Vincent v. Grayson

Decision Date27 February 1973
Citation30 Cal.App.3d 899,106 Cal.Rptr. 733
CourtCalifornia Court of Appeals Court of Appeals
PartiesGordon VINCENT, Plaintiff and Respondent, v. Paul GRAYSON et al., Defendants and Appellants. Civ. 1564.

FRANSON, Associate Justice.

Appellants appeal from a judgment entered against them in a joint debtor proceeding pursuant to Code of Civil Procedure section 989 et seq.

On July 14, 1965, three 'advertising contracts' were executed by Tratel Fresno, Inc., by Darrel A. Stark, its president, and Bud, Thackrah, as advertisers, and accepted by respondent on behalf of Vincent Signs. The contracts called for respondent to maintain in good condition for a period of 36 months, at a specified monthly payment, outdoor advertising boards at various locations. Each contract contained the following provisions:

'In the event that suit is instituted to enforce this contract, or any part thereof, we promise to pay a reasonable attorney's fee in such suit in addition to the costs allowed by law, and agree that if any monthly payment remains in default for thirty (30) succeeding days, then at the option of the VINCENT SIGNS the entire balance due under this agreement shall immediately become due and payable OR and VINCENT SIGNS may discontinue the services and/or sue for the time used.'

On January 31, 1966, respondent filed a suit against Tratel Fresno, Inc., Bud Thackrah, and Does I through X. The complaint alleged three causes of action, each based upon one of the advertising contracts, copies of which were attached to the complaint. Each cause of action pleaded that 'Plaintiff And defendants entered into a contract in writing . . .' (emphasis added), and alleged that the defendants were in default of their installment obligations, that plaintiff exercised his option to declare all future installments payable immediately, that 'Plaintiff has performed all conditions on his part under said contract to be performed precedent to the obligation of defendants and each of them to pay the above amounts,' and that the total unpaid contract price plus interest at 7 per cent and reasonable attorney's fees were presently due from the defendants.

On March 17, 1966, after proof of service of summons and a copy of the complaint on Tratel Fresno, Inc. and Thackrah, and their failure to answer within the time allowed, their defaults were entered. On March 24, 1966, a default hearing was held before a judge of the superior court, at which time respondent introduced the original contracts into evidence. No other evidence was introduced at the hearing. A judgment was entered against Tratel Fresno, Inc. and Thackrah for the total unpaid contract price of $11,545, $1,725 attorney's fees, $140.27 interest and $30,50 costs.

After entry of the default judgment, respondent learned of the existence of a partnership between Tratel Fresno, Inc., Gus Ravetz, Paul Grayson, Gerald Grayson, and L. C. Plowman, organized for the purpose of operating a trailer park, and was informed that the contracts upon which the default judgment was based were entered into by Tratel Fresno, Inc. on behalf of the partnership.

Respondent was granted leave to amend his complaint to substitute Tratel Fresno, a copartnership, for Doe I, Gus Ravetz for Doe II, Paul Grayson for Doe III, Gerald Grayson for Doe IV, and Plowman for Doe V. Respondet initiated joint debtor proceedings against these parties by filing declarations under penalty of perjury wherein he alleged the existence of the partnership and that the contracts were entered into by Tratel Fresno, Inc. as one of the partners on behalf of the partnership, and as a consequence Ravetz, Paul and Gerald Grayson and Plowman were jointly liable with Tratel Fresno, Inc. and Thackrah on the unsatisfied default judgment. 1

Pursuant to Code of Civil Procedure section 989 et seq., summons was issued and served on Ravetz, the two Graysons, and Plowman, ordering them to show cause why they should not be bound by the judgment in the same manner as though they had been originally served with summons. The parties answered and asserted most of the defenses raised on this appeal, including the defense that under the joint debtor proceedings they were required to defend a cause of action upon a partnership debt for which no judgment was entered. The answer also alleged that the purported liquidated damage clauses in the advertising contracts were forfeiture provisions and unlawful, and that the default judgment should not be enforced against them.

Gus Ravetz died on February 14, 1968; Miriam Ravetz, as executrix of his last will, was substituted in his place as a defendant in the joint debtor proceedings.

The cause proceeded to trial on October 2, 1969, after which the court made its findings of fact to the effect that each of the contracts was entered into by Tratel Fresno, a partnership, by Tratel Fresno, Inc., and that in signing the contracts Tratel Fresno, Inc. did so on behalf of the partnership in which Ravetz and Paul and Gerald Grayson were partners. No finding was made that Tratel Fresno, Inc. was acting as an agent for Ravetz or the Graysons when it signed the contracts. Plowman was found not to be a partner. The court concluded that the partnership and Ravetz and Paul and Gerald Grayson were jointly liable to respondent on the contracts, and rendered judgment against them for the amount of the default judgment together with accrued interest at the rate of 7 per cent per annum from March 25, 1966. Miriam Ravetz and Paul and Gerald Grayson timely appealed from the judgment. The partnership did not appeal.

The following questions are presented:

(1) Did the trial court err in allowing respondent to amend his complaint after judgment to substitute the true names of Ravetz and Paul and Gerald Grayson, so as to make them parties to the action?

(2) Can respondent enforce the default judgment against these parties on a cause of action for a partnership debt?

(3) Were the damages awarded at the default hearing erroneous as a matter of law, and if so is this 'cause' why the judgment should not be enforced?

Appellants' contention that the trial court lacked jurisdiction to allow an amendment to the complaint to substitute the true names of the fictitious defendants after the default judgment had become final is answered by Code of Civil Procedure section 993, which allows amendments to the pleadings in a joint debtor proceeding 'as in other cases.' The statute continues the court's jurisdiction over the joint obligors not served with process for the limited purpose of enforcing the judgment. (See Code Civ.Proc. § 989 et seq.; Fried v. Municipal Court, 94 Cal.App.2d 376, 210 P.2d 883; McRae v. Bates, 196 Cal.App.2d 510, 16 Cal.Rptr. 565.)

Respondent complied with the requirements of Code of Civil Procedure section 474 in alleging that he was ignorant of the true names of the fictitious defendants, and when their true names were discovered he amended the complaint to show their true names. This procedure is authorized when a plaintiff either does not know the true names of the defendants or is ignorant of the facts giving rise to a cause of action against them. (Austin v. Massachusetts Bonding & Ins. Co., 56 Cal.2d 596, 600, 15 Cal.Rptr. 817, 364 P.2d 681; Johnson v. Goodyear Tire & Rubber Co., 216 Cal.App.2d 133, 137, 30 Cal.Rptr. 650; 3 Witkin, Cal.Procedure (2d ed.) § 368, pp. 2030--2031.) 2

In order to enforce the default judgment against fictitious defendants, the complaint must state a joint liability cause of action against them. (Code Civ.Proc. § 989; McRae v. Bates, Supra, 196 Cal.App.2d 510, 16 Cal.Rptr. 565; Fried v. Municipal Court, Supra, 94 Cal.App.2d 376, 378, 210 P.2d 883.) Respondent alleged that plaintiff And defendants entered into the contracts sued upon. The contracts expressly provide: 'I/We hereby promise and agree to pay Vincent Signs . . .' This language imparts a joint and several obligation. (See Civ.Code §§ 1430, 1431, 1659, 1660; 1 Witkin, Summary Cal.Law (7th ed.) Contracts, § 213, p. 243.) The fact the contracts are not signed by appellants is not determinative of whether a joint cause of action is stated against them. A plaintiff need allege only the ultimate fact of the making of the contract by the principal without alleging either the fact of agency or the agent's authority, to state a cause of action for breach of contract against a principal. (See House Grain Co. v. Finerman & Sons, 116 Cal.App.2d 485, 253 P.2d 1034; Pfaff v. Fair-Hipsley, Inc., 232 Cal.App.2d 274, 42 Cal.Rptr. 624.) The allegations would permit proof that the contracts were signed by Tratel Fresno, Inc. as agent for appellants.

The amendment substituting the true names of the fictitious defendants was proper, and they are deemed parties to the original action. (Nissan v. Barton, 4 Cal.App.3d 76, 78--79, 84 Cal.Rptr. 36.)

We turn now to the question whether the default judgment can be enforced against appellants by proof that the contracts were entered into by Tratel Fresno, Inc. on behalf of the partnership and in the course of partnership business. As stated in Fried v. Municipal Court, Supra, 94 Cal.App.2d 376, 378, 210 P.2d 883, 884:

'A judgment against a joint debtor must be based upon the same cause of action as that on which the judgment was entered. In a joint debtor proceeding the complaint must be examined for the purpose of determining the obligation on which the original judgment was entered. The entire proceeding is statutory and exclusive and is in the nature of an action on the judgment. (Cooper v. Burch, 140 Cal. 548, 551 (74 P. 37).)'

The test to be applied in determining whether a different cause of action is introduced is not whether under technical rules of pleading a new...

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