Davies v. Krasna

• Court: California Court of Appeals
• Writing for the Court: KINGSLEY; JEFFERSON, Acting P.J., and FRAMPTON
• Citation: 91 Cal.Rptr. 250,12 Cal.App.3d 1049
• Parties: Elizabeth S. DAVIES, Executrix of the Estate of Valentine Davies, Deceased, Plaintiff and Appellant, v. Norman KRASNA, Defendant and Respondent. Civ. 35638.
• Decision Date: 19 November 1970

Page 250

91 Cal.Rptr. 250 12 Cal.App.3d 1049 Elizabeth S. DAVIES, Executrix of the Estate of Valentine Davies, Deceased, Plaintiff and Appellant,
v.
Norman KRASNA, Defendant and Respondent. Civ. 35638. Court of Appeal, Second District, Division 4, California. Nov. 19, 1970.
Hearing Denied Feb. 10, 1971.

Page 251

[12 Cal.App.3d 1051] Max Fink, John J. Waller, Sanford B. Schulhofer, Jr., and R. Stephen Duke, Beverly Hills, for plaintiff and appellant.

Mitchell, Silberberg & Knupp, and Arthur Groman, Los Angeles, for defendant and respondent.

KINGSLEY, Associate Justice.

This is an appeal by plaintiff Davies from a judgment entered in favor of defendant Krasna after the trial court granted defendant's motion for judgment on the pleadings.

Two trials and a prior appeal have occurred in this case. In the first trial defendant's motion for nonsuit was granted as to plaintiff's cause of action on an implied in law obligation for breach of trust or confidence and the jury was unable to reach a verdict as to the cause of action on an implied in fact contract. In the second trial the jury returned a verdict for defendant on the first cause of action on the implied in fact contract. Plaintiff appealed. The appellate court, in Davies v. Krasna (1966) 245 Cal.App.2d 535, 54 Cal.Rptr. 37, affirmed the judgment on the first cause of action and reversed the judgment of nonsuit on the second cause of action on the implied in law obligation for breach of trust or confidence. The Supreme Court denied a hearing.

The case proceeded to the superior court, after remittitur, on the pleadings. Defendant filed a motion for summary judgment on grounds of estoppel by judgment and res judicata. The motion was denied. Defendant moved for judgment on the pleadings on the above same grounds. The trial court granted defendant's motion on the pleadings on the grounds of res judicata and collateral estoppel.

The pleadings were as follows: Plaintiff alleged that Valentine Davies created certain literary ideas and that he submitted them to Norman Krasna, [12 Cal.App.3d 1052] a playwright and screenwriter, on or about December 6, 1951; that Krasna agreed to pay Davies if he used them; and that Krasna did use them but did not pay Davies. Krasna, on the other hand, alleged that Davies never submitted his story to Krasna in 1951, or any other time, and that Krasna conceived of the story a full year before Davies allegedly conceived the story. The original plaintiff, Valentine Davies, died before the first trial and his executrix has conducted proceedings.

Plaintiff argues that the judgment in defendant's favor on the first cause of action on the theory of implied in fact contract is not res judicata as to plaintiff's second cause of action on the theory of an implied in law obligation. The defendant contends that plaintiff's theories of implied in fact contract and implied in law obligation are not two separate causes of action, but mere separate counts based on one cause of action, such that the court's finding in favor of defendant on the 'implied in fact contract' count would bar plaintiff under the doctrine of res judicata from trying the case on the 'implied in law obligation' count.

The basic issue before this court is whether the trial court erred in concluding that plaintiff was precluded from trying the case on the theory of 'implied in law contract and unjust enrichment' by the doctrine of res judicata and collateral estoppel. We find that the trial court erred in not granting plaintiff a trial on the merits on her second cause of action in 'implied in law contract.'

The trial court erred in depriving plaintiff of a trial on the merits as to her second cause of action for breach of trust and confidence on an implied in law obligation because (1) the law of the case as set forth

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by the prior appellate court decision in this case established that nonsuit was improperly granted as to the second cause of action, and that plaintiff was entitled to a trial on the merits, and (2) because plaintiff's cause of action as to implied in law obligation is a separate cause of action from an implied in fact contract and therefore not barred by res judicata. I

Plaintiff's right to a trial on the merits was established in the first appeal of the case. The Court of Appeal in the first appeal in the case at bench (Davies v. Krasna (1966) 245 Cal.App.2d 535, 550, 560, 54 Cal.Rptr. 37, 46) affirmed the judgment in favor of defendant on the first cause of action, but reversed the nonsuit as to the second cause of action on implied in law obligation. That court said:

'Consequently, there was an issue of fact as to whether, in breach of his duty as heretofore stated, Mr. Krasna had improperly made use of Mr. Davies' idea for his personal purposes. (See Teich v. General Mills, Inc., 170 Cal.App.2d 791, 797--798, 339 P.2d 627.) Under [12 Cal.App.3d 1053] the governing law, the nonsuit was improperly granted as to the second cause of action.

'* * *

'It is therefore ordered:

'* * *

'3. That the portion of the amended judgment granting a nonsuit as to the second cause of action is reversed;'

Thus, the Court of Appeal in the prior appeal deliberately preserved plaintiff's rights to a trial on the merits as to the second cause of action. It is the general rule that all the issues and...