Opinion
Rehearing Granted Oct. 31, 1941.
Original proceeding in certiorari by the Bank of America N. T. & S. A., to review an order of the Superior Court of Los Angeles County permitting an amendment of a complaint for alleged conversion of bank stock brought against the petitioner.
Order annulled. COUNSEL
Edmund Nelson, G. L. Berrey, Freston & Files, and James A. McLaughlin. all of Los Angeles, for petitioner.
Mitchell, Silberberg, Roth & Knupp, of Los Angeles, for respondent.
OPINION
DORAN, Justice.
By this proceeding petitioner seeks a review of an order of the superior court permitting an amendment as to the first two causes of action set forth in a first amended complaint in an action entitled Herbert Hellman Aronson et al. v. Bank of America National Trust & Savings Association et al., L. A. Superior Court No. 409371, brought against petitioner for an alleged conversion of certain shares of bank stock. The complaint in question consisted of four counts, each based upon a separate alleged conversion of stock, and the order granting plaintiffs leave to amend their first two counts was made upon motion of plaintiffs therefor after a general demurrer to the entire complaint had been sustained without leave to amend further, the action had been dismissed, an appeal had been taken from the judgment of dismissal, and the appellate court had upheld the sustaining of the demurrer without leave to amend as to the first two counts of the complaint but had reversed the judgment of dismissal upon the ground that the third and fourth counts of the complaint stated a cause of action. See Aronson v. Bank of America Nat. Trust & Sav. Ass’n, 42 Cal.App.2d 710, 109 P.2d 1001, 1007. Petitioner herein contends that under the circumstances the trial court had no jurisdiction to grant plaintiffs leave to amend the first two counts of their complaint after the decision rendered by the appellate court above referred to.
In its opinion the appellate court stated: "It should be mentioned in passing that the complaint is far from a model of pleading and is in no sense concise. It is clear, however, that no attempt has been made to set out more than one cause of action in each count.
"In view of the fact that the allegations of the first and second counts of the complaint reveal a situation wherein no cause of action would lie against respondent bank or its predecessor the trial court did not err in refusing to grant leave to plaintiffs to amend those counts, but for the reasons above given the court erred in sustaining the demurrer to the third and fourth counts and in dismissing the action.
"The judgment of dismissal is therefore reversed with directions to the trial court to grant appellants leave to file an amended complaint if they are so advised."
Respondent contends that the effect of the judgment of reversal was to vacate the order sustaining the demurrer to plaintiffs’ complaint and to place the action in exactly the same situation it occupied before there was any ruling on the demurrer. Respondent also contends that certiorari will not lie in the present instance because the question here presented may be reviewed upon an appeal from a final judgment in the action now pending.
It is undoubtedly true that the propriety of the trial court’s action in granting plaintiffs leave to amend their first two causes of action, after reversal of the judgment of dismissal, could be reviewed on an appeal from a final judgment in the action; although of itself the order in question is not an appealable order under section 963 of the Code of Civil Procedure. It has been generally held that even if the order in question is not appealable, certiorari will not lie if the effect of the order can be reviewed and nullified by an appeal from the final judgment. Bryant v. Superior Court 16 Cal.App.2d 556, 562, 61 P.2d 483; Hughson v. Superior Court, 120 Cal.App. 658, 8 P.2d 227. But in Bottoms v. Superior Court, 82 Cal.App. 764, 777, 256 P. 422, the trial court had vacated an order granting a continuance. The continuance had been granted on the ground that one of counsel was a member of the legislature attending a session thereof. Certiorari was sought to review the order vacating the order of continuance. It was held that while such an order would be reviewable on appeal from a final judgment in the action, the circumstances obviously required a more speedy and adequate remedy. It should be noted that the Bottoms case presented a situation where the effect of the order in question could not be nullified on an appeal from the final judgment. The continuance having been vacated and the action having been tried, the party aggrieved could be afforded no real remedy on an appeal from the final judgment. It could hardly be said that justice would be done by reversing the final judgment and remanding the cause to be tried all over again because the trial court had refused a continuance.
Bryant v. Superior Court, supra, was concerned with the review of an order vacating orders allowing claims against an estate. At page 562 of 16 Cal.App.2d, at page 486 of 61 P.2d, in that case the court stated: "The order under review is not an appealable order. [Cases cited.] It has been held that even so, if the effect of an order can be reviewed and nullified by an appeal from the judgment, certiorari will not lie. [Citing Hughson v. Superior Court, supra.] Relying on this principle of law, respondents claim that petitioners have a plain, speedy, and adequate remedy at law, as they can again present their claim to one of the judges of the superior court for allowance; if disallowed in whole or in part, a suit to enforce the claim may be prosecuted, and, if an adverse judgment is had, an appeal lies therefrom. Prior to the order vacating these claims, they stood as acknowledged debts against the estate. The approval of a claim against an estate is prima facie evidence of its validity, and the burden of showing invalidity is cast upon those who contest it. [Citing authority.] It is apparent, therefore, that the effect of the order vacating the orders allowing the claims cannot be reviewed or nullified by the method suggested by respondents."
In Stanton v. Superior Court, 202 Cal. 478, at page 490, 261 P. 1001, at page 1005, a case having to do with the review of a void order setting aside a judgment, it is said: "To require review to be by appeal of every unauthorized order or judgment attacking the proceedings by which the regular judgment was given and made would seriously embarrass, if not destroy, the efficiency of our whole legal system."
Section 1068 of the Code of Civil Procedure provides that a writ of review may be granted when jurisdiction has been exceeded "and there is no appeal, nor, in the judgment of the court, any plain, speedy, and adequate remedy". The conditions on which such a writ may be granted have been held to be separate and concurrent. See Monterey Club v. Superior Court, 44 Cal.App.2d 351, 112 P.2d 321. Accordingly, in order to afford a remedy by certiorari under the code, two requisite elements must be present, aside from that of excess of jurisdiction, namely: (a) No appeal; (b) No other plain, speedy and adequate remedy. Where there is a direct appeal from the order in question under section 963 of the Code of Civil Procedure, certiorari will not lie in any event. Stoddard v. Superior Court, 108 Cal. 303, 41 P. 278; Monterey Club v. Superior Court, supra. Likewise, as already seen from the authorities heretofore cited, certiorari will not lie if the effect of the order can be reviewed and nullified on an appeal from the judgment, even though the order itself is not appealable. In other words, if the effect of the order can be thus reviewed and nullified, an appeal from the judgment will afford a plain, speedy and adequate remedy. It becomes apparent, therefore, that in cases such as Bryant v. Superior Court, Hughson v. Superior Court and Bottoms v. Superior Court, the decision in each case turned upon the question of whether an appeal from the final judgment would afford the petitioner a plain, speedy and adequate remedy; and that the cases where there was no direct appeal available to petitioner have been decided upon a different basis than cases involving an order directly appealable, and are to be distinguished from cases such as Stoddard v. Superior Court, wherein a direct appeal from the order in question was afforded under section 963 of the Code of Civil Procedure. Briefly, in cases where there is no direct appeal from the order sought to be reviewed, the question to be determined is whether a review on an appeal from a final judgment would nullify the effect of the order. Bottoms v. Superior Court and Bryant v. Superior Court furnish examples of instances in which a subsequent review on appeal would not nullify the effect of the order in question.
The effect of the order in the instant case, permitting an amendment of plaintiffs’ first and second counts, is to give plaintiffs another chance to state a cause of action therein and to compel petitioner, the defendant, to further defend against the same, either by way of another demurrer, or by answer and a trial of the issues. Following such a trial, if it were decided on an appeal from the final judgment therein that the trial court had erred in allowing plaintiffs to amend their first two causes of action under the circumstances, and the judgment thus rendered on the said counts were therefore reversed, the parties would then be placed in the position they occupied before the amendment of the complaint and trial on the merits. Plaintiffs could then institute a new action based on the two counts in question.
As the matter stands after reversal of the judgment of dismissal above referred to, plaintiffs are free to institute at once a new action based on the first two counts of their complaint. In such a case, if the statute of limitations had meanwhile run against the two counts in question, the defendant could then interpose the bar of the statute as a defense to the new action. On the other hand, assuming that the pending action were commenced before the expiration of the limitation provided therefor, the defense of the statute of limitations would not be available to defendant after amendment of the first two counts, because such amendment necessarily relates back to the time of the commencement of the action. Therefore, assuming such a situation to exist, if plaintiffs are allowed to amend their first two counts in the action now pending instead of being compelled to bring a new action thereon, the effect thereof is to preclude defendant from interposing a presumably valid defense to the counts in question.
It is true that the matter would be subject to review on an appeal from a final judgment in the action; and if the order allowing the amendment in question were then found to be erroneous and void, on reversal of the judgment plaintiffs could then return to the trial court and institute a new action and defendant could then interpose the defense of the bar of the statute of limitations, if the circumstances warranted such a defense. But the cumbersome and roundabout nature of the remedy thus provided is immediately obvious. Such a remedy is akin to that proposed by respondents in the Bryant case, or that which would have been afforded by a review on appeal in the Bottoms case. Under the circumstances, to say that in the instant case the effect of the order in question would be nullified by a review on an appeal from a final judgment in the pending action, is to indulge in a pure fiction. To require review to be by appeal under the circumstances here presented would, as stated in Stanton v. Superior Court, supra, seriously embarrass, if not destroy, the efficiency of our whole legal system. Substantial justice requires a review of the matter upon certiorari.
With regard to respondent’s contention that the reversal of the judgment of dismissal placed the action in the same position it occupied before the ruling on demurrer, it should be pointed out that the appeal was from the judgment of dismissal only and not from the order sustaining the demurrer. It must be borne in mind that the complaint contained four separate and independent causes of action. If any one of the counts of the complaint stated a cause of action against defendant a reversal of the judgment dismissing the action would be required. In reviewing the matter the appellate court found that two of the counts stated valid causes of action and the judgment of dismissal was accordingly reversed. The effect of this reversal was to place the parties in the same position they had occupied before the entry of the judgment of dismissal. See 2 Cal.Jur. 996, Appeal and Error, § 590. Necessarily, however, the reversal also had the effect of nullifying the order sustaining the demurrer as to the third and fourth counts of the complaint, since the reversal of the judgment was based upon the error of the court in sustaining the demurrer as to these counts. But the appellate court expressly held that the demurrer as to the first and second counts of the complaint was properly sustained without leave to amend further. It is apparent, therefore, that in holding the order sustaining the demurrer to be error, the appellate court restricted its opinion to the application of such order to the third and fourth counts of the complaint only. The effect of the trial court’s order on demurrer was therefore nullified by the reversal on appeal only so far as it applied to the latter counts; and as to the first and second counts of the complaint the order sustaining the demurrer without leave to amend remained valid and subsisting. It appears, therefore, that at the time plaintiffs made their motion for leave to amend the first and second counts of their complaint in the action now pending there was upon the records of the trial court a valid and subsisting order sustaining a general demurrer without leave to amend as to those two counts. Moreover, "the determination of an appellate court of the rights of the parties in an appeal from the Superior Court is a final adjudication of those rights, and the questions of law decided by such court become the rule for the guidance of the trial court if the same questions are again presented in that controversy * * *". 2 Cal.Jur. 1042. The decision of the appellate court that the first and second counts did not state a cause of action became the law of the case and was thereafter binding upon the trial court in all subsequent stages of the pending action. Id. 1043, and cases there cited. Under the circumstances, the trial court was without jurisdiction to entertain the motion of plaintiffs for leave to amend their first two causes of action, and to grant such leave to amend after the decision of the appellate court reversing the judgment of dismissal but upholding the previous ruling of the trial court sustaining the general demurrer as to the said counts. As to a similar situation, involving an order denying attorney’s fees, where the court subsequently granted the attorney leave to sue for the said fees and the court was held without power so to do, see Anderson v. Great Republic Life Insurance Co., 41 Cal.App.2d 181, 106 P.2d 75.
It follows that the order of the trial court granting permission to amend the first two counts of the complaint in the pending action, after the sustaining of a demurrer thereto had been upheld on appeal, was void.
It should be noted that, in the light of the opinion rendered, when the appellate court directed the trial court to grant plaintiffs leave to file an amended complaint, if so advised, such a direction could only be applied to the third and fourth counts of the complaint; and it is apparent that such a direction was given because the appellate court found "that the complaint is far from a model of pleading and is in no sense concise".
For the foregoing reasons the order of the trial court purporting to grant plaintiffs leave to amend the first two counts of plaintiffs’ complaint should be and the same therefore is annulled.
YORK, P. J., and WHITE, J., concurred.