Marden v. Bailard

• Decision Date: 08 April 1954
• Citation: 268 P.2d 809,124 Cal.App.2d 458
• Court: California Court of Appeals Court of Appeals
• Parties: MARDEN et al. v. BAILARD et al. Civ. 19693.

Page 809

268 P.2d 809

124 Cal.App.2d 458

MARDEN et al. v. BAILARD et al.

Civ. 19693.

District Court of Appeal, Second District, Division 3, California.

April 8, 1954.

Rehearing Denied May 6, 1954.

Hearing Denied June 3, 1954.

Hiram T. Kellogg and L. M. Cahill, Los Angeles, for appellants.

Howard D. Hanson, Los Angeles, for respondents.

PARKER WOOD, Justice.

Defendants' demurrer to plaintiffs' third amended complaint was sustained with leave to amend within twenty days. Plaintiffs appeal from a judgment of dismissal entered after they failed to amend within that time.

Said complaint alleged:

On December 4, 1941 defendants recorded, in the map records of Los Angeles County, a map of a subdivision known as Tract 12971. A map of said subdivision had been filed with the real estate commissioner on or about said date. Said map and the documents recorded with the commissioner stated that the tract was to be sold to the public subject to all conditions and restrictions as set forth in a certain grant deed from Marblehead Land Company to Willis R. Bailard, which appears of record in the office of the Los Angeles County Recorder. On December 16, 1941 defendants entered into a written agreement with plaintiff Muriel Marden wherein defendants agreed to sell to said plaintiff Lot 21 in said Tract 12971 for $850. Said agreement stated that the deed by the sellers to the buyer would be subject to conditions and restrictions set forth in said deed from Marblehead to Bailard. Upon the payment of the purchase price of the lot the defendants Bailard executed a grant deed conveying the lot to plaintiff Muriel Marden which deed was subject to conditions and restrictions as set forth in the deed from Marblehead to Bailard. Thereafter Muriel conveyed an undivided one-fourth interest in the lot to each of her three children, who are the other plaintiffs herein, and for six years last past each plaintiff has owned an undivided one-fourth of the lot. There was a restriction in said deed from Marblehead requiring 'the owner' to file with the architectural committee appointed by Marblehead 2 sets of building plans for approval of the committee. Said deed from Marblehead recited further that it was subject to 'the following covenants, conditions and restrictions imposed upon * * * the lands herein conveyed and which shall run with said lands. * * * 2. Subject to the exception as to that part of the lands * * * which may be used for * * * motel purposes, all said lands shall be used only for private single-family residence dwelling purposes. * * * 10. Notwithstanding the restriction as set forth in paragraph 2 above [regarding motel purposes], that part of the lands herein conveyed extending' 3,000 feet westerly from the east line of said property along the northerly boundary of the highway 'and from the northerly boundary' of said highway northerly 1,300 feet 'may be used for private single-family dwellings for residence income property, including the right to construct and maintain one motel. In connection with said motel, light commercial businesses may be maintained. * * * [A]ll said restrictions shall terminate January 1, 1970.' Said lot 21 lies within that part of the lands described as 'extending 3,000 feet from the Easterly line of said property along the Northerly boundary of State Highway; thence from the Northerly boundary of said State Highway Northerly 1300 feet and was within the area within which rental income property and one motel was permitted to be erected.'

It was alleged in the complaint, from paragraph XXIII to paragraph XXIX inclusive, that: In November, 1946 plaintiff Muriel Marden presented plans for a motel and store to said committee. About December 1, 1946 plans of plaintiffs for construction of motel and store buildings upon lot 21 were approved by said committee, and the plaintiffs proceeded with the construction of said buildings. On December 5, 1946 the defendants, acting through Willis R. Bailard and Eleanor F. Bailard, as plaintiffs, commenced an action in the superior court, and the plaintiffs in this action appear as some of the defendants, which action was upon a complaint entitled 'Complaint by Grantor to Reform Deed, and as so Reformed to Enjoin Violation of Building Restrictions.' After the trial of said action, judgment was given to plaintiffs therein. The said judgment provided that the deed (from Bailards to Marden) be and it is reformed so that it should read that no part of defendants' property, lot 21, shall be improved for use as a motel or any kind of business except that it may be improved for use as a single residence; and that the defendants and their agents are perpetually enjoined during the term of the restrictions from using the lot other than as a single residence. Plaintiffs herein, who were defendants in that case, appealed from that judgment to the District Court of Appeal, Bailard v. Marden, 219 P.2d 806, where the judgment was modified and affirmed (modified to provide that the buyer could retain the property as residential property or reconvey title to seller and recover money paid). Thereafter, on March 12, 1951 the Supreme Court reversed the judgment. Bailard v. Marden, 36 Cal.2d 703, 227 P.2d 10. On July 12, 1951 the Bailards, as plaintiffs in that case, filed a voluntary dismissal of said action, without prejudice, prior to the time defendants therein 'remitted' the cause for a retrial. The plaintiffs herein did not consent to said dismissal and so advised the court.

It was alleged, from paragraph XXX to paragraph XXXV inclusive, that: From the entry of that judgment on February 4, 1949 to the reversal thereof on March 16, 1951 the plaintiffs herein were enjoined from constructing the motel and store building on said lot. Said judgment was secured maliciously and without probable cause. The judgment was not sustained by any evidence. The defendants herein knew that said action was prosecuted without probable cause, well knowing there had not been any agreement between them and any of these plaintiffs relative to any restrictions upon said lot, and they (defendants herein) prosecuted said action well knowing there was no evidence to sustain the action. That action, which was maintained upon ground of a mutual mistake, was prosecuted by the defendants herein well knowing that the action would cloud and slander the title of these plaintiffs. Each defendant herein well knew that the judgment was obtained without any evidence to sustain it and without any evidence upon which a mutual mistake could be based. No security was required to indemnify the plaintiffs herein from the effects of the injunction. Defendant herein well knew that no mistake had occurred entitling them to reformation of the grant deed. The judgment was reversed upon the ground that there was no evidence to sustain it, and that there was no evidence of any discussion or transaction regarding restrictions upon which a claim of mutual mistake could be claimed by the Bailards as plaintiffs in that action.

It was alleged, from paragraphs XXXVI to XLII inclusive, that: By reason of the prosecution of said action the plaintiffs herein were forced to incur expenses in the sum of $6,000 for services of attorneys. As a proximate result of securing the wrongful injunction, the plaintiffs herein did not continue the construction of the motel and store building which was under construction at the time the injunction was secured. The plaintiffs sustained additional damages in the sum of $40,300, being the increase in the cost of construction from the time that action was commenced to the time the present action was commenced. By reason of the prosecution of that action the plaintiffs herein were deprived of the use of said lot for motel and store purposes for a period of 50 months to the damage of plaintiffs in the sum of $50,000, being the net rental value reasonably to be anticipated by the plaintiffs for said period. The difference between the reasonable market value of construction materials, which plaintiffs had...