Los Angeles County v. Stone

• Decision Date: 28 December 1961
• Citation: 18 Cal.Rptr. 72,198 Cal.App.2d 640
• Parties: COUNTY OF LOS ANGELES, Plaintiff, v. Samuel STONE et al., Defendants. DIX BOX COMPANY, Defendant and Appellant, v. Samuel STONE and Rose Stone, Defendants and Respondents. Civ. 25303.
• Court: California Court of Appeals Court of Appeals

Page 72

18 Cal.Rptr. 72

198 Cal.App.2d 640

COUNTY OF LOS ANGELES, Plaintiff, v. Samuel STONE et al., Defendants.

DIX BOX COMPANY, Defendant and Appellant, v. Samuel STONE and Rose Stone, Defendants and Respondents.

Civ. 25303.

District Court of Appeal, Second District, Division 2, California.

Dec. 28, 1961.

Hearing Denied Feb. 21, 1962.

Jerome Weber, Beverly Hills, for appellant.

Beardsley, Hufstedler & Kemble, Seth M. Hufstedler, Los Angeles, for respondents.

HERNDON, Justice.

This action was filed by the County of Los Angeles to condemn a parcel of real property. Named as defendants are (a) respondents Samuel Stone and Rose Stone, who are the owners in fee of the parcel involved; (b) appellant Dix Box Company, a corporation, the lessee of a portion of said parcel; (c) the Livingston Rock and Gravel Company, Inc., the lessee of the remaining portion of the parcel; and (d) certain railroads owning easements thereon.

Appellant filed its answer alleging, inter alia, that it is the lessee of a particularly described portion of the property under a certain written lease; that respondents are the owners and lessors of said parcel; and that the fair market value of appellant's leasehold interest is the sum of $75,000.00. The prayer of the answer seeks judgment against the county for an award of just compensation and other incidental relief.

Thereafter, respondents filed a notice of motion for an order striking appellant's answer and for summary judgment in favor of respondents and against appellant 'with respect to the right of Dix Box Co. to participate in any award or judgment of condemnation in the above entitled case'. This motion was supported by the affidavit of Samuel Stone which incorporated the written lease and quoted paragraph sixteen thereof, reading as follows:

'In the event of the taking of any portion of said premises by eminent domain, the rental herein specified to be paid shall be ratably reduced according to the area of the building upon the leased premises which is taken, and Lessee shall be entitled to no other or further consideration by reason of such taking, and any severance damages occasioned by the taking of any portion of the leased premises and any damages to any structures erected thereon shall be paid to and received by Lessor, and Lessee shall have no right therein or thereto or to any part thereof, and Lessee hereby relinquishes to Lessor any rights to any such damages; provided, however, that if the remaining portion of said building, after deducting the portion taken by said eminent domain proceedings is insufficient for the conduct of Lessee's business, then and in that event Lessee may at its option cancel the lease.'

The theory of the motion is indicated by the following from the points and authorities filed in support of the motion: 'Moving parties contend that paragraph sixteen is clear and unambiguous, and by its terms Lessee shall be entitled to no portion of any condemnation award. If this contention of moving parties is correct, there is no issue of fact to be determined as between these two parties, and the answer of Dix Box Co. should be stricken, and summary judgment in this respect entered in favor of moving parties.'

Appellant filed points and authorities in opposition to the motion, contending that the above quoted paragraph of the lease is uncertain and ambiguous 'in that it cannot be determined therefrom what occurs to lessee's rights under said lease upon the condemnation and taking of the whole of said property'.

Appellant also filed in opposition to the motion an affidavit in which the affiant stated: (1) that he was a duly licensed real estate salesman and that he handled the negotiations for the leasing of the parcel of real property here involved; (2) that during the negotiations affiant represented both appellant and respondents with their full knowledge, consent and permission; (3) that prior to the execution of said lease, affiant, in separate conversations, discussed the various provisions of the lease with both lessors and lessee and the meaning and interpretation thereof, including the meaning and interpretation of paragraph 16; (4) 'that at the conclusion of said separate discussions, it was understood and agreed by Benjamin Dix, president of the Dix Box Co., a corporation, that the meaning of paragraph 16 protected the lessee if and in the event parts or portions of said property were taken by way of condemnation proceedings; it was further understood by Benjamin Dix * * * that paragraph 16 in no way affected lessee's right * * * in the event the entire leased property was taken in such eminent domain proceedings'; (5) that it was further understood between lessors and lessee that paragraph 16 referred only to the rights of the parties in the event of the taking of a portion of the property.

On June 29, 1960, the trial court entered its minute order granting respondents' motion for summary judgment and affirmatively providing: 'Answer of Dix Box Co. is ordered stricken'. appellant filed its notice of appeal from the foregoing order.

We are met at the threshold with the question whether the order here appealed from is an appealable order. At oral argument, counsel for both appellant and respondents concurred in expressing their desire that this appeal be entertained and determined on its merits. Counsel for respondents offered to waive any question as to the appealability of the order and to stipulate that the notice of appeal be considered a notice of appeal from the judgment which was subsequently entered. Said judgment, however, is not included in the record presently before us. The parties also expressly concurred in the following statements of fact:

(1) That the order striking appellant's answer and granting respondents' motion for summary judgment was regarded and treated by all parties as an effective and binding adjudication that appellant had no right to participate in any award of damages; (2) that said adjudication was carried into the interlocutory and final judgments of condemnation and that appellant was accorded no opportunity further to litigate its claim in the trial court; (3) that all parties to the action, including appellant, had entered into a written stipulation fixing the total amount of the award of damages and providing for the distribution of said award among the defendants other than appellant; (4) that said stipulation further provided that such distribution would be without prejudice to appellant's present appeal, and that in the event of an ultimate determination that appellant was entitled to share in the award of damages, such award to appellant might be in the form of a personal judgment against respondents; and (5) that the trial court by its judgment had expressly retained jurisdiction to hear and determine any issues with respect to appellant's right to participate in said condemnation award that might require further adjudication as a result of the decision on this appeal.

In several cases it has been held that a mere order granting a motion for a summary judgment is not appealable. (Martelli v. Pollack, 162 Cal.App.2d 655, 661, 328 P.2d 795; Shea v. Leonis, 29 Cal.App.2d 184, 190, 84 P.2d 277; Bank of America, etc. v. Oil Well Supply Co. of Chicago, 12 Cal.App.2d 265, 271, 55 P.2d 885 and Gardenswartz v. Equitable etc. Soc., 23 Cal.App.2d Supp., 745, 754, 68 P.2d 322.) However, in each of these cases it appeared that a formal judgment had been entered immediately following the order granting the motion, and that such judgment constituted a complete adjudication of all issues and determined the rights of all parties to the action. Thus, it was clear in those cases that the order was not intended to operate as the final disposition of the case as to any party.

In the instant case, however, the parties to the appeal agree that the order striking appellant's answer and granting a summary judgment against it amounted to a final adjudication as between appellant and respondents, and was regarded and treated as a final disposition of the action as to appellant.

We have concluded that, under the circumstances of this case, the order here presented for review properly should be regarded as a 'final judgment' within the meaning of section 963 of the Code of Civil Procedure. This conclusion rests upon the principles enunciated by our Supreme Court in Herrscher v. Herrscher, 41 Cal.2d 300, 259 P.2d 901; Wilson v. Sharp, 42 Cal.2d 675, 268 P.2d 1062 and McClearen v. Superior Court of Tulane County, 45 Cal.2d 852, 855, 291 P.2d 449. In Herrscher v. Herrscher, supra, the court held that an order granting a motion to strike a cross-complaint was appealable, stating the applicable principles as follows:

'An order granting a motion to strike a cross-complaint from the files is equivalent to an order dismissing the cross-complaint. Howe v. Key System Transit Co., 198 Cal. 525, 246 P. 39. Where the parties to the cross-complaint are not identical with the parties to the original action, the order amounts to a final adjudication between the cross-complainants and cross-defendants and is appealable. Sjoberg v. Hastorf, 33 Cal.2d 116, 199 P.2d 668; Kennedy v. Owen, 85 Cal.App.2d 517, 520, 193 P.2d 141. It has long been the rule in this state that an order of dismissal is to be treated as a judgment for the purposes of taking an appeal when it finally disposes of the particular action and prevents further proceedings as effectually as would any formal judgment. (Southern Pac. R. R. Co., v. Willett, 216 Cal. 387, 14 P.2d 526.' (P. 304, 259 P.2d p. 903.)

In Wilson v. Sharp, supra, plaintiff appealed from an order striking the second count of his amended complaint. It was only in this count that plaintiff attempted to state a cause of action against the county counsel. In holding the order appealable, the court stated (page 677, 268 P.2d page 1064): 'The order granting the motion to strike operated to remove...