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

Maurice KANDEL and Judith Kandel, Petitioners, v. The SUPERIOR COURT OF the State of California FOR the COUNTY OF LOS ANGELES, Respondent; Sam MESLER, Real Party in Interest.

Civ. 30791.

Decided: July 22, 1966

Joseph W. Fairfield and Ethelyn F. Black, Beverly Hills, for petitioners. No appearance for respondent. David Pick and Jerry Miller, Beverly Hills, for real party in interest.

Petitioners, defendants in the case of Mesler v. Kandel, number 852667, in the respondent court, seek a peremptory writ of mandate directing that court to vacate its order of May 13, 1966 sustaining plaintiff's demurrer to “the defendants' affirmative defense of res judicata in a pending action” and to overrule the demurrer.   By his answer real party in interest opposes the granting of the petition.

 There is no doubt that “Where it appears that the trial court has made a ruling which deprives a party of the opportunity to plead his cause of action or defense, relief by mandamus may be appropriate to prevent a needless and expensive trial and reversal.  (Souza & McCue Constr. Co. v. Superior Court, 57 Cal.2d 508, 20 Cal.Rptr. 634, 370 P.2d 338;  Carter v. Superior Court, 142 Cal.App.2d 350, 359, 298 P.2d 598.)”  (Tate v. Superior Court, 213 Cal.App.2d 238, 251, 28 Cal.Rptr. 548, 555.)   The petitioner in Carter v. Superior Court sought a writ of mandate to compel the respondent court to entertain his defense of res judicata which had been struck from his answer.   On granting the writ the court said:  “Ordinarily, a writ of mandate will not lie to correct an error committed by another court, but here it is clear that the trial court did err in striking petitioner's 3rd separate defense;  and it is further clear that petitioner will not, under the present state of the proceedings, be able to assert his defenses, and that the court's error, if judgment were rendered in favor of the plaintiff, would necessarily result in reversal upon an appeal.”

Since the application for the writ is on notice to both the respondent court and the real party in interest, it is proper for us to determine now whether a peremptory writ should be issued in the first instance (Code Civ.Proc., § 1088).

 Rule 56, California Rules of Court, provides that “[a] petition to a reviewing court for a writ of mandate, certiorari, or prohibition, or for any other wit within its original jurisdiction, must be verified and shall set forth the matters required by law to support the petition * * * ”  The petition must, of course, set forth the grounds for the relief sought (3 Witkin, Cal.Procedure, Extraordinary Writs, § 56, p. 2455), but that is not all.   Thus, it has been held that when a writ of mandate is sought to compel a superior court to make an order different from that which it has entered, the record upon which the court acted in coming to its conclusion should be presented with the petition.  (Charles L. Donohoe Co. v. Superior Court, 79 Cal.App. 41, 248 P. 1107.)   As the court said in Favorite v. Superior Court, 52 Cal.App. 316, 318, 198 P. 1004, 1005, in order to determine whether the action of the trial court “was without justification, it is necessary that it be made to appear what particular matters were before the court upon the hearing of the order to show cause.   The petition shows merely that the matter came on for hearing, and that the order was dismissed.   Whether the adverse parties appeared, and as to what objections might have there been urged against the order as made, if any, we are not advised, and this condition of the petition affords sufficient reason in itself why peremptory writ should be withheld.”   Again, in Rose v. Superior Court, 44 Cal.App.2d 599, 601, 112 P.2d 713, a petition for a writ of prohibition was denied “for the reason that it does not even purport to give all the proceedings had in the respondent court, but only such portions of the pleadings, affidavits and proceedings as the petitioner wants to direct our attention to.   Only the conclusion of petitioner is given as to what the controversy is about * * *.   Under the facts alleged in the petition, it is impossible for any court to decide whether or not the petitioner is, or might hereafter be, entitled to any remedy, without the court being first fully informed of the proceedings had in the trial court.”  In re Rapken, 111 Cal.App. 107, 295 P. 344, is to the same effect.1

The petition here does not measure up to these requirements.   Taken by its four corners we have concluded “that a proper case was not made out for the use of the writ.”  (Gubin v. Superior Court, 104 Cal.App. 331, 333, 285 P. 1071, 1072.)

The main thrust of petitioners' argument is that they have an “absolute defense” to the present action under the doctrine of res judicata and collateral estoppel by reason of the verdict of the jury in another action in the respondent court determining the liability of petitioners on the notes on which the real party in interest seeks to recover here.

 “The doctrine of res judicata rests upon the ground that the party to be affected, or some other with whom he is in privity, has litigated, or had an opportunity to litigate the same matter in a former action in a court of competent jurisdiction, and should not be permitted to litigate it again to the harassment and vexation of his opponent.   Public policy and the interest of litigants alike require that there be an end to litigation.”  (Panos v. Grat Western Packing Co., 21 Cal.2d 636, 637, 134 P.2d 242, 243.)   As the court said in Panos, quoting from 2 Freeman on Judgments, page 1425, section 676:  “Where the cause of action in the second action is the same as that in the first action, a final judgment in the latter upon the merits is a complete bar to the maintenance of the second action.”   The doctrine of res judicata has a double aspect:  (1) it ‘precludes parties or their privies from relitigating a cause of action that has been finally determined by a court of competent jurisdiction.’ (2) ‘Any issue necessarily decided in such litigation is conclusively determined as to the parties or their privies if it is involved in a subsequent lawsuit on a different case of action.’  (Bernhard v. Bank of America, 19 Cal.2d 807, 810, 122 P.2d 892, 894;  see Taylor v. Hawkinson, 47 Co., Ltd., 58 Cal.2d. 601, 604, 25 Cal.Rptr. 559, 560, 375 P.2d 439, 440.)

Petitioners here complain that the trial court erroneously sustained a demurrer to their amended supplemental answer, a copy of which is attached to their petition.   It is there alleged that in the case of Sam Mesler v. Sepulveda Condominium Corp., superior court action number 847414, in which they were defendants, “there was placed before the jury for consideration and determination the following issues:  1.   The liability of defendant Maurice Kandel to the plaintiff Mesler on the note which is annexed to the complaint herein as Exhibit B.  * *   2. The liability of the defendants Maurice Kandel and Judith Kandel on the note which is annexed to the complaint herein as Exhibit C.”   It is further alleged:  “That after considering the facts in action No. 847,414, which facts contained the allegations set forth in the first amended complaint herein and each of the four causes of action of the first amended complaint herein, the jury returned a verdict in favor of the cross-defendant Mesler and a judgment on said verdict was duly entered on February 14, 1966 in Judgment Book 5563, page 221 of Judgments, in the Superior Court of Los Angeles County.   That the judgment entered in judgment book 5563, page 221 is final and in full force and effect and is res judicata and collaterally estopped as to the allegations contained in the first amended complaint and each of the four causes of action of the first amendment complaint and plaintiff is further estopped on his first amended complaint herein or any of the four causes of action contained herein.”

It is next alleged in the petition that on January 18, 1965, the same Sam Mesler commenced action number 852667 in the respondent court wherein, by his first amendment complaint he seeks “to recover the sum of $100,000.00 on either of four theories:”  (a) on the notes executed by the petitioners on May 1, 1964;  (b) for money lent;  (c) for money had and received;  or (d) for fraud.   This is no more than the conclusion of the petitioners as to what the present controversy is about.  (Rose v. Superior Court, 44 Cal.App.2d 599, 112 P.2d 713.)   They allege that the notes were the same ones which were in evidence in the first action.

In their points and authorities filed in support of the petition counsel say:  “In support of the demurrer to the amended supplemental answer, real party in interest argued that the trial of action 847,414 was limited only to the issues set forth in the pre-trial order of that action.   Of course the statement that the issues tried in action 847,414 are not the same as the issues in the present cause is only the opinion of plaintiff's counsel.   Defendants contend that they were the same and this question should be resolved by the competent evidence in the trial of the action.”   In making this argument counsel for petitioners overlook the fact that their opinion as to the similarity of the issues in the two cases carries no greater weight here than the opinion of their opponents to the contrary.

Whether the issue of petitioners' liability on the two notes was decided in the first case depends on the record of that case.   We glean from the meagre allegations of the petition here that the first action was brought by Mesler, as owner of a note for $220,000, executed by Sepulveda Condominium Corp. payable to Maurice Kandel, secured by a deed of trust, to foreclose the deed of trust;  that in that action Maurice Kandel filed a cross complaint alleging that Mesler held the $220,000 note and deed of trust only as security for Kandel's indebtedness to Mesler in the sum of $100,000;  and that the recording of the deed of trust and institution of the foreclosure action by Mesler, claiming to be the owner thereof, constituted a conversion, to Kandel's damage in the sum of $120,000, being the value of the note executed by Sepulveda Condominium Corp. less Kandel's admitted indebtedness to Mesler in the sum of $100,000.   It further appears from the petition that in answer to the cross complaint Mesler admitted that he held the note only as security for Kandel's obligation, that Mesler dismissed his foreclosure complaint, and that the action went to trial on Kandel's cross complaint.

At the trial of the first action it was apparently conceded that the two notes signed by the Kandels, each in the sum of $100,000, evidenced a single obligation to Mesler in that amount.   It appears from the petition here that the following instruction was given to the jury:  “Cross-complainants admit they owe cross-defendant the sum of $100,000.00 with interest thereon from May 1, 1964, at the rate of 10% per annu.   Thus, if you find that cross-defendant converted the $220,000.00 note of Sepulveda Condominium Corp., you must deduct from any damages awarded to cross-complainants such sums owed by cross-complainants to cross-defendant.   Should you find that the amount thus due cross-defendant exceeds the market value of the $220,000.00 note, then your verdict will be for the cross-defendant and against cross-complainants.   Should you find that the amount thus due cross-defendant is less than the market value of the $220,000.00 note then your verdict will be for the cross-complainants and against cross-defendant and you will fix their damages in an amount equal the difference between the market value of the $220.000.00 note and the amount due cross-defendant as stated above, plus interest.”   During its deliberations the jury asked the court:  “Is the note of Kandel to Mesler still due and payable to Mesler since and after the foreclosure?”   After conference with counsel the court answered this question in the affirmative.   It is apparent that this instruction related only to the measure of damages to which the Kandels might be entitled in the event the jury found that Mesler had converted the $220,000 note.   It does not appear from anything we can find in the petition that the Kandel's liability to Mesler on the $100,000 notes was at issue at the trial or was submitted for the jury.   The verdict of the jury for Mesler was necessarily based on its determination that Mesler had not converted the $220,000 note as charged by Kandel in his cross complaint.

So far as we are concerned here, the judgment in the first action was not even a determination that as of February 1966, “the note of Kandel to Mesler was still due and payable to Mesler.”   On the showing made by the petition, it can hardly be said that it was res judicata as to the Kandels' continuing liability on the notes, or that Mesler is thereby “collaterally estopped as to the allegations contained in the first amended complaint and each of the four causes of action” thereof.

We must assume that in sustaining the demurrer to petitioners' amended supplemental answer in the second action the trial court examined the pertinent parts of the records in both actions.   It is now apparent from the answer filed by the real party in interest that the petition does not even purport to give us all the relevant parts of the records in the two cases on which the trial court necessarily based its ruling, but only those parts which would seem to serve petitioners' purpose, thus placing a wholly unnecessary burden on the real party in interest and upon this court.

 As shown by the statement of issues prepared by petitioners' attorney and incorporated in the pretrial conference order in the first action, the only issues were :  “Did the cross defendant Sam Mesler convert the note executed by Sepulveda Condominium Corp. and the deed of trust as security of the note?   2. If the answer to No. 1 is yes, the damages sustained by the cross complainants.”   The trial was thereby limited to a determination of these issues.  (Palmer v. Gregg,* ––– Cal.App.2d 52 Cal.Rptr. 22.)   It also appears from the answer of the real party in interest that the first cause of action pleaded in Mesler's first amended complaint in the second action now pending in the trial court is for damages based on the alleged false representations by Maurice Kandel in obtaining the $100,000 evidenced by the notes now sued on, and for an equitable lien “upon all properties of defendants purchased or improved and benefited by defendants with the fruits of their fraud upon plaintiff.”   The second cause of action is based on the obligation of the Kandels on their notes which are past due and unpaid.   The third and fourth causes of action are common counts for money loaned and money had and received.

We are satisfied from the record now before us that none of the causes of action in the second action is the same as the cause of action in the first action.   Thus we are concerned here only with the second aspect of the doctrine of res judicata usually referred to as collateral estoppel.   Here, as in Bernhard v. Bank of America, 19 Cal.2d 807, 813, 122 P.2d 892, and in Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd., 58 Cal.2d 601, 604, 25 Cal.Rptr. 559, 375 P.2d 439, three questions are pertinent in determining the validity of the plea:  “Was the issue decided in the prior adjudication identical with the one presented in the action in question?   Was there a final judgment on the merits?   Was the party against whom the plea is asserted a party or in privity with a party to the prior adjudication?”   The record in the present case compels us, as it compelled the trial court, to answer the first and second questions in the negative.   It is therefore immaterial to our disposition of the matter here that Mesler was a party to both actions.

Since petitioners have not made out a proper case for the use of the peremptory writ of mandate they seek, much less of an alternative writ, the petition is denied.



1.   See also West Pico Furniture Co. v. Superior Court, 56 Cal.2d 407, 414, 15 Cal.Rptr. 119, 122, 364 P.2d 295, 298, where the court said:  “The second general contention made by Pacific is that petitioner has failed to show that the trial court abused its discretion, and therefore is not entitled to relief.   Undoubtedly, as pointed out in the Greyhound case, supra, [Greyhound Corp. v. Superior Court, 56 Cal.2d 355, 15 Cal.Rptr. 90, 364 P.2d 266], the trial court has considerable discretion in matters pertaining to discovery.   It is equally true that such discretion will not be set aside in the absence of abuse.   The proper rule was stated in Ryan v. Superior Court, 186 Cal.App.2d 813, 816–817, 9 Cal.Rptr. 147, 150, as follows:  ‘One of the primary purposes of the Discovery Act is to expedite the trial of the action.   This purpose will be defeated if appellate courts entertain petitions for prerogative writs by which a review of the orders of trial courts in discovery proceedings are sought and which do not clearly demonstrate an abuse of discretion by the trial court where discovery is denied, or a violation of privilege or of the provisions of section 19 of article I of the Constitution of this state where discovery is granted.   This court will hereafter refuse to entertain petitions for prerogative writs in discovery matters which do not allege facts which would entitled the petitioner to the relief sought under the principles we have set forth.’ ”

FOOTNOTE.  FN* Advance Report Citation:  242 A.C.A. 1033, 1038.

McCOY, Justice pro tem.* FN* Assigned by the Chairman of the Judicial Council.

WOOD, P.J., and LILLIE, J., concur.