Pacific View Hospital v. Superior Court

California Court of Appeal Feb 23, 1961 No. Civ. 25231Published

Before: Nourse

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Holding. The court held that the requirement to file an undertaking in a libel or slander action is not jurisdictional, and the trial court has discretion to allow a plaintiff to file a new or sufficient undertaking rather than mandatorily dismissing the action.

Issues

Whether the trial court is required as a matter of law to dismiss a libel or slander action if a sufficient undertaking is not filed within five days of an order requiring one.

Disposition. Alternative writ discharged and peremptory writ denied.

Quotations verified verbatim against the opinion

“The jurisdiction of the court in an action for libel or slander does not depend upon the filing of a sufficient undertaking.”

“the court is not obligated so to do but may, in its discretion, where there has been an attempt in good faith to meet the order of the court and the requirements of the statute, reasonably extend the time for the filing of another undertaking.”

NOURSE, J. pro tem.

Petitioners are the defendants in an action brought against them in respondent court by real party in interest wherein she sought damages for alleged slanders. Petitioners here seek a writ of prohibition to command the respondent court to refrain from continuing to entertain the action and “from continuing to refuse to dismiss said action.”

[396]

The relevant facts are: On October 19, 1960, real party in interest filed her complaint against petitioners. She failed, however, to file the undertaking required by section 830 of the Code of Civil Procedure and the clerk refused to issue a summons. Real party then filed an amended complaint together with an undertaking which was executed by two persons as sureties but not executed by real party in interest and the undertaking was otherwise defective in form. Petitioners filed an answer to the complaint together with a motion to dismiss on the ground that the undertaking did not meet the requirements of sections 830 and 831 of the Code of Civil Procedure, and also a notice requiring the sureties to justify. When the motion came on for hearing on November 7th, the court denied the motion to dismiss but sustained the petitioners’ exceptions to the sufficiency of the undertaking and ordered a new undertaking be filed within five days. On November 14th, real party in interest filed separate undertakings, each executed by a different surety but neither of which was executed by real party .in interest as principal.

On November 22 and 25 respectively, petitioners filed notice requiring sureties to justify and a motion to dismiss upon the ground that the undertakings were not executed by real party in interest and that they had not been filed within the five-day period. On November 28th these matters came on for hearing and after one of the sureties was examined, all matters were continued to December 5th. On that day, the court, after examining the other surety, made and entered its order denying defendants’ motion to dismiss and finding that neither of the sureties was qualified, granted real party in interest five days to file new undertakings.

On' December 8th, real party in interest filed further undertakings and'petitioners did not move to strike those undertakings ■ nor take any exception to the sureties thereon or to the form of the undertakings.

Pacific View Hospital v. Superior Court

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