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District Court of Appeal, Second District, Division 2, California.

Hary Jerome WILSON, Plaintiff and Appellant, v. E. H. BITTICK and Frank B. Frakes, Defendants and Respondents.

Civ. 28098.

Decided: December 10, 1964

John J. Guerin, Los Angeles, for appellant. Lauren M. Handley, Los Angeles, for respondents.

Harry Jerome Wilson (appellant) appeals from a summary judgment adjudging that he take nothing by way of his amended complaint for trespass and damages.

This appeal is an added link in a chain of litigation initiated 12 years ago comprising four separate actions alluded to below. It involves obligations and liabilities between the parties hereto and their privies or assumed privies and stems from the ownership to a one-half section of farm land near Gorman in Los Angeles County. The principal protagonists are appellant Wilson and Burton A. Browne, an original defendant to this action but not a party to this appeal. Wilson and Browne, each and severally, claimed ownership of the land. Respondents Bittick and Frakes were from 1943 to 1958, the lessee and sub-lessee, respectively, of the half section under a lease from Browne.

The first suit, a quiet title action, was filed in 1952 (original action) by Browne against appellant to quiet title to the half section. This suit was dismissed on December 4, 1957, under Code of Civil Procedure, section 583.

On December 13, 1957, browne filed another quiet title action against appellant. This was the second action in this chain of litigation. This second action was settled September 8, 1958, by a stipulated judgment which quieted title to the southwest quarter of the land in Browne and enjoined appellant and everyone claiming through him from asserting any right, title, interest, charge, lien, claim or demand in or to said southwest quarter. Title to the southeast quarter was quieted in appellant. under the same conditions.

On January 3, 1958, prior to the stipulated judgment referred to in the preceding paragraph, appellant in what chronologically is the third action, hereinafter referred to as ‘ejectment action’, sued respondent Frakes and four Does, (L. A. Superior Court No. 693039) seeking ejectment, profits nad exemplary damages in respect of the whole one-half section. Frakes was actually farming the one-half section at the time the ejectment action was brought. Both Frakes and respondent Bittick answered the ejectment action. Appellant objected to Bittick joining as a defendant in the ejectment action, but the trial court ruled that he was an indispensable party. Brown, without objection, also joined the ejectment action as a defendant.

On February 3, 1958, in an apparent attempt to thwart this latter ruling of the court, appellant moved and was granted leave to dismiss the action without prejudice as to Bittick. Frakes then moved for a dismissal on the basis that appellant had failed to join an indispensable party as required by Code of Civil Procedure, section 389. This motion was granted by the trial court, but on appeal was modified to read ‘without prejudice’, as provided by section 389. (Wilson v. Frakes, 178 Cal.App.2d 580, 3 Cal.Rptr. 434.)1

Browne remained as a defendant until the suit was dismissed in his favor under the authority of Wilson v. Frakes, supra.

On December 16, 1958, appellant filed the original complaint in the case at bench: Los Angeles Superior Court No. 713749; (Chronologically the fourth action). In this complaint he claimed ownership and the right to possession of the southeast quarter of the half section prior to January 12, 1953, and alleged that between December 16, 1955 and December 16, 1958, respondents wrongfully entered the property and harvested grains to appellant's damage in the sum of $7,349.17 for the crops and $10,000.00 exemplary damages.

On April 16, 1963, appellant in the case at bench voluntarily filed a ‘Second Amended Complaint’ for trespass and damages in which he claimed that he was the owner and in possession of the entire half section from January 12, 1953 until September 11, 1958, and that respondents within three years of filing the complaint (December, 1955 to December, 1958) had wrongfully entered the land and harvested crops in the sum of $14,698.34 and $10,000.00 exemplary damages.

On May 17, 1963, respondents moved for a summary judgment on the grounds that appellant was (a) estopped from bringing the present action; (b) the prior suits were res judicata; and (c) the action was barred by the statute of limitations. The motion was supported by the affidavit of respondent's attorney, and the files of the prior cases.

Appellant's opposing declaration set forth the facts that the ejectment action (No. 693039) had been dismissed without prejudice, that his cause of action for rents and profits was for the five year period preceding the filing in the case at bench; and that the cause of action for trespass was for the three year period preceding the filing of the case at bench.

The trial court granted the motion for summary judgment on the basis that the litigation at bench is a vexatious and harassing attempt to determine piecemeal the right to possession of the land and the right to rents and profits from the land, which issues were previously raised in the ejectment action and are therefore res judicata.

Appellant contends that the affidavit in support of the motion for summary judgment is insufficient as it states only conclusions of law and does not competently set forth that affiant could swear to the facts asserted if called to the stand.

The contention is untenable.

The affidavit, certified under penalty of perjury, clearly set forth that Lauren M. Handley was attorney for respondents and that he made the within statements as to the prior case files of his own knowledge after examining the files. The record shows that the trial court took judicial notice of the files referred to and there is no question that the files were by such reference and judicial notice made a part of the record before the trial court.

Handley's affidavit did not merely state legal conclusions as appellant asserts, but was under the facts above outlined, sufficient to present to the court the prior case files and all that such files disclosed. (Newport v. City of Los Angeles, 184 Cal.App.2d 229, 236, 7 Cal.Rptr. 497.)

With the principle firmly in mind that an appellate court is concerned with judicial acts and not with the reasons of the trial judge, which may or may not be disclosed by the record, in support of such acts, (Davey v. Southern Pacific Co., 116 Cal. 325, 329, 48 P. 117) we turn now to the substantive consideration of whether the trial court correctly held in favor of the respondents on their motion.

The first ground urged by respondents is that the present suit represents an attempt to litigate piecemeal, and is harassing and vexatious litigation which appellant should be estopped from prosecuting. The record, however, does not support this contention.

Of the four suits that have so far been brought in respect of this land, two have been brought by appellant: the action at bench and the ejectment action, Los Angeles Superior Court No. 693039. The other two suits, to quiet title, were brought by Browne, the adverse claimant to the land. Any claim of estoppel must therefore be based upon the theory that the effect of the ejectment action (693039) was res judicata of all the issues in the litigation at bench. The facts as disclosed by the record do not support any theory of estoppel in fact or estoppel by law.

The record is equally clear that the doctrine of res judicata does not bar the present action.

The decision in Wilson v. Frakes, supra, 178 Cal.App.2d 580, 3 Cal.Rptr. 434, settled the law of this case to the effect that the dismissal in the ejectment action (693039) was without prejudice as provided in section 389. The effect of the dismissal was to remove all causes of action from the suit which depended upon the presence of the indispensable party. In the context of the ejectment action, this meant all defendants. There was therefore no decision on the merits as to any cause of action raised by the complaint in the ejectment action, and estoppel is therefore not a tenable plea in the present action.

The third ground urged in support of the judgment is that the statute of limitations effectively bars appellant's present action.

The second amended complaint in the case at bench alleges possession of the entire one-half section of land in appellant from January 12, 1953 until September 11, 1958, and asserts that within three years of filing the complaint, appellant suffered damages as heretofore described. Appellant's complaint originally filed in the case at bench, referred only to the southeast quarter of the section.

The Code of Civil Procedure provides that the time limit within which a suit for trespass to real property may be brought is three years (section 338(2)); whereas the time for bringing an action for mesne profits is five years (section 336).

Under the doctrine of relationback it has been held that a party may amend his complaint to incorporate new matter as long as the amendment does not attempt to state a new cause of action. (Bowman v. Wohlke, 166 Cal. 121, 128, 135 P. 37; Pagett v. Indemnity Insurance Co., 54 Cal.App.2d 646, 649, 129 P.2d 700.) However, the amended complaint, in which appellant for the first time alleges a cause of action against the entire half section of land, attempts to state an entirely new cause of action against, what it must be assumed, appellant considers a separate and distinct unit. (Atkinson v. Amador & Sacramento Canal Co., 53 Cal. 102.)

In our opinion appellant is bound by this voluntary amendment and the applicable statutes of limitation must be applied against the one-half section of land pleaded in the 1963 amended complaint. (Schaefer v. Berinstein, 140 Cal.App.2d 278, 284, 295 P.2d 113.)

The cause of action for trespass to real property pleads the period between 1955 and 1958 as the date of the wrongful entry onto the land. This period is clearly barred by the three year statute of limitations of section 338(2).

The cause of action for mesne profits however is five years prior to the date of the amendment (April 16, 1963) and would be valid insofar as it relates to such profits the taking of which accrued within that five year period: April 16, 1958—April 16, 1963. The motion for summary judgment failed to raise an absolute defense to the action for mesne profits subsequent to April 16, 1958, and therefore the summary judgment insofar as it denies recovery for this period is reversed.

Each party has severally filed in this court in connection with this appeal a motion to strike language used in their respective briefs, which when used by the other, is considered by each to be intemperate, abusive and defamatory. Neither party has been guilty of using crisp, clear and succinct English. However, as is so often the case in drawn out litigation of this nature, the allegedly reasoned processes of the adversary system are generously juiced with emotional and self-righteous reactions of the respective adversaries. The evil in this case which each motion seeks to cure is somewhat exaggerated by the eye of the beholder

All motions to strike are denied.

The summary judgment is reversed insofar as it relates to the cause of action of mesne profits from April 16, 1958. In all other respects it is affirmed. Each party is to bear his own costs.


1.  The opinion of the District Court of Appeal pointed out that the trial judge should have refused appellant's motion to dismiss Bittick, but since he had not, section 389 was applicable, and hence no causes of action against Frakes remained to be tried.

ROTH, Presiding Justice.

HERNDON, J., and KINCAID, Judge pro tem., concur.

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