Cal-Neva Lodge, Inc. v. Marx

KINCAID, J., pro tem.

*

Appeal by defendant from judgment for plaintiff of $7,620 and interest. The complaint is in one count alleging that defendant received from eight named individuals sums totalling $7,620, for the use and benefit of plaintiff. The answer denied each allegation and alleged one affirmative defense on information and belief that plaintiff is in bankruptcy.

The pretrial conference order incorporated an agreed statement of the parties wherein defendant admitted he did receive the claimed sums of money for the use of plaintiff. The order then stated the only remaining issue in the case is whether payment to plaintiff was made by defendant. The affirmative defense was withdrawn.

Defendant had the privilege of asking that such order be corrected or amended any time before or at the trial. When filed such order supersedes the pleadings where inconsistent therewith and controls the subsequent course of the case unless so modified. (Rules 8.7, 8.8 of Amendments to Rules Relating To Pretrial Conferences, 47 Cal.2d 3 et seq.) No request for an amendment or correction was ever made. The pretrial conference order limited the issues to be tried and the parties are bound by its provisions.

(Baird

v.

Hodson,

161 Cal.App.2d 687, 690 [327 P.2d 215] ;

City of Los Angeles

v.

County of Mono,

51 Cal.2d 843, 847 [337 P.2d 465].)

Sixteen days before date of trial, defendant’s counsel wrote plaintiff’s attorney advising that defendant would offer evidence as to illegality of the entire transaction.

[188]

At the trial the plaintiff rested its case on the basis of the complaint and the admissions contained in the pretrial statement and order.

Defendant, over objections of plaintiff, then offered evidence claiming that the eight persons from whom he collected the moneys owed plaintiff for credit extended them as a result of their losses in plaintiff’s gambling casinos at its hotels, Cal-Neva Lodge and the Biltmore, located in Nevada. While contending he later paid these moneys to plaintiff, the court on conflicting evidence found he did not. The findings of the court adjudicate only the specific issues set forth in the pretrial conference order.