Opinion
For Opinion on Hearing, see 95 Cal.Rptr. 46, 484 P.2d 1390.
Opinion on pages 472 to 476 omitted
HEARING GRANTED
[89 Cal.Rptr. 240]William Blietz, Louis H. Berger and Kenneth H. Wechsler, Los Angeles, for appellant.
Wyman, Bautzer, Finell, Rothman & Kuchel and Andrew D. Stein, Beverly Hills, for respondents.
LILLIE, Associate Justice.
Plaintiff sustained personal injuries in two separate accidents occurring at separate locations on separate dates (April 28 and August 12, 1968). Relying on the provisions of section 379c, Code of Civil Procedure, in his first cause of action (relating to the April accident) plaintiff alleged that he 'is uncertain as to which defendant caused him the above-described injuries and whether or not they were caused by the First Cause of Action or the Second Cause of Action, and therefore joins both causes of action' under the foregoing statute. Defendants Salam and Charge A Car, Inc., involved in the April accident, demurred to the complaint upon the ground of misjoinder of parties and causes of action (Code Civ.Proc., § 430). The demurrer was sustained without leave to amend. Plaintiff appeals from order dismissing the action as to said defendants.
Section 379c: 'Where the plaintiff is in doubt as to the person from whom he is entitled to redress, he may join two or more defendants, with the intent that the question as to which, if any, of the defendants is liable, and to what extent, may be determined between the parties.'
Assertedly the accident alleged in the first cause of action resulted from the negligent operation of a Dodge Dart driven by defendant Salam with the permission of its owner, defendant Charge A Car, at which time plaintiff was driving an Oldsmobile near the intersection of Washington Boulevard and La Brea in the City of Los Angeles; the accident alleged in the second cause of action resulted from the negligent maintenance by defendant Madison Properties, Inc. of certain business property in Panorama City, County of Los Angeles, at which time plaintiff was on the premises as a business invitee. Although section 427, Code of Civil Procedure, permits causes of action for personal injuries to be united only if they affect all parties to the action, it is contended by plaintiff that the requirements of that section have been superseded by the liberal provisions of sections 379a and 379c, citing Kraft v. Smith, 24 Cal.2d 124, 128, 148 P.2d 23. For reasons stated below, his claim is untenable [89 Cal.Rptr. 241]when applied to the foregoing allegations; thus inasmuch as no other points are urged, the order must be affirmed.
Section 379a: 'All persons may be joined as defendants against whom the right to any relief is alleged to exist, ternative; and judgment may be given whether jointly, severally or in the alagainst such one or more of the defendants as may by found to be liable, according to their respective liabilities.'
The determination in Kraft must be limited to the circumstances there alleged. In that case the plaintiff was treated by two separate doctors on two separate occasions (ten days apart) for the same injuries consisting of a broken ankle, a broken leg and a fractured knee; the treatment was negligently administered with the result that she was further injured--her right leg was made permanently shorter than her left leg, necessitating the breaking of one or both of her legs. Since there was an allegation, pursuant to section 379c, that plaintiff was unable to ascertain whether or not the final result of the negligence was caused by the first or the second defendant doctor, it was concluded on appeal that the joinder invoked by plaintiff fell squarely within the provisions of sections 379a and 379c. The court pointed out that both defendants were successively employed for the treatment of one injury and that their improper treatment resulted in a further single injury. Implicit in the above analysis is the community of interest or concert of action permeating the circumstances alleged. As stated in California Pleading (Chadbourn, Grossman and Van Alstyne) there must 'be some sort of factual 'nexus' connecting or associating the claim pleaded against the several defendants.' (§ 618, p. 535.) See also Hoag v. Superior Court, 207 Cal.App.2d 611, 618, 24 Cal.Rptr. 659.
In Hoag this court noted that 'Although the modern joinder statutes are to be liberally construed and applied [footnote omitted], neither the statutes nor the case law in California permit unlimited joinder.' (P. 618, 24 Cal.Rptr. p. 664.) There the plaintiff sued four defendants for invasion of privacy which consisted of exhibition of confidential photographs or 'mug-shots' on different dates and under different circumstance. Since the complaint contained no allegation either of conspiracy, community of interest or concerted action, we concluded that the defendants acted in four entirely different transactions independently of one another; hence, the special demurrer was properly sustained because of misjoinder of causes of action, as in Oppenheimer v. Ashburn, 173 Cal.App.2d 624, 634, 343 P.2d 931.
More recently, in Southern Cal. Edison Co. v. State Farm Mut. Auto Ins. Co., 217 Cal.App.2d 744, 76 Cal.Rptr. 909, it was again declared that there must be some 'factual nexus' connecting the claims pleaded against the several defendants before a complaint can successfully withstand a special demurrer asserting misjoinder. It was alleged by plaintiff Edison that certain insured defendants ay different times and places damaged Edison's telephone poles--some seventeen accidents being listed. Said the court: 'The required connecting factor [factual nexus] is totally lacking in the case at bench. The defendant insureds were involved in separate accidents for which entirely separate claims arose.' (P. 748, 76 Cal.Rptr. p. 911.)
Plaintiff's reliance on Kraft v. Smith, supra, is misplaced because of the difference in circumstances alleged in the two complaints. Reliance on other decisions, cited by plaintiff, is likewise unavailing since in those decisions the situations involved a determination as to which of several defendants was liable for a single wrong resulting from a single transaction.
While the special demurrer was sustained without leave to amend, a drastic step usually unwarranted since the defect thus challenged is one of form, the denial of leave to amend the instant complant was based on the view that the defendants involved in the separate transactions pleaded could not, under the circumstances alleged, be joined as parties in the same action. Such view of the law, as we have demonstrated, must be upheld. It is settled that 'if in the prior verified complaint there are allegations destructive of the cause of action, the defect cannot be remedied by simply omitting, in subsequently [89 Cal.Rptr. 242]filed pleadings, without proper explanation, such allegations.' (Owens v. Traverso, 125 Cal.App.2d 803, 808, 271 P.2d 164, 167.) Such course, without sanction of law, would be the only way the present complaint could be amended to render it invulnerable to special demurrer; hence, it was proper to sustain the special demurrer without leave to amend.
The order is affirmed.
THOMPSON and GUSTAFSON, JJ., concur.