James v. Herbert

FOX, J. Plaintiff appeals from a judgment of dismissal in favor of defendant Herbert following an order sustaining his general and special demurrer to the amended complaint with leave to amend. Plaintiff, however, declined to amend, hence the dismissal.

By her amended complaint plaintiff seeks to recover damages arising out of an alleged conspiracy of defendant Herbert and his codefendants Prescott and Roberts to exclude her from further participation in the operation and management of a joint real estate venture and to deprive her of her share of the profits therefrom.

A general and special demurrer on behalf of defendants Prescott and Roberts was sustained with leave to amend, but plaintiff declined to amend, consequently a judgment of dismissal was entered in their favor.* Plaintiff appealed. Division Three of this court, in a well considered opinion by Justice Valleé, reversed that judgment. (See James v. Herbert, 149 Cal.App.2d 741 [309 P.2d 91].)

Since the identical amended complaint is involved in both rulings, we adopt the summary of its allegations, which we consider fair and comprehensive, as set forth on pages 744-746 of 149 Cal.App.2d as follows:

“Plaintiff is a licensed real estate broker engaged in the [874]real estate business in Palm Springs. In November 1953 she entered into an oral agreement of joint venture with defendants Herbert and Prescott, Jr. It was agreed: 1. Herbert would contribute to the operations of the venture three parcels of realty aggregating 60 acres, which he owned in the vicinity of Cathedral City. He would be paid out of the venture assets for the property at its fair and reasonable value as of the date of the organization of the venture. 2. Defendant Prescott, Jr., would arrange for the financing of improvements which the parties planned to make on the property and supervise construction operations in connection with any residences or other buildings to be constructed thereon. He would receive a reasonable builder’s fee to be fixed by the joint venturers for his services. 3. Plaintiff would actively participate in the management of the business, contribute her services and the use of her real estate office, assist. in the making of arrangements for loan commitments, and cooperate with her coadventurers in the planning of the size, shape, and location of lots into which the realty was to be subdivided and in the selection and choice of the type and kind of construction and other improvements to be erected thereon, and generally to participate actively in the supervision of the enterprise. She would be given an exclusive contract for the sale of all parcels contributed by defendant Herbert to the enterprise and would be entitled to receive and retain as her own the usual and customary real estate broker’s commissions prevailing in the general area. 4. Any losses which might result from the operations of the venture would be borne by defendants Herbert and Prescott, Jr.; but the net profits would be divided equally.