Dabney v. Shippey

Opinion

CHRISTIAN, J.

J. Haywood Dabney and Faith Dabney appeal from an order striking the cross-complaint by which they sought to intervene in this action. We affirm the order.

Four of the five former shareholders in Siesta Recreation Vehicles, Inc. (hereinafter “plaintiffs”) commenced an action against Di Giorgio Corporation and some of its subsidiaries and executives (hereinafter jointly “respondents”), alleging that they and appellant J. Haywood Dabney were the five stockholders in Siesta Recreation Vehicles, Inc., that they and appellant had sold their stock to a subsidiary of Di Giorgio Corporation to effect a planned merger, and that the transfer had been induced by respondents’ fraud.

In April 1973, appellant J. Haywood Dabney and his counsel met with plaintiffs’ counsel and agreed that Dabney and his wife (hereinafter “appellants”) would enter the case by accepting service as defendants designated by fictitious names. Appellants answered, denying the allegations of the complaint “as to themselves only” and otherwise “affirm[ed] and reallege[d] the allegations.” At the same time, they filed a cross-complaint naming respondents as cross-defendants. In the cross-complaint, appellants made essentially the same allegations made by plaintiffs in the complaint.

Respondents moved to strike the cross-complaint, urging inter alia that the cross-complaint was a sham designed to let appellants join the action as plaintiffs even though any claim they might have against respondents was barred by the statute of limitations.

Appellants contend that they were entitled under section 428.10 of the Code of Civil Procedure,

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to file a cross-complaint. The issue is thus presented, whether (in the words of the statute) appellants were parties

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“against whom a cause of action has been asserted in a complaint or cross-complaint . . . .” Plaintiffs did allege that, after the sale, respondents and appellant J. Haywood Dabney made numerous changes in the operations and management of the company to plaintiffs’ detriment. But the mere fact that appellants were mentioned by name in the complaint does not establish that a cause of action was asserted against them. The references to Dabney did not amount to a cause of action for fraud. (See 1 Witkin, Summary of Cal. Law (8th ed. 1973) Contracts, §§ 314, 315, 319, pp. 264-265, 268-269.) On the contrary, the fact that Dabney was mentioned in the complaint but not as a joined defendant supports the conclusion that plaintiffs did not assert a cause of action against him.