Shank v. Los Gatos Associates

• Decision Date: 19 July 1961
• Citation: 14 Cal.Rptr. 726,193 Cal.App.2d 824
• Court: California Court of Appeals Court of Appeals
• Parties: Hazel R. SHANK, Plaintiff and Appellant, v. LOS GATOS ASSOCIATES, a limited partnership, Clayton Company, a co-partnership, Joseph M. McKiernan, Thomas B. Malatesta, et al., Defendants and Respondents. Civ. 19623.

Page 726

14 Cal.Rptr. 726

193 Cal.App.2d 824

Hazel R. SHANK, Plaintiff and Appellant, v. LOS GATOS ASSOCIATES, a limited partnership, Clayton Company, a co-partnership, Joseph M. McKiernan, Thomas B. Malatesta, et al., Defendants and Respondents.

Civ. 19623.

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

July 19, 1961.

Malcolm K. Campbell, San Jose, for appellant.

Rankin, Oneal, Luckhardt & Center, San Jose, for respondents Clayton Co. and Joseph McKiernan.

Kirkbride, Wilson, Harzfeld & Wallace, San Mateo, for respondent Los Gatos Associates.

BRAY, Presiding Justice.

The sole question on this appeal by plaintiff from an order striking certain portions of the amended complaint is whether that order is appealable.

Record.

The allegations of the amended complaint pertinent here follow: Defendant Los Gatos Associates owned certain real property in Los Gatos on which they had erected a super market and were remodeling an old warehouse building into 5 stores. As the result of certain representations alleged to have been made to Pherne and Everett Shrewsbury by Associates and the other defendants, by their agent and servant Thomas Malatesta, the Shrewsburys entered into a 5-year lease with Associates of one of said stores. These representations were knowingly false and made without any intention to perform them, and they have not been performed. The Shrewsburys operated a Stauffer reducing salon in the leased premises from August 1, 1956, to May 1, 1957, when they sold the business to plaintiff and her partner Price. The Shrewsburys also executed to plaintiff and Price a sublease at the same rental provided in the lease from Associates to Shrewsburys. As a result of the failure of Associates to perform as represented, so few customers came to the area that plaintiff and Price were forced to close their store. As assignee of Shrewsburys, plaintiff seeks $2,272.50 as being the difference in the rental value of the premises and the rental paid by the Shrewsburys under the terms of the lease, and plaintiff seeks in her own right and as assignee of her partner Price, $6,312.50, the difference between the rental paid and the fair rental value, and $35,478.50, being loss on fixtures, stock and franchise, cash put into the business, and time, labor and services of plaintiff and Price.

Defendants moved to strike all of the items of damage alleged except the $2,272.50 alleged excess rental payments by the Shrewsburys. The court, according to its memorandum of decision, held that the only cause of action alleged was that based on the Shrewsburys' assignment of alleged rents, and ordered all of the other items of damage, being those alleged to have been incurred by plaintiff and Price, stricken. (Defendants' general demurrer to the amended complaint was overruled.)

The order is nonappealable. The order is not one of those expressly mentioned in section 963, Code of Civil Procedure. Plaintiff concedes that usually such an order is not appealable. One of the latest cases so holding is Hill v. Wrather, 1958, 158 Cal.App.2d 818, 323 P.2d 567, stating that an order striking a cross-complaint and certain affirmative defenses in the answer and the counterclaim is interlocutory in character and reviewable only upon an appeal from the final judgment. (See Witkin, 3 Cal.Proc., p. 2151, Appeal, § 10, stating that the theory behind the rule is that a 'piecemeal disposition and multiple appeals in a single action would be oppressive and costly, and that a review of intermediate rulings should await the final disposition of the case.')

Plaintiff contends that the partnership damages are separate and distinct from those suffered by the Shrewsburys and that therefore the striking of the partnership damages from the amended complaint is to that extent a final judgment against her claims on behalf of the partnership, and therefore she contends the order is appealable under section 963 as a final judgment.

While, in a sense, there is finality to the order, as plaintiff may not at the trial of the assigned claim proceed further with her personal claim, such finality is not of the type considered by the courts to constitute a final judgment. In South v. Wishard, 1956, 146 Cal.App.2d 276, 282, 303 P.2d 805, 809, the court stated that Code of Civil Procedure, § 579 'authorized judgment to be entered in favor of some of the defendants while the action proceeds as to others, where a separate and several judgment may be rendered.' In our case, the claims set forth in the amended complaint are between the same parties and would be contained in the final judgment. Plaintiff's personal damages would not in any event be made a judgment separate and distinct from the judgment for the Shrewsburys' damages.

Howe v. Key System Transit Co., 1926, 198 Cal. 525, 246 P. 39, also is in point, as appears from the analysis made of it in Yandell v. City of Los Angeles, 1931, 214 Cal. 234, at page 235-236, 4 P.2d 947: 'Defendant relies mainly upon Howe v. Key System Transit Co., 198 Cal. 525, 246 Pac. 39, where an appeal from an order striking out a cross-complaint was permitted. In that case, however, the cross-complaint was filed by several defendants against other defendants, and the parties in the cross-action were, of course, not identical with those in the main action. The court held that, as to the cross-complaining defendants, the order was a final determination of their cause of action against the other defendants, and that it was severable from the judgment in the main action. In the instant case we have no such situation. Where the parties to both actions are the same, it cannot be said that such an order is a complete determination of the cause. The Howe case is distinguished on this ground in Merchants Nat. Bank v. Clark-Parker Co., supra [97 Cal.App. 757, 276 P. 387].' The Yandell case held that an order striking a cross-complaint was not appealable where the parties remaining in the action were the same as those in the cross-complaint. In Aetna Cas. & Surety Co. v. Pacific Gas & Elec. Co., 41 Cal.2d 785, 264 P.2d 5...