Eichler Homes of San Mateo, Inc. v. Superior Court of San Mateo County

• Decision Date: 22 May 1961
• Citation: 55 Cal.2d 845,13 Cal.Rptr. 194,361 P.2d 914
• Court: California Supreme Court
• Parties: , 361 P.2d 914 EICHLER HOMES OF SAN MATEO, INC. (a Corporation), Petitioner, v. SUPERIOR COURT OF SAN MATEO COUNTY, Respondent, L. C. Smith Company (a Corporation) et al., Real Parties in Interest. S. F. 20691.

Page 194

13 Cal.Rptr. 194

55 Cal.2d 845, 361 P.2d 914

EICHLER HOMES OF SAN MATEO, INC. (a Corporation), Petitioner, v. SUPERIOR COURT OF SAN MATEO COUNTY, Respondent L. C. Smith Company (a Corporation) et al., Real Parties in Interest.

S. F. 20691.

Supreme Court of California, In Bank.

May 22, 1961.

David Freidenrich and Leonard Ware, Palo Alto, for petitioner.

No appearance for respondent.

Mullin & Cost, Hugh Mullin, Jr., San Mateo, Wagstaffe, Daba & Hulse and Paul De Mare, Redwood City, for real parties in interest.

SCHAUER, Justice.

Petitioner seeks mandate to compel the superior court to grant petitioner's motion to amend a 'Third Amended Complaint' in accord with a proposed 'Second Amendment to Plaintiff's Third Amended Complaint.' Respondent court, instead of permitting the amendment in the manner requested by petitioner, granted petitioner leave 'to file new and separate cause of action, incorporating the matters involved in the requested amendment.' We have concluded that petitioner has not shown how it could be prejudiced by amending in the manner permitted by the order of respondent court rather than in the manner sought by petitioner. In the circumstances we will not interrupt the normal course of proceedings in the trial court merely to compel that tribunal to change the language of a ruling which is in operative effect correct.

Petitioner brought an action against L. C. Smith Company for breach of a contract to excavate and grade land. Paragraph III of the first count of the 'Third Amended Complaint' alleged 'That within four years last past and on or about June 16, 1955, defendant L. C. Smith Company entered into a written contract with (petitioner's predecessors in interest); that under and pursuant to said contract said defendant was required to clear, grub, excavate and grade a certain tract of land known as Tract 720 and 722 Highlands No. 2 and No. 3. * * *'

After petitioner filed its complaint containing the just quoted averment, it learned that its description of the land was inaccurate. It sought leave to amend by substituting for the just quoted second clause and paragraph III the following: 'that under and pursuant to said contract, said defendant was required to clear, grub, excavate and grade a certain tract of land * * * as described in the aforesaid written contract. * * *' The words of the contract are not pleaded, and if the proposed amendment were made the complaint would contain no description of the land rather than an inaccurate description.

Respondent court made the following order: 'Motion (for leave to amend) granted to this extent that plaintiff is permitted to file new and separate cause of action, incorporating the matters involved in the requested amendment.' ¹

The petition for mandate alleges that 'Petitioner could not comply with said ruling for the reason that said proposed amendment was not the subject of a new cause of action, and for the further reason that a new cause of action on the written contract described in Paragraph III * * * would be subject to the defense of the Statute of Limitations and, therefore, would be of no avail to Petitioner even if Petitioner attempted to comply with said ruling. * * *'

As this court said in Wennerholm v. Stanford Univ. Sch. of Med. (1942), 20 Cal.2d 713, 718, 128 P.2d 522, 524, 141 A.L.R. 1358, 'The modern rule, where amendment is sought after the statute of limitations has run, is that the amended complaint (or amendment of the complaint) will be deemed filed as of the date of the original complaint so long as recovery is sought in each complaint upon the same general set of facts.' Manifestly, both the amendment which petitioner seeks and the amendment which respondent court permitted, but which petitioner has declined to make, present 'the same general set of facts' which appear in the complaint as it now stands.

It is true that the permitted amendment would not literally set forth a 'new and separate cause of action.' 'The cause of action is simply the obligation sought to be enforced.' (Panos v. Great Western Packing Co. (1943), 21 Cal.2d 636, 638(3), 134 P.2d 242, 244.) The same cause of action, of course, may be stated variously in separate counts. (E. g., see Weitzenkorn v. Lesser (1953), 40...