Olson v. Superior Court

[312]

BRAY, J.

*

Petitioners seek a writ of mandate against the respondent Sacramento County Superior Court, praying that the superior court be directed to annul its memorandum and order allowing the filing of an amended cross-complaint, the County of Sacramento being the real party in interest.

1

Question Presented

Did the trial court have jurisdiction after granting a judgment on the pleadings in favor of petitioners on the cross-complaint and after appeal therefrom to grant a motion to file an amended cross-complaint?

Record

On February 10, 1965, petitioners filed a civil action against the County in respondent superior court for damages for wrongful breach of a certain garbage collection franchise agreement. On April 13, 1966, County filed its answer and separately a cross-complaint. On December 14, 1967, petitioners, as cross-defendants, filed a “Notice of Motion for Summary Judgment for Cross-Defendants on Cross-Complaint, For Order Striking Affirmative Defense to Complaint and For Judgment For Cross-Defendants on the Pleadings.”

On May 10, 1968, the trial judge filed a memorandum to the effect that the cross-complaint cause of action was barred by the provisions of section 340, subdivision 1, Code of Civil •Procedure, and stated that “ [t] he motion for judgment upon the pleadings in regard to the cross-complaint will be granted. ’ ’

On July 9, 1968, and before any judgment was entered, the County filed “Motion For New Trial on Order Granting Motion For Judgment on the Pleadings Against Cross-Complaint and to Vacate and Set Aside Any Judgment Entered Thereon; Or, In The Alternative, For Leave to Amend Said Cross-Complaint.” Said motion was accompanied by a proposed amended cross-complaint but no affidavit of merits. Both motions were argued orally and in writing and on July 10, 1968, “Judgment on the Pleadings on Cross-Complaint”

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