Filed 3/15/13 DC Auto v. Superior Court CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
DC AUTO, INC.,
Petitioner, E057849
v. (Super.Ct.No. CIVDS1108475)
THE SUPERIOR COURT OF OPINION
SAN BERNARDINO COUNTY,
Respondent;
MICHAEL K. BARBOSA,
Real Party in Interest.
ORIGINAL PROCEEDINGS; petition for extraordinary writ. Donna G. Garza,
Judge. Petition granted.
Manning Leaver Bruder & Berberich and Gary Haroutoin Prudian for Petititioner.
No appearance for Respondent.
The Hanson Law Firm, John W. Hanson and Elisa M. Swanson, for Real Party in
Interest.
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INTRODUCTION
In this matter we have reviewed the petition and the opposition filed by real party
in interest. We have determined that resolution of the matter involves the application of
settled principles of law, and that issuance of a peremptory writ in the first instance is
therefore appropriate. (Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171,
178.)
DISCUSSION
In our view, the fifth cause of action contains severable claims which have been
pleaded separately, and Lilienthal & Fowler v. Superior Court (1993) 12 Cal.App.4th
1848 controls this case. A party cannot prevent the adjudication of factually separate
claims simply by including them in what is pleaded as a single “cause of action.” (See
also Edward Fineman Co. v. Superior Court (1998) 66 Cal.App.4th 1110.) Although real
party in interest argues that amendments to Code of Civil Procedure section 437c,
subdivision (f)(1) only allows a motion for summary judgment to be heard if it
“completely disposes of a cause of action,” the court in Edward Fineman Co. dealt with
this same language and for policy reasons, with which we agree, applied Lilienthal &
Fowler. We also disagree that petitioner was obliged to pursue a remedy under
subdivision (s) of Code of Civil Procedure section 437c, because that subdivision may
only be used if both parties and the court agree to the proposed “piecemeal” adjudication.
We see no reason to suppose that subdivision (s) was intended to supersede the holdings
in the cases we have cited.
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DISPOSITION
Accordingly, the petition for writ of mandate is granted. Let a peremptory writ of
mandate issue, directing the Superior Court of San Bernardino County to vacate its order
denying petitioner’s motion for summary adjudication as to the claims set out in the fifth
cause of action, and to reconsider the motion with respect to the “Hidden Deferment”
class.
Petitioner is directed to prepare and have the peremptory writ of mandate issued,
copies served, and the original filed with the clerk of this court, together with proof of
service on all parties. Petitioner to recover its costs.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
HOLLENHORST
Acting P. J.
We concur:
MILLER
J.
CODRINGTON
J.
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