Harth v. Ten Eyck , 16 Cal. 2d 829 ( 1941 )

EDMONDS, J., Dissenting.

I cannot agree with conclusions which have been reached in this case and do not believe that long-settled rules of procedure should be set aside because of what may appear to be the equities in a particular situation.

The case of De la Beckwith v. Superior Court, 146 Cal. 496 [80 Pac. 717], which is relied upon by my associates as authority for their determination, was decided upon facts quite different from those which are now before the court. There demurrers were sustained by the trial judge, who before rendering a judgment reconsidered and overruled them. The distinction is clear. An order sustaining a demurrer is not a judgment although it may form the basis of a judgment.

On the other hand, a minute order of dismissal is the equivalent of a final judgment which disposes of the action. (Southern Pac. R. R. Co. v. Willett, 216 Cal. 387 [14 Pac. (2d) 526].) And when the action has been dismissed with prejudice by agreement of the parties in open court, it is presumed that the parties meant it to be a final adjudication of the cause so as to bar further litigation upon the same issues. (Breznikar v. T. J. Topper Co., 23 Cal. App. (2d) 298 [72 Pac. (2d) 895]; Merritt v. Campbell, 47 Cal. 542; McCord v. Martin, 47 Cal. App. 717 [191 Pac. 89] ; see Goddard v. Security Title Ins. & Guar. Co., 14 Cal. (2d) 47 [92 Pac. (2d) 804].)

A dismissal with prejudice has also been held to have the same effect as a common-law retraxit. (Lamb v. Herndon, 97 Cal. App. 193 [275 Pac. 503].) It is considered to be the same as any other judgment and may be vacated upon a motion made pursuant to the provisions of section 473 of the Code of Civil Procedure (McDonald v. Severy, 6 Cal. (2d) 629 [59 Pac. (2d) 98]) and this court recently decided that the order now under review is a special one made after final judgment from which an appeal lies. (Harth v. Ten Eyck, 12 Cal. (2d) 709 [87 Pac. (2d) 693]. See, also, James v. Center, 53 Cal. 31; Colby v. Pierce, 15 Cal. App. (2d) 723 [59 Pac. (2d) 1046].)

The rule is well settled that a court may correct a clerical error in an order previously made because such correction is not a judicial act but a change of language to make the record speak the truth. (Estate of Soboslay, 4 Cal. (2d) 177 [47 Pac. (2d) 714].) So, also, an order may be vacated when made prematurely or through inadvertence (Holtum v. Grief, 144 Cal. 521 [78 Pac. 11] ; Owen v. Crocher-Huffman L. etc. Co., 38 Cal. App. 649 [177 Pac. 299]) as this presents no question of judicial review upon the merits. The situation is far different, however, when, as in the present case, the court has made an order denying a motion regularly submitted for decision. Under such circumstances, the order previously made may not be set aside when the only reason for so doing is that the judge has come to a conclusion different from that expressed by the order previously made.(Vale v. Maryland Casualty Co., 101 Cal. App. 599 [281 Pac. 1058]; Stevens v. Superior Court, 7 Cal. (2d) 110 [59 Pac. (2d) 988].) In the Yale case the order which was reversed was made after a hearing in which the court considered an additional affidavit presented in support of the motion. In the Stevens case this court reviewed the authorities and pointed out that where “all of the matters before the court at the time of the making of the second order having been considered by it at the time of the making of the first order, it cannot, simply because upon a reexamination of the same matters it has reached a different conclusion, give effect to the second determination of the same issue by modifying or annulling the original order or judgment”.

At one time, the rule of res jiidicata did not apply to decisions upon motions because they did not receive the same consideration as the trials of issues of fact, and there was no right of review in a higher tribunal. However, the right to review a motion was a qualified one. As stated in the early case of Kenney v. Kelleher, 63 Cal. 442, 444, although “The court may, upon a proper showing, allow a renewal of a motion once decided . . . this leave will rarely be granted unless it appears that a new state of facts has arisen since the former hearing, or that the then existing facts were not presented by reason of surprise or excusable neglect. But this is not a determination that leave may never be granted upon the same facts more fully stated. The granting or refusing of leave to renew the motion is within the legal discretion of the court, which we ought not to interfere with except in case of abuse.” Later, the court said that “in recognition of the authorities generally, and admitting the broad power on' the part of the trial court to entertain successive motions with regard to the decision either of a disputed matter of fact, or matter of law dependent upon the fact thus established, the further conditional principle has been declared that ordinarily leave to renew a motion should be predicated upon the assumption that at the hearing thereof the moving party can and will produce material and relevant evidence additional to that which he presented on the hearing of the former motion and that the facts which gave rise to such additional evidence either occurred after the date of such former hearing, or that they were not presented at that time ‘by reason of surprise or excusable neglect of the moving party’.” (Tiffany Productions, etc., v. Superior Court, 131 Cal. App. 729, 734 [22 Pac. (2d) 275].)

Under our present procedure, there is no justification for allowing a party who has had a full hearing on a motion, with a right of review in a higher court, to renew the same motion on the same facts. And even when the doctrine of res judicata was not applied to orders made upon motion with the same strictness as to judgments, it was uniformly held that it was a clear abuse of judicial discretion for a court to reach a different conclusion upon a renewal of a motion or upon a second motion based on identical grounds, particularly when its action on the original motion was reviewable on appeal.

In the present case, the motion to reconsider was not based upon any new facts or a more complete statement of the facts which had been previously considered by the court, and it was not even reargued. Certainly there is nothing in the record to indicate that the trial judge or counsel considered the motion to be a renewal of the one previously made. On the contrary, it was presented and ruled upon as a motion to reconsider the previous ruling. In effect, the court purported to correct judicial error in its disposition of the original motion. Such judicial error, if any, was reviewable on appeal from the order denying the original motion to vacate, for the grounds advanced in support of that motion would not be disclosed or be available on an appeal from the judgment itself, and the order denying the original motion to vacate would therefore come within the exception to the rule which precludes an appeal from an order refusing to vacate where it serves to allow two appeals.

For these reasons, I believe the order granting the second motion should be reversed.