Eloby v. Superior Court

Opinion

CHRISTIAN, J.

Cleophas Eloby seeks a writ of mandamus commanding respondent superior court to hear a motion by petitioner for new trial after trial de novo in the superior court of a small claims court action in which petitioner is plaintiff and real party in interest is defendant.

Petitioner had sought recovery in the sum of $750 for allegedly defective work done on his automobile. Trial in the small claims court

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resulted in judgment for petitioner as prayed. Real party appealed to the superior court (Code Civ. Proc., § 117.8, subd. (a)), and the action was “tried anew” in that court (Code Civ. Proc., § 117.10). Respondent court rendered judgment, again in favor of petitioner and against real party, but only in the sum of $300 plus costs.

Petitioner gave notice of intention to move for a new trial, on the grounds that the decision was contrary to law and that the decision was not supported by the evidence. Respondent court declined to consider the motion on its merits, believing that it lacked jurisdiction to entertain a motion for new trial after judgment on appeal in a small claims action. This court issued an alternative writ of mandate in order to determine whether respondent court should have dealt with the merits of the motion for new trial.

Respondent court stated the view that it did not “have the power to consider a motion for new trial after judgment on appeal in a small claims decision by reason of the provisions of Section 118.1 of the Code of Civil Procedure and the nature and spirit of the Small Claims Law itself.” The cited enactment provides: “The judgment of the superior court shall be

final and not appealable.

If the judgment is affirmed in whole or in part or the appeal is dismissed, the defendant shall pay to the plaintiff the amount of the judgment as affirmed, together with interest and costs and the sum of fifteen dollars ($15) as an attorney’s fee.” (Italics added.) No appellate decisions have been found, interpreting the terms “final and not appealable” in this context. We note that in