Hayward Unified School District v. Superior Court

AGEE, J.

Petitioner school district seeks a writ of prohibition to restrain respondent superior court from proceeding with a personal injury action brought against it by the real party in interest, plaintiff therein.

The complaint in said action was filed on February 20, 1964. Petitioner, as defendant therein, served a demand for security for costs upon plaintiff on June 8, 1964, as provided in section 947, subdivision (a), of the Government Code, as follows:

“At any time after the filing of the complaint in any action against a public entity, the public entity may file and serve a demand for a written undertaking on the part of each plaintiff as security for the allowable costs which may be awarded against such plaintiff. The undertaking shall be in the amount of one hundred dollars ($100), or such greater sum as the court shall fix upon good cause shown, with at least two sufficient sureties, to be approved by the court. Unless the plaintiff files such undertaking within 20 days after service of a demand therefor, his action shall be dismissed.”

[739]

No undertaking was filed by plaintiff within the 20-day period. On September 4, 1964, petitioner filed a notice that on October 9, 1964, it would move to dismiss the action for failure to file the undertaking. On September 11, 1964 plaintiff filed the undertaking. The motion to dismiss was argued and submitted on October 9, 1964. It was denied on October 23, 1964.

Petitioner contends that respondent court had no jurisdiction to act except to dismiss the action, stating that section 947, subdivision (a), “deprives the trial court of any discretion to permit the filing of an undertaking after 20 days have elapsed from the date a demand therefor has been made” and “relieves the trial court of any power to act, except to dismiss the action, when a plaintiff has failed to file an undertaking within the specified time. ’ ’

Petitioner relies upon

Abelleira

v.

District Court of Appeal,

17 Cal.2d 280 [109 P.2d 942, 132 A.L.R 715], which holds that prohibition will lie “where, though the court has jurisdiction over the subject matter and the parties in the fundamental sense, it has no ‘jurisdiction’ (or power) to act except in a particular manner, . . .” (p. 288).