Webb v. Youmans

FINLEY, J. pro tem.

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Appeal from the judgment of dismissal entered when plaintiff failed to amend his complaint after demurrer was sustained with leave to amend.

[852]

Appellant John A. Webb, an attorney acting in propria persona, filed this action against William T. Youmans, Florence R Youmans and Norman E. Caldwell, their attorney, seeking damages for alleged malicious prosecution.

Origin of the claim is an action filed in Orange County by the Youmans with Caldwell as their attorney against appellant Webb as a party defendant. In the complaint, Webb was charged with entering Youmans’ premises by kicking in doors, removing glass and by otherwise damaging their property and placing trash and debris on their real property. The Youmans obtained a preliminary injunction and were apparently aggressive in seeking its enforcement with threats of prosecution for its violation. This injunction was issued on January 3, 1963, and on March 22, 1963, was quashed as a void order. Why it was found to be void does not appear. On February 14, 1964, the action was dismissed with prejudice. No appeal was taken and the judgment of dismissal became final.

The complaint in the present action was filed in Los Angeles County on August 13, 1964. On November 4, 1964, a demurrer was filed on behalf of the Youmans by the attorneys representing them on this appeal. On December 10, 1964, a demurrer was filed on behalf of Caldwell by attorney Donald A. Buston acting for the firm of Tuller, Buston and Perez. A motion for change of venue was filed on behalf of the You-mans and on November 17, 1964, the court made its order transferring the case to Orange County where, on August 27, 1965, both demurrers were sustained on the ground of uncertainty with 15 days to amend. On August 30, 1965, and on September 23, 1965, notices of the ruling on both demurrers were filed together with proof of service by mail on both plaintiff Webb and Donald A. Buston, attorney for Caldwell The complaint was not amended and on October 13, 1965, a motion to dismiss the complaint was filed on behalf of the Youmans. On October 28, 1965, Webb filed a motion for reconsideration of the demurrers, and on October 29, 1965, all the noticed motions were heard. Caldwell having died in the meantime, a motion to dismiss as to him with waiver of costs was granted. The other motions were apparently taken under advisement and on November 3, 1965, an order was made denying Webb’s motion to reconsider and dismissing the action as to all defendants.