Caballero v. Richardson

GRIFFIN, P. J.

On March 27, 1957, defendant and respondent Harold D. Richardson’s vehicle collided with the rear end of a pickup truck driven by plaintiff and appellant Rosalie A. Caballero, a minor. Her mother, Lupe, was a passenger therein. She was thrown from it and suffered internal injuries. Rosalie suffered only minor injuries.

On July 8, 1957, Lupe and her husband filed suit against defendant Richardson in the Superior Court of San Diego County for $15,000, and he was served on July 17, 1957. He

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answered the complaint on September 10, 1957. A jury trial ivas requested and the case was put on the civil active list. On September 25,1957, a pretrial notice was sent to respective counsel, which pretrial was held on October 25, and an order was signed on November 1, 1957, wherein the issues were listed, and no mention was made of a pending action in the municipal court. On July 16, 1957, Rosalie, by her guardian

ad litem

Lupe, filed a suit against defendant Richardson in the Municipal Court of South Bay District, Chula Vista, seeking damages for $2,500, and defendant was served with summons and complaint. He filed an answer thereto on September 12, 1957 (No cross-complaint or counterclaim was interposed), with a request that the case be put on the civil active list in that court, and January 21, 1958, was the date set for such trial. It was subsequently reset by defendant’s attorney for May 8, 1958.

About 10 days before the commencement of the trial of the action in the municipal court, respondent filed a motion in the superior court requesting a transfer of the municipal court action to the superior court so that the trial might be consolidated with the superior court action filed by Manuel and Lupe Caballero. The court granted it. It is from this order that appellant Rosalie appeals.

The argument is: (1) That the superior court lacked jurisdiction over appellant; that the plaintiffs in the superior court and in the municipal court actions were not the same individuals; that appellant was not before the superior court in any capacity; that she filed her action in the proper court which had jurisdiction (Maximum $3,000); that since she did not submit to the jurisdiction of the superior court she could not be compelled to submit to its jurisdiction in this fashion; and (2) That the superior court abused its discretion in making such order just ten days before, necessitating another pretrial and consequential delay pending the trial of the action in the superior court for many months, all of which would be detrimental and prejudicial to this appellant, and accordingly respondent waived his right to such an order, if in law such right existed.