Wilson v. Bittick

• Decision Date: 24 June 1965
• Citation: 45 Cal.Rptr. 31,63 Cal.2d 30,403 P.2d 159
• Court: California Supreme Court
• Parties: , 403 P.2d 159 Harry Jerome WILSON, Plaintiff and Appellant, v. E. H. BITTICK et al., Defendants and Respondents. L. A. 28303.

Page 31

45 Cal.Rptr. 31

63 Cal.2d 30, 403 P.2d 159

Harry Jerome WILSON, Plaintiff and Appellant, v. E. H. BITTICK et al., Defendants and Respondents.

L. A. 28303.

Supreme Court of California, In Bank.

June 24, 1965.

John J. Guerin, Los Angeles, for plaintiff and appellant.

Lauren M. Handley, Los Angeles, for defendants and respondents.

MOSK, Justice.

In this action for damages for the use and occupancy of a parcel of land plaintiff appeals from a summary judgment entered in favor of defendants Bittick and Frakes. ¹

This is but one more step in apparently interminable litigation begun some 13 years ago over the title to and rents or profits from a half section of unimproved farmland in Los Angeles County. The principal protagonists in this wordy drama are plaintiff and Burton A. Browne, each of whom claimed sole ownership of the disputed parcel; assuming the roles of innocent spectators are Bittick and Frakes, brothers-in-law who dry-farmed the land from 1943 to 1958 assertedly under leases from Browne and his predecessor.

The present action is the fourth to be filed in this litigation. ² On December 3, 1952, Browne began matters by suing to quiet title to the half section of land (Los Angeles Superior Court No. 606.910). Plaintiff answered and denied Browne's title, but on December 4, 1957, the action was dismissed for want of prosecution (Code Civ.Proc. § 583).

On December 13, 1957, Browne filed a second suit to quiet title against plaintiff and others (No. 692,013). On September 8, 1958, plaintiff filed an amended answer claiming ownership of the entire half section. On the same day, however, the question of title was settled by a stipulated judgment in which plaintiff and Browne divided the half section equally between them, plaintiff taking the eastern quarter and Browne the western quarter. The judgment debarred each party 'from ever asserting any right, title, interest, * * * claim or demand in or to' the parcel owned by the other.

Meanwhile, on January 3, 1958, plaintiff filed an action in ejectment against Frakes and several Does (No. 693,039), claiming ownership of the entire half section, alleging that the defendants had been unlawfully in possession since 1953, and seeking damages for 'rents' for the period from January 1955 to January 1958, plus exemplary damages. Both Frakes and Bittick answered, admitting possession but denying plaintiff's title and alleging their right to hold the property as tenants under a lease from Browne. Plaintiff objected to Bittick's appearance, but on January 30, 1958, the court on Bittick's motion ordered the latter brought into the case as an indispensable party defendant. Four days later, however, plaintiff voluntarily dismissed the action as to Bittick. Accordingly, the court thereafter granted Frakes' motion to dismiss the action as to him because of plaintiff's failure to join an indispensable party (Code Civ.Proc. § 389). Plaintiff appealed. In affirming the judgment of dismissal the District Court of Appeal added thereto the qualification that it was 'without prejudice,' as required by section 389. (Wilson v. Frakes (1960) 178 Cal.App.2d 580, 585, 3 Cal.Rptr. 434.) ³

On December 16, 1958, plaintiff filed the present action against Browne, Bittick, and Frakes (No. 713,749). In his original complaint plaintiff claimed ownership of the eastern quarter only; alleging that within the three previous years (i. e., December 16, 1955, to December 16, 1958) the defendants wrongfully entered such property and harvested crops, plaintiff prayed for both compensatory and exemplary damages. After a demurrer was sustained plaintiff filed a first amended complaint. Bittick and Frakes answered, (1) denying plaintiff's title prior to September 8, 1958, the date of the stipulated judgment in the second quiet title action; (2) claiming the right to hold the land during the period in question as tenants under a lease from Browne; ⁴ (3) declaring that they had impounded the rents for the years 1957 and 1958, and praying that the court determine to whom and in what proportions such money should be paid; (4) alleging that in the prior ejectment action (No. 693,039, then on appeal) the same issues were presented and judgments of dismissal were entered as to them; and (5) by amended answer, adding the defense of the statute of limitations.

On April 16, 1963, plaintiff filed a second amended complaint, now claiming ownership of the entire half section from January 12, 1953, to September 11, 1958. Again alleging that in the three years preceding the filing of the original complaint the defendants wrongfully entered such property and harvested crops, plaintiff prayed for compensatory and exemplary damages.

After interposing a demurrer, Bittick and Frakes filed a motion for summary judgment, principally on the grounds of vexatious litigation, res judicata, and the statute of limitations. The notice of motion incorporated by reference the files of the three previous superior court actions in these proceedings. The court took judicial notice of such files and granted summary judgment 'for all the reasons set forth in the Notice of Motion,' striking plaintiff's second amended complaint as to Bittick and Frakes and ordering the action dismissed as to them.

We recently reviewed the powers and duties of trial courts in ruling on motions for summary judgment: 'The matter to be determined by the trial court in considering such a motion is whether the defendant (or the plaintiff) has presented any facts which give rise to a triable issue. The court may not pass upon the issue itself. Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue. The aim of the procedure is to discover, through the media of affidavits, whether the parties possess evidence requiring the weighing procedures of a trial. In examining the sufficiency of affidavits filed in connection with the motion, the affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. Such summary procedure is drastic and should be used with caution so that it does not become a substitute for the open trial method of determining facts.' (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 A.C. 427, 431-432, 4i Cal.Rptr. 449, 452, 398 P.2d 785, 788.)

In the case at bar plaintiff's counteraffidavit raised a number of triable issues of fact, such as the ownership of the property during the years in question, the right to collect rents or profits therefrom, the continued use and occupancy of the property by Bittick and Frakes after plaintiff assertedly gave notice of his title, and the value of the crops harvested. Accordingly, unless the trial court was correct in ruling that Bittick and Frakes had a complete defense on one or more theories of law, the motion for summary judgment should not have been granted. We turn now to a consideration of those theories.

It is first urged in support of the judgment that the present action constitutes harassing and vexatious litigation which plaintiff should be denied the right to prosecute. The facts do not adequately support this contention. Of the four suits brought thus far to adjudicate the title to and profits from this property, the first two were instituted by Brown and only the last two by this plaintiff. The claim of vexatiousness must therefore rest upon the fact that it was plaintiff's voluntary act of dismissing the ejectment action as to an indispensable party which caused that action to be prematurely terminated, making another action necessary to reach the merits of the controversy. But the governing statute (Code Civ.Proc. § 389, par. 3) expressly provides that in cases of refusal to comply with an order to bring in an indispensable party, which in effect is what happened here, the court 'shall dismiss without prejudice' all causes of action to which such party is indispensable. After a dismissal 'without prejudice,' of course, a new lawsuit asserting the same causes of action but joining the indispensable party may be instituted as a matter of right within the period of limitation.

For similar reasons the doctrine of res judicata cannot be invoked. A judgment on the merits is a mandatory prerequisite to applicability of that doctrine (Bernhard v. Bank of America (1942) 19 Cal.2d 807, 810, 813, 122 P.2d 892) and no such judgment was entered in the ejectment action. The involuntary dismissal which terminated that proceeding was in no sense a ruling on the substance of plaintiff's claim (cf. Gonsalves v. Bank of America (1940) 16 Cal.2d 169, 172-173, 105 P.2d 118; Ensher v. Ensher, Alexander & Barsoom (1960) 187 Cal.App.2d 407, 411, 9 Cal.Rptr. 732; Kinley v. Alexander (1955) 137 Cal.App.2d 382, 387, 290 P.2d 287); on the contrary, the decision in Wilson v. Frakes (1960) supra, 178 Cal.App.2d 580, 3 Cal.Rptr. 434, settled as the law of this case plaintiff's right to file another action for the precise purpose of obtaining a judgment on the merits (Code Civ.Proc. § 389,) par. 3).

The third ground urged in support of the summary judgment is that the action is barred by the statute of limitations. This contention appears the most plausible, but upon analysis it too fails to find support in the facts. The applicable periods of limitation are three years for an action for trespass upon or injury to real property (Code Civ.Proc. § 338, subd. 2) and five years for an action for mesne profits (Code Civ.Proc. § 336). Neither statute barred plaintiff's original complaint, filed on December 16, 1958, in which damages were sought for the immediately preceding three years. That complaint, however, charged defe...