Opinion
Hearing Denied by Supreme Court Aug. 17, 1966.
Joseph W. Fairfield and Ethelyn F. Black, Beverly Hills, for petitioners.
No appearance for Respondent.
David Pick and Jerry Miller, Beverly Hills, for real party in interest.
Assigned by the Chairman of the Judicial Council.
Advance Report Citation: 242 A.C.A. 1033, 1038.
Petitioners, defendants in the case of Mesler v. Kandel, number 852667, in the respondent court, seek a peremptory writ of mandate directing that court to vacate its order of May 13, 1966 sustaining plaintiff's demurrer to "the defendants' affirmative defense of res judicata in a pending action" and to overrule the demurrer. By his answer real party in interest opposes the granting of the petition.
There is no doubt that "Where it appears that the trial court has made a ruling which deprives a party of the opportunity to plead his cause of action or defense, relief by mandamus may be appropriate to prevent a needless and expensive trial and reversal. (Souza & McCue Constr. Co. v. Superior Court, 57 Cal.2d 508, 20 Cal.Rptr. 634, 370 P.2d 338; Carter v. Superior Court, 142 Cal.App.2d 350, 359, 298 P.2d 598.)" (Tate v. Superior Court, 213 Cal.App.2d 238, 251, 28 Cal.Rptr. 548, 555.) The petitioner in Carter v. Superior Court sought a writ of mandate to compel the respondent court to entertain his defense of res judicata which had been struck from his answer. On granting the writ the court said: "Ordinarily, a writ of mandate will not lie to correct an error committed by another court, but here it is clear that the trial court did err in striking petitioner's 3rd separate defense; and it is further clear that petitioner will not, under the present state of the proceedings, be able to assert his defenses, and that the court's error, if judgment were rendered in favor of the plaintiff, would necessarily result in reversal upon an appeal."
Since the application for the writ is on notice to both the respondent court and the real party in interest, it is proper for us to determine now whether a peremptory writ should be issued in the first instance (Code Civ.Proc., § 1088).
Rule 56, California Rules of Court, provides that "[a] petition to a reviewing court for a writ of mandate, certiorari, or prohibition, or for any other wit within its original jurisdiction, must be verified and shall set forth the matters required by law to support the petition * * * " The petition must, of course, set forth the grounds for the relief sought (3 Witkin, Cal.Procedure, Extraordinary Writs, § 56, p. 2455), but that is not all. Thus, it has been held that when a writ of mandate is sought to compel a superior court to make an order different from that which it has entered, the record upon which the court acted in coming to its conclusion should be presented with the petition. (Charles L. Donohoe Co. v. Superior Court, 79 Cal.App. 41, 248 P. 1107.) As the court said in Favorite v. Superior Court, 52 Cal.App. 316, 318, 198 P. 1004, 1005, in order to determine whether the action of the trial court "was without justification, it is necessary that it be made to appear what particular matters were before the court upon the hearing of the order to show cause. The petition shows merely that the matter came on for hearing, and that the order was dismissed. Whether the adverse parties appeared, and as to what objections might have there been urged against the order as made, if any, we are not advised, and this condition of the petition affords sufficient reason in itself why peremptory writ should be withheld." Again, in Rose v. Superior Court, 44 Cal.App.2d 599, 601, 112 P.2d 713, a petition for a writ of prohibition was denied "for the reason that it does not even purport to give all the proceedings had in the respondent court, but only such portions of the pleadings, affidavits and proceedings as the petitioner wants to direct our attention to. Only the conclusion of petitioner is given as to what the controversy is about * * *. Under the facts alleged in the petition, it is impossible In re Rapken,
The petition here does not measure up to these requirements. Taken by its four corners we have concluded "that a proper case was not made out for the use of the writ." (Gubin v. Superior Court, 104 Cal.App. 331, 333, 285 P. 1071, 1072.)
The main thrust of petitioners' argument is that they have an "absolute defense" to the present action under the doctrine of res judicata and collateral estoppel by reason of the verdict of the jury in another action in the respondent court determining the liability of petitioners on the notes on which the real party in interest seeks to recover here.
"The doctrine of res judicata rests upon the ground that the party to be affected, or some other with whom he is in privity, has litigated, or had an opportunity to litigate the same matter in a former action in a court of competent jurisdiction, and should not be permitted to litigate it again to the harassment and vexation of his opponent. Public policy and the interest of litigants alike require that there be an end to litigation." (Panos v. Grat Western Packing Co., 21 Cal.2d 636, 637, 134 P.2d 242, 243.) As the court said in Panos, quoting from 2 Freeman on Judgments, page 1425, section 676: "Where the cause of action in the second action is the same as that in the first action, a final judgment in the latter upon the merits is a complete bar to the maintenance of the second action." The doctrine of res judicata has a double aspect: (1) it 'precludes parties or their privies from relitigating a cause of action that has been finally determined by a court of competent jurisdiction.' (2) 'Any issue necessarily decided in such litigation is conclusively determined as to the parties or their privies if it is involved in a subsequent lawsuit on a different case of action.' (Bernhard v. Bank of America, 19 Cal.2d 807, 810, 122 P.2d 892, 894; see Taylor v. Hawkinson, 47 Co., Ltd., 58 Cal.2d. 601, 604, 25 Cal.Rptr. 559, 560, 375 P.2d 439, 440.)
Petitioners here complain that the trial court erroneously sustained a demurrer to their amended supplemental answer, a copy of which is attached to their petition. It is there alleged that in the case of Sam Mesler v. Sepulveda Condominium Corp., superior court action number 847414, in which they were defendants, "there was placed before the jury for consideration and determination the following issues: 1. The liability of defendant Maurice Kandel to the plaintiff Mesler on the note which is annexed It is next alleged in the petition that on January 18, 1965, the same Sam Mesler commenced action number 852667 in the respondent court wherein, by his first amendment complaint he seeks "to recover the sum of $100,000.00 on either of four theories:" (a) on the notes executed by the petitioners on May 1, 1964; (b) for money lent; (c) for money had and received; or (d) for fraud. This is no more than the conclusion of the petitioners as to what the present controversy is about. (Rose v. Superior Court, 44 Cal.App.2d 599, 112 P.2d 713.) They allege that the notes were the same ones which were in evidence in the first action.
In their points and authorities filed in support of the petition counsel say: "In support of the demurrer to the amended supplemental answer, real party in interest argued that the trial of action 847,414 was limited only to the issues set forth in the pre-trial order of that action. Of course the statement that the issues tried in action 847,414 are not the same as the issues in the present cause is only the opinion of plaintiff's counsel. Defendants contend that they were the same and this question should be resolved by the competent evidence in the trial of the action." In making this argument counsel for petitioners overlook the fact that their opinion as to the similarity of the issues in the two cases carries no greater weight here than the opinion of their opponents to the contrary.
Whether the issue of petitioners' liability on the two notes was decided in the first case depends on the record of that case. We glean from the meagre allegations of the petition here that the first action was brought by Mesler, as owner of a note for $220,000, executed by Sepulveda Condominium Corp. payable to Maurice Kandel, secured by a deed of trust, to foreclose the deed of trust; that in that action Maurice Kandel filed a cross complaint alleging that Mesler held the $220,000 note and deed of trust only as security for Kandel's indebtedness to Mesler in the sum of $100,000; and that the recording of the deed of trust and institution of the foreclosure action by Mesler, claiming to be the owner thereof, constituted a conversion, to Kandel's damage in the sum of $120,000, being the value of the note executed by Sepulveda Condominium Corp. less Kandel's admitted indebtedness to Mesler in the sum of $100,000. It further appears from the petition that in answer to the cross complaint Mesler admitted that he held the note only as security for Kandel's obligation, that Mesler dismissed his foreclosure complaint, and that the action went to trial on Kandel's cross complaint.
At the trial of the first action it was apparently conceded that the two notes signed by the Kandels, each in the sum of $100,000, evidenced a single obligation to Mesler in that amount. It appears from the petition here that the following instruction was given to the jury: "Cross-complainants admit they owe cross-defendant the sum of $100,000.00 with interest thereon from May 1, 1964, at the rate of 10% per annu. Thus, So far as we are concerned here, the judgment in the first action was not even a determination that as of February 1966, "the note of Kandel to Mesler was still due and payable to Mesler." On the showing made by the petition, it can hardly be said that it was res judicata as to the Kandels' continuing liability on the notes, or that Mesler is thereby "collaterally estopped as to the allegations contained in the first amended complaint and each of the four causes of action" thereof.
We must assume that in sustaining the demurrer to petitioners' amended supplemental answer in the second action the trial court examined the pertinent parts of the records in both actions. It is now apparent from the answer filed by the real party in interest that the petition does not even purport to give us all the relevant parts of the records in the two cases on which the trial court necessarily based its ruling, but only those parts which would seem to serve petitioners' purpose, thus placing a wholly unnecessary burden on the real party in interest and upon this court.
As shown by the statement of issues prepared by petitioners' attorney and incorporated in the pretrial conference order in the first action, the only issues were : "Did the cross defendant Sam Mesler convert the note executed by Sepulveda Condominium Corp. and the deed of trust as security of the note? 2. If the answer to No. 1 is yes, the damages sustained by the cross complainants." The trial was thereby limited to a determination of these issues. (PALMER V. GREGG, --- Cal.App.2d 52 CAL.RPTR. 22.)* It also appears from the answer of the real party in interest that the first cause of action pleaded in Mesler's first amended complaint in the second action now pending in the trial court is for damages based on the alleged false representations by Maurice Kandel in obtaining the $100,000 evidenced by the notes now sued on, and for an equitable lien "upon all properties of defendants purchased or improved and benefited by defendants with the fruits of their fraud upon plaintiff." The second cause of action is based on the obligation of the Kandels on their notes which are past due and unpaid. The third and fourth causes of action are common counts for money loaned and money had and received.
We are satisfied from the record now before us that none of the causes of action Bernhard v. Bank of America,
Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd.,Since petitioners have not made out a proper case for the use of the peremptory writ of mandate they seek, much less of an alternative writ, the petition is denied.
WOOD, P.J., and LILLIE, J., concur.