Karp v. Dunn

California Court of Appeal Aug 17, 1964 No. Civ. 21175; Civ. 21270Published

Before: Agee

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Holding. The court held that the action against defendant Dunn should be stayed rather than dismissed due to the pendency of a prior action, and that the dismissals of the other defendants were improper because the prior action did not constitute a pending action against them.

Issues

Whether the trial court properly sustained a demurrer on the ground of 'another action pending' against defendant Dunn.
Whether the trial court properly sustained demurrers against the other eleven defendants on the ground of 'another action pending.'

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“the instant action should not be terminated at the present time as to Dunn but should only be abated until the issues in the first action have been finally determined.”

“the first action cannot be considered as “another action pending” against any of the respondents except Dunn.”

“The judgments as to the respondents other than Dunn are reversed”

AGEE, J.

Plaintiffs filed the complaint herein on July 2, 1962. Twelve of the defendants appeared by demurrer. Each

[194]

of the demurrers was sustained without leave to amend. Plaintiffs appeal from the judgments thereupon entered. This action will be referred to either as the "second action” or “instant action. ’ ’

In an earlier action, filed on January 16, 1961, plaintiffs had named Beatrice Dunn and Max Dunn, her husband, as two of the defendants. Max died thereafter and Beatrice was substituted for him as administratrix. The Dunns ’ demurrer to plaintiffs’ third amended complaint in that action was sustained without leave to amend. On April 17, 1962, plaintiffs appealed from the judgment thereupon entered (1 Civ. No. 20948).

This action will be referred to as the “first action.”

In the second action Beatrice Dunn, individually and as administratrix, was also named as a defendant. Her demurrer to the complaint was sustained upon the ground of “another action pending between the same parties for the same cause.” (Code Civ. Proc., § 430, subd. 3.) The first action was not referred to in the complaint in the second action but the court took judicial notice thereof. (Code Civ. Proc., § 433.)

The other 11 defendants-respondents herein had not been named, either as fictitious defendants or otherwise, in any of the pleadings in the first action up to and including the third amended complaint.

After plaintiffs had filed their appeal from the Dunn judgment in the first action, they filed a

fourth

amended complaint in which Dunn was included as a defendant. This pleading is a nullity as to her because plaintiffs’ appeal from said judgment “stays all further proceedings in the court below upon the judgment or order appealed from, or upon matters embraced therein, ...” (Code Civ. Proc., §§ 946, 949).

Furthermore, plaintiffs had no right to file such an amended pleading as to Dunn without first obtaining leave of court to do so. Section 472 of the Code of Civil Procedure provides that “Any pleading may be amended once by the party of course ... at any time . . . after demurrer and before the trial of the issue of law thereon, ...” Here the fourth amended complaint came

Karp v. Dunn

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AGEE, J.

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