High v. Cavanaugh

• Decision Date: 09 July 1962
• Citation: 205 Cal.App.2d 495,23 Cal.Rptr. 121
• Court: California Court of Appeals Court of Appeals
• Parties: Leonore M. HIGH, Plaintiff and Appellant, v. Richard CAVANAUGH, Defendant and Respondent. Civ. 25853.

Page 121

23 Cal.Rptr. 121

205 Cal.App.2d 495

Leonore M. HIGH, Plaintiff and Appellant, v. Richard CAVANAUGH, Defendant and Respondent.

Civ. 25853.

District Court of Appeal, Second District, Division 1, California.

July 9, 1962.

G. G. Baumen, Los Angeles, for appellant.

Tremaine & Shenk and Dan L. Stroud, Los Angeles, for respondent.

LILLIE, Justice.

This is an appeal from a judgment of dismissal predicated on a determination that the action was barred by a final judgment in a previous proceeding between the same parties; as modified, such prior judgment was affirmed by another division of this court. (Cavanaugh v. High, 182 Cal.App.2d 714, 6 Cal.Rptr. 525.)

We summarize the background facts, many of which are necessarily mentioned in the opinion on the earlier appeal. (Cavanaugh v. High, supra, 182 Cal.App.2d 714, 6 Cal.Rptr. 525.) In March of 1957, High executed and delivered to Cavanaugh a deed to certain property. In October of the same year, High filed an action in the Superior Court at Pomona (now known as the East District of that court) seeking cancellation of the instrument and for a declaratory judgment determining the rights of the parties under an agreement pertaining to such conveyance. On January 2, 1958, Cavanaugh filed an unlawful detainer action in a municipal court having jurisdiction of his claim that he be given possession of the premises deeded to him by High. An answer to the complaint, including an affirmative defense by way of abatement, was filed by High; she also filed a cross-complaint in the municipal court action seeking substantially the same relief theretofore sought in the action filed in Pomona. To this cross-complaint an answer was filed by Cavanaugh.

The equitable relief sought by High being beyond the jurisdiction of the municipal court, by stipulation of the parties the entire cause was transferred for trial in the Superior Court at Pasadena (now known as the Northeast District of that court). The earlier appeal quotes the pretrial conference order: "This is an action in unlawful detainer filed in the Municipal Court of this district with the cross-complaint for declaratory relief and for cancellation of a deed for fraud and pursuant to stipulation the case was transferred to this court, for trial." (182 Cal.App.2d 716, 6 Cal.Rptr. 527.) Following trial without a jury the court made findings of fact on both the complaint and cross-complaint in favor of Cavanaugh; the judgment decreed, among other things, that 'the defendant Lenore M. High take nothing by reason of her cross-complaint.'

Meantime, pursuant to formal notice to plead thereto, Cavanaugh had filed his answer in the Pomona action. Upon affirmance (as modified) of the Pasadena judgment, Cavanaugh filed a supplemental answer setting forth the fact of such affirmance. Thereafter he moved the Pomona court to dismiss the action upon the ground that the issues presented were res judicata between the parties by reason of the judgment previously rendered in the Pasadena action. It is not disputed that the question of res judicata may be thus raised and determined (McKenna v. Elliott & Horne Co., 118 Cal.App.2d 551, 554, 258 P.2d 528); nor is it disputed that the determination in a former action of issues presented by way of cross-complaint is res judicata as fully as if determined in a separate and independent action involving the same parties. (McNulty v. Copp, 125 Cal.App.2d 697, 703, 271 P.2d 90.) The motion was granted and from the ensuing judgment of dismissal High has appealed.

Through present counsel, who entered the Pasadena case upon the hearing of the motion for new trial, High now contends that the Pasadena judgment is not a bar to the present action because (1) the issue of title to the premises in dispute was not properly triable in that proceeding, and (2) no determination of the rights of the parties as to ownership of the subject property was there and then made. We have concluded that neither point is sustainable.

Normally, of course, neither a cross-complaint nor a counter-claim is permissible in an unlawful detainer action the reason being that the governing legislation 'was intended to provide a summary remedy for the restitution of the possession of premises withheld by tenants in violation of the covenants of their lease, which remedy would be frustrated and rendered wholly inadequate by the interposition of the defenses usually permitted in ordinary cases at law.' (Knight v. Black, 19 Cal.App. 518, 527, 528, 126 P. 512, 516.) Hence it is the rule that in such summary proceeding the broad question of title cannot be raised and litigated by cross-complaint or affirmative defense. (Cheney v. Trauzettel, 9 Cal.2d 158, 159, 69 P.2d 832.)

As is so often the case, however, the rule does not appear to be an absolute one and is subject to exceptions in the light of attending circumstances. One such circumstance considered in the decisions is the absence of any motion to strike the pleading or the failure to object to the admission of evidence thereon. In Garfinkle v. Montgomery, 113 Cal.App.2d 149, 248 P.2d 52, trial of the cross-complaint interposed by the lessees went to a nonsuit without objection and the court deemed 'the appellants' contention in regard thereto properly before us on this appeal' (p. 155, 248 P.2d p. 56), although taking note of the fact that such a pleading is normally not permissible in an unlawful detainer action. Similarly, in Lakeside Park Ass'n v. Keithly, 43 Cal.App.2d 418, 110 P.2d 1055, the judgment decreed that the defendant take nothing by reason of his cross-complaint for specific performance of an option in the lease authorizing him to purchase the property upon certain terms and conditions. The court, as in...