Mitchell v. Jones

• Decision Date: 04 August 1959
• Citation: Mitchell v. Jones, 172 Cal.App.2d 580, 342 P.2d 503, 77 A.L.R.2d 1404 (Cal. App. 1959)
• Court: California Court of Appeals
• Parties: , 77 A.L.R.2d 1404 James MITCHELL and Marie Mitchell, Plaintiffs and Appellants, v. Anna M. JONES, Defendant and Respondent. Civ. 23630.

Page 503

342 P.2d 503

172 Cal.App.2d 580, 77 A.L.R.2d 1404

James MITCHELL and Marie Mitchell, Plaintiffs and Appellants, v.Anna M. JONES, Defendant and Respondent.

Civ. 23630.

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

Aug. 4, 1959.

Barker & Miller, Montebello, for appellants.

Wade & Wade, Los Angeles, for respondent.

FOX, Presiding Justice.

This is an appeal by plaintiffs from a judgment for defendant in an action for damages allegedly caused by acts of the defendant depriving plaintiffs' property of its lateral support.By her First Affirmative Defense, defendant alleged that in 1954she commenced an action against the plaintiffs; that in her complaint she alleged that 'since 1953 the real property of plaintiffs[defendants therein] * * * was adjacent to the real property of defendant[plaintiff therein] * * *; that during the years 1953 and 1954plaintiffs herein excavated * * * the high portion of their said real property and filled in the lower portions thereof; that in so excavating and filling, plaintiffs herein caused a dirt embankment to be erected and maintained adjacent to and partially upon the said real property of defendant herein; that the erection and maintenance of said dirt embankment changed the direction, volume and rate of the natural flow of surface waters causing said surface waters to flow at an increased and at a rapid rate upon and over the said property of defendant herein; that said surface waters carried with them great amounts of mud and debris, which mud and debris accumulated on said property of defendant herein; that said dirt embankment constituted a nuisance and caused defendant herein great annoyance, discomfort, expense and actual damage to her house, yard and furnishing.'Defendant then alleged that plaintiffs were served with process and that 'on the 3d day of November, 1954, judgment and decree were duly given and made * * * in said prior proceeding in favor of defendant herein and against plaintiffs herein, ordering, adjudging and decreeing that defendant herein recover from plaintiffs herein judgment for the sum of $1455.22 * * * and that plaintiffs herein be permanently enjoined and restrained from depositing loose dirt or debris upon their property in any manner which may cause the same to fall or flow or slide upon the adjacent property of defendant herein and from placing soil and debris upon said real property of defendant herein.That said judgment and decree * * * has not been set aside, modified or reversed, but * * * remains in full force and has become a final and binding judgment and decree.'Finally, with respect to this defense, defendant alleged that the allegations contained in paragraph V of the plaintiffs' complaint herein to the effect that defendant negligently excavated the westerly portion of her property, lowering it between 4 to 15 feet below the natural contour of plaintiffs' property, without leaving proper and sufficient support for the soil on plaintiffs' property, and the allegation 'as a result of being deprived of its support as aforesaid'(para. VI), 'would have constituted a partial or total defense to the cause of action in said prior proceeding had they been asserted and proved * * *; that by reason thereof the plaintiffs herein are estopped and barred from alleging or proving any of the allegations contained in paragraph V of their complaint herein and the allegation 'as a result of being deprived of its support as aforesaid' * * *.'The complaint and judgment in the prior proceeding were incorporated in the defendant's answer.The plaintiffs herein did not appear in the prior action and judgment was entered against them by default.

At the outset of the trial of the instant action, the trial judge personally viewed the premises involved.Thereafter, plaintiffs' first witness was sworn and gave brief testimony, whereupon defendant objected to the introduction of any further evidence upon the ground that the matter was res judicata and that plaintiffs were estopped and barred from introducing any further evidence by reason of the prior suit and judgment rendered therein.The court sustained the objection and entered judgment for defendant.The trial judge found as a fact that all of the allegations of defendant's First Affirmative Defense were true.The plaintiffs have appealed from the judgment.

Basically, this appeal presents a single question for determination, viz., what effect does a default judgment have on a subsequent proceeding between the same parties based on a different cause of action where the defendants in the prior action are the plaintiffs in the latter?

The doctrine of res judicata has two distinct aspects.Sutphin v. Speik, 15 Cal.2d 195, 201-202, 99 P.2d 652, 101 P.2d 497;2 Freeman on Judgments, p. 1425, § 676(5th ed.).Primarily, it operates as a bar to the maintenance of a second suit between the same parties on the same cause of action.Taylor v. Hawkinson, 47 Cal.2d 893, 895, 306 P.2d 797;Clark v. Lesher, 46 Cal.2d 874, 880, 299 P.2d 865;Panos v. Great Western Packing Co., 21 Cal.2d 636, 638, 134 P.2d 242.In its secondary aspect, the doctrine has a limited application to a subsequent suit between the same parties based on a different cause of action.'The prior judgment is not a complete bar, but it 'operates as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action.'(Citation.)This aspect of the doctrine of res judicata, now commonly referred to as the doctrine of collateral estoppel, is confined to issues actually litigated.'Clark v. Lesher, supra[46 Cal.2d 880, 299 P.2d 868];Taylor v. Hawkinson, supra;Todhunter v. Smith, 219 Cal. 690, 695, 28 P.2d 916.

It is clear that the instant cause of action is not the same as the one previously litigated and, therefore, we are here concerned with the doctrine of collateral estoppel and not with res judicata in its primary sense.This being the case, the judgment obtained in the prior action is not a complete bar to the instant proceeding, but only a conclusive adjudication as to issues litigated and determined in the first action.Taylor v. Hawkinson, supra, 47 Cal.2d at page 896, 306 P.2d 797.

When applying the collateral estoppel doctrine, it is not always an easy matter to determine what issues were litigated, 'for the term 'issue' as used in this connection is difficult to define, and the pleadings and proof in each case must be carefully scrutinized to determine whether a particular issue was raised even though some legal theory, argument or 'matter' relating to the issue was not expressly mentioned or asserted.'Clark v. Lesher, supra, 46 Cal.2d at pages 880-881, 299 P.2d 865, 868.

Section 1911, Code of Civil Procedure, states: 'That only is deemed to have been adjudged in a former judgment which appears upon its face to have been so adjudged, or which was actually and necessarily included therein on necessary thereto.'

In Sutphin v. Speik, supra, a collateral estoppel case, the court discusses this question as follows (15 Cal.2d at page 202, 99 P.2d at page 655): 'Next is the question, under what circumstances is a matter to be deemed decided by the prior judgment.Obviously, if it is actually raised by proper pleadings and treated as an issue in the cause, it is conclusively determined by the first judgment.But the rule...