La Sala v. Ferrara

California Court of Appeal Apr 13, 1962 No. Civ. 25917Published

Before: Balthis

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Holding. The court held that an intervener cannot assert a counterclaim or setoff against a plaintiff in an action on an attachment bond when the intervener lacks a direct claim or contract with the plaintiff.

Issues

Whether an intervener may assert a counterclaim or setoff against a plaintiff based on a debt owed by the plaintiff to a third party.
Whether the facts alleged in the complaint in intervention state a sufficient cause of action for intervention in an action on an attachment bond.

Disposition. affirmed

Quotations verified verbatim against the opinion

“A counterclaim must be a claim in favor of the defendants and against the plaintiff; it may not be in favor of another person.”

“In the instant case, intervener is in the position of a defendant as far as plaintiff is concerned, and as a defendant (or as an intervener) she has no claim against or contract with plaintiff”

BALTHIS, J.

Plaintiff Leonard La Sala filed this action against defendant Peerless Insurance Co., Inc., on an attachment bond given by it in a prior action. In that prior action, Ferrara had obtained a judgment against one of the defendants named therein, Poole Truck Lines, but judgment was in favor of La Sala (a defendant in that action) against Ferrara, and such judgment was affirmed on appeal

(Ferrara

La Sala,

186 Cal.App.2d 263 [9 Cal.Rptr. 179]). Plaintiff Ferrara in that prior action had levied an attachment on La Sala’s property, and had filed the undertaking provided for in section 539, Code of Civil Procedure. After judgment in his favor as defendant, La Sala, as plaintiff, commenced this action on the attachment bond to recover damages.

Ella Ferrara then filed a complaint in intervention in this action. The substance of such pleading was that (1) intervener had an agreement to indemnify defendant Peerless Insurance Company and hence was the real party in interest, (2) intervener had obtained a judgment for $3,639 against Poole Truck Lines in the prior action, (3) plaintiff La Sala was indebted to Poole Truck Lines in the sum of $5,200, and (4) the action in intervention is brought to recover the debt due from La Sala to Poole Truck Lines and to subject the same to payment of the judgment of intervener against Poole Truck Lines. Plaintiff La Sala demurred to the complaint in intervention on the ground that it did not state facts sufficient to constitute a cause of action.

After intervener conceded that the first amended complaint in intervention stated her case as strongly as possible, the

[401]

court made its order sustaining the demurrer without leave to amend and from the judgment of dismissal, intervener appeals.

Intervener did obtain a judgment against Poole Truck Lines in the prior action and apparently is attempting to collect such judgment by an intervention in this action. This being an action against Peerless on the attachment undertaking, the issues involved in the prior action and in the collection of the judgment against Poole Truck Lines are in no way related to the issues presented and the parties involved here.

La Sala v. Ferrara

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BALTHIS, J.

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