Provencher v. City of Los Angeles

SHINN, J.,

pro tem.

—This is an action brought by the plaintiffs for damages alleged to have been caused to the real property of plaintiffs by the construction of a pedestrian subway across the highway upon which plaintiffs’ property abuts. At the time of trial on September 18, 1933, the court sustained a general demurrer of one defendant to the amended complaint, and also sustained an objection of another defendant to the introduction of any evidence upon the ground that the amended complaint failed to state a cause of action. In so ruling the court made the following statement: “At this time I will sustain the demurrer and I will sustain the objections to the introduction of any evidence under this amended complaint; but I will continue the matter one week—if that is sufficient time for you; if not, take whatever reasonable time you think is necessary—for the purpose of enabling you to prepare and serve upon counsel and present to the Court a proposed amendment, if you desire to amend; that is, a proposed second amended complaint; at which time the Court will then determine whether or not to grant you leave to file it or to deny you the permission and let the ruling stand without leave to amend.” The minutes of the court show that the matter was continued for the purpose of affording

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plaintiffs’ counsel an opportunity to present a proposed second amended complaint. On September 23, 1933, counsel for plaintiffs filed with the clerk a written request for dismissal of the action. On September 25th, when the matter came on for hearing, plaintiffs’ counsel did not appear and the case was marked off calendar. On September 29th, the court signed a judgment in favor of the defendants. On November 29th, on motion of plaintiffs’ counsel this judgment was vacated. Defendants Los Angeles City School District of Los Angeles County and the Board of Education of the City of Los Angeles appealed from this order.

Appellants base their appeal upon the following propositions: That plaintiffs could not dismiss their case because (a) the hearing on the demurrer was a trial, and (b) that the ruling on the demurrer was a decision of the court. For these reasons they contend that the attempted dismissal was ineffectual, that the judgment in their favor was properly entered, and that the court was without power to sét aside the same.