Davis v. Superior Court

of law.” (1 Witkin, Cal. Procedure (2d ed., supp. 1979) Courts, § 199, p. 267.) However, his only basis for that suggestion is the California Supreme Court decision in Green v. Superior Court (1974) 10 Cal. 3d 616 [ 111 Cal.Rptr. 704 , 517 P.2d 1168 ], an opinion rendered prior to the enactment of the present statute in 1976 (as § 118.1 in Stats. 1976, ch. 1289, § 2, p. 5770) and its renewal in 1978 (Stats. 1978, ch. 723, § 5).

However, there is authority, addressed to the new statute, in the opinion by Division Four of this district in Eloby v. Superior Court (1978) 78 Cal.App.3d 972 [ 144 Cal.Rptr. 597 ], There the plaintiff in a small claims action had his judgment reduced during de novo proceedings in the superior court, and moved for new trial in the latter court. The court declined to consider the motion, believing that it lacked jurisdiction, whereupon the plaintiff sought mandate from Division Four to compel it to hear the motion. The appellate court denied the writ, discussing the immediate (1976) precurser to section 117.12 in the following terms (at pp. 975-976): “Therefore, Code of Civil Procedure section 118.1 must be construed to give effect to the language employed by the Legislature. The language precluding further appeal is unmistakable: a defendant may appeal to the superior court and obtain a trial de novo (Code Civ. Proc., § 117.8, subd. (a)). But no further appeal is allowed to either party, and review by the Court of Appeal is available only on certification (Code Civ. Proc., § 911; rule 61(b), Cal. Rules of Court). In contending that a new trial is nevertheless available, after appeal to the superior court, petitioner ignores the provision of section 118.1 that the judgment of the superior court on trial de novo in a small claims appeal is not only not appealable to a higher court, but is also ‘final.’ It appears that, having precluded further appeal, the legislative purpose in using the word ‘final’ was to preclude also motions for new trial (Code Civ. Proc., § 659) and motions to vacate the judgment (Code Civ. Proc., § 663). No other purpose of the statutory language is apparent; a construction is to be preferred which gives effect to all the terms of the statute. (People v. Gilbert (1969) 1 Cal.3d 475 , 480 [ 82 Cal.Rptr. 724 , 462 P.2d 580 ].)

“We agree also with respondent court’s conclusion that ‘the very purpose of the Small Claims Law and the way it is set up is to make quick and speedy and inexpensive the settlement of disputes, and if all of the normal post-judgment proceedings were to be made available in small claims cases, that would be not only the motion for new trial which you have filed, but it would mean that also there would be the power in the

court to vacate the judgment under other sections of the code and there would virtually be no time when either the plaintiff or the defendant would know when the decision was final,... ’ Moreover, it would be incongruous, where the plaintiff had no right of appeal (see Parada v. Small Claims Court (1977) 70 Cal.App.3d 766 [ 139 Cal.Rptr. 87 ]), to adopt a construction which would nevertheless allow a motion for new trial after the defendant has appealed. We conclude that the construction of Code of Civil Procedure section 118.1 adopted by respondent court is correct.” The Eloby court’s dictum suggests that section 117.12 was designed to preclude only appeal, motions for new trial, and motions to vacate judgment. The court’s initial issuance of the alternative writ further suggests that section 117.12 was not read as curtailing the ability of appellate courts to review important issues arising in small claim actions.

Following the lead of the Eloby court, we read section 117.12 as not foreclosing appellate court review by extraordinary writ. Since statewide precedents can only be created by appellate courts, jurisdiction to decide appropriate small claims court issues must be retained by appellate courts in order to secure uniformity in the operations of the small claims courts and uniform interpretation of the statutes governing them. We do not believe that the Legislature intended to make all actions of the superior courts in such cases totally unreviewable or reviewable only on certification. (Code Civ. Proc., § 911; Cal. Rules of Court, rule 61(b).)

Turning to the merits of the claim, it depends upon interpretation of Code of Civil Procedure section 117.8, which provides: “(a) The judgment shall be conclusive upon the plaintiff. The defendant may appeal the judgment to the superior court in the county in which the matter was heard, provided that, if the defendant seeks any affirmative relief by way of a claim in the small claims court, he shall not have the right to appeal from the judgment on the claim.” The plain language of the section suggests that a defendant who is also a cross-complainant may seek review of the plaintiff’s judgment against him but not of the court’s ruling on his own cross-complaint.

The trial court’s implied rejection of that interpretation was apparently based upon the Skaff decision. In Skaff the plaintiff lost on both his complaint and his counterclaim and was prevented from appealing by the superior court. The Skaff court concluded that the rule that a small claims court judgment “shall be conclusive upon the plaintiff”

(Code Civ. Proc., § 117j) did not apply to a cross-complaint as to which the plaintiff was a “defendant.” In dictum in a footnote, however, the Skaff court went even further, suggesting that even the initial defendant could appeal on a cross-complaint if he was forced to file it by the rules for mandatory counterclaims: “The reasoning of Superior Wheeler Cake Corp. v. Superior Court, supra, 203 Cal. 384 [ 264 P. 488 ], and Prudential Ins. Co. v. Small Claims Court, supra, 76 Cal.App.2d 379 [ 173 P.2d 38 , 167 A.L.R. 820 ], requires us to focus on whether a party voluntarily submits his claim to the small claims court. Thus, in the typical case of a party choosing to advance a counterclaim in the small claims court, the counterclaimant should not be entitled to an appeal from an adverse judgment on that claim. Certain counterclaims, however, must be advanced in the small claims court or forfeited (Code Civ. Proc. § 117h; Thompson v. Chew Quan (1959) 167 Cal.App.2d Supp. 825 [ 334 P.2d 1074 ]); since ‘the strong arm of the law,’ rather than the party’s voluntary election, motivates the party in filing these ‘mandatory’ counterclaims, the counterclaimant should retain his right to appeal. In sum, we conclude that either party should be entitled to appeal from an adverse judgment on a claim asserted against him by another party and that the counterclaimant should also be entitled to appeal if his cross-demand is ‘mandatory.’” (68 Cal.2d at pp. 79-80, fn. 3.)

The trial court here evidently relied upon that dictum in Skaff when it permitted the defendant here to obtain a reversal of the small claims court’s ruling on the cross-complaint. The difficulty with reliance upon Skaff is that it ignores significant changes in the law.

At the time of the Skaff decision, Code of Civil Procedure section 117h provided, inter alia, that the “provisions of this code as to counterclaims are hereby made applicable to small claims courts, so far as included within their jurisdiction.” (Stats. 1951, ch. 1737, § 17, p. 4086.) Section 439 of the same code provided: “If the defendant omits to set up a counterclaim upon a cause of action arising out of the transaction set forth in the complaint as the foundation of the plaintiff’s claim, neither he nor his assignee can afterwards maintain an action against the plaintiff therefor.” (Stats. 1941, ch. 454, § 2, p. 1751.) On the question of appeal, Code of Civil Procedure section 117j controlled, stating: “The judgment of said court shall be conclusive upon the plaintiff. If the defendant is dissatisfied, he may... appeal to the superior court of the county in which said court is held.”