Kenworthy v. Brown

• Citation: 56 Cal.Rptr. 461,248 Cal.App.2d 298
• Court: California Court of Appeals
• Decision Date: 01 February 1967
• Parties: G. Keith KENWORTHY and Cicely June Kenworthy, Plaintiffs and Appellants, v. Charles 'Duke' BROWN, Enlow Ose et al., Defendants and Respondents. Civ. 11264.

Page 461

56 Cal.Rptr. 461

248 Cal.App.2d 298

G. Keith KENWORTHY and Cicely June Kenworthy, Plaintiffs and Appellants, v. Charles 'Duke' BROWN, Enlow Ose et al., Defendants and Respondents.

Civ. 11264.

Court of Appeal, Third District, California.

Feb. 1, 1967.

Rehearing Denied March 1, 1967.

Hearing Denied March 29, 1967.

Robert Carl Anderson, Sacramento, for appellants.

V. Barlow Goff, of McDonough, Holland, Schwartz, Allen & Wahrhaftig, Sacramento, for defendant-respondent Brown.

Diepenbrock, Wulff & Plant, by Forrest A. Plant, Sacramento, for respondent Ose.

REGAN, Associate Justice.

This is an appeal by plaintiffs from a judgment of dismissal entered by the court following its order sustaining defendants' demurrer to the second amended complaint without leave to amend.

A complaint entitled 'Fraudulent Conspiracy to Induce a Breach of Contract' was filed on October 17, 1963, and amended on October 21, 1963, by plaintiffs.

Defendants herein demurred to the first amended complaint. Other named defendants filed motions to strike.

Plaintiffs' second amended complaint named only Brown and Ose as defendants, and alleged:

Defendants wilfully and maliciously conspired between March 30, 1961, and April 18, 1961, to deprive plaintiffs of the benefits of a contract they had previously entered into with the State of California (hereinafter called 'the State'). By the terms of the said contract, dated November 15, 1960, plaintiffs were to construct a building, and upon its completion the State would lease the building from plaintiffs for use of the Bureau of Criminal Indentification and Investigation. As a result of defendants' conduct, the State breached its contract with plaintiffs on April 18, 1961, and thereafter awarded the same contract to defendants.

Plaintiffs seek damages in an amount of $10,510,000.

Defendants demurred to the second amended complaint on the ground the action was barred by the statute of limitations under the provisions of Code of Civil Procedure, section 339, subdivision 1.

The demurrer was sustained without leave to amend and judgment entered.

On appeal from a judgment entered upon an order sustaining a demurrer without leave to amend, the appellate court must accept the allegations of the complaint as true. (Heieck and Moran v. City of Modesto, 64 Cal.2d 229, 49 Cal.Rptr. 377, 411 P.2d 105; Corman v. Blanchard, 211 Cal.App.2d 126, 27 Cal.Rptr. 327.)

Defendants rely upon Code of Civil Procedure, section 339, subdivision 1, which provides, in general, that the statute of limitations is for two years for '(a)n action upon a contract, obligation or liability not founded upon an instrument of writing * * *.'

The provisions of subdivision 1 of section 339 have been referred to as a 'catchall' for unusual tort actions not otherwise provided for. (1 Witkin, Cal. Procedure, Actions, § 139, p. 648; Kiang v. Strycula, 231 Cal.App.2d 809, 42 Cal.Rptr. 338.)

On appeal plaintiffs claim the court could have applied section 343 of the Code of Civil Procedure, which states:

'An action for relief not hereinbefore provided for must be commenced within four years after the cause of action shall have accrued.'

In order to decide which statute of limitations is applicable in this case, we must first determine the legal basis of plaintiffs' action.

There is no cause of action for civil conspiracy itself; an actionable wrong that is the Subject of the conspiracy must be alleged in order to state a cause of action. (2 Witkin, Cal. Procedure, Pleading, § 469, p. 1457; McFaddin v. H. S. Crocker Co., 219 Cal.App.2d 585, 591, 33 Cal.Rptr. 389; Agnew v. Parks, 172 Cal.App.2d 756, 762, 343 P.2d 118.)

The second amended complaint alleges a conspiracy by defendant to induce a breach of the contract which existed between plaintiffs and the State.

In any action based on a civil conspiracy the statute of limitations is determined by the Nature of the action in which the conspiracy is alleged--in this case, the tort of inducing breach of contract. (McFaddin v. H. S. Crocker Co., supra, 219 Cal.App.2d 585, 33 Cal.Rptr. 389.)

The statute of limitations applicable to the tort of inducing breach of contract is that state in Code of Civil Procedure, section 339, subdivision 1, which is two years. (Kiang v. Strycula, supra, 231 Cal.App.2d 809, 812, 42 Cal.Rptr. 338.)

A cause of action based on civil conspiracy accrues on the date of the commission of the last overt act in pursuance of the conspiracy. (Schessler v. Keck, 125 Cal.App.2d 827, 832--833, 271 P.2d 588.)

Plaintiffs state that it is not possible from the face of the complaint to determine that two years has elapsed since the accrual of the within cause of action.

The second amended complaint, on its face, alleges that the State actually breached its contract with plaintiffs on April 18, 1961, and that subsequently, 'after April 18, 1961,' defendants contracted with the State to perform the services plaintiffs had been going to perform by its prior contract with the State.

By this reference to 'after April 18, 1961,' plaintiffs contend the second amended complaint shows only that the action May be barred, and a demurrer does not lie if the pleading merely shows that the action may be barred. (County of Los Angeles v. Security First National Bank, 84 Cal.App.2d 575, 580, 191 P.2d 78.)

While it is true a demurrer lies only for defects appearing on the face of the complaint, a complaint may be rendered defective by proof of admissions made in a superseded pleading by the plaintiff in the same case. (2 Witkin, Cal. Procedure, Pleading, § 483, p. 1470; Lee v. Hensley, 103 Cal.App.2d 697, 230 P.2d 159.)

Generally, after an amended pleading has been filed, courts will disregard the original pleading. (Meyer v. State Board of Equalization, 42 Cal.2d 376, 267 P.2d 257.)

However, an exception to this rule is found in Lee v. Hensley, supra, 103 Cal.App.2d at pages 708--709, 230 P.2d 159, where an amended complaint...