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LAVINE v. Roger Jessup, Herbert Legg, Leonard Roach, William A. Smith, Deceased, County of Los Angeles, Walter M. Briggs, sued as Walt Briggs, and Civic Center Auto Parks, a corporation, sued as Civic Center Auto Park, Inc., Respondents.

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

Morris LAVINE, Plaintiff and Appellant, v. Roger JESSUP et al., Defendants, Roger Jessup, Herbert Legg, Leonard Roach, William A. Smith, Deceased, County of Los Angeles, Walter M. Briggs, sued as Walt Briggs, and Civic Center Auto Parks, a corporation, sued as Civic Center Auto Park, Inc., Respondents.

Civ. 21759.

Decided: August 27, 1957

Morris Lavine, Los Angeles, for appellant. Harold W. Kennedy, County Counsel, Los Angeles, Los Angeles County, Iver E. Skjeie, Deputy County Counsel, Los Angeles, for respondents Los Angeles County et al. Wm. J. Cusack, Los Angeles, for respondents Briggs and Civic Center Auto Parks.

The plaintiff commenced an action as a taxpayer's suit to collect damages, secure restitution of certain public money, an injunction and other relief. Demurrers to the first four complaints were sustained with leave to amend as to certain causes of action.

After the fifth (fourth amended) complaint was filed, certain defendants (respondents herein) filed demurrers and also motions to strike the complaint as sham and to dismiss the action. In Lavine v. Jessup, 48 Cal.2d 611, 311 P.2d 8, the court denied the motions to dismiss the appeal.

The plaintiff's third amended complaint contained twelve causes. Demurrers of the defendants and respondents were sustained thereto with leave to amend as to the first cause of action, and without leave to amend as to causes two to twelve inclusive. The plaintiff then filed his fourth amended complaint in two causes of action, and motions to strike the fourth amended complaint were granted and demurrers to the fourth amended complaint were sustained without leave to amend. Thereafter, a judgment was filed November 22, 1955, and entered November 28, 1955, ordering, adjudging and decreeing that the plaintiff and appellant's fourth amended complaint be stricken and the action dismissed. The appellant filed a notice of appeal from the judgment and order so filed and entered, and from each and all of the proceedings had in the action.

On August 8, 1956, the appellant filed his opening brief on appeal, the first sentence of which is as follows:

‘This is an appeal from a judgment of dismissal after demurrers were sustained without leave to amend the third amended complaint and from an order striking the fourth amended complaint of a taxpayer's suit against members of the Board of Supervisors and Walt Miller and Jack Hazard and the Civic Center Auto Park, growing out of the shifting of the courthouse, both Municipal and Superior, from its first designated location at Temple Street and Broadway and extending to Grand Avenue which then became a private parking lot for private profit to another location at First and Hill Streets after the Supervisors had wastefully expended and authorized the expenditure, $2,225,086.61, for the Temple Street site, including planning, architects' fees, appraisers' costs and other items.’

The brief, throughout, deals with the alleged error of the court in sustaining the demurrers to the third amended complaint. Appellant sets forth too, that:

‘The Fourth Amended Complaint, while covering the same subject matter as the Third Amended Complaint, materially differed in its language and was an amended complaint and sought damages for intentional and willful breach of the statutory duty and for delay in building the county courthouse, and, in its Second Cause of Action, to declare a constructive trust of all monies collected on the Temple Street site by Briggs and Hazard and the Civic Center Auto Park.’

The respondents made a motion to strike that part of the appellant's opening brief which has reference to the third amended complaint upon the ground that appellant's fourth amended complaint superseded his third amended complaint, and that by such filing of the fourth amended complaint appellant waived any error in the ruling of the trial court as to his third amended complaint, and thereby abandoned his third amended complaint.

Appellant, thereafter, filed a supplemental opening brief, the respondents made a motion to strike the portions of that brief which referred to the third amended complaint upon the same grounds as are set forth in the first motion to strike the matters from the opening brief.

At the hearing on the motion to strike the objectionable matters from the opening brief the appellant made no appearance and filed no opposition to the granting of the motion, although he was properly served with a notice of the time and place when the motion was to be made. He likewise failed to appear at the time the motion was heard with reference to the supplemental brief on appeal, and filed no opposition to the granting of the motion, although he was given timely notice of the hearing.

A reading of the third amended complaint and the fourth amended complaint, the latter of which was filed without leave to do so, convinces us that the allegations of the third amended complaint are in substance simply carried over into the fourth amended complaint. In many instances the identical language is used in each of the complaints.

It is said in Sheehy v. Roman Catholic Archbishop, 49 Cal.App.2d 537, 541, 122 P.2d 60, 62:

‘* * * Where, as here, a particular portion of a complaint is questioned upon a general demurrer and the demurrer is sustained, the plaintiff, if he abandons his original pleading and files an amendment correcting the questioned allegation, no longer is in a position to say that the original pleading was good as against the judgment sustaining the demurrer and that the court erred in its ruling. Upon the order sustaining the demurrer being made, the pleader has two avenues open to him. He may test the sufficiency of his pleading upon the judgment sustaining the demurrer, or he may accept the judgment that the complaint was not good and file an amendment. If he elects to pursue the latter course he impliedly confesses that the original pleading was not sufficient and that it should be corrected. Having made his election, he may not then claim the benefit of the original pleading and the amended one too.’

In the same case, 49 Cal.App.2d at page 540, 122 P.2d at page 62, the court states:

‘* * * The courts have declared on many occasions that when a party does not leave his pleading where the order sustaining the demurrer has left it, he waives any error on the part of the trial court in sustaining the demurrer.’

And in Jackson v. Pacific Gas & Electric Co., 95 Cal.App.2d 204, at page 210, 212 P.2d 591, at page 594, the court said:

“An amended pleading which is complete in itself and does not refer to or adopt a former pleading as a part of it supersedes the former pleading. The original pleading is abandoned by the amendment and is no longer a part of the pleader's averments against his adversary and the plaintiff cannot avail himself of the allegations contained in the superseded pleading.”

It was said in Schaefer v. Berinstein, 140 Cal.App.2d 278, at page 284, 295 P.2d 113, at page 118:

‘Where an amended complaint is filed, the original complaint ceases to be the complaint in the action and it is entirely superseded by the amended complaint except for certain limited purposes. (Citing cases.) In determining the sufficiency of the third amended complaint in the present case it cannot be aided or defeated by the prior complaints or the proposed fourth complaint.’

Recently, the Supreme Court said in Meyer v. State Board of Equalization, 42 Cal.2d 376, at page 384, 267 P.2d 257, at page 262:

‘It is well established that an amendatory pleading supersedes the original one, which ceases to perform any function as a pleading. (Citing cases.) Accordingly, the only answer that may be considered as a pleading is the one modified by the board's amendment.’

Counsel himself, in this matter, recognizes the principle, for he states in his brief, ‘The third amended complaint necessarily supersedes the prior complaint.’

Rule 13 of Rules on Appeal reads as follows:

‘Every appellant shall file an opening brief, except that an appellant may join in a brief or may adopt by reference any brief in the same or companion cases. The opening brief shall contain a statement of the case, setting forth concisely, but as fully as necessary for a proper consideration of the case, in such order as the appellant may prefer, the nature of the action or proceeding and the relief sought, a summary of the material facts, and the judgment or ruling of the superior court. The statement shall be accurate and confined to matters in the record on appeal.’

Rule 26(a) of the Rules on Appeal provides in part:

‘Where * * * any party shall have required in the * * * printed record on appeal the inclusion of any matter not reasonably material to the determination of the appeal, * * * the reviewing court may impose * * * such penalties * * * as the circumstances of the case and the discouragement of like conduct in the future may require.’

Rule 41 of Rules on Appeal provides:

‘(a) [Motion and opposition] Except as provided elsewhere in these rules, all motions in a reviewing court shall be initiated by the filing of an original and 3 copies of a written notice of motion, stating the grounds of the motion, the papers, if any, on which it is to be based, and the time and place at which it is to be made. Each copy of the notice of motion shall be accompanied by a memorandum of points and authorities, and if the motion is based on matters not appearing of record, by affidavits or other evidence in support thereof. Such notice and accompanying papers shall be served and filed at least 10 days before the date designated for hearing of the motion. Any showing in opposition to the motion shall be in writing, served and filed at least 5 days before the date so designated. * * *

‘(b) [Disposition of motion] Motions shall be placed on the calendar for hearing or otherwise disposed of as the court may determine, and the notice of motion shall be deemed to be a motion on all the grounds stated in the notice.

‘(c) [Failure to oppose motion] Failure of an appellant to appear and oppose a motion to dismiss an appeal after due service of notice of motion, or to file a written opposition to the motion, may be deemed an abandonment of the appeal authorizing its dismissal. Failure of the adverse party to serve and file written opposition to any other motion may be deemed a consent to the granting of such motion.’ (Emphasis added.)

As heretofore noted, the appellant failed and neglected to appear at the time the motions were heard, he made no objections to the granting of such motions and he failed to serve and file any written opposition to any such motions. Pursuant to the rules it is deemed by us that the appellant has, by his conduct and course of action, consented to the granting of the motions.

The motions to strike from the appellant's opening brief and the appellant's supplemental brief the parts indicated in the motions, referring to the alleged third amended complaint, are, and each of them is, granted.

FOURT, Justice.

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

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