Gombos v. Ashe

CourtCalifornia Court of Appeals
Citation158 Cal.App.2d 517,322 P.2d 933
Decision Date19 March 1958
PartiesBeatrice GOMBOS and Alex Gombos, Plaintiffs and Appellants, v. John R. ASHE, Defendant and Respondent. Civ. 17541.

Page 933

322 P.2d 933
158 Cal.App.2d 517
Beatrice GOMBOS and Alex Gombos, Plaintiffs and Appellants,
John R. ASHE, Defendant and Respondent.
Civ. 17541.
District Court of Appeal, First District, Division 1, California.
March 19, 1958.
Rehearing Denied April 18, 1958.
Hearing Denied May 14, 1958.

Page 934

[158 Cal.App.2d 519] William A. Sullivan, San Mateo, for appellants.

Daniel C. Miller, San Francisco, for respondent.

Page 935

PETERS, Presiding Justice.

Appellant, Beatrice Gombos, was injured by an automobile driven by respondent, John R. Ashe. She and her husband sued Ashe. In the original complaint, Mrs. Gombos, in the first cause of action, asked for compensatory damages for her injuries, and her husband, in a second cause of action, prayed for compensatory damages to his automobile, for loss of use the car and for loss of consortium. Later a first amended complaint was filed adding a third cause of action for punitive damages, it being alleged that Ashe was drunk when he hit Mrs. Gombos. Ashe demurred to the first amended complaint. The trial court overruled the demurrer as to the first and second causes of action, but sustained it as [158 Cal.App.2d 520] to the third cause of action for punitive damages. The minute order so providing was entered on June 28, 1956. On August 1, 1956, the clerk entered a judgment of dismissal as to the third cause of action. On August 20, 1956, Mr. and Mrs. Gombos filed a notice of appeal from this judgment of dismissal.

Thereafter, the case proceeded to trial upon the first and second causes of action. In that trial the defendant admitted liability. The jury awarded Mrs. Gombos $6,000, and Mr. Gombos $1,000. Judgment on these verdicts was entered November 28, 1956. Satisfaction of the 'judgment rendered and entered * * * on the First and Second Causes of Action' was entered January 15, 1957. Neither the judgment nor the satisfaction made any reference to the third cause of action. No appeal from this judgment was taken.

In the meantime Mr. and Mrs. Gombos filed briefs in their appeal from the judgment on the third cause of action. The defendant has moved to dismiss that appeal on the ground that the judgment of dismissal was not a final judgment and not appealable. On the February, 1957, calendar of the court this motion was 'denied without prejudice to raising the point of appealability in the briefs of the cause on its merits.' The cause has now been fully briefed on its merits and on the issue of appealability of the judgment of dismissal.

It would appear that the judgment of dismissal as to the third cause of action was not a final judgment or order within the meaning of section 963 of the Code of Civil Procedure. The cases seem to hold that, for purposes of appeal under section 963, supra, there cannot be piecemeal disposition of several counts in a complaint which are all addressed against the same defendants. That this rule applies to the instant case is established by the case of Mather v. Mather, 5 Cal.2d 617, 55 P.2d 1174. In that case the complaint alleged three causes of action by the same plaintiff against the same defendants. A demurrer was interposed and sustained as to the third cause of action. A formal judgment was entered on this third cause of action. Plaintiff appealed, and defendants moved to dismiss. Subsequently the case proceeded to trial upon the first two causes of action, resulting in a judgment for defendants. The Supreme Court held that the appeal from the judgment dismissing the third cause of action was premature, and granted the motion to dismiss. At page 618 of 5 Cal.2d, at page 1174 of 55 P.2d the court stated:

'It is evident that the cause was attempted to be disposed [158 Cal.App.2d 521] of piecemeal--that a single object, although stated in several counts, was sought to be attained by the action, and that this single and unseverable object was arbitrarily attempted to be split up as the basis for two distinct judgments.

It is at once apparent that no final judgment was entered in the action until March 14, 1935.

'The judgment of January 4, 1935, was not a final judgment and is not appealable under the terms of section 963 of the Code of Civil Procedure, or otherwise. Our conclusion is fully supported by the leading case of Gunder v. Gunder, 208 Cal. 559, 282 P. 794, and the many cases which follow it, notably De Vally v. Kendall De Vally, etc. Co., 220 Cal. 742, 32 P.2d 638, Middleton v. Finney, 214 Cal. 523, 6 P.2d 938, 78

Page 936

A.L.R. 1104, and Potvin v. Pacific Greyhound Lines, 130 Cal.App. 510, 20 P.2d 129.'

In a later opinion in the same litigation the court held that neither judgment was a final judgment, and that the cause of action on court three was still pending. In Greenfield v. Mather, 14 Cal.2d 228, 233, 93 P.2d 100, 103; the Supreme Court stated:

'The fact that the judgment of March 14 was the second judgment to be entered did not cloak it with finality because it did not purport to embrace a final disposition of the entire cause. By express terms it was confined to only counts 1 and 2, and erroneously failed to include a recital with respect to the disposition of count 3. It did not affect count 3. The appeal from the purported judgment on that count was pending; that purported judgment, being void, was in effect no judgment. Therefore, if count 3 in fact stated a cause of action, that cause remained pending in the trial court after the entry of the judgment on counts 1 and 2.

'The erroneous procedure adopted in attempting to make piecemeal disposition of the prior cause was not of appellant's instigation, and he should not be penalized for it. He at no time waived his right to object to the splitting of the action. He contended throughout that he was entitled to test the sufficiency of his third cause of action before an appellate court. To permit a litigant to deprive his adversary of an opportunity for full appeal by erroneously procuring the entry of successive purported partial judgment[s], and then having appeals from all save the last of said judgments dismissed on the ground that the cause should not have been split, would be unfair.'

[158 Cal.App.2d 522] The rule quoted above from Mather v. Mather, supra, to the effect that there cannot be a piecemeal disposition of several counts of a complaint has frequently been announced by the courts. In Bank of America, etc., v. Superior Court, 20 Cal.2d 697, 701, 128 P.2d 357, 360, the court stated:

'These arguments are all predicated upon a fundamental fallacy. They assume that there can be a piecemeal disposition of the several counts of a complaint. They assume, when there is more than one count in a complaint, and a demurrer is interposed and sustained, and a judgment of dismissal entered, that there are as many separate judgments as there are counts in the complaint. That is not the law. There cannot be a separate judgment as to one count in a complaint containing several counts. On the contrary, there can be but one judgment in an action no matter how many counts the complaint contains. [Citations.]' The court then quoted from a number of opinions and concluded the discussion on the point (20 Cal.2d at page 702, 128 P.2d at page 360) by quoting from Potvin v. Pacific Greyhound Lines, Inc., 130 Cal.App. 510, 512, 20 P.2d 129, as follows:

"Since a final judgment in an action contemplates a complete adjudication of the rights of the parties and a final determination of the matter in controversy, it is apparent that the so-called judgment rendered upon the sustaining of a demurrer to one cause of action of a complaint without leave to amend, leaving five other causes of action unimpaired presenting matters to be litigated during a trial of the issues of fact, cannot be regarded as a final determination and disposal of the cause."

The same result has been reached in many other cases. See Daniels v. Daniels, 136 Cal.App.2d 224, 288 P.2d 910; Kennedy v. Kennedy, 130 Cal.App.2d 785, 279 P.2d 759; Murphy v. Fong Shuck, 151 Cal.App.2d 64, 311 P.2d 80.

The contention of appellants that the rule of the above cases does not apply where the multiple causes of action are based upon different substantive rights, was specifically rejected in Wilson v. Wilson, 96 Cal.App.2d 589, 216 P.2d 104. There the court held that a difference in subject matter between the various counts of a complaint does not prevent the rule from applying that no final judgment can be

Page 937

given until final disposition of all of the counts is made. At page 596, of 96 Cal.App.2d, at page 109 of 216 P.2d the court stated:

'There are certain exceptions to the rule that there can be but one final judgment in an action Nicholson v. Henderson, 25 Cal.2d 375, 379, 153 P.2d 945; 14 Cal.Jur. 951, [158 Cal.App.2d 523] Judgments, sec. 52, but in this jurisdiction we know of no exception which could be applicable to this case. It is true that the purported final judgment appealed from finally disposed of the second and third count and that the claims for relief stated in these counts differed and were based on a different factual basis from the one in the first count which was still pending. In some jurisdictions a separate final and appealable judgment may be entered, which finally disposes of one separate claim for relief, although more than one such claim is presented in the action, see Reeves v. Beardall, 316 U.S. 283, 62 S.Ct. 1085, 86 L.Ed. 1478, for civil procedure under Federal Rules, 28 U.S.C.A. In no California decision, however, has such exception been recognized. In Mather v. Mather, supra, and Provident Land Corp. v. Bartlett, supra [53 Cal.App.2d 383, 127 P.2d 928] there are statements to the effect that the several counts contained only a single unseverable object, which statements might conceivably be considered to give some recognition to the rule later declared in Reeves v. Beardall, supra, 31 Cal.L.Rev., 90, 95. However in De Vally v. Kendall De Vally O....

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