Hill v. Wrather
| Decision Date | 28 March 1958 |
| Court | California Court of Appeals Court of Appeals |
| Parties | John B. HILL, Plaintiff and Respondent, v. J. D. WRATHER, Jr. and Mazie Wrather, Defendants and Appellants. Civ. 22817. |
Kaplan, Livingston, Goodwin & Berkowitz, Monte E. Livingston, Bayard F. Berman, Beverly Hills, and Arthur L. Stashower, Long Beach, for appellants.
John W. Preston, Jr., and Robert P. Schifferman, Los Angeles, for respondent.
Defendants-appellants appeal from the judgment rendered in favor of plaintiff-respondent, based upon a promissory note in the amount of $75,000, interest and attorney fees, on the grounds that the trial court committed prejudicial error in (1) granting plaintiff's motion to strike the cross-complaint; (2) in granting plaintiff's motion to strike portions of the first amended answer; and (3) in denying defendants' motion for leave to join as a cross-defendant the new party, Maria Helen Alvarez.
For convenience, the defendants-appellants will hereinafter be referred to as 'defendants,' or 'the Wrathers,' plaintiff-respondent as 'plaintiff' or 'Hill' and Maria Helen Alvarez as 'Alvarez.'
On September 4, 1956, plaintiff commenced his action in the court below to recover from defendants (and an additional defendant, General Television, Inc., as to which the suit was dismissed prior to judgment) the sum of $75,000, plus interest, allegedly due under a promissory note dated August 5, 1952. Defendants filed separate answers on September 21, 1956, and November 2, 1956. Thereafter, plaintiff moved to strike defendants' answers and for summary judgment, and defendants moved for leave to file a proposed cross-complaint and proposed amended answer and for an order joining as a cross-defendant the new party named in the proposed cross-complaint, Alvarez. These proceedings resulted in a minute order which denied plaintiff's motion to strike and for summary judgment, denied defendants' motion for an order joining Alvarez as a cross-defendant, and granted defendants' motion for leave to file their proposed cross-complaint and proposed amended answer. This order was entered on January 4, 1957. Defendants then filed their cross-complaint and first amended answer in the form of the proposed pleadings. Thereafter, plaintiff demurred to defendants' cross-complaint and amended answer and moved the court for an order striking these pleadings, for summary judgment and/or judgment on the pleadings. On February 6, 1957, an order was made which overruled plaintiff's demurrer to defendants' first amended answer, placed off calendar plaintiff's demurrer to the cross-complaint, denied plaintiff's motion for summary judgment and/or judgment on the pleadings, and granted plaintiff's motion to strike on the cross-complaint and the following portions of the first amended answer: Paragraphs X through XV of the first counterclaim, the second and third counterclaims in their entirety, and paragraph 2 of the prayer. This minute order was entered on February 8, 1957.
It is clear that the orders herein striking from the files the cross-complaint, certain of the affirmative defenses in the amended answer and the counterclaims are not separably appealable. Such orders are interlocutory in character and are not included among those scheduled in section 963, Code of Civil Procedure, from which appeal may be taken. Hence such orders are reviewable only on an appeal from the final judgment. Sjoberg v. Hastorf, 33 Cal.2d 116, 118, 199 P.2d 668; Couch v. McGregor, 19 Cal.App.2d 633, 634, 66 P.2d 159; Merchants Nat. Bank of Los Angeles v. Clark-Parker Co., 97 Cal.App. 757, 276 P. 387. The order denying defendants' motion to bring in the new party Alvarez is likewise not appealable and must be considered on the appeal from the final judgment. Evans v. Dabney, 37 Cal.2d 758, 760, 235 P.2d 604.
The material allegations of the cross-complaint are identical with those of the first and second counterclaims of defendants' amended answer. Section 442, Code of Civil Procedure, authorizes the filing of a cross-complaint whenever the defendant seeks affirmative relief relating to or depending upon the transaction upon which the action is brought. Prior to adoption of the 1957 amendment to section 442, if a new party named as a cross-defendant in a cross-complaint was necessary to a complete determination of the controversy then before the court, within the meaning of section 389, Code of Civil Procedure, the court was required to order him brought in as a party cross-defendant. Alpers v. Bliss, 145 Cal. 565, 79 P. 171.
The facts of the transactions as claimed by defendants are set forth in the cross-complaint generally as follows: About April 22, 1952, cross-defendants Hill and Alvarez each owned 150 shares of television company stock representing 15 per cent interest for each and were employed as the manages of station KOTV. The other 70 per cent of the stock was owned by George E. Cameron, Jr., who sold it to defendants. Defendants then went to Oklahoma and personally investigated the television company and station and met Hill and Alvarez. The latter agreed to continue to manage the station in consideration of an increase in their total ownership interest from 30 per cent to 50 per cent. Later Hill indicated his desire to sell his stock to defendants and in reliance upon claimed misrepresentations of material facts by Hill and Alvarez as hereinafter set forth, defendants agreed to purchase Hill's 150 shares for $400,000 and entered into an oral agreement with Alvarez to increase her ownership interest in the television station from 15 per cent to 50 per cent in consideration of her agreement to manage such station. Defendants thereafter caused capital stock of the television company to be issued to Alvarez to increase her holdings accordingly. The claimed misrepresentations of material facts and active concealment and suppression thereof by Hill and Alvarez consisted of behavior and acts on their part in an impersonal manner towards each other, referring to the other as if the other were a single unmarried person and as if he or she were engaging in a separate and individual deal with defendants and had no interest in the other's deal; each actively concealed and suppressed the fact that a long standing personal relationship existed with the other with each having a financial stake in the benefits and profits to be derived by the other; actively concealing and suppressing the fact that they were married to each other and/or lived together as husband and wife and behaving in such manner as to lead defendants to believe that each bore the same arm's length relationship to each other as to defendants. Hill and Alvarez made such representations to induce the Wrathers to execute and carry out the agreements of April 22, 1952, with Hill and with Alvarez and in reliance thereon and induced thereby the Wrathers bought Hill's interest for the price demanded and at the same time increased Alvarez's interest in the station by 35 per cent; that had they known the true facts the Wrathers would not have parted with this valuable property interest; that as a result of such deceitful conduct they were defrauded in the sum of $750,000, being the reasonable value of the 35 per cent ownership interest in station KOTV.
The foregoing allegations seek affirmative relief relating to or depending upon the note transaction upon which the action was brought. The court ordered the cross-complaint to be filed. Defendants argue that its allegations further indicate that Alvarez, the new party they sought to have joined as a party cross-defendant, was necessary to a complete determination of the controversy then before the court and the court was required by the provisions of section 389, Code of Civil Procedure, to order her brought in as such a party.
Irrelevant and redundant matter inserted in a pleading may be stricken by the court. § 453, Code Civ.Proc. But a motion to strike cannot be made to serve the purpose of a special demurrer. Where a motion to strike is so broad as to include relevant matters, the motion should be denied in its entirety. Allerton v. King, 96 Cal.App. 230, 234, 274 P. 90; People ex rel. Department of Public Works v. Buellton Development Co., 58 Cal.App.2d 178, 185, 136 P.2d 793. Here the entire cross-complaint was ordered stricken and the demurrer thereto was ordered placed off calendar without any ruling thereon. Thus the cross-complainants were deprived of the right to amend if the pleading was faulty in any particular which could have been corrected by such an amendment. We now examine this pleading to ascertain whether it states a cause of action for fraud and, if it does not, whether under the facts herein alleged an amendment may correct any defects found therein....
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