Ruby v. Debovsky

• Decision Date: 16 June 1954
• Citation: 126 Cal.App.2d 21,271 P.2d 983
• Court: California Court of Appeals Court of Appeals
• Parties: RUBY et al. v. DEBOVSKY. Civ. 15943.

Page 983

271 P.2d 983

126 Cal.App.2d 21

RUBY et al. v. DEBOVSKY.

Civ. 15943.

District Court of Appeal, First District, Division 1, California.

June 16, 1954.

Rehearing Denied July 16, 1954.

Hearing Denied Aug. 10, 1954.

Donovan Ruby and Helen Ruby in pro. per.

John P. Andrews, San Francisco, for respondent.

BRAY, Justice.

In an action for damages for alleged fraud, defendant's answer alleged the defense of res judicata by reason of three specified actions. Pursuant to section 597, Code of Civil Procedure, this issue was tried separately. Plaintiffs appeal from the judgment in favor of defendant upon that issue on a limited record.

Questions Presented.

Plaintiffs raise many questions, most of which, however, cannot be determined from the limited record before us. The determinable questions are primarily whether the answer properly raises the issue of res judicata, and if so, whether the prior actions are res judicata as to this action.

Pleadings.

Plaintiffs' complaint charges that on August 14, 1943, Donald E. Warner and Jean H. Warner gave defendant a written authorization to sell for them certain real property for the sum of $5,534; that on August 25th, plaintiffs employed defendant to find and secure for plaintiffs residential property at the lowest price; that on September 6th, defendant falsely and to defraud plaintiffs represented to plaintiffs that the purchase price of said property was $6,200, payable in certain monthly installments, plus a rental charge of $33.50 per month until title passed. Plaintiffs, relying upon their said agent's representations, signed an agreement to purchase said property on said terms. The agreement did not set forth the name of the seller, but was signed by defendant as agent for seller. Thereafter and on September 18th, defendant, representing himself to be plaintiffs' agent, secretly purchased said property from the Warners for $5,534 and without any rental requirement. Plaintiffs made monthly payments to defendant under their contract until $2,261 had been paid and when, under the terms of the agreement they were entitled to a deed to the property, subject to a certain mortgage. Defendant then informed them he was the owner of the property and that if they wished to occupy it further they would have to pay $60 a month rent instead of the $33.50. Thereafter 'litigation followed for specific performance.' At that trial plaintiffs were unaware that defendant had secretly purchased the property in his own name and paid for it out of moneys paid him by plaintiffs. At that trial defendant had falsely testified that the reason defendant did not deliver a deed to plaintiffs was because plaintiffs had borrowed $2,162.92 from defendant which they had not repaid. Plaintiffs had not borrowed any money from defendant. The court ordered plaintiffs to pay defendant $2,162.92 borrowed money before title would pass to plaintiffs. Plaintiffs did not discover the falsity of the defendant's representations which induced them to purchase the property until July 27, 1947. Plaintiffs allege additional sums paid defendant because of said alleged fraud, and claimed they were specially damaged in the sum of $14,620 special damages and in the sum of $50,000 general damages because of grievous mental and physical suffering and impairment of health. In the instant case the trial court held that the judgments hereafter mentioned were res judicata of the plaintiffs' alleged cause of action.

Answer.

Defendant denied the material allegations of the complaint, set up the statute of limitations, and then alleged that on specific dates judgments were duly given and made in favor of defendant and against plaintiffs in three different specified actions between the same parties and for the same cause of action set forth in the complaint herein. This was a sufficient plea of res judicata. See 15 Cal.Jur. p. 282, § 273. The mere fact that the words 'bar' or 'res judicata' were not used does not make the plea defective. There is no requirement that the judgments mentioned must be attached to the answer. Olds v. Peebler, 66 Cal.App.2d 76, 151 P.2d 901, cited by plaintiffs, contains no such requirement. Section 456, Code of Civil Procedure, provides that the facts conferring jurisdiction in those actions need not be pleaded, it being sufficient to plead that the judgments were 'duly given or made.'

Prior Actions.

Two prior actions were in the municipal court, one in the superior. The judgment in the latter (action No. 356301) was given June 27, 1947. As to it and its application here we adopt the following portion of the well reasoned opinion of Honorable Preston Devine, the trial judge:

'The allegation of the complaint having to do with physical and mental distress as a result of the alleged fraud may be disregarded, as was done in Newman v. Smith, 77 Cal. 22 , because these are not proper elements of damage in an action upon fraud and deceit, as was held in that case. * * *

'The first action filed by plaintiffs was a suit for specific performance, No. 356301 in the Superior Court in this city and county. That action was filed on August 9, 1946. The complaint alleged that plaintiffs, the Rubys, had agreed to purchase the Victoria Street home from the Warners in 1943, and had been admitted to possession since September 6, 1943; that defendant Debovsky and his wife had purchased the property from the Warners on February 28, 1944; that all the installment payments had been made by the Rubys, but defendants, the Warners and Debovskys, had refused to deed the property. The Debovskys answered, alleging that plaintiffs had not paid in full, because plaintiffs had borrowed certain sums from defendants, and had not repaid them. The cause was tried before the Honorable Stanley Murray, assigned by the Judicial Council, and on June 27, 1947, he rendered judgment, holding that plaintiffs owed defendants the sum of $2,162.92, and decreeing that if plaintiffs paid said sum within thirty days, they should have specific performance; but that if they did not so pay, writ of possession should be issued against them under a cross-complaint which had been filed.

'There was no motion for new trial, no appeal, no proceedings under Section 473, C.C.P., and the judgment has become final over five years ago.

'However, commencing on August 17, 1949, plaintiffs filed successive motions to set aside the judgment on the ground that it had been obtained by fraud, which motions were heard and denied by Judges Shoemaker (September 15, 1949), Jacks (December 8, 1949) and Devine (July 11, 1950). There was no appeal from the orders of the Court, or from any of them. * * *

'The judgment in action No. 356301 is final in all respects, and it remains to be considered to what extent that judgment bears on matters alleged in the complaint in the present case.

'The fact that the form of action in this case is in tort, for damages for alleged fraud and deceit, while the former action was for specific performance, is not of moment. (Papineau v. Security First National Bank, 45 Cal.App.2d 690 .) The test is, what issues were litigated, and what issues could have been litigated in that action, for the law will not allow litigation to be conducted in a piecemeal fashion. (Andrews v. Reidy, 7 Cal.2d 366 ; Wulfjen v. Dolton, 24 Cal.2d 878 .) Therefore, an analysis of the former action, and a comparison with the present one, must be made.

'As was said above, in the specific performance action, the issue was joined whether or not plaintiffs had paid what they were obliged to pay. The court found that they had not so paid, but in fact owed $2,162.92, and decreed that they might have specific performance on payment of that sum. That is adjudged forever, in the absence of appeal.

'Plaintiffs allege that they discovered certain new matter on July 27, 1947, some thirty days after judgment was rendered. Now, what was this new matter? And what, if anything, is new in the present action? The plaintiffs say it is this: That when the specific performance action was tried they did not know when or how Debovsky had bought the Warners' equity in the property. Of course they do not say that they did not know, during the former action, that Debovsky actually acquired the title to the property on February 28, 1944, because plaintiffs alleged this to be the fact in their specific performance action. But, they say, they thought that perhaps Debovsky had his agreement to buy and sell from the Warners before the sale to plaintiffs. However, let it be assumed that Debovsky was the agent of the plaintiffs. Then, plaintiffs knew, when they commenced the specific performance suit, that their own...