McFaddin v. H. S. Crocker Co.

• Decision Date: 26 August 1963
• Citation: 33 Cal.Rptr. 389,219 Cal.App.2d 585
• Parties: Cecelia Rose McFADDIN, Plaintiff and Appellant, v. H. S. CROCKER CO., Inc., a Callfornia corporation, Duncan Mclntosh, Defendants and Respondents. Civ. 26509.
• Court: California Court of Appeals Court of Appeals

Page 389

33 Cal.Rptr. 389

219 Cal.App.2d 585

Cecelia Rose McFADDIN, Plaintiff and Appellant, v. H. S. CROCKER CO., Inc., a Callfornia corporation, Duncan Mclntosh, Defendants and Respondents.

Civ. 26509.

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

Aug. 26, 1963.

Rehearing Denied Sept. 17, 1963.

Hearing Denied Oct. 23, 1963.

Albert J. Corske, Long Beach, for appellant.

Loeb & Loeb and Alfred I. Rothman, Los Angeles, for respondents.

FORD, Justice.

This is an appeal from a judgment of dismissal entered after the defendants had successfully objected to the introduction of any evidence by the plaintiff on the ground that each alleged cause of action embodied in the complaint failed to state facts sufficient to constitute a cause of action. ¹

In the first cause of action it was alleged that on or about February 1, 1955, the defendant H. S. Crocker Co., Inc., and its agent, Duncan McIntosh, commenced an action in the superior court against Mrs. McFaddin, the plaintiff in the present action, and caused to be issued 'a Writ of Claim and Delivery' commanding the sheriff to place H. S. Crocker Co., Inc., in possession of 220,750 Christmas cards. That writ was executed. The cards were not returned to Mrs. McFaddin until July 9, 1957, although immediately after the execution of the writ she demanded that the cards be returned to her. It was further alleged that thereby she was prevented from selling the cards in the Christmas seasons of 1955, 1956 and 1957 and that 'by reason of said delay said cards were caused to be exposed to the elements, to dirt, and to be damaged by handling, all to damage of plaintiff' in the sum of $25,000. In addition, it was alleged that she had incurred attorneys' fees in the 'wrongful claim and delivery action' in the amount of $2,500 and had thereby suffered further damages in that amount.

The prior action between the parties was before this court on appeal. (H. S. Crocker Co., Inc. v. McFaddin, 148 Cal.App.2d 639, 307 P.2d 429.) Judicial notice may be taken of the record in that case. (Flores v. Arroyo, 56 Cal.2d 492, 496-497, 15 Cal.Rptr. 87, 364 P.2d 263; Arechiga v. Housing Authority of City of Los Angeles, 183 Cal.App.2d 835, 843, 7 Cal.Rptr. 338.) That was an action in which H. S. Crocker Co., Inc., sought recovery of possession of the Christmas cards. The relief to which the defendant therein, Mrs. McFaddin, was entitled upon establishing her right to the personal property was that set forth in section 667 of the Code of Civil Procedure as follows: 'If the property has been delivered to the plaintiff, and the defendant claim a return thereof, judgment for the defendant may be for a return of the property or the value thereof, in case a return can not be had, and damages for taking and withholding the same.' Deterioration is a proper element of damages for the detention of personal property. (Anglo-California Trust Co. v. Collins, 192 Cal. 315, 317, 219 P. 982.) Moreover, under appropriate circumstances recovery of damages may be had for business losses arising out of wrongful detention. (See Ruzanoff v. Retailers Credit Ass'n, 97 Cal.App. 682, 687, 276 P. 156.) But attorneys' fees are not recoverable. (LeFave v. Dimond, 46 Cal.2d 868, 870-871, 299 P.2d 858, 60 A.L.R.2d 939.)

Mrs. McFaddin prevailed in the first action because her right of property had been invaded by the taking and with-holding of the Christmas cards. But the basis of her claim of damages in the first cause of action in the present case was the same invasion of the same right. 'It is well settled in this state that a party may not split a single cause of action, using the same obligation as the basis of separate suits, and that where this is done the judgment in the first action may be pleaded as a bar to a subsequent suit based on the same fundamental claim which could have been presented in the first action. [Citations.]' (McCaffrey v. Wiley, 103 Cal.App.2d 621, 623, 230 P.2d 152, 154.) This rule is generally applicable with respect to the subsequent litigation even though the plaintiff was not aware of the particular elements of damage therein sought to be recovered at the time of the pendency of the prior action. (Van Horne v. Treadwell, 164 Cal. 620, 622, 130 P. 5; McNulty v. Copp, 125 Cal.App.2d 697, 707, 271 P.2d 90.) There in no claim in the present case that at the time of the trial in the prior action the Christmas cards were not available for inspection by Mrs. McFaddin as to their condition. (See Kunz v. Nelson, 94 Utah 185, 76 P.2d 577, 584, 115 A.L.R. 1322, 1330.) The stated rule is merely another application of the doctrine of res judicata, pursuant to which the first judgment acts as a bar to the prosecution of the second action. (McNulty v. Copp, supra, 125 Cal.App.2d 697, 705 271 P.2d 90.) Since the trial court was warranted in taking judicial notice of the record in the prior action and properly applied the doctrine of resjudicata in the light thereof, there was no error in the determination that facts sufficient to constitute a cause of action were not set forth in the first count of the complaint.

In her second cause of action Mrs. McFaddin alleged that on or about February 1, 1955, the defendant H. S. Crocker Co., Inc., caused to be issued 'a certain Writ of Claim and Delivery, in a certain action,' pursuant to which the sheriff took possession of the Christmas cards. It was further alleged that 'in so doing the defendants acted maliciously and without probable cause and unjustly contrived and intended to injure this plaintiff and break up her business, then [sic] plaintiff then being engaged in the business of selling printing, including Christmas cards.' The final allegation was that the action came on for trial on October 6, 1955, and a judgment was rendered in favor of Mrs. McFaddin.

In determining the character of that cause of action, the nature of the remedy pursued in the prior action must be understood. As stated in Witkin on California Procedure, at pages 847-848: 'A plaintiff entitled to the possession of personal property held by another may bring an action for specific recovery of the property. * * * And, if immediate possession is important, he may invoke the provisional remedy of claim and delivery to obtain such possession without waiting for trial and judgment in the main action * * *. Thus, the action may be brought and possession recovered in the usual manner by judgment, or the action may be brought and possession recovered by the provisional remedy before judgment. The provisional remedy cannot be employed independently, but only in the action. Moreover, the provisional remedy gives only a temporary possesion; title and right to possession are determined by the final judgment * * *. These distinctions are fundamental, though sometimes obscured by the confusing tendency of courts and attorneys to use the term 'claim and delivery' indiscriminately to refer to both the action and the provisional remedy.' (See also Fran-Well Heater Co. v. Robinson, 182 Cal.App.2d 125, 129-130, 5 Cal.Rptr. 900.)

By her second cause of action the plaintiff sought to recover damages for abuse of process. (See Spellens v. Spellens, 49 Cal.2d 210, 229-233, 317 P.2d 613; Tellefsen v. Key System Transit Lines, 198 Cal.App.2d 611, 613-615, 17 Cal.Rptr. 919.) This view of the pleading is fortified by the statement of issues as set forth by the plaintiff in her pretrial statement, part thereof being as follows: '1. Whether defendants abused the processes of the Court. 2. Whether defendants maliciously used the processes of the Court. 3. Whether defendants are guilty of wrongful claim and delivery.' Such an action is barred within one year after the commission of the wrongful act. (Code Civ.Proc. § 340, subd. 3; Simons v. Edouarde, 98 Cal.App.2d 826, 828, 221 P.2d 203.) Since the wrong was alleged to have occurred on or about February 1, 1955, and since the present action was not commenced until January 28, 1958, the determination of the trial court with respect to the second cause of action was correct.

In the third count of her complaint Mrs. McFaddin alleged that at all times therein mentioned she was 'engaged in the business of selling printing, including the trade and profession of selling business and greeting cards and Christmas cards' in and near the City of Long Beach. She further alleged that on or about February 1, 1955, the defendants (H. S. Crocker Co., Inc., and Duncan McIntosh), with the intent to destroy her business, 'maliciously, wantonly and without justification undertook and conspired to deprive plaintiff of her business properties in the form of approximately 220,750 Christmas cards which represented more than 99% of plaintiff's business properties, and to destroy plaintiff's greeting card business by maliciously, wantonly and unjustifiably causing plaintiff's property in the form of greeting cards to be wrongfully seized by the Los Angeles County Sheriff.' It was alleged that such action was undertaken for the purpose of interfering with the plaintiff's business and inducing her customers not to deal with her. In addition to an allegation as to general damages, the third cause of action contained an allegation that 'many of said cards were damaged and destroyed in the handling when seized by the Sheriff's Office and before being returned.' to her damage in the sum of $15,000.

By the third cause of action the plaintiff sought to recover damages for tortious interference with her business. (See Buxbom v. Smith, 23 Cal.2d 535, 546, 145 P.2d 305; Uptown Enterprises v. Strand, 195 Cal.App.2d 45, 50-51, 15 Cal.Rptr. 486; Guillory v. Godfrey, 134 Cal.App.2d 628, 632, 286 P.2d 474.) With respect to the allegation as to a conspiracy, the following statement in Agnew v. Parks, 172 Cal.App.2d 756, at page 765, 343 P.2d 118, 123, is apropos: 'There existing no cause of action for conspiracy in and of itself, the statute of limitations is determined...