Division of Labor Law Enforcement v. Barnes

CourtCalifornia Court of Appeals
Writing for the CourtBROWN; CONLEY, P. J., and STONE
Citation23 Cal.Rptr. 55,205 Cal.App.2d 337
Parties, 45 Lab.Cas. P 50,598 DIVISION OF LABOR LAW ENFORCEMENT, Etc., Plaintiff, Cross-Defendant and Respondent, v. Pancho BARNES et al., Defendants and Appellants; Ralph w. Cato et al., Cross-Defendants and Respondents. Civ. 91.
Decision Date29 June 1962

Page 55

23 Cal.Rptr. 55
205 Cal.App.2d 337, 45 Lab.Cas. P 50,598
DIVISION OF LABOR LAW ENFORCEMENT, Etc., Plaintiff, Cross-Defendant and Respondent,
v.
Pancho BARNES et al., Defendants and Appellants;
Ralph w. Cato et al., Cross-Defendants and Respondents.
Civ. 91.
District Court of Appeal, Fifth District, California.
June 29, 1962.

Page 56

[205 Cal.App.2d 343] Pancho Barnes and E. S. McKendry, Cantil, in pro. per.

Pauline Nightingale, Effie Sparling, Milford A. Maron and Celia Cohn, Los Angeles, for respondents.

BROWN, Justice.

This action was commenced by a complaint filed by the Division of Labor Law

Page 57

Enforcement, Department of Industrial Relations, State of California, against Pancho Barnes and E. S. McKendry, on assigned claims for wages alleged to de due to four ranch workers, and for statutory penalties accruing by reason by nonpayment. The complaint seeks to recover in behalf of Ralph W. Cato $33.67 wages and $100 penalty; in behalf of Henry M. Cramer $565 wages and $150 penalty; in behalf of Oudray Cobb $450 wages and $300 penalty; and in behalf of LaNaya Neves $150 wages and $100 penalty, together with interest at the rate of 7 per cent per annum commencing January 17, 1961, on the total of the wages claimed, and commencing February 17, 1961, on the total of the penalties. Appellants answered the material allegations of the complaint and raised affirmative defenses. They also interposed a cross-complaint against the Division, J. L. Ritchie (Deputy Labor Commissioner), and the four assigners. Demurrers of the respondents to the cross-complaint were sustained without leave to amend. Contemporaneously, respondents' motion to strike the cross-complaint was granted. Appellants have appealed from the judgment entered pursuant thereto.

The primary question presented by this appeal is whether the pleading denominated a cross-complaint does, or may be amended to, state a cause of action against each named cross-defendant since, if defects can be remedied by amendment, it was an abuse of discretion to sustain the demurrers without leave to amend. (Gaglione v. Coolidge, 134 Cal.App.2d 518, 522, 286 P.2d 568; Ranson v. L. A. City High School Dist., 129 Cal.App.2d 500, 509, 277 P.2d 455.)

The cross-complaint contains eight numbered paragraphs, in form set out as a single cause of action. The first paragraph recites appellants' marital status and place of residence and the second recites the usual fictitious name allegation. Each of the remaining paragraphs attempts to state a cause of action against a different cross-defendant.

[205 Cal.App.2d 344] Paragraph three purports to state a cause of action against the Division and alleges that an attachment was levied and the Sheriff took cash from a cash register at appellants' general store; the attachment was unjustified; the Sheriff harassed and embarrassed the appellants; that the Division 'exceeded their scope of authority when they acted in this manner on these claims'; that appellants' requests for additional hearings before the Labor Commissioner, hearings with a court reporter present, and hearings with a deputy other than Ritchie presiding, had been ignored, to their damage in the sum of $3,000.

By paragraph four it is alleged that on September 10, 1960, Cato contacted appellants by telephone relative to a job. He was then in the custody of the Sheriff at Mojave. They picked him up and posted $52.50 bail. He worked ten days, 'jumped bail' and the expenses of bail and their search for him caused damage in the sum of $200.

In paragraph five appellants complain that, in December 1960, LaNaya Neves attempted to purchase a horse from them for $500. Unable to pay cash she offered to work out a trade but abandoned the agreement and disappeared; and, 'As a result cross-complainants have been damaged in the sum of $545.00.'

Paragraph six recites that about May 21, 1960, Cobb entered into an oral agreement to irrigate appellants' alfalfa; that he 'willfully and maliciously and with intent to defraud the cross-complainants, erratically and insufficiently watered' their crop; that, as a direct result of his actions, appellants lost one cutting of alfalfa hay and were damaged in the sum of $6,750.

Appellants allege in paragraph seven that, during the spring of 1960, Cramer requested them to get him out of jail on probation. He was held on a federal charge of forging government checks. For the expenses involved in making many trips to Los Angeles to meet with the United States Attorney, Probation Officer, defense counsel and bail

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bondsman, Cramer is 'indebted' to appellants in the sum of $500.

By paragraph eight, appellants claim that Ritchie, in all of his dealings with them, has shown malicious bias and prejudice, exceeded the scope of his authority, did not act under the cloak or color of his office, was not an impartial arbitrator but showed bias and prejudice; that, when appellants requested their cases be assigned to another hearing officer, [205 Cal.App.2d 345] Ritchie continued harassing them; when they demanded a court reporter, he refused further hearings; and he has not used that degree of skill necessarily expected of a person in his position. They, claim damages of $2,000.

The Division and Ritchie jointly filed a special and general demurrer and the four claimants jointly filed a similar demurrer. Both demurrers state identical grounds: (1) that several causes of action have been improperly united or not separately stated; (2) misjoinder of parties cross-defendant; and (3) failure to state causes of action.

It should first be noted that the label 'cross-complaint' attached to their pleading by appellants is immaterial; the ultimate facts pleaded in each cause of action are determinative of its character as a cross-complaint or counterclaim. (Taliaferro v. Taliaferro, 154 Cal.App.2d 495, 316 P.2d 393.) We shall hereinafter advert to this point in our discussion of each cause.

It is familiar law that a complaint or cross-complaint in which two or more purported causes of action are not separately stated is vulnerable and subject to a special demurrer. (Campbell v. Rayburn, 129 Cal.App.2d 232, 276 P.2d 671; Code Civ.Proc. § 430.) Therefore, the first ground of demurrer is well taken. But this defect may be cured by amendment. A demurrer on the ground of improper joinder of causes of action should not be sustained without leave to amend, if the defect can be cured by amendment. (Lord v. Garland, 27 Cal.2d 840, 854, 168 P.2d 5.)

The ground of misjoinder of parties cross-defendant is based on the statement that the Division is a part of the Department of Industrial Relations of the State of California and Ritchie was its employee acting within the scope of his duties. Since we have determined, for reasons hereinafter stated, that no cause of action lies against the Division and Ritchie, they have been misjoined and the ground is good as to their demurrer. As to the demurrer of the four wage claimants, the ground is bad. Only the person misjoined may complain. As to the four claimants, the joinder of the Division and Ritchie does not adversely affect their interests. (2 Chadbourn, Grossman, Van Alstyne, California Pleading, § 1213, p. 417.) Misjoinder of parties may be remedied by amendment.

In examing the individual complaints contained in the cross-complaint to determine whether sufficient facts are stated [205 Cal.App.2d 346] to constitute causes of action, we must be guided by often repeated rules. These rules are: A demurrer admits the truth of all allegations which are well...

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17 practice notes
  • Erhart v. Bofi Holding, Inc., Case No. 15-cv-02287-BAS-NLS consolidated with 15-cv-02353-BAS-NLS
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • April 30, 2019
    ...(discussing jury instructions in the context of a direct negligence claim under section 2865 ); Div. of Labor Law Enf't v. Barnes , 205 Cal. App. 2d 337, 349, 23 Cal.Rptr. 55 (1962) (reasoning, in the context of section 2865, that the employer appellants "may, by proper amendment, state a c......
  • Kruger v. Wells Fargo Bank, S.F. 23014
    • United States
    • United States State Supreme Court (California)
    • April 26, 1974
    ...384; Patterson v. Henderson T. & R. Co. (1931) 112 Cal.App. 48, 296 P. 304; see Division of Labor Law Enforcement v. Barnes (1962) 205 Cal.App.2d 337, 350, 23 Cal.Rptr. 55; (disapproved on other grounds in White Lighting Co. v. Wolfson (1968) 68 Cal.2d 336, 351, 66 Cal.Rptr. 697, 438 P.2d 3......
  • Kennedy v. Bank of America
    • United States
    • California Court of Appeals
    • October 22, 1965
    ...of dismissal after a demurrer has been sustained without leave to amend are set out in Division of Labor Law Enforcement v. Barnes, 205 Cal.App.2d 337, at page 346, 23 Cal.Rptr. 55, 58, as 'A demurrer admits the truth of all allegations which are well pleaded [citation], but does not admit ......
  • White Lighting Co. v. Wolfson
    • United States
    • United States State Supreme Court (California)
    • March 14, 1968
    ...excess of the alleged excessive amount for which the writ of attachment was issued); Division of Labor Law Enforcement v. Barnes (1962) 205 Cal.App.2d 337, 346, 23 Cal.Rptr. 55, 59 (attachment allegedly 'unjustified' and 'exceeded (plaintiff') scope of authority'; 'damages arising by reason......
  • Request a trial to view additional results
17 cases
  • Erhart v. Bofi Holding, Inc., Case No. 15-cv-02287-BAS-NLS consolidated with 15-cv-02353-BAS-NLS
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Southern District of California)
    • April 30, 2019
    ...(discussing jury instructions in the context of a direct negligence claim under section 2865 ); Div. of Labor Law Enf't v. Barnes , 205 Cal. App. 2d 337, 349, 23 Cal.Rptr. 55 (1962) (reasoning, in the context of section 2865, that the employer appellants "may, by proper amendment, state a c......
  • Kruger v. Wells Fargo Bank, S.F. 23014
    • United States
    • United States State Supreme Court (California)
    • April 26, 1974
    ...384; Patterson v. Henderson T. & R. Co. (1931) 112 Cal.App. 48, 296 P. 304; see Division of Labor Law Enforcement v. Barnes (1962) 205 Cal.App.2d 337, 350, 23 Cal.Rptr. 55; (disapproved on other grounds in White Lighting Co. v. Wolfson (1968) 68 Cal.2d 336, 351, 66 Cal.Rptr. 697, 438 P.2d 3......
  • Kennedy v. Bank of America
    • United States
    • California Court of Appeals
    • October 22, 1965
    ...of dismissal after a demurrer has been sustained without leave to amend are set out in Division of Labor Law Enforcement v. Barnes, 205 Cal.App.2d 337, at page 346, 23 Cal.Rptr. 55, 58, as 'A demurrer admits the truth of all allegations which are well pleaded [citation], but does not admit ......
  • White Lighting Co. v. Wolfson
    • United States
    • United States State Supreme Court (California)
    • March 14, 1968
    ...excess of the alleged excessive amount for which the writ of attachment was issued); Division of Labor Law Enforcement v. Barnes (1962) 205 Cal.App.2d 337, 346, 23 Cal.Rptr. 55, 59 (attachment allegedly 'unjustified' and 'exceeded (plaintiff') scope of authority'; 'damages arising by reason......
  • Request a trial to view additional results

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