Kachig v. Boothe

• Decision Date: 31 December 1971
• Citation: 99 Cal.Rptr. 393,22 Cal.App.3d 626
• Court: California Court of Appeals Court of Appeals
• Parties: William M. KACHIG and Honore Kachig, Paintiffs and Appellants, v. Laurence BOOTHE et al., Defendants and Respondents. Civ. 11502.

Page 393

99 Cal.Rptr. 393

22 Cal.App.3d 626

William M. KACHIG and Honore Kachig, Paintiffs and Appellants, v. Laurence BOOTHE et al., Defendants and Respondents.

Civ. 11502.

Court of Appeal, Fourth District, Division 2, California.

Dec. 31, 1971.

Hearing Denied Feb. 23, 1972.

Hurwitz & Hurwitz, Newport Beach, and Daniel L. Stack, Fullerton, for plaintiffs and appellants.

Garrett & Dimino, Inc., Kenneth R. Garrett and R. Michael Hanley, Tustin, for defendant and respondent Laurence Boothe.

Robert H. Green, Santa Ana, for defendant and respondent Donald V. Franklin.

OPINION

KAUFMAN, Associate Justice.

At the commencement of trial, defendants' motions for judgment on the pleadings were granted and judgment for defendants was entered. Plaintiffs (the Kachigs) appeal.

Facts

When a motion for judgment on the pleadings has the purpose and effect of a general demurrer, the facts alleged in the pleading attacked must be accepted as true, and the court may also consider matters subject to judicial notice. (Colberg, Inc. v. State of California ex rel. Dept. of Pub. Wks.,67 Cal.2d 408, 412, 62 Cal.Rptr. 401, 432 P.2d 3; MacIsaac v. Pozzo, 26 Cal.2d 809, 813, 161 P.2d 449; see 4 Witkin, Cal. Procedure (2d ed.), pp. 2816--2818.) With the foregoing rules in mind, the essential facts may be stated as follows.

Franklin was a licensed real estate broker. In 1962 plaintiffs employed Franklin to effect the sale or exchange of their real property. Cisco was a real estate salesman employed by Franklin. As the result of an aborted real estate exchange transaction, Franklin sued the Kachigs for real estate brokerage commissions, and Boothe, the other principal to the exchange transaction, sued the Kachigs for damages for breach of contract. These actions were consolidated for trial. Jones was the attorney for Franklin and Boothe in the consolidated actions, and Cisco testified as a witness on behalf of Franklin and Boothe. Vital evidence in the trial of the consolidated cases consisted of a letter and the testimony of Franklin, Boothe and Cisco concerning this document. The text of the letter is set forth in full in People v. Jones, 254 Cal.App.2d 200, 208, 62 Cal.Rptr. 304. The Kachigs were neither the sender nor the recipient of the letter. It purported to be from Boothe addressed to Franklin and purported to accept a counter-offer that had been made by Mr. Kachig. At trial of the consolidated cases, Mr. Kachig testified that he had never seen nor heard of this letter prior to trial. (See People v. Jones, supra; see also In Re Jones, 5 Cal.3d 390, 395--397, 96 Cal.Rptr. 448, 487 P.2d 1016.)

Trial of the consolidated actions resulted in a judgment against the Kachigs in favor of Franklin in excess of $10,000 and in favor of Boothe for $100 plus costs. These judgments became final. The Kachigs paid the judgment in favor of Franklin in excess of $10,000, but Boothe never demanded payment of the judgment in his favor and it remains unsatisfied.

After a prolonged investigation, on or about November 1, 1965, the Kachigs ascertained that the letter purporting to constitute an acceptance of a counter-offer was a false document manufactured at the suggestion of Jones and that the testimony of Franklin, Boothe and Cisco concerning this document was perjured.

In a subsequent criminal proceeding the Orange County Grand Jury issued an indictment accusing Jones, Franklin and Cisco of conspiracy to commit perjury and accusing Jones of subornation of perjury and offering false evidence. Boothe was granted immunity and testified on behalf of the prosecution. After jury trial, Franklin and Cisco were acquitted. Jones was convicted of subornation of perjury and offering false evidence but was found not guilty of conspiracy to commit perjury. (See People v. Jones, supra, 254 Cal.App.2d 200, 62 Cal.Rptr. 304.)

On May 23, 1966, the Kachigs instituted the present action, naming as defendants Franklin, Boothe, Cisco and Jones. Combining allegations from several counts of the complaint for ease of presentation, they may be summarized as follows: that a fiduciary relationship existed between plaintiffs and Franklin and Cisco; that defendants knew Franklin and Boothe had no legitimate right of action against the Kachigs; that defendants nevertheless, with the substantial certainty of causing plaintiffs severe emotional distress, conspired to recover damages against the Kachigs through the malicious filing of false and fraudulent lawsuits; that pursuant to this conspiracy defendants filed the original lawsuits maliciously and without probable cause, manufactured the false letter, concealed it and, then, at trial introduced it and their perjured testimony into evidence; that, as to Franklin and Cisco, this conduct constituted a violation of their fiduciary duties to plaintiffs; that as a direct and proximate result of defendants' said conduct the adverse judgments were rendered, the judgment in favor of Franklin satisfied and plaintiffs suffered loss of property, severe physical and emotional distress and loss of income.

Issues

Plaintiffs contend that they are entitled to recover damages on any of three theories: fraud, malicious prosecution and intentional infliction of emotional distress. In the prayer of their complaint, plaintiffs did not seek to vacate or set aside the judgments rendered in the consolidated actions. Although they did seek an injunction against enforcement of the Boothe judgment, they presented no argument to support relief on that theory in the court below, nor have they attempted to do so on appeal. In one portion of their appellate brief, plaintiffs assert that they are not attempting to vacate or set aside the judgments, but, in another portion, they assert that the fraud alleged is sufficient to vacate the judgments in the consolidated actions and request leave to amend to allege favorable termination of the consolidated actions. Manifestly, plaintiffs could, in truth, make no such allegation. The most they could do is amend to request that the judgment in the consolidated actions be vacated. Their application for leave to amend should, of course, have been addressed to the trial court. (See MacIsaac v. Pozzo, supra, 26 Cal.2d at pp. 815, 816, 161 P.2d 449; 4 Witkin, Cal. Procedure, (2d ed.), at pp. 2821--2822.) Nevertheless, on this review of the judgment on the pleadings, the question before us is whether, disregarding imperfections of form which could be cured by amendment, the facts pleaded and judicially noticed entitle plaintiffs to any relief, including setting aside the prior judgments. (MacIsaac v. Pozzo, supra, 26 Cal.2d at pp. 813, 815, 161 P.2d 449; see also 4 Witkin, Cal. Procedure (2d ed.), at pp. 2817--2822.)

Setting Aside the Prior Judgments

Initially, we note that the Franklin judgment has been satisfied. However, a satisfaction of judgment may be vacated and the judgment revived under appropriate circumstances (see 5 Witkin, Cal. Procedure (2d ed.), pp. 3575--3576 and authorities there cited), and we entertain no doubt that if sufficient grounds exist for vacating the judgment, the satisfaction of judgment may likewise be vacated.

A direct attack on an otherwise final, valid judgment by way of an independent action to set it aside (Bennett v. Hibernia Bank, 47 Cal.2d 540, 558, 305 P.2d 20; see Rest. Judgments, § 11, com. a and § 12, com. f; 5 Witkin, Cal. Procedure (2d ed.), pp. 3584, 3586, 3745) is permitted where it appears that the complaining party was fraudulently prevented from presenting his claim or defense in the prior action. (United States v. Throckmorton, 98 U.S. 61, 65--66, 25 L.Ed. 93, 95; Kulchar v. Kulchar, 1 Cal.3d 467, 471, 82 Cal.Rptr. 489, 462 P.2d 17; Jorgensen v. Jorgensen, 32 Cal.2d 13, 18, 193 P.2d 728; Pico v. Cohn, 91 Cal. 129, 133--134, 25 P. 970; Rest. Judgments, §§ 118, et seq; 5 Witkin, Cal. Procedure (2d ed.), pp. 3752, et seq.) This rule is based upon the important public policy that litigants be afforded a fair adversary proceeding in which fully to present their case. (Jorgensen v. Jorgensen, supra.) Such relief will be denied, however, where it appears that the complaining party '. . . has had an opportunity to present his case to the court and to protect himself from . . . any fraud attempted by his adversary.' (Kulchar v. Kulchar, supra, 1 Cal.3d at p. 472, 82 Cal.Rptr. at 492, 462 P.2d at 20; United States v. Throckmorton, supra; Jorgensen v. Jorgensen, supra; Pico v. Cohn, supra; Rest. Judgments, §§ 118, 126, 5 Witkin, Cal. Procedure (2d ed.), p. 3768.) This rule is based upon the equally important public policy that there must be an end to litigation which underlies the doctrine of finality of judgments. (Jorgensen v. Jorgensen, supra; Pico v. Cohn, supra.)

'The terms 'intrinsic' and 'extrinsic' fraud or mistake are generally accepted as appropriate to describe the two different categories of cases to which these policies of the law apply (citation).' (Jorgensen v. Jorgensen, supra, 32 Cal.2d at p. 19, 193 P.2d at p. 732.) In this context, the difference between extrinsic and intrinsic fraud and the reason for the rule denying relief where the fraud is intrinsic is classically stated in Pico v. Cohn, supra, 91 Cal. at pp. 133--134, 25 P. at pp. 971--972:

'That a former judgment or decree may be set aside and annulled for some frauds there can be no question, but it must be a fraud extrinsic or collateral to the questions examined and determined in the action. And we think it is settled beyond controversy that a decree will not be vacated merely because it was obtained by forged documents or perjured testimony. The reason of this rule is that there must be an end of litigation; and when parties have once submitted a matter, or have had the opportunity of submitting it, for investigation and determination, and when they have exhausted every means for reviewing such determination in the same proceeding, it must be regarded as final and conclusive,...