Hollister Canning Co. v. Superior Court

Opinion

By its petition for writ of mandate and/or in the alternative writ of prohibition, the Hollister Canning Company sought an order staying proceedings in an action pending in the trial court until a peremptory writ could be granted herein ordering that court to set aside its order which granted the motion to strike the complaint as to the defendant “James E. Swett doing business as George E. Swett Company,” who, the order recites, was served as “Third Doe” in the proceedings below, and further ordering the trial court to subject “James E. Swett, an individual doing business as George E. Swett & Co.,” who was in fact served as “Third Doe,” to the jurisdiction of that court in the pending action. After this court granted a temporary stay the real party in interest filed his memorandum of points and authorities in opposition to the petition (see Cal. Rules of Court, rule 56(b)), in which he urged, first, that the petitioner had an adequate remedy of law because its motion to amend the complaint by substituting real party in interest for “George E. Swett Co., a corporation,” as named in the complaint, was pending and undisposed of in the trial court, and, secondly, because the trial court correctly determined the motion. Nevertheless because the complexities of the case made it impossible to determine whether the suggested remedy would be adequate, and because it appeared that the court had erroneously stricken the complaint as to real party in interest, an alternative writ was issued to stay proceedings until and unless good cause was shown why the relief sought by petitioner should not be granted. In his return to the alternative writ real party in interest renewed his former contentions, and for the first time asserted that petitioner was not entitled to relief because it had an adequate remedy by appealing from the trial court’s order and because the service of process on real party in interest was barred by laches.

It is concluded that the alternative writ may have been improvidently granted because the petitioner had the remedy of appealing from the order,

The record in this case consists not only of the petition, real party’s opposition, his return, and a replication and demurrer to the return, but also of copies of numerous pleadings, motions and declarations which were filed in the trial court, and which copies have been made exhibits to the papers filed herein. From these documents the following facts appear.

On March 6, 1969 petitioner filed its complaint and in the caption named as defendants, “L & A Engineering and Equipment, Inc., a corporation, Skinner Engineering Co., a corporation; George E. Swett Co., a corporation, First Doe, Second Doe and Third Doe.” The complaint, in three counts, is for damages occasioned by the breakdown of certain evaporating equipment for processing of tomatoes and other vegetables. These damages are apparently sought against all of the defendants in the first count on the theory that the equipment was negligently manufactured, installed and inspected. In two further counts, not material to these proceedings, petitioner seeks damages for breach of an express warranty and for breach of an implied warranty against the first named defendant, with whom it contracted for the installation of the equipment.

The complaint alleges that on January 20, 1967 petitioner accepted the written proposal of the defendant engineering and equipment corporation to furnish and install the desired equipment. According to the cross-complaint of that defendant, some of the necessary evaporating and processing equipment was secured from others who are named as codefendants and certain fictitious defendants, and the equipment was installed by them in July 1967. In a declaration dated December 10, 1971, a copy of which is appended to his return in these proceedings, real party in interest alleged that his employee, on behalf of defendant Skinner, sold a steam, turbine, which became part of the evaporating unit in question, to the defendant engineering corporation in January 1967, and that his employee and he himself met with petitioner’s employees in September and October 1967 at petitioner’s plant concerning the installation of the equipment.

According to the complaint the damage occurred when the equipment broke down on September 15, 1967, about 10 days after operations commenced, and plaintiff suffered a loss of profits of $54,279.66 before the equipment was again fully operating about October 5, 1967.

On April 5, 1971 attorneys for Swett’s insurer moved to withdraw as counsel for real party in interest and the following day an order was entered permitting that law firm to withdraw and Swett was substituted to represent himself in propria persona. Apparently he had been served, as a fictitious defendant, with the cross-complaint of Pump Repair et al. because he individually, and with the assistance of his personal attorneys, sought a continuance of the former’s motion for summary judgment which had been set for May 4, 1971. Significantly in a declaration Swett executed on April 29, 1971, he referred to himself as “one of the defendants ... in the above-entitled action.”

According to Swett, his deposition was again taken by petitioner’s attorneys on April 7, 1971. Petitioner’s attorney has alleged that the second deposition was taken on May 21, 1971. At the later deposition it was determined that Swett was acting as a sole proprietorship, and petitioner's attorney discussed the matter with the insurer’s attorneys. He sought to induce the latter to stipulate to a substitution of the individual for the corporation and prepared a stipulation to that effect and submitted it to the attorneys who had appeared for the nonexistent corporation. They indicated they would submit it to Swett. It was never executed.

On November 10, 1971 a summons which had been, issued January 1971, together with a copy of the complaint, was served on “James E. Swett, individually and doing business as George E. Swett & Co., sued and served herein as Third Doe.” Thereafter the insurer’s attorneys again appeared in the action as attorneys for “George E. Swett Company, a corporation," according to the caption of the notice of motion to strike filed November 22, 1971. The intended motion, however, was made for “defendant, James E. Swett doing business as George E. Swett Company, sued and served herein as Third Doe.” So it must be assumed it referred to real party in interest as served on November 10, 1971.

It is clear from the record that there never has been an entity designated as “George E. Swett Co., a corporation." A corporation designated as “George E. Swett & Co., Engineers, Inc.” was suspended on September 1, 1959. In a declaration executed November 26, 1971 Swett alleged, “That ever since September 1, 1959, I have been the owner and manager

On November 30, 1971 the trial court gave notice of a settlement conference and pretrial conference to be held January 4, 1972. On the same day the motion to strike came on for hearing, and on December 3, 1971 the court made the order under review. On December 10, 1971 petitioner prepared and served by mail its notice of motion to amend the complaint. This motion originally set for December 21, 1971 was continued to January 4, 1972 at the request of the attorneys for real party in interest, and further action has been suspended by the stay granted in these proceedings following the filing of petitioner’s petition with this court on. December 30, 1971.

I

n his return real party in interest belatedly, but correctly, points out that since the order granting the motion to strike the complaint was a final determination of the controversy between him and petitioner it was appeal-able as a final judgment. In Adohr Milk Farms, Inc. v. Love (1967) 255 Cal.App.2d 366 [ 63 Cal.Rptr. 123 ], the court concluded, “An order granting a motion to strike the complaint would operate to remove from the case the only cause of action alleged against the defendants, and to leave no issues to be determined between the opposing parties. Treated as such, the order before us is appealable within the meaning of subdivision 1 of section 963 of the Code of Civil Procedure. [Citations.]” (255 Cal.App.2d at p. 370. See also Wilson v. Sharp (1954) 42 Cal.2d 675 , 677 [ 268 P.2d 1062 ]; Muller v. Tanner (1969) 2 Cal.App.3d 438 , 440 [ 82 Cal.Rptr. 734 ]; and American Can Co. v. City & County of San Francisco (1962) 202 Cal.App.2d 520 , 522 [ 21 Cal.Rptr. 33 ].)

The Code of Civil Procedure provides for issuance of a writ of mandate or writ of prohibition upon an appropriate showing “in' all cases where there is not a plain, speedy, and adequate remedy, in the ordinary course of law.” (§§ 1086 and 1103.) In commenting on section 1086 in Phelan v. Superior Court (1950) 35 Cal.2d 363 [ 217 P.2d 951 ], the court observed: “Although the statute does not expressly forbid the issuance of the writ if another adequate remedy exists, it has long been established as a general rule that the writ will not be issued if another such remedy was available to the petitioner. [Citations.] The burden, of course, is on the petitioner to show that he did not have such a remedy.” (35 Cal.2d at p. 366.) After

On the other hand in Robinson v. Superior Court (1950) 35 Cal.2d 379 [ 218 P.2d 10 ] the following principles were recognized, “The law' is well settled that a trial court is under a duty to hear and determine the merits of all matters properly before it which are within its jurisdiction and that mandate may be used to compel the performance of this duty. This is so even where the trial court’s refusal to pass on the merits is based on the considered but erroneous belief that it has no jurisdiction as a matter of law to grant the relief requested. . . . Mandate will issue to compel a hearing and determination of the merits where the court has merely sustained. an objection on jurisdictional grounds and left the proceeding pending. [Citations.] The writ is also available where the trial court has disposed of a matter by an order dismissing it or denying relief on the sole ground of lack of jurisdiction. [Citations.] Thus, there is no distinction, insofar as the availability of the writ is concerned, between cases where the court merely refuses to proceed because of its erroneous belief that it has no jurisdiction, and those in which the court makes a ruling disposing of the matter on the sole ground it has no jurisdiction. In either case if the effect is to preclude a hearing and judgment on the merits of a matter properly before the court, and there is no other adequate remedy, mandate will lie to test the question of jurisdiction.” (35 Cal.2d at pp. 383-384. See also Brown v. Superior Court (1971) 5 Cal.3d 509 , 514-515 [ 96 Cal.Rptr. 584 , 487 P.2d 1224 ]; Weber v. Superior Court (1960) 53 Cal.2d 403 , 406 [ 2 Cal.Rptr. 9 , 348 P.2d 572 ]; Financial Indem. Co. v. Superior Court, supra, 45 Cal.2d 395 , 399-400; and 5 Witkin, op. cit, §§83 and 105, pp. 3858-3859 and 3880. Cf. Lincoln v. Superior Court, supra, 22 Cal.2d 304 . 309-310 and 311-315.)

The circumstances suggest that the remedy by appeal would not afford petitioner a plain, speedy and adequate remedy because success would necessitate a retrial of issues which are now pending against other defendants. It is unnecessary to determine whether they are such as to fall within the orbit of the principles expounded in the latter cases. It does appear that the alternative writ was issued without objection noting the adequacy of the remedy by appeal. The merits of the controversy have been fully briefed and submitted to the court. Under these circumstances the issue may be disposed of on the merits. In County of Santa Clara v. Superior Court (1971) 4 Cal.3d. 545 [ 94 Cal.Rptr. 158 , 483 P.2d 774 ] the court noted, “Although we have held in this opinion that a writ of prohibition may not be appropriate to review that order, the merits of the superior court order have been thoroughly briefed and argued both before this court and the Court of Appeal. We believe that we should now adjudicate the merits, since a refusal to do so would leave the parties and the trial court without guidance and would serve no purpose but delay.” (4 Cal.3d at pp. 551-552, fn. omitted. In addition to the cases referred to by the court in the footnote, see Pacific Tel. & Tel. Co. v. Superior Court (1970) 2 Cal.3d 161 , 170-171 [ 84 Cal.Rptr. 718 , 465 P.2d 854 ]; Atkinson v. Superior Court, supra, 49 Cal.2d 338 , 342; Bowles v. Superior Court, supra, 44 Cal.2d 574 , 582; Lockheed Aircraft Corp. v. Superior Court (1946) 28 Cal.2d 481 , 483-484 [ 171 P.2d 21 , 166 A.L.R. 701 ]; and 5 Witkin, op. cit., § § 44, 45 and 94, pp. 3817-3820 and 3869-3870.)

The caption of the complaint which names “Third Doe” as a defendant has been set forth above. The complaint alleges, [1¡] “II. Defendants L & A Engineering and Equipment Co. (hereinafter referred to as L & A Engineering), Skinner Engineering Co., (hereinafter referred to as Skinner), and George E. Swett Co., (hereinafter referred to as

The charging paragraphs read, “VI. Defendants, and each of them, negligently manufactured, assembled, installed and inspected the vegetable processing equipment agreed so to be installed under the terms of Exhibit A”; and “VII. As a proximate result of defendants’ negligence, the processing equipment installed by defendants and purchased by plaintiff broke down and became inoperative on about September 15, 1967, . . .” Paragraph “VIII” sets forth the petitioner’s damages and the prayer is for recovery “against defendants.”

In Milam v. Dickman Construction Co. (1964) 229 Cal.App.2d 208 [ 40 Cal.Rptr. 130 ] the court determined that the complaint did not state a cause of action against any fictitious defendant. It concluded, “It is apparent that the ‘Defendants’ referred to are the two named defendants against whom the acts of negligence are specifically directed. [1¡] The complaint having failed to state a cause of action against the fictitious defendants, the statute of limitations is not tolled as to them by the filing of the complaint.” (229 Cal.App.2d at p. 214. See also Schroeter v. Lowers (1968) 260 Cal.App.2d 695 , 700-701 [ 67 Cal.Rptr. 270 ]; Williams v. Goodman (1963) 214 Cal.App.2d 856 , 861-862 [ 29 Cal.Rptr. 877 ]; Thompson v. Palmer Corporation (1956) 138 Cal.App.2d 387 , 396 [ 291 P.2d 995 ]; and Sullivan v. Wright (1954) 124 Cal.App.2d 836 , 838 [ 269 P.2d 671 ].)

In reliance on the principles set forth in the foregoing decision, the attorneys for Swett’s insurer interposed the motion to strike “on the grounds that said defendant was served as Doe defendant; that the charging allegations contained in plaintiff’s complaint do not refer to any of the Doe defendants and fails to state a cause of action against same. Further, that by reason of the failure to state a cause of action against the fictitious defendants, the statute of limitations is not tolled, but has continued to run. That by reason of the running of the statute of limitations, the plaintiff is barred from now instituting action against this defendant.”

In this case the petitioner in paragraphs “IV” and “V” of its complaint has set forth allegations which establish a relationship between it and certain named defendants which would give rise to a duty of care running from those defendants to the petitioner. The relationship between the petitioner and the fictitious defendants is not stated. Nevertheless it should not be foreclosed from bringing in those whom it subsequently has discovered had a part in performing the obligations undertaken by the named defendants. The charging allegations, paragraphs “VI” and “VII” use the unqualified words “Defendants” and “defendants’.” Any reading of those paragraphs reqúires that the names of each and all of the defendants named in the caption, “Third Doe,” be considered as embraced in their content. (See Oakes v. McCarthy Co. (1968) 267 Cal.App.2d 231 , 252 [ 73 Cal. Rptr. 127 ].) Such a reading is impossible in Milam because not only are the negligent acts and omissions specifically attributed to named defendants, but also the allegations of proximate cause are related to the “aforesaid” acts and omissions of the specific defendants.

If there is any shortcoming in setting forth the relationship under which any fictitious defendant undertook a duty toward petitioner, it should be the subject of special demurrer, and is not fatal to the statement of a cause

Ill

Petitioner objects to the attempt of real party in interest to bring before this court matters which were only presented to the trial court in proceedings initiated after the making of the order of December 3, 1971. This court has referred to the material (found as exhibits to petitioner’s December 10, 1971 motion to amend, which itself was an exhibit to the opposition filed by real party in interest) because for the most part it embodies matters which were part of the records of the court on and before the motion to strike was heard on November 30, 1971.

It is obvious that the issues presented by petitioner’s motion to amend parallel those in the pending proceedings. (See Schroeter v. Lowers, supra, 260 Cal.App.2d at p. 701; and Thompson v. Palmer Corporation, supra, 138 Cal.App.2d at pp. 395-396.) It is true that if it were granted it would render the present proceedings moot, but it could and would not finally resolve, until after final judgment, the issue of whether real party in interest was properly made a party at this late date, much less the latent and undiscussed issue of whether he has been a party, although not appearing as such since the service effected on April 17, 1969. On the other hand if that motion were to be denied, as the trial court if consistent might well conclude, the petitioner would be left with an application for extraordinary relief or an appeal which would raise issues similar to those presented by the parties in this proceeding.

It is unnecessary to determine the merits of petitioner’s pending motion, or whether or not it ordinarily would furnish an adequate remedy at law which would substitute for review of the order which has been made. The granting of the relief sought by petitioner will render the second motion moot and enable the parties to proceed to a determination of the merits of the controversy free from lurking procedural issues, and from defenses not pertinent to the merits. On the record in this case the administration of justice requires no less. Under the circumstances presented the pending motion to amend cannot serve as a substitute for review of the order which had been made.

I

n his return real party in interest asserts that he should not be sued in this action as a fictitiously named defendant because petitioner knew

Molinari, P. J., and Elkington, J., concurred.