Flood v. Simpson

• Decision Date: 28 February 1975
• Citation: 45 Cal.App.3d 644,119 Cal.Rptr. 675
• Court: California Court of Appeals Court of Appeals
• Parties: John N. FLOOD, Plaintiff and Appellant, v. C. Edward SIMPSON, Defendant and Respondent. Civ. 44011.

Page 675

119 Cal.Rptr. 675

45 Cal.App.3d 644

John N. FLOOD, Plaintiff and Appellant, v. C. Edward SIMPSON, Defendant and Respondent.

Civ. 44011.

Court of Appeal, Second District, Division 5, California.

Feb. 28, 1975.

John N. Flood, in pro. per.

Stephens, Jones, La Fever & Smith, Los Angeles, for defendant and respondent.

STEPHENS, Associate Justice.

This is yet another appeal involving the judgment rendered on June 17, 1967 for Minnehoma Financial Company against appellant John N. Flood. ¹ In that action the trial court found that defendants John and Catherine Flood had wilfully failed to appear for depositions, and it granted the ultimate sanction permitted by Code of Civil Procedure section 2034 by striking defendants' answer and entering default and default judgment. Approximately two and a half years later, appellant made a motion for an order to set aside the default and default judgment and to have the answer reinstated. The court denied the motion by order of August 18, 1969. Appellant then made a motion for an order vacating the order denying the setting aside of the default and default judgment; that motion was also denied by order of September 15, 1969. Appellant appealed from this order, and the court of appeal on September 11, 1970 affirmed both the orders of August 18 and September 15, 1969.

The present, separate action was commenced August 22, 1969 by appellant against respondent C. Edward Simpson (the counsel for plaintiff Minnehoma Financial Company in the first case), alleging fraud and deceit precedent to the earlier judgment. On May 24, 1973, appellant filed 'Notice of Intent to Move the Court for Order Supplementing Complaint Herein.' When the case was called for trial on October 15, 1973, ² appellant moved orally to supplement his complaint, and respondent moved orally for judgment on the pleadings. The court denied appellant's motion, and it granted respondent's motion on the grounds of collateral estoppel and res judicata.

The first issue we deal with is whether the trial court erred in denying appellant's motion to supplement his complaint. It is the general policy that courts should exercise liberality in permitting the filing of supplemental pleadings when the alleged 'occurring-after' facts are pertinent to the case. (Code Civ.Proc., § 464; People ex rel. Dept. Pub. Wks. v. Douglas, 15 Cal.App.3d 814, 93 Cal.Rptr. 644; Louie Queriolo Trucking, Inc. v. Superior Court, 252 Cal.App.2d 194, 197--198, 60 Cal.Rptr. 389.) Nonetheless, the motion to file a supplemental pleading is addressed to the sound legal discretion of the court, and its ruling will not be disturbed on appeal in the absence of a showing of a manifest abuse of that discretion. (Wood v. Brown, 39 Cal.App.3d 232, 239--240, 114 Cal.Rptr. 63; Louie Queriolo Trucking, Inc. v. Superior Court, Supra; Erickson v. Boothe, 127 Cal.App.2d 644, 274 P.2d 460.) There is no such showing in the instant case. Moreover, the court properly denied the motion on the basis that the supplement to the complaint sought to introduce new causes of action. (Brown v. Valley View Mining Co., 127 Cal. 630, 60 P. 424; Stack v. Welder, 3 Cal.2d 71, 75--76, 43 P.2d 270; Stephani v. Abbott, 137 Cal.App. 510, 30 P.2d 1033; 3 Witkin, Cal.Proc., § 1088, p. 2667.)

Appellant further contends that the court erred in granting respondent's motion for judgment on the pleadings for two reasons: (1) that the original judgment (Superior Ct. No. 883,548) is void on its face because the affiant, on behalf of Minnehoma, did not possess the requisite personal knowledge in order for his declarations filed in that case to be admissible; ³ (2) that a default judgment entered as a result of sanctions for failing to comply with discovery cannot be the basis for reliance on the doctrines or res judicata and estoppel.

The default which was entered against appellant on October 13, 1966 was the consequence of his willful disregard of the processes of the court as reflected by his failure to appear for three noticed depositions. ⁴ On September 22, 1966--after appellant failed to appear for two noticed depositions--the court granted monetary sanctions against appellant and ordered him to appear for a third deposition noticed for October 10, 1966. Appellant again failed to appear. On October 13, 1966, the court granted the motion to strike appellant's answer and entered default against him. A default judgment was entered against appellant and Catherine Flood ⁵ on January 17, 1967, pursuant to Code of Civil Procedure section 2034, subdivision (d). ⁶ (See Stein v. Hassen, 34 Cal.App.3d 294, 109 Cal.Rptr. 321; Housing Authority v. Gomez, 26 Cal.App.3d 366, 373, 102 Cal.Rptr. 657; Scherrer v. Plaza Marina Commercial Corp., 16 Cal.App.3d 520, 94 Cal.Rptr. 85; MacDonald v. Joslyn, 275 Cal.App.2d 282, 79 Cal.Rptr. 707; Welgoss v. End, 252 Cal.App.2d 982, 993, 61 Cal.Rptr. 52.)

Appellant is again attacking the original judgment (rendered June 17, 1967) on the basis that respondent had no personal knowledge of the matters stated in the affidavits that he filed in the original case. Any person is qualified to make an affidavit in support of a motion, and his declaration is competent evidence unless an objection is raised on the basis that the affiant had no personal knowledge of the matters set forth in the affidavit. (See McLellan v. McLellan, 23 Cal.App.3d 343, 359--360, 100 Cal.Rptr. 258; 2 Cal.Jur.3d, Affidavits, § 4, p. 785; cf. Code Civ.Proc., § 585, subd. (4) and Weathers v. Kaiser Foundation Hospitals, 5 Cal.3d 98, 106, 95 Cal.Rptr. 516, 485 P.2d 1132.) The only affidavits we need be concerned with here are those which were filed in support of the motion ⁷ for sanctions and default judgment which were signed by respondent in his capacity as plaintiff's (Minnehoma Financial Company's) attorney. ⁸

It is well settled that hearsay or other incompetent evidence in an affidavit (such as appellant is alleging here) if received without proper objection or motion to strike is to be regarded as competent evidence in support of an order or judgment. (Waller v. Waller, 3 Cal.App.3d 456, 464, 83 Cal.Rptr. 533; Nalley's, Inc. v. Corona Processed Foods, Inc., 240 Cal.App.2d 948, 951, 50 Cal.Rptr. 173; Cope v. Cope, 230 Cal.App.2d 218, 233, 40 Cal.Rptr. 917; Johns v. Curry, 189 Cal.App.2d 94, 98--99, 10 Cal.Rptr. 882.) However, appellant was precluded from filing a motion to strike after the entry of default. (See J. M. Wildman, Inc. v. Stults, 176 Cal.App.2d 670, 1 Cal.Rptr. 651; 4 Witkin, Cal. Procedure, § 148, p. 2809.) Nevertheless, appellant raised this objection in his first appeal (determined on September 11, 1970). ⁹ The court of appeal rejected his argument. The trial court in the present appeal properly found that appellant is precluded from raising it again in the instant case because of the doctrines of res judicata and collateral estoppel. ¹⁰ (Darlington v. Basalt Rock Co., 188 Cal.App.2d 706, 10 Cal.Rptr. 556; 5 Witkin, Attack of Judgment in Trial Court, § 181, pp. 3750--3751.) In Darlington, plaintiff brought an equitable action to set aside an order approving a compromise of a minor's disputed claim for damages for injuries arising out of an automobile collision. The court held that the action was barred because of the prior denial of plaintiff's motion to vacate the same order where (1) the motion was made on the same grounds and (2) where such prior denial was made after a full hearing. '(The) detailed presentation of the issues of fraud and mistake on a motion to vacate, with full opportunity at hearing to develop the issues . . . may bar a subsequent action to set aside the order attacked by the earlier motion.' (Id., at p. 710, 10 Cal.Rptr. at p. 559.) It is immaterial that respondent was not a party to the prior suit to afford him the benefits of the doctrine of collateral estoppel. 'There is no compelling reason . . . for requiring that the party asserting the plea of res judicata must have been a party, or in privity with a party, to the earlier litigation.' (Bernhard v. Bank of America, 19 Cal.2d 807, 812, 122 P.2d 892, 894; see also People v. Taylor, 12 Cal.3d 686, 692, 117 Cal.Rptr. 70, 527 P.2d 622.)

The trial court here found that the allegations in the complaint in the instant case were decided point by point against appellant in the 1970 appellate court opinion and thus granted the motion for judgment on the pleadings ¹¹ (Colberg, Inc. v State of Calif, ex rel. Dept. Pub. Wks., 67 Cal.2d 408, 412, 62 Cal.Rptr. 401, 432 P.2d 3; Kachig v. Boothe, 22 Cal.App.3d 626, 630, 99 Cal.Rptr. 393; McFaddin v. H.S. Crocker Co., 219 Cal.App.2d 585, 589, 33 Cal.Rptr. 389; 4 Witkin, Cal.Proc. (2d ed. 1971), §§ 171--162, pp. 2816--2817) on the same bases of res judicata and collateral estoppel. After carefully comparing the complaint here with the record in the first appeal, we must agree with the trial court's holding. Thus appellant is also precluded from raising the issue of fraud and deceit in the instant case, having raised it in his first appeal.

Therefore, we need not reach the issue of whether a default entered as a consequence of wilful failure to follow discovery practice falls within the scope of the doctrines of res judicata and collateral estoppel on the merits. ¹²

We recognize that the sanction of rendering a judgment by default against the disobedient party is a drastic measure; nor are we unmindful that the purpose of the California Discovery Act is to achieve compliance with discovery orders and 'not to provide a weapon for punishment, forfeiture and the avoidance of a trial on the merits' (Caryl Richards, Inc. v. Superior Court, 188 Cal.App.2d 300, 303, 10 Cal.Rptr. 377, 379). However, it is not the intent of the act to allow wilful disregard of court orders. (Welgoss v. End, supra, 252 Cal.App.2d 982, 933, 61 Cal.Rptr. 52.) 'There is no question of the power of the respondent court to apply the ultimate sanction of default against a...