Dvorin v. Appellate Department

Opinion

CLARK, J.

Plaintiff executed a promissory note to defendant. Interest—calculated for the full term—was prepaid at execution. Plaintiff repaid the principal before maturity and filed a complaint in municipal court to recover unearned interest. Defendant alone moved for summary judgment and the motion was granted. Plaintiff appealed to the appellate department of the superior court. The latter reversed, additionally directing the municipal court to enter judgment in favor of plaintiff. The

[650]

appeal was certified to the Court of Appeal, but it denied transfer. Defendant filed the instant petition for writ of review.

Appeal from a municipal court, except when sitting as a small claims court, is heard in the appellate department of the superior court. (Code Civ. Proc., §§ 77, subd. (g), 117j; see

Whittaker

v.

Superior Court

(1968) 68 Cal.2d 357, 363-364 [66 Cal.Rptr. 710, 438 P.2d 358]; 6 Witkin, Cal. Procedure (2d ed. 1971) pp. 4030-4031.) The Court of Appeal may order a case transferred to it either after certification by the appellate department or upon determination by the Court of Appeal that transfer appears necessary to secure uniformity of decision, or to settle important questions of law. (Code Civ. Proc., § 911; Cal. Rules of Court, rule 62.) Despite certification, the Court of Appeal may refuse transfer (6 Witkin, Cal. Procedure,

supra,

p. 4547), and that determination is not reviewable by petition for hearing to the Supreme Court. (Cal. Rules of Court, rule 28(b).) The Court of Appeal has uncontrolled discretion in deciding whether to transfer a case from the appellate department

(Schweiger

v.

Superior Court

(1970) 3 Cal.3d 507, 517, fn. 5 [90 Cal.Rptr. 729, 476 P.2d 97]), and refusal ordinarily terminates appellate review of a municipal court case. However, extraordinary relief has been permitted.