Seidner v. 1 Greenfield Owners Assn.

• Decision Date: 04 August 1980
• Citation: 108 Cal.App.3d 895,166 Cal.Rptr. 803
• Court: California Court of Appeals Court of Appeals
• Parties: Irving SEIDNER, Cross-Complainant and Appellant, v. 1551 GREENFIELD OWNERS ASSOCIATION, a California Nonprofit Corporation, et al., Cross-Defendants and Respondents. Civ. 57546.

Page 803

166 Cal.Rptr. 803

108 Cal.App.3d 895

Irving SEIDNER, Cross-Complainant and Appellant, v. 1551 GREENFIELD OWNERS ASSOCIATION, a California Nonprofit Corporation, et al., Cross-Defendants and Respondents.

Civ. 57546.

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

Aug. 4, 1980.

Hearing Denied Oct. 15, 1980.

No appearance by 1551 Greenfield Owners Association, cross-defendants and respondents.

RIMERMAN, ^* Associate Justice.

FACTUAL BACKGROUND

The facts are taken from appellant's brief and from the clerk's transcript on appeal. Respondent has filed no briefs on this appeal. Appellant entered into a partnership agreement with 1551 Greenfield Company, a group of individuals, who all formed the partnership so as to build condominium homes, in which individuals of 1551 Greenfield Company were to reside. At the conclusion of the building of the project, the 1551 Greenfield Company sued appellant, herein, for a dissolution of partnership and an accounting, breach of fiduciary duty, negligence, breach of implied warranty, fraud, breach of contract and damages. This is known as the partnership suit.

The persons in the 1551 Greenfield Company, subsequently incorporated and became known as 1551 Greenfield Owners Association, a California nonprofit corporation. The corporation filed a lawsuit against appellant after the partnership suit. The corporation suit sought damages alleging breach of implied warranty to construct the project in a workmanlike manner and declaratory relief, seeking a determination of which of the parties shall bear the cost of repairing the roof and waterproofing the building.

Now we have two separate lawsuits, each of which respondents claim, has merit, as brought by two separate entities having legal status to bring suit, respectively.

The lawsuit concerned in this appeal is the corporate lawsuit, in which action the appellant filed a cross-complaint, alleging abuse of process and conspiracy. There was a demurrer to said cross-complaint. This was calendared for hearing, but before it was heard, it was taken off calendar, apparently at request of counsel for cross-complainant, appellant herein. A first amended cross-complaint was filed. In this first amended cross-complaint, appellant seeks declaratory relief in his first and second causes of action, and alleges abuse of process in his third cause of action, and conspiracy in his fourth cause of action.

There was a demurrer to the first amended cross-complaint.

An order was made sustaining the demurrer to the third and fourth causes of action without leave to amend, and dismissing the action as to the cross-defendants named in said third and fourth causes of action.

Appellant's notice of appeal indicates that he appeals "from an Order of Dismissal pursuant to a sustaining of demurrers to the Third and Fourth Causes of Action of the First Amended Cross-Complaint."

The case is still before the trial court, no final judgment having been rendered or entered.

THE PLEADINGS

Appellant, in his cross-complaint sets forth certain allegations common to all causes of action; (1) that each cross-defendant is the agent and employee of each of the others; (2) that cross-defendant is in doubt as to whether he is entitled to recover from one or several or all of the named defendants and therefore they have all been joined.

In his first cause of action for declaratory relief, appellant incorporates by reference the allegations contained in his previous paragraphs and alleges that if he is liable for anything and must pay damages he is to be indemnified by the partnership and each general partner. He relies on California Corporations Code, section 15018(b). ¹

In his second cause of action for declaratory relief, appellant incorporates by reference the introductory paragraphs of his complaint into this cause of action. In this second cause of action appellant claims that if he is to be indemnified by the corporation and the general partners, it is pursuant to Corporations Code sections 15013, ² and 15015, ³ and by a contract implied in law.

Appellant's third cause of action for abuse of process incorporates by reference and includes in said third cause of action, the allegations heretofore incorporated into his first and second causes of action. In this third cause of action appellant claims the corporate defendant and certain of its members held a meeting and decided to file the corporate suit so as to bring pressure on appellant in order to effect a settlement of the partnership suit. He quotes from the minutes as follows:

" 'DAVE MURRAY raised the question as to why sue as homeowners if we have a partnership suit. Aren't we duplicating the suit? RUSSELL ROSEN replied, "This should be done to put more pressure on the builder; better to have more than one suit." ' "

Appellant claims that respondents were seeking to obtain a collateral advantage over the appellant.

In his fourth cause of action, appellant alleges conspiracy and incorporates the preliminary paragraphs heretofore set forth and all of the allegations of his third cause of action into the fourth.

A general demurrer to this first amended cross-complaint was filed, by some of the cross-defendants.

The demurrer to the cross-complaint was sustained as to the third and fourth causes of action, without leave to amend, and they were ordered dismissed. Appellant appeals from the order of dismissal.

The respondent herein, who has filed no briefs on this appeal, states in his demurrer to the first amended cross-complaint that the issue of abuse of process was decided by the trial court when it sustained a demurrer to appellant's answer to the complaint, wherein the affirmative defense of abuse of process was ordered stricken from the answer. This we glean from the clerk's transcript on appeal. Respondent makes no argument in regard to the conspiracy aspect of the alleged fourth cause of action.

In his opposition to the demurrer, appellant does not argue the conspiracy cause of action of his first amended cross-complaint.

DISCUSSION

The initial problem facing an appellate court is to determine whether the matter presented on appeal is one which the appellate court has jurisdiction to accept, so as to render an opinion. (Cal. Code Civ. Proc., § 904.1) ⁴ It is to be noted that the parties to the lawsuit hereinabove referred to as the partnership suit are the same as the parties herein referred to as the corporate suit. In the matter before us, the corporate suit, the lower court sustained the demurrer without leave to amend as to the third and fourth causes of action of appellant's first amended cross-complaint, and dismissed as to the parties named therein as cross-defendants. These same cross-defendants are such in the other causes of action remaining in the cross-complaint. In effect, the third and fourth causes of action were stricken from the cross-complaint. The lawsuit is still viable in the trial court no judgment having been rendered for or against either side herein.

At first blush the appeal would appear to be somewhat premature and contrary to the one judgment rule in California. (Lemaire v. All City Employees Assn., 35 Cal.App.3d 106, 110 Cal.Rptr. 507; Bank of America v. Superior Court, 20 Cal.2d 697, 128 P.2d 357; de Vally v. Kendall de Vally O. Co., Ltd., 220 Cal. 742, 32 P.2d 638; Mather v. Mather, 5 Cal.2d 617, 55 P.2d 1174; De Grandchamp v. Texaco, Inc., 100 Cal.App.3d 424, 160 Cal.Rptr. 899.)

It has also been held that an order sustaining a demurrer to a pleading in whole or in part, or dismissing it in whole or in part may only be reviewed on appeal from a final judgment. (Hibberd v. Smith, 39 Cal. 145; Carley v. Santa Rosa, 154 Cal.App.2d 213, 315 P.2d 905; Kennedy v. Owen, 85 Cal.App.2d 517, 193 P.2d 141.)

However, it would appear here as though we have that type of situation which lends itself to our jurisdiction even though the case is still in progress. The sustaining of the demurrer and dismissal of the third and fourth causes of action may be said to be a final judgment as to those parties in whose favor it was dismissed and against whom it was dismissed. (Cal. Code Civ. Proc., §§ 581d, ⁵ 904.1; Gruenberg v. Aetna Insurance Co., 9 Cal.3d 566, 108 Cal.Rptr. 480, 510 P.2d 1032; Beazell v. Schrader, 59 Cal.2d 577, 30 Cal.Rptr. 534, 381 P.2d 390; Diaz v. United California Bank, 71 Cal.App.3d 161, 139 Cal.Rptr. 314; Valvo v. University of Southern California, 67 Cal.App.3d 887, 136 Cal.Rptr. 865.)

A demurrer is a pleading (Code Civ. Proc., § 422.10) ⁶ with the primary function of testing the legal sufficiency of the pleading to which it is addressed, and only raises questions of law (Code Civ. Proc., § 589; Porten v. University of San Francisco, 64 Cal.App.3d 825, 134 Cal.Rptr. 839; 3 Witkin, Cal. Procedure (2d ed. 1971) Pleading, § 796, 35 seq.; Whitcombe v. County of Yolo, 73 Cal.App.3d 698, 141 Cal.Rptr. 189).

The demurrer does not test the evidence or any other matter, except the pleading, and it will lie where the defect appears on the face of the pleading. (Code Civ. Proc., § 430.10.) ⁷ The demurrer addressed to the cross-complaint in this action is said to be a general demurrer. (Code Civ. Proc., § 430.10, subd. (e); ⁸ Witkin, supra.)

All material and issuable facts properly pleaded are conditionally admitted for the purpose of testing the question of law raised by the demurrer. (Moncur v. Los Angeles, 68 Cal.App.3d 118, 137 Cal.Rptr. 239; Daar v. Yellow Cab Co., 67 Cal.2d 695, 63 Cal.Rptr. 724; Hoyem v. Manhatten Beach City School Dist., 22 Cal.3d 508, 150 Cal.Rptr. 1, 585 P.2d 851; Harman v. City and County of San Francisco, 7 Cal.3d 150, 101 Cal.Rptr. 880, 496 P.2d 1248; Stigall v. City of Taft, 58 Cal.2d 565, 25 Cal.Rptr. 441, 375 P.2d 289.)

A general demurrer is a vehicle whereby the entire pleading to which it is addressed is searched to find any material and necessary allegation to be missing. In effect a court trial is had...