Allen v. Paradise Grange No. 490, Inc.

SCHOTTKY, J. This is an appeal by defendant above named from an order granting plaintiff’s motion for a new trial.

This is the second time this case has been brought before this court on appeal. The former appeal was from a judgment entered on a jury verdict in favor of plaintiff for personal injuries and from an order denying defendant’s motion for judgment notwithstanding verdict. By its decision, dated April 8, 1958 (Allen v. Paradise Grange No. 490, Inc., 159 Cal.App.2d 247 [323 P.2d 468]), this court held that the Grange, the lessor of the property, was not responsible for injuries to Marcia Jeanne Allen allegedly sustained when she fell from a porch which did not have a protective railing. The basis of the decision was that the plaintiff as the daughter of one of the members of the private club which had rented the premises was not owed any duty of care by the lessor as to obvious defects and hence the lessor was not liable for her injuries, and the opinion concluded that "The order denying defendant’s motion for judgment notwithstanding the verdict and the judgment are reversed and the trial court is ordered to enter judgment for the defendant with costs.”

On June 10, 1958, the remittitur was filed in the trial court. On June 11, 1958, counsel for Marcia Jeanne Allen served by mail a notice of intention to move for a new trial. This notice was filed on June 12, 1958. On June 17, 1958, the court entered judgment in favor of the Paradise Grange in accordance with the instructions contained in the opinion of this court. That judgment was prepared by counsel for defendant and sent to the trial judge for. his signature. On June 23, 1958, a second notice of intention to move for a new trial was filed. This was supported by an affidavit by counsel. The motion for a new trial was granted on August 22, 1958, and this appeal followed.

Appellant makes two major contentions. The first is that the order granting a new trial is a nullity because it was entered after the expiration of the 60-day period after the filing of notice of intention to move for a ‘ new trial. The answer to this question will depend upon when the judgment is deemed to have been entered in the trial court. If the judgment was not entered until June 17, 1958 (the date the court entered the judgment prepared by counsel for defend[229]ant), the first notice of motion was premature and a nullity. (Crillo v. Curtola, 91 Cal.App.2d 263 [204 P.2d 941]; Tabor v. Superior Court, 28 Cal.2d 505 [170 P.2d 667].) In Young v. Hampton, 36 Cal.2d 799 [228 P.2d 1, 19 A.L.R.2d 830], a judgment in favor of the plaintiff was reversed with directions to the trial court to enter judgment denying plaintiff relief upon the cost-plus contract and denying the Hamptons any recovery for rent. Thereafter the Hamptons brought an action in part in mandamus to compel the superior court to enter judgment in accordance with the instructions in the remittitur. On this point the Supreme Court said (Hampton v. Superior Court, 38 Cal.2d 652 [242 P.2d 1]), at page 654: “By section 958 of the Code of Civil Procedure, the duties of the clerk of the superior court upon the receipt of a remittitur are defined as follows: ‘When judgment is rendered upon the appeal, it must be certified by the clerk of the appellate court to the clerk with whom the judgment roll is filed, or the order appealed from is entered. In cases of appeal from the judgment, the clerk with whom the roll is filed must attach the certificate to the judgment roll and enter a minute of the judgment of the appellate court in the register of actions. . . .’ Upon entry of the minute of the judgment in the register of actions, the judgment is of record and no further action by the superior court is necessary. [Citations.] The petitioners allege that the remittitur was received by the clerk of the superior court, and it must be presumed that he complied with the provisions of the quoted code section. [Citation.] No further entry of judgment is required for the protection of the rights of either party. ...”