I concur.
I agree that under the circumstances here involved the superior court did not lose jurisdiction of the controversy when it dismissed the second count of the cross-complaint, but had discretion, under the fifth paragraph of section 396 of the Code of Civil Procedure, to retain jurisdiction if it so desired. This discretion was exercised in favor of retaining jurisdiction at the time of trial.
In the case of Keenan v. Dean, 134 Cal.App.2d 189 [285 P.2d 300], which involved an entirely different question, at page 192 there is a dictum to the effect that under the circumstances here involved the superior court lost jurisdiction of the controversy except to transfer it back to the municipal court. The majority opinion in the instant case disapproves of that dictum. Inasmuch as I wrote the Keenan case for this court, I think it proper to state that upon further consideration of what I said in the Keenan case on this point I am convinced that the dictum is wrong and should be overruled for the reasons and upon the grounds set forth in the majority opinion.
The conclusion of the majority is supported not only by a reasonable and proper interpretation of the pertinent provision of section 396 of the Code of Civil Procedure, but also by a consideration of what would be the effect of a contrary interpretation. Under the section, the plaintiff chooses his court when he files the complaint in the municipal court. When the defendant files a cross-complaint beyond the monetary jurisdiction of that court it is clearly provided that the cause must be transferred to the superior court. This is so whether the cross-complaint does or does not state a cause of action. The determination of that question is left to the superior court. If the superior court decides that the cross-complaint does not state a cause of action, or is sham, or the defendant dismisses his cross-complaint, at least when the judgment so declaring is entered at the time of trial, the *417superior court is given discretion to transfer the cause back to the municipal court or to retain jurisdiction of it. Any other rule would permit a defendant to file a cross-complaint and thus get the ease transferred to the superior court, and then, when he discovered what judge was going to try the case, to dismiss the cross-complaint and get the action retransferred to the municipal court. How long such maneuvering could continue is conjectural. Certainly, the section should not be interpreted so as to permit such shopping around by a litigant for a court satisfactory to him or to require the constant shifting of a case between the two courts at the whim of the litigant. Thus, the interpretation contained in the majority opinion is not only sound but also aids the orderly administration of justice.