Polderman v. C. G. Hokanson Co.

PATROSSO, J. pro tem.* This is an appeal by plaintiff from a judgment dismissing the action after failure of plaintiff to amend following an order sustaining defendants’ demurrer to the second amended complaint. Plaintiff also appeals from an order denying, in part, his motion to tax costs, but as he has now expressly abandoned the same, no further consideration need be accorded thereto.

Following orders sustaining demurrers to the original and first amended complaints with leave to amend, a second amended complaint was filed. A demurrer interposed to this complaint was likewise sustained and plaintiff granted leave to amend. Plaintiff failed to amend within the time limited, but therafter, without obtaining leave so to do, filed a third amended complaint. Defendants thereupon served notice of motion to strike the third amended complaint on the ground that it was filed too late and to dismiss the action, and plaintiff countered with a notice of motion for leave to file said third amended complaint. Both motions were heard on July [3020], 1956, at which time defendants’ motions were granted and plaintiff’s motion to file a third amended complaint was denied.

Appellant contends that the court erred in sustaining the demurrer to the second amended complaint and dismissing the action.

Directing our attention to the second amended complaint we find that it contains eight counts and the defendants named therein are C. G. Hokanson Co., Inc., C. G. Hokanson and Blanche Hokanson, who are the respondents here, as well as certain other corporations and fictitiously named defendants with whom we are not concerned. The respondents filed a joint demurrer to each count upon both general and special grounds. In light of the familiar rule that if any count or cause of action in a complaint setting up several counts or causes of action is good against a demurrer, a judgment of dismissal for insufficiency of the complaint cannot be sustained (Armstrong v. Adams (1929), 102 Cal.App. 677, 681 [283 P. 871] ; Shook v. Pearson (1950), 99 Cal.App.2d 348, 351 [221 P.2d 757]), we need only consider whether any count therein states a cause of action as against the demurrer directed thereto. To this end we select the second cause of action.

This count incorporates by reference allegations in the first count to the effect that the defendant C. G. Hokanson Co., Inc. is a corporation; that defendant C. G. Hokanson, Inc. “was the alter ego of defendants C. G. Hokanson and Blanche Hokanson, . . . and used by said named defendants and each of them as a subterfuge and device to defeat the just claims and rights of the plaintiff, and in [sic] inequitable result will follow by refusing to disregard the corporate entity, and was used for the personal advantage of said defendants and each of them”; and that plaintiff was employed by the defendants as a salesman between June 1, 1952, and June 30, 1954. It then proceeds to allege “That during the period commencing October 1, 1953, to June 30, 1954, in consideration that the plaintiff, at the request of the defendants and each of them, did and bestowed certain work and services in and about and on behalf and for the business of the defendants and each of them and for which the defendants and each of them promised to pay plaintiff so much money as he therefor reasonably deserved to have, and plaintiff avers that he then and there reasonably deserved to have therefor the sum of $11,500.00”; that defendants and each of them, although requested, have not paid to plaintiff the aforesaid