Saunders v. New Capital for Small Businesses, Inc.

Citation231 Cal.App.2d 324,41 Cal.Rptr. 703
PartiesCyril SAUNDERS, Plaintiff and Appellant, v. NEW CAPITAL FOR SMALL BUSINESSES, INC., Defendant and Respondent. Civ. 21868.
Decision Date17 December 1964
CourtCalifornia Court of Appeals

Cyril Saunders, in pro. per.

Shirley, Saroyan, Cartwright & Peterson, by Robert E. Cartwright, San Francisco, for respondent.

SULLIVAN, Presiding Justice.

Plaintiff appeals from an order granting defendant's motion for summary judgment and from the summary judgment in favor of defendant entered pursuant to said order. While the summary judgment 'is an appealable judgment as in other cases' (Code Civ.Proc. § 437c) the order granting the motion for summary judgment is merely a nonappealable preliminary order (3 Witkin, Cal.Procedure, p. 2160; Integral Land Corp. v. Anderson (1944) 62 Cal.App.2d 770, 771, 145 P.2d 364) and the attempted appeal therefrom must be dismissed. We proceed to review the proceedings below on the appeal from the judgment.

Plaintiff's complaint filed on July 19, 1962, alleged a common count in quantum meruit for the recovery of $14,150 for services rendered defendant New Capital for Small Businesses, Inc., hereafter called New Capital. Defendant's demurrer was overruled. Defendant thereupon moved for summary judgment, supporting its motion with the declaration 1 of its president Frederick Quigley.

Quigley's declaration states that written interrogatories had been submitted to plaintiff in which the latter stated that the services for which he seeks recovery were performed in connection with the providing of $175,000 working capital to defendant and additionally in connection with a loan made by defendant to Associated Coin Amusement Corporation (hereinafter called Associated).

In reference to the first group of services (i. e., in connection with the working capital) the declaration states that all such services were completed more than two years prior to the filing of plaintiff's complaint; that the sale of defendant's stock was completed and the money derived therefrom was actually in defendant's bank account by June 30, 1960; that on May 13, 1960, and July 12, 1960 (more than two years prior to the filing of the complaint on July 12, 1962) plaintiff secretly had issued to himself checks totalling $14,000 which he claimed to be due him for services rendered in connection with the sale of defendant's stock and the providing of working capital; and that accordingly all services rendered in this connection were barred by the statute of limitations.

Quigley's declaration further states that the trial court 'can take judicial notice' of San Francisco Superior Court action No. 513992 commenced on August 23, 1961, by New Capital for Small Businesses, Inc., defendant herein, against Cyril Saunders, plaintiff herein, to recover the aforementioned $14,000 taken by Saunders; that Saunders in his answer filed in said action alleged that he was entitled to said money by reason of services rendered to the corporation in selling its stock and raising working capital; that Saunders never filed therein any counterclaim or cross-complaint claiming any other monies for any other services; that according to the pretrial statement filed by New Capital in that action, it contended that Saunders was not entitled to $14,000 or any other sum for services rendered in connection with the sale of stock or the providing of working capital; that Saunders' trial memorandum of points and authorities reaffirmed his claim to the money; that, after a trial of said action No. 513992, the court rendered judgment against Saunders declaring that said $14,000 should be repaid and returned to said corporation (defendant in the instant case) together with interest and costs; that said judgment was affirmed by this court in New Capital for Small Businesses, Inc. v. Saunders (1963) 215 Cal.App.2d 728, 30 Cal.Rptr. 563; and that the issue of whether or not plaintiff was entitled to any compensation for services rendered in connection with the sale of defendant's stock is now res judicata.

Quigley's declaration further alleges that plaintiff in his answers to aforesaid interrogatories states that the monies sought to be recovered in the instant action 'are further for services rendered in connection with the obtaining of a loan for Associated' (emphasis added); that plaintiff was given an opportunity to resign as counsel for New Capital when it was discovered that he had taken the aforementioned $14,000 from the corporate account; that plaintiff did resign as defendant's counsel on March 20, 1961, and performed no legal services for defendant thereafter; that plaintiff did perform some legal services for defendant in connection with said loan prior to the date of his resignation; that, however, neither $150 nor any other sum was due plaintiff in this connection; that on July 18, 1961, plaintiff was paid $350 by check in full payment for all services rendered in connection with obtaining a loan for Associated; that in his answers to the written interrogatories, plaintiff admitted he performed no services after June 30, 1961; that plaintiff never demanded additional monies in respect to the Associated loan; that in the first action brought by New Capital against him, plaintiff did not assert any counterclaim or cross-complaint for any additional monies; and that no monies are due plaintiff for services for the Associated loan.

Plaintiff filed a declaration in opposition to the motion most of which, instead of setting forth facts (see Code Civ.Proc. § 437c), asserts various legal conclusions, propositions and arguments together with citations of legal authorities purportedly marshalled to support plaintiff's position that the judgment in the former action is not res judicata of plaintiff's instant claim. In reference to the first group of services, namely, those pertaining to providing working capital, plaintiff's declaration makes no denial of or averment contradictory to those allegations of Quigley's declaration relevant to the first action of New Capital for Small Businesses, Inc. v. Saunders or plaintiff's asserted defense in such action. 2 However, in reference to the second group of services, namely those pertaining to the Associated loan, said declaration states that plaintiff did not accept the check of July 18, 1961, as payment in full for services rendered.

The trial court granted defendant's motion for a summary judgment. However neither the order granting such motion nor the summary judgment itself gives any indication of the precise reason for the court's decision. Basically the question now confronting us is whether in the light of the declarations filed below there is a 'triable issue of fact' (Code Civ.Proc. § 437c; Coyne v. Krempels (1950) 36 Cal.2d 257, 262, 223 P.2d 244; Snider v. Snider (1962) 200 Cal.App.2d 741, 747, 19 Cal.Rptr. 709).

The position of the moving party, defendant herein, as disclosed by its declaration filed below is this: Plaintiff seeks compensation for two groups of services--those pertaining to the providing of working capital and those pertaining to the Associated loan. The issue as to whether plaintiff is entitled in the instant action to any compensation for the first group is now res judicata because this issue was determined in the prior action of New Capital for Small Businesses, Inc. v. Saunders. Plaintiff is not here entitled to recover for the second group because he failed to assert a counterclaim or cross-complaint for them in the prior action.

The position of plaintiff as disclosed by his declaration filed below is this: He does not deny that in the prior action brought against him to recover the $14,000 he asserted in defense the claim that he was entitled to such money for his services to New Capital in providing working capital but he contends nevertheless that his present claim to such money was not an adjudicated issue in the prior action. As to the second group of services he denies that he was paid in full for the Associated loan matter but he does not deny that he failed to assert a counterclaim or cross-complaint for them in the prior action. Plaintiff contends in his briefs filed herein (1) that his present action is not 'barred because of res judicata'; and (2) is not 'barred by the Statute of Limitations.' Our decision herein makes it unnecessary for us to discuss the latter point.

'The doctrine of res judicata rests upon the ground that the party to be affected, or some other with whom he is in privity, has litigated, or had an opportunity to litigate the same matter in a former action in a court of competent jurisdiction, and should not be permitted to litigate it again to the harassment and vexation of his opponent. Public policy and the interest of litigants alike require that there be an end to litigation. In applying the doctrine the cases recognize a distinction between the effect of a judgment operating by way of estoppel in a later action upon a different cause of action and one operating by way of bar against a second action upon the same cause of action. [Citations.]' (Panos v. Great Western Packing Co. (1943) 21 Cal.2d 636, 637-638, 134 P.2d 242, 243; Dillard v. McKnight (1949) 34 Cal.2d 209, 214, 209 P.2d 387, 11 A.L.R.2d 835; see McDougall v. Palo Alto etc. School Dist. (1963) 212 Cal.App.2d 422, 428, 28 Cal.Rptr. 37; 2 Freeman on Judgments § 677, pp. 1429-1430; Rest., Judgments, §§ 68, 79; 29 Cal.Jur.2d, Judgments, § 214, pp. 167-168; Code Civ.Proc. § 1908.) 3

Thus the doctrine of res judicata has a double aspect. Under the doctrine considered in its secondary aspect as a collateral estoppel '[a] former judgment operates * * * in a later action upon a different claim or cause of action, * * * as an estoppel or conclusive adjudication as to such issues in the second action as were actually litigated and determined in the first action.' (Todhunter v. Smith (1934) 219 Cal. 690, 695, 28...

To continue reading

Request your trial
46 cases
  • Navellier v. Sletten
    • United States
    • California Supreme Court
    • August 29, 2002
    ...[citation] ... but may embrace a series of acts or occurrences logically interrelated...." (Saunders v. New Capital for Small Businesses, Inc. (1964) 231 Cal.App.2d 324, 336, 41 Cal.Rptr. 703.) 14. This analysis conforms to our having drawn "a careful distinction between a cause of action b......
  • ZF Micro Devices, Inc. v. TAT Capital Partners, Ltd.
    • United States
    • California Court of Appeals Court of Appeals
    • November 3, 2016
    ...were logically related to latter's cross-complaint in prior wrongful termination action]; Saunders v. New Capital for Small Businesses, Inc. (1964) 231 Cal.App.2d 324, 338, 41 Cal.Rptr. 703 [counterclaim held compulsory because it and prior claim arose out of same fiduciary relationship bet......
  • Align Technology, Inc. v. Tran
    • United States
    • California Court of Appeals Court of Appeals
    • November 25, 2009
    ...v. Soulsburg (1967) 252 Cal.App.2d 185, 190 ; Carey v. Cusack (1966) 245 Cal.App.2d 57, 66 ; Saunders v. New Capital for Small Businesses, Inc. (1964) 231 Cal.App.2d 324, 334 (Saunders).) (2) Section 426.30, subdivision (a), provides that "if a party against whom a complaint has been filed ......
  • Pacific Maritime Ass'n v. California Unemployment Ins. Appeals Bd.
    • United States
    • California Court of Appeals Court of Appeals
    • August 4, 1965
    ...of Alcoholic Beverage Control (1962) 57 Cal.2d 749, 757, 22 Cal.Rptr. 14, 371 P.2d 758; Saunders v. New Capital for Small Businesses, Inc. (1964) 231 A.C.A. 361, 368, 41 Cal.Rptr. 703; McDougall v. Palo Alto etc. School Dist. (1963) 212 Cal.App.2d 422, 428, 28 Cal.Rptr. 37; Verdier v. Verdi......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT