San Diego Tavern & Restaurant Ass'n v. Local Joint Executive Board

California Court of Appeal Oct 5, 1959 No. Civ. 6163Published

Before: Shepard

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Holding. The trial court lacked the authority to amend a final judgment nunc pro tunc to divide costs equally between parties because the prevailing party in a special proceeding, such as a compulsory arbitration, is entitled to costs as a matter of right under Code of Civil Procedure section 1032.

Issues

Whether a trial court may amend a final judgment nunc pro tunc to reallocate costs when the original judgment awarded costs to the prevailing party as a matter of right.
Whether a compulsory arbitration proceeding constitutes a 'special proceeding' under Code of Civil Procedure section 1032.

Disposition. reversed

Quotations verified verbatim against the opinion

“Allowance of costs where the statute makes it mandatory is a jurisdictional question.”

SHEPARD, J.

This is an appeal by Local Joint Executive Board of San Diego, comprising Waiters and Bartenders Local 500 and Culinary Alliance and Hotel Service Employees Local 402 from a special order made January 7, 1959, after final judgment, by which special order the trial court purported to amend

nunc pro tunc

its judgment theretofore entered so as to allocate costs equally between the parties.

Prom the record before us it appears that on June 25, 1955, San Diego Tavern and Restaurant Association, Inc., respondent herein, entered into a collective bargaining agreement with Local Joint Executive Board of San Diego, comprising Waiters and Bartenders Local 500 and Culinary Alliance and Hotel Service Employees Local 402, appellant herein. The agreement was to expire June 25, 1958, or if a notice of termination was not given more than 30 days prior to said expiration date, it would continue from year to year pending the giving of such notice. Appellant did give notice of termination prior to said 30-day period. The agreement contained,

inter alia,

the following provision:

“Section 26 . . .

“k) In the event, other than in isolated instances, the Union contracts with any other employer and sets a pattern with regard to employers of the same general classification as those covered by this agreement, whereby a more favorable provision is granted to that Employer than enjoyed by Association Members under the terms of this contract, the Association may invoke the procedures of the Board. The Board may thereupon insert said provision in this contract.”

It also contained a provision for arbitration of disputes, grievances and alleged violations of the agreement.

[248]

In preliminary discussion with one of the employer members of respondent such individual member asked for and secured an extension of time as to his own individual place of business in the following language:

“Pursuant to provision and sub-clause 25—that the interested parties do hereby agree to permit

San Diego Tavern & Restaurant Ass'n v. Local Joint Executive Board

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SHEPARD, J.

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