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District Court of Appeal, Second District, Division 1, California.

LORD v. GARLAND, Director of Motor Vehicle Department, et al.

Civ. 14423.

Decided: December 01, 1944

Warren E. Libby, of Los Angeles, for appellant. Robert W. Kenny, Atty. Gen., and Frank Richards, Deputy Atty. Gen., for respondents.

Judgment of dismissal following sustaining of demurrer without leave to amend. The demurrer was sustained upon several grounds, the first being that upon the face of the complaint it appears there was another action pending between the parties for the same cause.

The complaint contains three counts. The first count seeks to enjoin defendant from disposing of a fund created by stipulation in a former action in the superior court. The money in the fund was paid by plaintiff to the Motor Vehicle Department for taxes due the State under the California caravan act. Stats.1937, Chap. 788, p. 2253. It was stipulated that the money would be returned to the plaintiff if the act was declared to be unconstitutional, or would go to the State if the act was declared constitutional. The former action was pending at the time of filing the complaint, but has since been adjudicated. Lord v. Ingels, 64 Cal.App.2d 559, 149 P.2d 72. The second count undertakes to test the constitutionality of the caravan act. The third count asks for the return to the plaintiff of the money deposited in the fund referred to in the first count.

The complaint alleges that on July 19, 1937, plaintiff commenced the former action ‘to secure against the said defendant a permanent injunction against the enforcement of said chapter 788 of the Statutes of 1937’; that a preliminary injunction was granted in that action restraining the enforcement of said Statute as against the plaintiff; that thereafter the parties to said former action entered into a stipulation, whereby, pending the final disposition thereof, certain monies would be paid to the Motor Vehicle Department by the plaintiff and there impounded; (copies of the stipulation and order of the court made pursuant thereto are attached as exhibits to the complaint;) that the former action was dismissed for failure to bring it to trial, from which plaintiff appealed. The stipulation further in part provided: ‘* * * in the event that the said statute shall be determined to be unconstitutional the sums so paid and heretofore paid as recited in this stipulation shall be returned upon application to the plaintiff herein by the defendants or their successors in office, and in the event that the said statute shall be determined to be constitutional the said sums heretofore and hereafter paid shall be retained by the Department of Motor Vehicles and shall be applied according to the provisions of said Chapter 788 of the California Statutes of 1937 and that the above entitled Court specifically reserves continuing jurisdiction until final disposition of said moneys as aforesaid to make orders in regard to such final disposition and particularly to make such Order as is meet and proper in the event that such statute is finally held to be partially valid and partially invalid’.

The demurrer was sustained because it appeared from the complaint itself that the parties were the same, and all of the matters alleged therein were in issue in Lord v. Ingels, supra, then pending and undetermined.

Sec. 430, sub. 3, of the Code of Civil Procedure provides that a demurrer may be interposed upon the ground that there is another action pending between the same parties for the same cause. At common law this was a dilatory plea generally raised by answer. Under California practice where the complaint shows another action is pending between the same parties, with substantially the same issues, demurrer will be sustained.

Cases applying the rule, in accordance with the facts of each case, are as follows: Fisk v. Atkinson, 71 Cal. 452, 10 P. 374, 12 P. 498; Conner v. Bank of Bakersfield, 174 Cal. 400, 163 P. 353; Collins v. Ramish, 182 Cal. 360, 188 P. 550; Wulfjen v. Dolton, 24 Cal.2d 891, 151 P.2d 846; Fresno Inv. Co. v. Russell, 55 Cal.App. 496, 203 P. 815; Dodge v. Superior Court, 139 Cal.App. 178, 33 P.2d 695; Brainard v. Whitman, 11 Cal.App.2d 32, 52 P.2d 564; McMullen v. Glenn-Colusa Irr. Dist., 17 Cal.App.2d 696, 62 P.2d 1083; Hamm v. San Joaquin, etc. Canal Co., 44 Cal.App.2d 47, 111 P.2d 940; Rilcoff v. Superior Court, 50 Cal.App.2d 503, 123 P.2d 540; Keating v. Preston, 42 Cal.App.2d 110, 108 P.2d 479; National Automobile Ins. Co. v. Winter, 58 Cal.App.2d 11, 136 P.2d 22.

The very early case of Fisk v. Atkinson, 71 Cal. 452, 10 P. 374, 12 P. 498, held that an action commenced during pendency of appeal in a prior action between the same parties and for the same cause of action must be abated. This was followed in Collins v. Ramish, 182 Cal. 360, 188 P. 550, and in Rilcoff v. Superior Court, 50 Cal.App.2d 503, 123 P.2d 540.

In Dodge v. Superior Court, 139 Cal.App. 178, 33 P.2d 695, a second case was filed in California while there was a proceeding between the same parties and involving the same cause of action pending in the Supreme Court of another state. Our District Court of Appeal held that under such circumstances it was proper to stay the California action. And the comment is made that a final adjudication in the first case would be a bar to trying the same issues in the second case, and that this is one of the tests to determine whether or not the identity of the matters involved in both actions is the same.

In Wulfjen v. Dolton, 24 Cal.2d 891, 151 P.2d 846, 848, a case in our own Supreme Court, decided September 15, 1944, it is said: ‘It is clearly established that a party may not split up a single cause of action and make it the basis of separate suits, and in such case the first action may be pleaded in abatement of any subsequent suit on the same claim. 1 C.J.S., Actions, § 102, p. 1306; Quirk v. Rooney, 130 Cal. 505, 62 P. 825; Bingham v. Kearney, 136 Cal. 175, 68 P. 597; Paladini v. Municipal Markets Co., 185 Cal. 672, 200 P. 415. The rule against splitting a cause of action is based upon two reasons: (1) That the defendant should be protected against vexatious litigation; and (2) that it is against public policy to permit litigants to consume the time of the courts by relitigating matters already judicially determined, or by asserting claims which properly should have been settled in some prior action. Thus, it is said in Bingham v. Kearney, supra, 136 Cal. at page 177, 68 P. at page 597: ‘It is not the policy of the law to allow a new and different suit between the same parties, concerning the same subject-matter, that has already been litigated. Neither will the law allow the parties to trifle with the courts by piecemeal litigation.’'

Applying the law to the present case, it is evident that: (a) There was another action pending; (b) it was between the same parties; and (c) it was for the same cause.

Appellant contends that the demurrer was not applicable to the second count of his complaint, because that count sought an injunction against the defendant's enforcing the caravan act, no specific reference being made in that count to the former action. The answer to this contention is that under the provisions of C.C.P. § 431, demurrer may be interposed to the whole complaint, and the complaint as a whole considered for the purpose of passing upon its sufficiency. When a cause of action is set up in separate counts, each numbered as a separate paragraph, all of the counts may be considered together as a narrative of the facts relied upon for recovery. 21 Cal.Jur. 64; Kyle v. Craig, 125 Cal. 107, 57 P. 791. Moreover, the plaintiff may not in any event split the single cause of action represented in his complaint in the former action and in this case. To do so ‘would upset all legal principles for avoiding multiple litigation in settlement of but one fundamental claim for appropriate redress.’ Wulfjen v. Dolton, supra.

Appellant next suggests that the parties in the two cases are not the same in that while they were holders of the office of Director of the Department of Motor Vehicles, it was at different times. A somewhat similar situation presented itself in McMullen v. Glenn-Colusa Irr. Dist., 17 Cal.App.2d 696, 62 P.2d 1083, wherein it was decided that a discrepancy between plaintiffs or defendants in a representative capacity does not affect the right of a defendant to have his demurrer sustained when the two complaints contain essentially the same subject-matter. And in any event, the fact that the prior complaint named as defendant the then holder of the office of Director of the Motor Vehicle Department of the State of California, and the complaint in this action names another gentleman who in the meantime succeeded to that office, does not represent a sufficient change in the parties to avoid abatement of the present action.

In Weadon v. Shahen, 50 Cal.App.2d 254, at page 260, 123 P.2d 88, at page 91, the court said: ‘* * * The office of Superintendent of Banks is a continuing state office without regard to the individual who may fill it. The Superintendent of Banks, as an individual divorced from his office, had no interest in the action. The judgment, therefore, was an incident of the office and not of the individual. The action was brought to perform a duty pertaining to the office which was especially enjoined by statute. Such an action does not abate by reason of the termination of the term of office of the incumbent (1 Am.Jur. p. 49) and we can see no good reason why it may not be continued by the successor in the name of his predecessor in office. Sec. 385, Code. Civ.Proc.’

A reading of the opinion in Lord v. Ingels, supra, and consideration of the effect of the decision in this case would seem to imply that the plaintiff's action in the former case, having been dismissed, and the demurrer in the present case having been sustained, he is left without remedy. But, in the interim between the filing of the first complaint and its dismissal five years thereafter for failure to bring it to trial, the federal courts upheld the constitutionality of the statute involved. Clark v. Paul Gray, Inc., 306 U.S. 583, 59 S.Ct. 744, 83 L.Ed. 1001. Thus it follows that the plaintiff having elected to wait five years without bringing his action to trial may not now complain of the hardship, if any, involved in the dismissal of his present action. And if there were any hardship, the fundamental rules here involved may not be abrogated. Wulfjen v. Dolton, supra.

Having come to the conclusion that the demurrer was properly sustained upon the first ground thereof, it is unnecessary to discuss further and additional grounds argued in the briefs.

The judgment is affirmed.

DRAPEAU, Justice pro tem.

YORK, P. J., and WHITE, J., concur.

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