Tostevin v. Douglas

• Decision Date: 12 May 1958
• Citation: 160 Cal.App.2d 321,325 P.2d 130
• Court: California Court of Appeals Court of Appeals
• Parties: Bill TOSTEVIN, Plaintiff and Appellant, v. Jack DOUGLAS; and Jack Douglas Enterprises, Inc., a corporation, Defendants and Respondents. Civ. 22958.

Page 130

325 P.2d 130

160 Cal.App.2d 321

Bill TOSTEVIN, Plaintiff and Appellant, v. Jack DOUGLAS; and Jack Douglas Enterprises, Inc., a corporation, Defendants and Respondents.

Civ. 22958.

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

May 12, 1958.

Arthur M. Applebaum, Los Angeles, for appellant.

I. B. Kornblum, Los Angeles, David H. Kornblum, Beverly Hills, for respondents.

LILLIE, Justice.

This is an appeal from a judgment of dismissal following an order granting a motion to strike plaintiff's third amended complaint.

Plaintiff filed an action for declaratory relief and accounting on January 21, 1957. Thereafter he filed three verified amended complaints. In substance, they alleged that under an oral agreement entered into in May of 1954, defendants employed plaintiff to solicit and procure personnel and material for a series of travelog television shows at a fixed salary of $50 per week and that defendants repudiated the agreement and refused to be bound by it. Demurrers to the original, first and second amended complaints were sustained with leave to amend. Demurrer to the second amended complaint was sustained with directions that 'to the extent that allegations vary from those in previous verified complaint, such variation must be explained.' A third amended complaint was filed and the trial court granted defendants' motion to strike, 'no substantial amendment having been made and no explanation having been made of changes from former complaint.' The plaintiff having made no further amendment, the trial court entered its judgment of dismissal, from which this appeal is taken.

Appellant urges reversal of the judgment on the ground that the trial court abused its discretion in granting the motion to strike the third amended complaint and in ordering a dismissal of the action.

A review of the record discloses numerous changes in essential averments in the amended pleadings, none of which were ever explained or accounted for by the pleader. These unexplained changes constitute omissions, variations and contradictions in material allegations relating to the services required to be performed by plaintiff under the oral agreement, the termination date thereof and the time of defendants' repudiation.

Referring first to the services plaintiff was required to perform, the original complaint alleged that all services under the agreement were to be paid for by defendants--in the first amended complaint, all were to be performed voluntarily without compensation--and in the second and third amended complaints, only his services in securing personnel and material were to be paid for. More specifically, in his original complaint, plaintiff was to 'solicit, procure and obtain personnel and material' for a series of travelog shows and 'to conduct, supervise, prepare and produce the publicity and advertising of such travelog shows,' for which 'such services' he was to receive $50 per week. In the first amended complaint, plaintiff alleged that under the oral agreement his services of 'conducting, supervision, preparation and production of publicity and advertising of and for said travelog shows, was agreed by said parties to be entirely voluntary upon the part of the plaintiff,' for which he was not to be paid; and in the next paragraph further alleged that his sole duties under the agreement 'were to contact such personnel and locate such material and refer such personnel' to defendants, 'except, that plaintiff was to perform such duties upon a voluntary basis, without compensation.' A fair reading of this complaint leaves plaintiff without compensation for any services to be performed under the agreement. The second and third amended complaints eliminated any reference to publicity and advertising; completely ignored the allegation in the first amended complaint that plaintiff's services of contacting personnel and locating material were to be voluntary and without compensation; and alleged that plaintiff was to be paid for them at a salary of $50 per week.

In a similarly ambiguous and contradictory state we find plaintiff's allegations relating to the time of defendants' repudiation of the agreement. In both the original and first amended complaints, plaintiff alleged that since May, 1954, immediately after the agreement was entered into, defendants refused to recognize plaintiff as the solicitor of personnel and material and as the producer of advertising and publicity under the agreement; and since May, 1954, refused to deal further with him. Plaintiff in his second and third amended complaints presented an entirely new version of when the repudiation took place, completely omitting any reference to prior allegations that defendants repudiated the agreement since May, 1954, and alleged for the first time that from May, 1954, to October, 1955, plaintiff performed certain services under the agreement and 'That thereafter plaintiff demanded his compensation pursuant to said agreement, but the defendants refused to meet such demands.' (Emphasis added.)

These variations and omissions are most serious because of the application of the statute of limitations. Plaintiff in his original complaint and first amended complaint swears that defendants repudiated the agreement since May, 1954, immediately after it was entered into; and in his second and third amended complaints, without any explanation therefor, he advanced the date of repudiation to October, 1955, a year and five months later. It is immediately obvious that, if plaintiff is to be bound by the allegations of fact in his prior verified complaints, if he had a cause of action for breach of the oral agreement, it was barred by the two-year statute of limitations when the original complaint was filed on January 21, 1957. Code Civ.Proc. § 339, subd. 1.

Equally serious are plaintiff's changes in various allegations relating to the termination date of the agreement. In his original complaint he alleged he was to receive compensation for his services in the sum of $50 per week, commencing June 1, 1954, and 'continuing for an indefinite period' as long as the personnel and material procured by plaintiff are used on television throughout the world; and that defendants have been producing shows since May, 1954. No reference was made in this complaint to the term of employment under the agreement. Plaintiff's first amended complaint alleged that his 'said employment was to continue for an indefinite period of time' to be determined by the length of time the series is shown on television and that his compensation of $50 per week was to continue for the same 'indefinite period.' Plaintiff in his second amended complaint eliminated the phrase 'for an indefinite period of time' in connection with his employment and compensation and added a new account of how and when the agreement could be terminated. He alleged that his employment was to continue as long as the series was acceptable to and exhibited on television stations, either on a sustaining basis or as a commercial show paid for by a commercial sponsor; and for the first time plaintiff alleged that his services shall 'continue until terminated by mutual agreement.' His compensation for such services was to continue as long as the shows were exhibited on television. He also alleged that since May, 1954, defendants have been producing the series. The third amended complaint used the exact wording of the second except plaintiff added the following: 'In other words, the plaintiff and the defendants agreed that as long as said series of travelog shows were marketable in that one or more commercial sponsors would show them for a consideration to be paid to the defendants, the plaintiff was to continue searching for, and continue to solicit, procure and obtain personnel and material for such series of travelog shows and the exhibition thereof as aforesaid.' In the next paragraph with reference to compensation, plaintiff followed the wording of the second amended complaint, but added this language: 'In other words, the plaintiff and the defendants agreed that as long as said series of travelog shows were marketable in that one or more commercial sponsors would show them for a consideration to be paid to the defendants, the plaintiff was to receive weekly compensation as herein set forth.'

Throughout these various pleadings, numerous material facts alleged under oath have been withdrawn from consideration, entire allegations have been omitted, and variations and changes in essential allegations resulting in contradictions and ambiguity have been effected; all without any explanation or justification. It is well settled that facts once alleged under oath cannot be withdrawn from consideration by merely filing an amended pleading eliminating them without explanation. Tognazzi v. Wilhelm, 6 Cal.2d 123, 56 P.2d 1227. The court, in Pike v. Archibald, 118 Cal.App.2d 114, at page 118, 257 P.2d 480, at page 483, commented: 'As stated in respondent's brief, 'appellant should not be allowed to breathe life into a complaint by omitting facts, previously alleged in a verified pleading, which made it fatally defective.'' Similar language is found in Lee v. Hensley, 103 Cal.App.2d 697, 230 P.2d 159; Wennerholm v. Stanford University School of Medicine, 20 Cal.2d 713, 128 P.2d 522, 141 A.L.R. 1358; Williamson v. Joyce, 137 Cal. 151, 69 P. 980; Neet v. Holmes, 25 Cal.2d 447, 154 P.2d 854; Neal v. Bank of America, 93 Cal.App.2d 678, 209 P.2d 825.

In permitting a third amendment, the court required that the complaint contain a substantial amendment. The result was the addition of that portion beginning 'In other words,' which was only a reiteration and repetition of the facts set out in the allegations in the second amended complaint previously questioned. No attempt was made in the third amended complaint to state new facts or to explain any variations. It was no more clear and free from defects,...