 28, 1955 sustaining the demurrers in the above-entitled action without leave to amend and striking the last amended complaint from the files'.
It is respondents' contention that the foregoing order of the trial court dismissing appellant's fourth amended complaint was a final judgment and that time for appeal therefrom expired 60 days after November 10, 1955, the date of the entry of the order of dismissal in the minutes of the court, or on the 9th day of January, 1956. Appellant argues that the final action in this case was the signing and filing of the formal judgment of dismissal and that until such formal judgment was signed the order upon which it was based was interlocutory in character and that no appeal lies from such an order.
Rule 2 of Rules on Appeal provides that notice of appeals shall be filed within 60 days after the entry of judgment unless the time is extended, as provided in Rule 3. Rule 2 also provides that the 'date of entry' of an appealable order which is entered in the minutes shall be the date of its entry in the permanent minutes, unless such minute order as entered expressly directs that a written order be prepared, signed and filed.
Respondents rely on the provisions of Section 581d of the Code of Civil Procedure which provides in part as follows:
'All dismissals ordered by the court shall be entered upon the minutes thereof or in the docket in the justice court, as the case may be, and such orders when so entered shall constitute judgment and be effective for all purposes, * * *.'
We are satisfied that the rule for dismissals under Section 581d of the Code of Civil Procedure does not apply to the instant case wherein the ruling of the court was a final judgment on the pleadings of the relative rights of the parties insofar as this action is concerned. We are also persuaded that the case of Wood, Curtis & Co. v. Missouri Pac. Ry. Co., 152 Cal. 344, at page 347, 92 P. 868, is directly in point and the opinion in that case discusses at length why Section 581 et seq. of the Code of Civil Procedure do not apply to or embrace a court's action on the sustaining of a demurrer without leave to amend, and it repeatedly speaks of those sections as 'special provisions', making it clear that they are exceptional. Also, at 2 Cal.Jur., pp. 402-403, in discussing dismissals under Section 581 et seq. of the Code of Civil Procedure, where minute orders are treated for purposes of appeal the same as final judgments, it is said: 'This rule does not, however, apply to a judgment on a demurrer, though the judgment declares that the action be dismissed, for whether a judgment on demurrer declares that the plaintiff take nothing, or that the action abate, or that the action be dismissed, it is a final judgment on the pleadings of the relative rights of the parties so far as the particular action is concerned, and, therefore, no appeal lies from such a judgment until it is entered in the judgment-book.' Citing Wood, Curtis & Co. v. Missouri Pac. Ry. Co., supra.
Where as here, a formal judgment was contemplated by the parties and later signed by the judge it is prima facie the decision or judgment of the court rather than a minute order, and satisfies the requirements of Rule 2 of Rules on Appeal. Since such formal judgment was signed and filed November 22, 1955 and entered in the 'Judgment Book' as provided by Section 668 of the Code of Civil Procedure on November 28, 1955, it is manifest that the notice of appeal filed January 19, 1956 was timely.
Appellant's request to supplement his opening brief to set forth additional grounds why the court below erred in sustaining the demurrer to the fourth amended complaint without leave to amend, and entering a judgment of dismissal as to the fourth amended complaint, and to amend the prayer of said opening brief is granted, and appellant may have 30 days from and after the filing of this opinion within which so to do.
The motion to dismiss the appeal is denied.
DORAN and FOURT, JJ., concur. --------------- * Opinion vacated 311 P.2d 8.