Higgins v. Del Faro
| Decision Date | 11 September 1981 |
| Docket Number | No. 60817,60817 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Beverly HIGGINS, Plaintiff, Cross-Defendant v. Gordon P. DEL FARO, et al., Defendants, Cross-Complainants and Respondents, and Van R. Dental Products, Inc., Cross-Defendant and Respondent. Civ. |
Nordman, Cormany, Hair & Compton, Michael C. O'Brien and Glen M. Reiser, Oxnard, for plaintiff, cross-defendant and appellant.
J. Gregg Evans and Robert T. Moulton, Los Angeles, for defendants, cross-complainants and respondents.
Hathway, Perrett, Webster & Powers and Paul D. Powers, Ventura, for cross-defendant and respondent Van R. Dental Products, Inc. HASTINGS, Associate Justice.
This is an appeal by Beverly Higgins, plaintiff, Trustee of the Matthew Trust, from a judgment on the pleadings after her motion to amend her pleadings on the day of trial was denied by the trial court.
Plaintiff commenced the litigation on or about December 1, 1978, by filing a one-count complaint for specific performance against Gordon P. Del Faro and ten Does. The complaint alleged that plaintiff agreed to buy property owned by defendants pursuant to an agreement that was attached to the complaint as Exhibit A and made a part thereof by reference. The total consideration was $297,000, of which $84,000 was to be paid in cash and $213,000 by a promissory note, secured by a deed of trust on the property. The escrow instructions attached as Exhibit A were signed only by plaintiff.
Defendant Del Faro filed a demurrer to the complaint, stating that the escrow agreement (Exh. A) was not the agreement between the parties and therefore no cause of action was stated. This general demurrer to the complaint was overruled by the court.
On January 26, 1979, respondent, Van R. Dental Products, Inc. (Van R. Dental) filed a complaint against Del Faro, et al., for specific performance in regard to the same real property. This complaint alleged that Del Faro has agreed to sell to Van R. Dental, the property for the cash sum of $297,000 but the agreement also contained the proviso that it was subject to successful cancellation of the prior escrow (Higgins-Del Faro Escrow).
Shortly, thereafter, Del Faro, et al. filed a cross-complaint in both of the above mentioned actions for declaratory relief which sought to determine which, if either of the two plaintiffs, was entitled to the transfer of the real property. All of the above cases were consolidated into one action (hereinafter referred to as the declaratory relief action).
On November 29, 1979, Van R. Dental filed a motion for summary judgment in the declaratory relief action but the motion for summary judgment was never heard. The declaratory relief action itself came on regularly for trial a few days later, namely, December 19, 1979. At this time plaintiff made a motion to amend her complaint and made an offer of proof in support of the amendment. After a great deal of argument by all parties, the court denied the motion to amend and granted a judgment on the pleadings in favor of Del Faro, Van R. Dental and others in privity with them.
Plaintiff's basic argument is that the escrow instructions (Exh. A) were mistakenly attached to the complaint as the agreement of sale. There was in fact an underlying agreement of sale consisting of her offer (standard form deposit receipt) and a counter offer by Del Faro (standard form) culminating in an acceptance by plaintiff. The escrow instructions, according to plaintiff, merely embodied the terms of the written agreement. Her amendment most simply expressed would have substituted the written agreement in place of the escrow instructions.
Del Faro and Van R. Dental argued that plaintiff's cause of action was based solely on the escrow instructions, which were not signed by Del Faro, and therefore any amendment would be on an entirely different contract, thereby changing the theory of plaintiff's cause of action.
Plaintiff's principal contention on appeal is that the amendment did not change her cause of action; that defendants knew that the escrow instructions merely embodied the original agreement and therefore they were not misled nor prejudiced by the amendment; and that liberal rules of pleading permit amendments even on date of trial or later in the trial to conform to proof where no prejudice is shown.
DISCUSSION
The original record on appeal does not contain the deposit receipts alleged to constitute the written agreement between the parties. A reading of the reporter's transcript does not indicate whether the judge read the deposit receipt or receipts. The court's decision appears to be based upon offers of proof made by plaintiff and rebuttal arguments made by defendants. We have concluded that the court erred in granting the judgment on the pleadings and the offer of proof was such that the court should have proceeded with the trial after permitting the amendment.
Plaintiff's offer of proof can be summarized as follows: Offers to sell and purchase the property were made by plaintiff and Del Faro by separate deposit receipts that were transmitted to each party. There was no initial deal made because changes were suggested by both parties. Finally, however, deposit receipts containing the agreement were signed by both parties. 1
The escrow instructions (Exh. A) state that the property to be conveyed consists of 5.46 acres. Counsel for plaintiff in addressing the court stated: Counsel then, in answer to a question by the court, stated that identical escrow instructions were signed by both parties except the one signed by defendant Del Faro said approximately five acres.
Counsel for plaintiff maintained, however, that this issue was negligible and pointed out to the court that the listing by Del Faro on the property advertised it as 5.46 acres and the deposit receipt also signed by the parties agreed it was 5.46 acres. He further argued that his client was not concerned by the exactness provided the property involved was what they contracted for and that they were willing to accept the conveyance based upon that determination.
One other minor disagreement arose concerning the escrow instructions between the parties. Plaintiff apparently wanted an additional provision that the escrow could be continued 90 days if it was not closed after the original 90 days. In connection with this problem plaintiff's counsel stated to the court: ..."
As stated earlier, respondents claim the motion to amend on the day of trial was too late, particularly, when the amendment sought to base the cause of action on an entirely different document than pleaded in the complaint. They also argued that there was no meeting of the minds or mutual agreement between the parties because of the disagreement concerning the acreage and the 90-day extension of the escrow requested by plaintiff. 2
The court after hearing initial arguments stated: "I am satisfied that there probably isn't any great prejudice except in what may protract the trial a little bit here." However, after hearing further argument by counsel for the defendants the court determined that there would be prejudice and granted the motion for judgment on the pleadings. By statements made by the court at a subsequent hearing on a motion for new trial it appears it considered that Van R. Dental was prejudiced because its cash offer was on deposit and was not bearing interest. 3
We can quickly dismiss the prejudice issue because in the context of this...
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