Keenan v. Dean

Decision Date28 June 1955
Citation285 P.2d 300,134 Cal.App.2d 189
CourtCalifornia Court of Appeals Court of Appeals
PartiesMarie A. KEENAN, Plaintiff and Cross-Defendant and Respondent, v. John M. DEAN, Defendant and Cross-Complainant and Appellant. Civ. 16435.

J. Joseph Sullivan, San Francisco, for appellant.

Vincent H. O'Donnell, Fredrik S. Waiss, San Francisco, for respondent.

PETERS, Presiding Justice.

Defendant appeals from an order striking his cross-complaint from the files.

The record shows the following: Plaintiff brought an action in the Municipal Court against defendant for unlawful detainer, praying for restitution of certain leased premises and for $205 in unpaid rent. This complaint was signed October 22, 1953, but was not filed until July 8, 1954. Defendant, by answer, alleged that on March 31, 1954, he had offered, and plaintiff had accepted, a surrender of the premises. Defendant also cross-complained against plaintiff and certain unidentified Does for libel, alleging that on September 10, 1953, plaintiff, through her attorney, had written to the Fair Rent Committee in regard to a hearing involving the raising by plaintiff of defendant's rent and his refusal to vacate that Dean had said 'that he would refuse to vacate the apartment and that it would be a difficult process to get an attorney out of it'; that on October 6th and 7th of 1953, plaintiff caused to be written and published in a daily newspaper covering the Fair Rent Committee hearings that Dean refused to vacate the premises with the comment that 'it would be very difficult to force a lawyer to move out'; and that plaintiff meant thereby that defendant 'would, and did, in violation of his duty as an attorney-at-law, employ means not consistent with the truth; would and did, mislead a judge * * * by artifice and by false statements of law; would, and did, engage in methods of the practice of the law in other than ethical methods'; and that said publication was false and defamatory. It is averred that defendant's reputation had been injured thereby and that he had suffered shame, mortification, and hurt feelings for which he asked $25,000 general damages and $25,000 exemplary damages.

Pursuant to the provisions of section 396 of the Code of Civil Procedure the cause was properly transferred to the Superior Court. No appearance or service was made by or on the fictitious parties. The plaintiff moved to strike the cross-complaint from the files, on the ground that the cause of action was not a proper ground of cross-complaint in this action, and because cause the cross-complaint did not state facts sufficient to constitute a cuase of action. This motion was granted by the trial court on the first ground. Defendant appeals from this order.

The first question to be determined is whether the order involved is an appealable order. In the normal situation where the complaint and cross-complaint are both filed in the Superior Court an order striking a cross-complaint is a non-appealable order, being like most orders relating to the pleadings, interlocutory in nature and, as such, reviewable only on the appeal from the final judgment.

This rule is well settled in this state. Yandell v. City of Los Angeles, 214 Cal. 234, 4 P.2d 947; Sjoberg v. Hastorf, 33 Cal.2d 116, 199 P.2d 668; Evans v. Dabney, 37 Cal.2d 758, 235 P.2d 604; Wood v. Metzenbaum, 90 Cal.App.2d 533, 203 P.2d 105; Pritchard v. King, 104 Cal.App. 460, 285 P. 1086; Stockton Combined Harvester & Agricultural Works v. Glen Falls Ins. Co., 98 Cal. 557, 33 P. 633; see also 3 Witkin on California Procedure, p. 2154, § 13. This rule is also applicable to an order striking a counterclaim. Merchants Nat. Bk. v. Clark-Parker Co., 97 Cal.App. 757, 276 P. 387. If, however, the cross-complaint joins new parties, or names a co-defendant a cross-defendant, the general rule is not applicable. In such a situation 'the dismissal of the cross-complaint is a final adverse adjudication of the cross-complaint's rights against a distinct party, and the order is an appealable judgment.' 3 Witkin on California Procedure, p. 2154, § 13; see Herrscher v. Herrscher 41 Cal.2d 300, 259 P.2d 901; County of Humboldt v. Kay, 57 Cal.App.2d 115, 134 P.2d 501; Howe v. Key System Transit Co., 198 Cal. 525, 246 P. 39; Young v. Superior Court, 16 Cal.2d 211, 105 P.2d 363; Halterman v. Pacific Gas & Elec. Co., 22 Cal.App.2d 592, 71 P.2d 855.

The instant case does not fall within this exception to the general rule because the cross-complaint involves only the defendant and plaintiff. While the defendant joined in his cross-complaint certain Does not parties to the complaint, these Does were not served nor did they appear. Obviously, the order striking the cross-complaint decided nothing between defendant and the parties who were not served or did not appear. This was the precise holding in Kennedy v. Owen, 85 Cal.App.2d 517, 193 P.2d 141.

The general rule is based on the theory that the order striking the cross-complaint can be reviewed on appeal from the final judgment. The exception to the rule is based on the theory that as between the defendant and new parties brought in by the cross-complaint the order striking the cross-complaint finally determines the rights between defendant and the new parties. Although, as pointed out, that exception does not here apply, the basic reason for it here exists.

In the instant case the action was commenced in the Municipal Court and then was properly transferred to the Superior Court solely because of the cross-complaint. That cross-complaint now has been stricken. All that remains to be tried is the original action properly filed in the Municipal Court. When that fact is called to the attention of the Superior Court, under the mandatory provisions of section 396 of the Code of Civil Procedure, it will have to return the case for trial to the Municipal Court. Neither that court, nor the Appellate Department of the Superior Court has power to review the propriety of the ruling of the Superior Court striking the cross-complaint. Thus, in a very real sense the order striking the cross-complaint was a final order or judgment. The Superior Court has finally determined that it has no jurisdiction of the proceeding. Unless the propriety of that order can be reviewed on this appeal its propriety cannot be reviewed at all. The order to strike was tantamount to a dismissal of the action on the cross-demand, Herrscher v. Herrscher, 41 Cal.2d 300, 259 P.2d 901, and, under the circumstances, was a judgment within the meaning of section 581a of the Code of Civil Procedure. See Costa v. Regents of the University of Cal., 103 Cal.App.2d 491, 229 P.2d 867. Since the propriety of such judgment cannot otherwise be reviewed it is necessarily a final judgment and therefore appealable.

On the merits, the first question presented is whether the cause of action for libel constituted a proper ground of cross-complaint Of course, a cause of action for libel cannot be set up in an unlawful detainer action, and the parties are agreed that this is so. But it is equally clear, under the allegations of the answer, that since the premises were surrendered prior to the filing of the action, the issue of possession was removed from the case and the action became one for money damages. Servais v. Klein, 112 Cal.App. 26, 296 P. 123; Heller v. Melliday, 60 Cal.App.2d 689, 141 P.2d 447. Plaintiff concedes that this is so.

Section 442 of the Code of Civil Procedure provides in part: 'Whenever the defendant seeks affirmative relief against any party, relating to or depending upon the contract, transaction, matter, happening or accident upon which the action is brought, * * * he may, in addition to his answer, file at the same time, * * * a cross-complaint.' It is argued with some merit that the libel cause of action does not 'relate' to ro 'depend' upon the 'transaction' set forth in the complaint, in that there is not the necessary relation between the two causes of action, and therefore that the trial court properly ruled that the cause of action set forth in the cross-complaint was not a proper ground of cross-complaint. See generally California Trust Co. v. Cohn, 214 Cal. 619, 7 P.2d 297; Hanes v. Coffee, 212 Cal. 777, 300 P. 963; Morris v. Warner, 207 Cal. 498, 279 P. 152. But even if it be so held, such holding would not necessarily be determinative of this appeal. If the pleading of defendant can be construed as a proper counterclaim then it was error to strike it from the files. The counterclaim statute is much broader than the cross-complaint statute. Section 438 of the Code of Civil Procedure simply requires that the 'counterclaim * * * must tend to diminish or defeat the plaintiff's recovery and must exist in favor of a defendant and against a plaintiff between whom a several judgment might be had in the action; * * *.' Under section 666 of the Code of...

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