Chodos v. Superior Court

Petitioners seek (1) a writ of mandate to compel the superior court to issue a writ of execution upon a judgment, and (2) a writ of prohibition to restrain the trial

Section 660 reads in part: “... the power of the court to pass on motion for a new trial shall expire 60 days from and after service on the moving party of written notice of the entry of the judgment, or if such notice has not theretofore been served, then 60 days after filing of the notice of intention to move for a new trial. If such motion is not determined within said period of 60 days, or within said period as thus extended, the effect shall be a denial of the motion without further order of the court.” This section, it will be noted, does not deal with conditions which a court may impose when either granting or denying a new trial, nor does it restrict the trial court in the imposition of any time limits which such court may reasonably impose for the performance of such conditions. Section 660 imposes a limitation of time only upon the court’s power to act upon the motion and provides that if the motion for new trial “is not determined within” the time specified, “the effect shall be a denial of the motion without further order of the court. ”

In Holtum v. Grief, 144 Cal. 521 , 526 [78 P.11], cited by petitioners, the order granting a new trial was expressly conditioned upon payment of trial costs and the court stated: “What was the duty of the defendant in the matter of performance? . . . [T]he order remains without any provision as to time of payment. Such an order may well be construed as requiring payment on demand, and no more beneficial construction for either party has been suggested by counsel, or has suggested itself. The party resisting the motion may be trusted to demand the money when he wants it. If he concludes to accept the order without an appeal he will demand the money at once—thus waiving an appeal—and press for a speedy retrial of the issues. If he determines to appeal he will delay his demand until the order is affirmed. In the mean time the moving party is secure of losing no right hy delay or failure in making a tender.” (Italics added.)

In Holtum v. Grief, supra, at page 524, the court further stated: “The power of the court to make an order for a new

In Holturn, supra, the court in announcing its decision to grant the motion for new trial did so upon condition that the defendants pay costs of trial “within thirty days” from a date stated. The order as entered in the court’s minutes, however, stated the condition but omitted the italicized words limiting the time for performance. The defendant duly tendered the court costs to plaintiff’s counsel within 30 days but the latter refused them, and the next day, upon proof of such tender and refusal, the court made and entered a new order ex parte which, after reciting the tender and refusal, purported to omit the condition and make the order granting new trial unconditional and absolute. It was the latter action which the Supreme Court declared was void because the trial court’s conditional order granting a new trial, having been regularly made and entered, was final. Since the original order specified no time limit within which to pay such costs, it had the legal effect of making them payable on demand. In Holturn plaintiff ultimately made formal demand upon defendant for costs, which defendant refused, asserting that no payment was due. This the court stated (p. 527) “must be held to have converted the order into a refusal of a new trial,

Petitioners, although relying in part upon Holtum v. Grief, supra, seek to read into it a time limitation which they assert results from the passage of Code of Civil Procedure section 660. However, we construe this early Supreme Court decision to be controlling and decisive and in no way limited by the subsequent enactment of the later section. Certain dicta in later District Court of Appeal decisions appear to give some support to petitioners’ contentions but upon analysis will be seen to be unfounded.

Petitioners assert that, in 1904, at the time of the decision .of Holtum, the law only required that the hearing on the motion for new trial be had at the earliest practicable time, and there was no specified time limit on the power of the court to rule on the motion. Thus, they argue, there was no jurisdictional reason why the court’s conditional order in Holtum should not continue indefinitely in a state of suspended animation at least for a reasonable time or until payment was either demanded or tendered. As heretofore indicated, however, section 660, Code of Civil Procedure, while imposing a limitation on the time the court must rule on the motion, imposes no limitation upon the time which the court may see fit to specify for the performance of such condition imposed in the order. The limitation is solely upon the court itself; that it must act on the motion for new trial within the 60-day period or the effect is a denial of the motion without further order.

Petitioners rely upon certain obiter dictum in McDonald v. Randolph, 80 Cal.App.2d 367 , 371-372 [ 181 P.2d 909 ], wherein the court stated: “Therefore, the portion of the order permitting an extension of time beyond the sixty days was void. ... If the court had power to extend the time thirty days beyond that period, it would have the same power to extend it one year or more. We do not believe this to be a proper construction of the statute.” In its decision, however, the court noted that neither in the case then before it nor in Ertman v. Municipal Court, 68 Cal.App.2d 143 , 146 [ 155 P.2d 908 , 156 P.2d 940 ], upon which it relied, did the parties ever file the stipulation consenting to a reduction in the judgment which in both cases had been imposed as a condition for a denial of-the motion granting a new trial. In this connection, the court stated in McDonald, supra, at page

In a subsequent case, Hurt v. Basalt Rock Co., 84 Cal.App. 2d 81 , 85 [ 190 P.2d 240 ], a situation similar to that in Holtum v. Grief, supra, was presented wherein the court attempted by a subsequent order to impose a time limit within which the conditions expressed in the order granting the motion for new trial could be performed. The court adhered to the rule of the Holtum ease and declared that the condition contained in the first order remained in effect, and since it was unlimited as to time it was construed “as requiring performance of the conditions on demand.” The fact that such ruling would have the effect of extending the time within which the conditions could be performed beyond the 60-day period specified under section 660 of the Code of Civil Procedure was either not raised, or if raised the court construed the section as we construe it here, as constituting solely a limitation upon the time within which the court itself may act on the motion for new trial. If the court was made aware of the dictum in the McDonald case apparently it saw fit not to follow it.

In a still later case, Jordan v. Warnke, 205 Cal.App. 2d 621 [ 23 Cal.Rptr. 300 ], the court had before it a conditional new trial order and a second purported order made after the 60-day period specified in Code of Civil Procedure section 660 had expired. The second order was unconditional and granted a new trial upon the grounds of insufficiency of the evidence. The reviewing court declared the second order to be a nullity because the court had lost jurisdiction within which to act on the motion for a new trial. Thus, the situation remained as in Holtum, supra, with only the first order outstanding and with no time specified therein within which plaintiffs could comply with the order. The conditions imposed in the first order were predicated upon insufficiency of the evidence, which ground was not specified in the new trial order as required under section 657 of the Code of Civil Procedure. For that reason the court declared the order could

In Jordan the first order granting a new trial was made on the last day for ruling on the motion under the 60-day limitation, and the court took note of the language in McDonald v. Randolph, supra, to the effect that, if the 60-day limitation under section 660 “prevents a party from consenting to conditions specified in a conditional new trial order, the alternative provisions of the order automatically become effective. The result is that a new trial is granted just as though the condition had been rejected.” ( 205 Cal.App.2d 621 , at p. 633.) However, as heretofore indicated, the court did not follow the dictum in McDonald because it found that the new trial order was void upon the other grounds which we have mentioned.

The J or dan case indicates that if the dictum in McDonald were to become controlling precedent it would greatly and, we hold, unnecessarily, restrict the trial courts and litigants with respect to conditional orders upon motions for new trial. Very often the action of the trial court on the motion is delayed for reasons beyond its control, with the result that as in Jordan the new trial order is made upon the last day or, as in McDonald v. Randolph, supra, at page 370, “with only four days to go in which it had any power to act upon the motion for new trial, ...” or as in the case here, within 10 days of the expiration of the 60-day period. Under such circumstances, if the dictum of McDonald is to become the law, lawyers and litigants often will not be given a reasonable time within which to comply with the conditions imposed by the court. This would have the practical result of denying the parties the opportunity to take advantage of what the court believes, after having heard the case, would-make for a just disposition of the controversy. In some instances a few days might be ample within which to comply with conditions. In other situations the conditions imposed might reasonably require a longer period. These are matters which should be left to the sound discretion of the trial court, just as are the other factors in such conditional orders. If this is done, it will result, in'many cases, in the avoidance of lengthy retrials of actions made necessary solely because of sudden-death conditions which do not afford a reasonable

Although no reference is made to what we have referred to as the dictum in McDonald, supra, in the last quoted portion from Hyams, supra, the court apparently considered that the time limit under Code of Civil Procedure section 660 would be controlling. If in fact such is the intendment of that statement, it is unnecessary to the decision and is likewise dictum. We believe the correct interpretation of the last quoted portion from Hyams is that the trial court can properly grant an extension of time for the performance of a condition as long as the court acts within the 60-day period. (See, 3 Witkin, Cal. Procedure, § 42, subd. (c), p. 2093, which interprets this phase of Hyams—“But the time specified by the judge is not jurisdictional; [the court] may grant extensions within the statutory time to rule, and a consent filed within the extended time is effective. ”) We conclude that while the time for the judge to act on the motion is limited by the section, the time which the court fixes for the parties to act upon the conditions imposed is not so limited.

Whether the conditional order granting or denying the new trial is worded in the present tense or worded in the future tense, when referring to the effect of the performance or nonperformance of the condition, it does not require a subsequent order since the original order takes effect immediately upon the expiration of the time limit within which the condition was to be performed. (Jennings v. Superior Court, 134 Cal.App. 300 , 305 [ 25 P.2d 246 ].) The fact that the time within which the condition is to be performed extends beyond the 60-day period is of no significance insofar as section 660 of the Code of Civil Procedure is concerned. “ ‘The well-settled rule is that, when a trial court makes and causes to be entered a conditional order granting or denying a motion for a new trial, its jurisdiction is exhausted and thereafter it has no power to change or modify the order except for inadvertence or mistake in the entry thereof [citing Holtum v. Grief, supra, and others]; and that, unless the party upon whom the condition is imposed complies with such condition within the limitation of time fixed therefor, the alternative portion of the order becomes operative and final at once, at the expiration of such period of time. [Citations.] ’ ” (Jennings v. Superior Court, supra, at p. 304.)

The trial court in the case before us, upon hearing

It should be noted that the relief sought in this action by means of a writ of prohibiton will not lie for a further reason. No threatened action on the part of the trial court has been shown to reset the matter for a new trial or to proceed therewith. It is basic that a writ of prohibition will issue only to enjoin threatened judicial action. (Tupper v. Superior Court, 51 Cal.2d 263 [ 331 P.2d 977 ] ; Lane v. Superior Court, 98 Cal.App.2d 165 , 170 [ 219 P.2d 497 ].)

Petitioners assert that the defendants, by filing their notice of appeal from the original judgment, have divested the superior court of jurisdiction to proceed with a new trial; that their notice of appeal has the effect of waiving the benefits of the conditional order granting a new trial. It is apparent that a similar contention was raised in McDonald v. Randolph, supra, which the court disposed of by saying, at page 372, “Since the motion for new trial was granted on the ground stated, an appeal from the judgment entered on the verdict is ineffectual and must be dismissed.” Here, the motion for new trial having been granted, the judgment was

In view of the conclusions reached, contentions raised by defendants that the notice of entry of judgment was improperly served, that the requirement that defendants pay costs was an invalid condition, and other contentions, need not be determined.

The alternative writs of prohibition and mandate are discharged and the petitions for writs of mandate and prohibition are denied.

Jefferson, J., and Kingsley, J., concurred.

A petition for a rehearing was denied May 19, 1964.