City of Cypress v. New Amsterdam Cas. Co.

• Decision Date: 20 February 1968
• Citation: 66 Cal.Rptr. 357,259 Cal.App.2d 219
• Court: California Court of Appeals Court of Appeals
• Parties: CITY OF CYPRESS, a Municipal corporation, Plaintiff, Cross-Defendant and Respondent, v. NEW AMSTERDAM CASUALTY COMPANY, a corporation, Defendant, Cross-Complainant and Appellant. Civ. 8610.

Page 357

66 Cal.Rptr. 357

259 Cal.App.2d 219

CITY OF CYPRESS, a Municipal corporation, Plaintiff, Cross-Defendant and Respondent, v. NEW AMSTERDAM CASUALTY COMPANY, a corporation, Defendant, Cross-Complainant and Appellant.

Civ. 8610.

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

Feb. 20, 1968.

[259 Cal.App.2d 221] Ives, Kirwan & Dibble, by John Brevidoro, Los Angeles, for defendant, cross-complainant and appellant.

Rutan & Tucker, by Leonard A. Hampel, Santa Ana, for plaintiff, cross-defendant and respondent.

OPINION

McCABE, Presiding Justice.

The order granting the motion to strike portions of the answer to the complaint being non-appealable, the attempted appeal therefrom must be and is hereby ordered dismissed.

The dispute grows out of the purported obligation of the defendant and cross-complainant New Amsterdam Casualty Company to complete certain improvements in a subdivision after the default of the developer of that subdivision to do so, or in the alternative to indemnify the City of Cypress for its failure to do so.

On October 15, 1962, Ball Properties II, a California corporation, obtained the approval by the City of Cypress of a tentative subdivision tract map on certain terms and conditions, including in part, that the developer construct street improvements as required by the City of Cypress in the tract in question. On September 9, 1963, the developer requested that the City of Cypress grant an extension of one year for the submission of a final tract map. This request was granted for on January 8, 1964, the developer entered into a written contract with the City of Cypress, pursuant to Business & Professions Code, § 11611, which provided in part:

'That developer will at the sole cost and expense of developer construct and install all of the street improvements shown and delineated upon 'the plans for street improvement of tract 4421' now on file or to be filed in the office of the City Engineer of the City of Cypress; said 'plans for street improvement of tract 4421' are hereby referred to and made a part of this agreement as though fully set forth herein.

'2. To secure the faithful performance of this agreement, developer agrees to furnish to city good and sufficient bonds executed by a corporation authorized to transact surety business in the State of California and approved by city in the sum of $103,000.00 to assure the faithful performance of this agreement; and in the sum of $103,000.00 to assure payment for labor and material in lieu of said bond, to deposit with city said sum.'

Simultaneously, based upon the "plans for street improvement of tract 4421" prepared by and the costs of construction estimated by the City Engineer of the City of Cypress, New Amsterdam Casualty Company, hereinafter the 'Bonding Company,' issued its performance bond securing the performance by Ball Properties II of the installment of the street improvements according to the plans for street improvements of tract 4421, City of Cypress, on file in the office of the City Engineer.

On January 10, 1964, the developer, Ball Properties II, requested and received final approval of the subdivision tract map for tract 4421. The developer subsequently defaulted in the completion of the street improvements as required by the Street Improvement Agreement of January 8, 1964, and the Bonding Company took over the project completing part of it.

After the Bonding Company had started to complete the work contracted for by its principal, oil lines owned by Standard Oil Company were discovered beneath the surface of one of the proposed streets in an easement of public record. Before the proposed street could be graded as required by the Street Improvement Agreement, these oil lines had to be lowered. The Bonding Company, having expended some $28,194 in the completion of some of the improvements, contends it could not complete the required work 'as per 'Plans for Street Improvements' on file with the City Engineer' until these oil lines were lowered. Alternately, the City of Cypress took the position that it was incumbent upon the Bonding Company to lower these oil lines pursuant to the Street Improvement Agreement of January 8, 1964, and its performance bond.

On April 1, 1965, the City of Cypress brought an action against the developer, the other principals, and the Bonding Company on the Street Improvement Agreement and on the performance bond. The Bonding Company filed an answer in which it raised as an affirmative defense the impossibility of completing the remaining required improvements because of the theretofore unknown existence of the oil lines, and, additionally, the Bonding Company filed a cross-complaint for reformation of the performance bond to exclude therefrom the cost of lowering the oil pipe lines.

Plaintiff City moved to strike the Bonding Company's answer to the complaint, to strike the cross-complaint and for a summary judgment. Since the trial court granted a summary judgment on the cross-complaint, we are not here concerned with any ruling the trial court may have made on any purported motion for summary judgment on the complaint. The court granted the motion to strike the cross-complaint and entered a summary judgment in favor of the City on the cross-complaint.

The court granted the motion to strike a portion of the Bonding Company's answer to the complaint and entered an order accordingly. The orders granting the motions to strike are non-appealable orders. (Swain v. Burnette, 76 Cal. 299, 302, 18 P. 394; 39 Cal.Jur.2d, Pleading, § 315.) The attempted appeal from the order granting the striking of certain portions of the answer to the complaint is ordered dismissed.

The order granting the striking of the cross-complaint is not an appealable order but may be reviewed on an appeal from the judgment. (Yandell v. City of Los Angeles, 214 Cal. 234, 235, 4 P.2d 947; Buck v. Morrossis, 114 Cal.App.2d 461, 462, 250 P.2d 270; Keenan v. Dean, 134 Cal.App.2d 189, 191, 285 P.2d 300; 39 Cal.Jur.2d, Pleading, § 315.)

By the judgment entered and from which this appeal is perfected, the court granted a summary judgment on the cross-complaint. Procedurally, a cross-complaint is a separate pleading and represents a separate cause of action from that which may be stated in the complaint. (Asamen v. Thompson, 55 Cal.App.2d 661, 674, 131 P.2d 841; 2 Witkin, California Procedure, § 566, p. 1570; cf. Moskovitz v. LaFrancois, 121 Cal.App. 310, 313, 8 P.2d 1049.) No appeal is pending on the record before us from any...