Fleuret v. Hale Construction Co.

Opinion

BROWN (Gerald), P. J.

Hale Construction Co. appeals from a judgment it take nothing on its cross-complaint. Hale, as prime contractor on an Imperial County road project, was sued by Fleuret-Stillman Co., one of its subcontractors, for money due under its subcontract. Hale filed a cross-action (called a cross-complaint) claiming money damages for breach of the subcontract by Fleuret-Stillman Co. The cross-action also joins as a cross-defendant United Pacific Insurance Co., surety for Fleuret-Stillman under its faithful performance bond. Other parties are involved in the action and cross-action, but their positions are not material to the determination of this appeal.

Hale and Fleuret-Stillman agreed to try the issues of their liability on the complaint and cross-complaint first. The trial court found Fleuret-Stillman was excused by Hale’s action from performing its subcontract. The court signed findings of fact and conclusions of law as they related to the

[230]

liabilities of Hale and Fleuret-Stillman on the cross-complaint and entered a judgment Hale take nothing by its cross-complaint. The issues raised by Fleuret-Stillman’s complaint and Hale’s answer in the principal action have not been found by the court, damages have not been assessed, no judgment has been entered on the complaint and the principal action still pends.

Hale and Fleuret-Stillman are the primary parties involved in the cross-complaint and are also the primary parties in the principal action on Fleuret-Stillman’s complaint. The cross-complaint involves the same contract and same transaction as the complaint. The rights of Fleuret-Stillman and Hale have not been completely determined.

Ordinarily there may be but one final judgment in an action. A cross-complaint is not considered sufficiently independent to allow a separate final judgment to be entered upon it

(Sjoberg

v.

Hastorf,

33 Cal.2d 116, 118 [199 P.2d 668]). The purported “Judgment on Cross-complaint,” from which this appeal is taken, is premature and nonappealable. It may not be entered until judgment determining the rights of the parties to the complaint is entered.