Guy F. Atkinson Co. v. State of California

Opinion

PIERCE, P. J.

This is a motion by the State of California to dismiss an appeal by Guy F. Atkinson Company from a judgment of the superior court following an order of that court on August 19, 1970, sustaining the state’s demurrer to Atkinson’s cross-complaint against the state. The ground of the motion is that the judgment appealed from is nonappealable.

The original action was one for wrongful death. The state and Atkinson and a third party were named defendants. Death was due to an automobile accident on a highway allegedly negligently planned and constructed. The main action was settled and plaintiff dismissed his action with prejudice and is thus out of the case. The state and Atkinson each contributed to the settlement. The state and Atkinson each reserved their rights to contribution, if any, against the other. The state had, and still has, a cross-complaint pending against Atkinson for an express indemnity (under its construction contract). Atkinson at the behest of the state performed work after the accident. It “scored” the apparently slippery surface of the highway. Atkinson included a separate count (fifth) in its cross-complaint for “extras”—the alleged value for doing this work. The state contended that it was the obligation of Atkinson to do this work without compensation under the terms of the contract. The trial court made its order sustaining the demurrer to all five counts of the Atkinson cross-complaint without leave to amend and thereafter filed a judgment of dismissal of the cross-complaint. Atkinson appealed.

The state’s motion to dismiss this appeal must be granted because the appeal is premature. It is quite understandable, however, why the appeal was taken. Had it not been taken and had the trial court acted within its jurisdiction in entering the judgment determination of ALL issues

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raised by the cross-complaint to which a demurrer had been sustained would have become res judicata. But the judgment entered by the trial court was premature also. It violated the single judgment rule. (Code Civ. Proc., § 577;

Lopes

v.

Capital Co.