Opinion
Rehearing Denied Aug. 5, 1968.
Hearing Granted and Cause Retransferred to Court of Appeal Sept. 5, 1968.
Millard M. Mier and Ralph Sadler Rosen, Los Angeles, for appellants.
Loeb & Loeb, and Jerome L. Goldberg, Los Angeles, for respondents.
ROTH, Presiding Justice.
On December 10, 1965, appellants, by verified complaint, in two counts (Reformation Action) filed in the Central District of the Superior Court in and for the County of Los Angeles, sought to reform a deed and quiet title on the basis of an alleged mistake they made by including in a conveyance to respondents a 20 foot strip of real property leading to other real property retained by them. They allege that the 20 foot strip mistakenly conveyed was intended to have been retained by them and that, since the conveyance, the 20 foot strip had been fenced off, and they had the free and uncontested use thereof as a means of access to a larger contiguous parcel belonging to them and that they had had such access for many years prior to the conveyance.
Respondents demurred on the grounds that the complaint failed to allege a mutual mistake so as to entitle plaintiffs to reformation, and that the Reformation Action was barred by the three-year period of limitation in Code of Civil Procedure, § 338(4); and that the quiet title count, which was dependent upon the reformation of the deed to respondents, was therefore also barred. The demurrer was sustained on March 10, 1966, with 15 days to amend. The 15 days expired.
Appellants did not amend, but on July 8, 1966, appellants dismissed the Reformation Action without prejudice. On the same day, by an unverified complaint filed in the Northeast Pasadena District of the Los Angeles Superior Court, appellants commenced a new action to quiet title to the identical 20 foot strip of land. (Quiet Title Action). In the Quiet Title Action, appellants allege their ownership and possession of the 20 foot strip and that respondents were asserting without right an interest therein, adverse to their ownership. On August 5, 1966, respondents moved to transfer the Quiet Title Action to the Central District of the Los Angeles Superior Court, the forum of the Reformation Action. In support of the motion, respondents argued that appellants had eliminated from the Quiet Title Action all verified allegations of the Reformation Action, and that appellants were 'court-shopping' to litigate the same matter under color of a new complaint. The motion to transfer was granted.
Respondents moved to strike and dismiss the Quiet Title Action on the grounds that it was a sham and an abuse of process and also demurred generally upon the grounds Appellants do not seriously question the propriety of the procedure outlined. They assert, however, that they had an absolute right to dismiss the Reformation Action; that such dismissal is not res judicata; that the motion to strike and dismiss should have been treated as a motion for summary judgment, and that the omitted allegations in the Reformation Action were mere surplusage in the Quiet Title Action. We do not agree.
The trial judge had the authority to take judicial notice of the Reformation Action. (See Flores v. Arroyo, 56 Cal.2d 492, 496, 155 Cal.Rptr. 87, 364 P.2d 263 (1961); former C.C.P. § 1875(3); Evidence Code, § 452; Witkin, California Evidence, p. 56.) Further, it was proper by declaration to use a record of a prior proceeding in support of the motion. (Lincoln v. Didak, 162 Cal.App.2d 625, 630, 328 P.2d 498 (1958) C.C.P. § 435.)
It is settled, too, facts once alleged under oath cannot be withdrawn without explanation from consideration when properly brought to the court's attention by merely filing an amended pleading in an action between the same parties, on the same subject, involving identical issues. In Tostevin v. Douglas, 160 Cal.App.2d 321, 325 P.2d 130, the court stated that "'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. '""""" (At p. 327, at p. 133 of 325 P.2d.) In Lee v. Hensley, 103 Cal.App.2d 697, 709, 230 P.2d 159, 166, the rule was stated that 'A defect in a verified complaint, by reason of an allegation which renders it vulnerable, cannot be cured simply by omitting the allegation without explanation in a later pleading.' See also Zakaessian v. Zakaessian, 70 Cal.App.2d 721, 724, 161 P.2d 677.
A court may enter judgment of dismissal on a complaint stricken and dismissed on the ground of sham and abuse of the judicial process. (Neal v. Bank of America, etc., 93 Cal.App.2d 678, 209 P.2d 825; Tostevin v. Douglas, 160 Cal.App.2d 321, 331, 325 P.2d 130.) 'The fundamental principle running through the cases is that a court is not required to tolerate a purported amended complaint which fails to amend the previous pleading, is not filed in good faith, is filed in disregard of established procedural requirements, or is otherwise violative of orderly judicial administration.' (Neal, supra, 93 Cal.App.2d at p. 683, 209 P.2d at p. 827.)
Appellants, to support their position, cite Wakefield v. Richey, 167 Cal.App.2d 93, 334 P.2d 101, in which plaintiffs dismissed an action for cancellation of a lease and damages, and thereafter filed a new complaint alleging false representations as an inducement to the lease, notice of rescission, and a prayer for cancellation of the lease. Defendants in Wakefield argued that plaintiffs had made an election of remedies by the first complaint and were bound thereby. The court held that a change in remedies sought does not bring about an election unless the change prejudices the other party and amounts to an equitable estoppel. At bench, the question is not whether appollants may change remedies or seek a new remedy, but whether appellants may file a new unverified complaint in respect of the identical subject matter, seeking identical relief and state an apparently good cause of action omitting verified allegations made under oath in a different action which verified allegations show on their face that plaintiff has no cause of action in the new complaint.
In support of their contention that respondents' motion should have been treated Triodyne, Inc. v. Superior Court,
Appellants' final contention that the allegations omitted from the Quiet Title Action and originally included in the Reformation Action were mere surplusage, appears to be conclusively answered in Leeper v. Beltrami, 53 Cal.2d 195, at pages 215 and 216, 1 Cal.Rptr. 12, at page 262, 347 P.2d 12, at page 26, where the court says:
'There is one case decided by this Court that is contrary to the above cases. That case is Thompson v. Moore, 8 Cal.2d 367, 65 P.2d 800 * * *. There plaintiffs, owners of property in San Francisco, and defendants, owners of property in Yolo County, were negotiating an exchange. Defendants misrepresented the value of the Yolo County property. Plaintiffs, as part of the exchange, gave defendants a note secured by a trust deed on the Yolo property. Upon discovering the fraud, plaintiffs brought an action to quiet their title to the Yolo County property and to cancel the trust deed. The Court held that the complaint, although framed in two counts, stated but one cause of action, and that was an action to quiet title. The court (8 Cal.2d at page 371, 65 P.2d at page 802) specifically held that the action was not one to rescind.
'The case has been criticized (see annotation 109 A.L.R. 1032) on somewhat technical but persuasive grounds. The case is also subject to a non-technical objection. Plaintiffs' right to quiet their title depended upon a successful attack on the trust deed by a showing that defendants were guilty of fraud in its procurement. Thus the Court was not realistic when it held that the cause of action to cancel the deed was merely 'incidental' to the quiet title action. The Court should have held that the quiet title action was incidental to the action to cancel the deed. It is apparent that the quiet title suit was completely dependent upon plaintiffs' success in attacking the trust deed. The Court in the Thompson case was undoubtedly correct in holding that facts alleged in a complaint authorizing relief both to quiet title and to cancel an instrument state but one cause of action. That is undoubtedly the law. (See Parsons v. Weis, 144 Cal. 410, 414, 77 P. 1007; Beronio v. Ventura County Lumber Co., 129 Cal. 232, 235, 61 P. 958; California Trust Co. v. Cohn, 214 Cal. 619, 628, 7 P.2d 297; Wood v. Roach, 125 Cal.App. 631, 640, 14 P.2d 170.) But this does not mean that the cause of action is necessarily one to quiet title. Quieting title is the relief granted once a court determines that title belongs in plaintiff. In determining that question, where a contract exists between the parties, the court must first find something wrong with that contract. In other words, in such a case, the plaintiff must show he has a substantive right to relief before he can be granted any relief at all. Plaintiff must show a right to rescind before he can be granted the right to quiet his title. The Thompson case permits a plaintiff who has executed a contract to secure relief by simply couching his cause of action in terms of quiet title, and thus permits him to avoid and evade the normal requirements of a cause of action to avoid that contract. This is pure formalism and should not be countenanced. The case is disapproved.'
The judgment is affirmed.
FLEMING, J., and NUTTER , J. pro tem., concur.
Appointed by the Chairman of the Judicial Council