Kneeter v. Municipal Court

Opinion

COBEY, Acting P. J. Pacific Apartments, a limited partnership and the real party in interest, appeals from a judgment directing the issuance of a peremptory writ of mandate ordering respondent clerk of respondent court (Municipal Court of the Los Angeles Judicial District) to transfer and transmit all pleadings and papers in the action in respondent court, designated as West Los Angeles No. 674 924, to the Superior Court in and for the County of Los Angeles. The appeal lies. (See Code Civ. Proc., §§ 1110, 904.1, subd. (a).)1

Pacific contends that respondent court should have been permitted to dismiss the cross-complaint in the action of petitioner (plaintiff), Herbert L. Kneeter, pursuant to section 581b2 and Pacific’s motion based thereon be[635]cause of petitioner’s failure to pay the requisite transfer and filing fees within one year following entry of the transfer order of respondent court, as required by the statute and the order.3 If the statute applies, such dismissal would appear to be mandatory. (See Davis v. Superior Court, 184 Cal. 691, 693 [195 P. 390]; Western Greyhound v. Superior Court, 165 Cal.App.2d 216, 218 [331 P.2d 793].) The superior court, however, took the view that the statute did not apply because (1) it did not cover the situation presented here—that of an action being commenced in a proper court which thereafter became improper by reason of an issue raised in a cross-complaint; (2) the statute had been so construed in La Mirada Community Hospital v. Superior Court, 249 Cal.App.2d 39, 43 [57 Cal.Rptr. 42]; (3) a plaintiff in a situation such as this could protect himself from unreasonable delay on the part of a cross-complainant in complying with an order to pay transfer and filing fees by paying them himself and then recovering them from his adversary by way of costs or setoff. (See § 399.)

We agree with the superior court that section 581b applies only to transfers ordered pursuant to the first paragraph of section 396 and not to those, as here, ordered pursuant to its second paragraph.4 Pacific argues [636]that this interpretation runs contrary to that generally given the word “action” as inclusive of both an original action and a cross-action. This may be so. but we note that in section 581b, unlike section 583 (dismissal for lack of prosecution), the word “action” is not expressly so defined.