HERRSCHER v. HERRSCHER

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

HERRSCHER v. HERRSCHER et al.

HERRSCHER v. JACKSON et al.*

Civ. 19108.

Decided: December 08, 1952

Marcel E. Cerf, Robinson & Leland, San Francisco, and James B. Fredericks, Beverly Hills, for appellant. Hahn, Ross & Saunders, Los Angeles, and Thomas D. Mercola, Beverly Hills, for respondent.

This is an appeal from an order granting a motion to strike the defendant's cross-complaint.

As recited in appellant's opening brief, ‘plaintiff John Doe Herrscher, an infant by Ann Jackson, its guardian ad litem, filed a complaint for support of an unborn infant against defendant and cross-complainant. * * * defendant and cross-complainant filed an answer and a cross-complaint against Ann Jackson individually. The subject matter of the cross-complaint was two-fold. First, a declaration of the nonexistence of the relationship of parent and child between cross-complainant and the purported plaintiff John Doe Herrscher. And, secondly, for damages caused by a conspiracy existing between the cross-defendants to embarrass and humiliate cross-complainant thereby affecting his credit and reputation. A demurrer was filed by Ann Jackson individually, which demurrer was ordered off calendar. A motion to strike the cross-complaint, filed by cross-defendant Ann Jackson individually, was granted by the court. From the order dismissing the cross-complaint and striking said cross-complaint from the files this appeal was taken.’

Respondent takes the position that ‘The correctness of the ruling of the trial court in striking the cross-complaint depends upon whether the pleading comes within the provisions of Section 442 of the Code of Civil Procedure. Under this section, the affirmative relief sought by the cross-complaint must relate to or depend upon the transaction, matter, or happening upon which the original action is based. Presumably, counsel for appellant concedes that the remaining conditions set forth in this code section, namely, a contract, an accident, or property, do not here exist, as a basis for relating the relief he seeks to the subject matter of the complaint.

‘The complaint, filed on July 5, 1951, merely alleges that in April of 1951, appellant and respondent engaged in sexual relations as a result of which respondent became pregnant and was expecting a child whom she desired appellant to support and whose expenses of birth she desired him to pay. It is to be noted that at this state of the proceedings respondent was not even a party to the action, having appeared only as the guardian ad litem of the real plaintiff, the coming child. She did not become a party to the action until appellant named her as such in his purported cross-complaint.’

The cross-complaint in addition to naming the guardian ad litem, the mother of the unborn child as a defendant, also names several John Does and, in effect, alleges a conspiracy to extort money from defendant.

Respondent's contention that the cross-complaint is not authorized under the provisions of section 442 of the Code of Civil Procedure as above noted is without merit. Section 389 of the Code of Civil Procedure provides that, ‘The court may determine any controversy between parties before it, when it can be done without prejudice to the rights of others, or by saving their rights; but when a complete determination of the controversy cannot be had without the presence of other parties, the court must then order them to be brought in, and to that end may order amended and supplemental pleadings, or a cross-complaint to be filed, and summons thereon to be issued and served.’

The granting of the motion to strike the cross-complaint, in the circumstances presented, was error.

The question as to whether the action herein is valid is not raised and the within opinion is not to be understood as so deciding.

The order is reversed and cause remanded.

DORAN, Justice.

WHITE, P. J., and DRAPEAU, J., concur.