Taliaferro v. Taliaferro
| Decision Date | 18 October 1957 |
| Citation | 154 Cal.App.2d 495,316 P.2d 393 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Dorothy D. TALIAFERRO, Plaintiff and Respondent, v. Eugene A. TALIAFFERRO, Defendant and Appellant. Civ. 17153. |
Eugene A. Taliaferro, San Pablo, appellant in pro. per.
Masterson & Edwards, Masterson, Bernheim & Sugarman, Richmond, for respondent.
This action is one of a series arising from the property settlement agreement executed by the parties in 1943. In 1949 an action was filed by plaintiff, the former wife, for amounts alleged to have accrued to her under this agreement. Defendant, the former husband, cross-complained for declaratory relief and for the amount of alleged overpayments and other amounts alleged to be due him. The action was fully tried. The court determined that the agreement, as later modified by the parties, required payment of $275 per month, to be reduced by $75 per month during periods when the daughter who had not yet reached majority should not be with the mother. The judgment fixed the amounts due to plaintiff, allowed certain offsets to defendant, and awarded the net difference to plaintiff. This judgment determined the obligations of the parties as of September 30, 1952. Defendant appealed and the judgment was affirmed. Taliaferro v. Taliaferro, 125 Cal.App.2d 419, 270 P.2d 1036.
The complaint in the present action is for amounts claimed to have accrued since that determination. Defendant filed an 'Answer, Counterclaim and Cross-Complaint.' The answer admits execution of the property settlement agreement, but denies that anything is due under it, and pleads nine 'special defenses,' all of which are claims aginst plaintiff by way of offset. The 'counterclaim' sets up four claims against plaintiff, each for an amount in excess of her claim. The 'cross-complaint' alleges ten claims, four of which duplicate the four 'counterclaims.' The remaining six seek a declaration of the rights and duties of the parties under the property settlement agreement, and recovery of allegedly excessive payments made thereunder by defendant.
Without filing an answer to the 'cross-complaint,' plaintiff moved for summary judgment. This motion was granted as to all but two of the issues raised by defendant's pleading. As to these two issues, the case was later tried. Judgment was for plaintiff, and defendant appeals.
The principal question presented is whether the motion for summary judgment was properly filed in the absence of an answer to the 'cross-complaint.' The 1957 amendment to Section 437c, Code of Civil Procedure (Stats. 1957, Ch. 1457), did not become effective until the day following oral argument of this appeal. It is apparent that the section as it stood before this amendment governs here. That section provided for motion for summary judgment in an action only 'when an answer is filed.' Respondent suggests that this requires only an answer to the complaint, and not to a cross-complaint. In view of the established rule that the function of the summary judgment procedure is issue finding, rather than issue determination (Walsh v. Walsh, 18 Cal.2d 439, 116 P.2d 62), it would appear that the statute contemplated that the case should be at issue as to both cross-complaint and complaint as a condition precedent to motion by plaintiff for summary judgment. We do not determine this question, since it apparently will not arise under the 1957 amendment. We assume, for purposes of this opinion only, that answer to a true cross-complaint is such a condition precedent.
The question then becomes whether the 'cross-complaint' here was such in law. A cross-complaint requires an answer. Code Civ.Proc. § 442. A counterclaim requires no answer, and its allegations are deemed controverted without further pleading. Code Civ.Proc. § 462.
Under the California statutes, there is a broad area in which there is no true distinction between a cross-complaint and a counterclaim. The cross-complaint affords a broader remedy only in the sense that it may be used to bring new parties into the action (Code Civ.Proc. § 442) whereas the counterclaim must 'exist in favor of a defendant and against a plaintiff between whom a several judgment might be had in the action,' (Code Civ.Proc. § 438). While the counterclaim 'must tend to diminish or defeat the plaintiff's recovery,' (Code Civ.Proc. § 438) the code specifically authorizes recovery of an affirmative judgment by defendant where his counterclaim exceeds plaintiff's demand (Code Civ.Proc. § 666). A cross-complaint may be filed only when the affirmative relief sought by defendant constitutes a claim 'relating to or depending upon the contract, transaction, matter, happening or accident upon which the action is brought.' Code Civ.Proc. § 442. Since 1927, there has been no comparable limitation upon the counterclaim, which merely need tend to diminish or defeat plaintiff's recovery. Code Civ.Proc. § 438. Where, as in the case at bar, defendant's claim is based upon the very transaction sued on by plaintiff, tends to defeat plaintiff's claim, and involves only the original parties, defendant's claim may be deemed either a cross-complaint or a counterclaim. (3 Stan.L.R. 99; 2 Witkin, Calif.Proc., § 571.) This situation has caused much confusion, which the case law has attempted, with only moderate success, to clear. The true nature of the pleading will be determined from its allegations, regardless of its designation by the pleader as cross-complaint or counterclaim. Terry Trading Corp. v. Barsky, 210 Cal. 428, 434, 292 P. 474, and see cases collected in 2 Witkin, Calif.Proc. § 570. Where the allegations show that the pleading may be either a cross-complaint or a counterclaim, it will be deemed to fall within the classification best designed to reach the most desirable result in the particular case. (2 Witkin, Calif.Proc. 1576.) In general, the pleading will not be treated as requiring an answer, thus avoiding default (see cases collected at 3 Stan.L.R. 101). (It should be noted that a different rule appears to be applied when a party relies upon Code Civ.Proc. § 439 to bar an action on the ground that it should have been...
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...in a subsequent action commenced by her against appellant. Judgment in her favor was affirmed on appeal. (Taliaferro v. Taliaferro, 154 Cal.App.2d 495, 316 P.2d 393.) Thereafter, in Taliaferro v. Taliaferro, 171 Cal.App.2d 1, 339 P.2d 594, this court was called upon to review the action of ......
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