56 Cal. App. 2d 905 | Cal. Ct. App. | 1943
The complaint herein contained three causes of action. The first was for the recovery of damages from National Automobile Insurance Co. upon two undertakings executed by that defendant in connection with a restraining order and a temporary injunction in an action in which plaintiff herein was defendant; the second was for damages against defendant Goldstein for malicious prosecution of the suit for injunction and for malicious use of the injunctive orders; the third was for the rescission of a lease of real property in which one Feder was lessor and plaintiff herein was lessee, and for the recovery of rent paid. Findings and judgment were in favor of plaintiff upon the first and second causes of action and in favor of defendant Feder upon the third cause of action. Defendant National Automobile Insurance Co. has appealed from the judgment, defendant Goldstein has not appealed and plaintiff has not appealed from the judgment as to the third cause of action in favor of defendant Feder.
Defendant Goldstein operated a beauty shop in premises which she rented from Feder. Plaintiff, who was operating a beauty shop, leased another storeroom from Feder close by the one occupied by Goldstein. When plaintiff had almost completed the fitting up of her new shop and was installing the equipment from her old one, she and Feder were made defendants in a suit for injunction brought by Goldstein, the contention of the latter being, as it is stated by counsel, that Feder had made an agreement with defendant Goldstein not
The complaint in the present action alleged the pertinent facts with relation to the execution of the two bonds by appellant. In the second cause of action it was alleged that the legal proceedings prosecuted by defendant Goldstein were without probable cause and actuated by malice. Damages were sought in the sum of $4,150, alleged to have been sustained by plaintiff as follows: $1,000 as the expense incurred in fitting up the new shop and preparing to move the business; $3,000 for the loss of plaintiff’s business, and $150 alleged to have been paid by plaintiff to her attorney in connection with the restraining order and temporary injunction. The court found that plaintiff had sustained damage in the sum of $1,107, including $150 paid by plaintiff as attorney’s fees. There was a finding that this damage was sustained by plaintiff by reason of the restraining order and the temporary injunction and a separate finding that damage in the same amount was sustained by plaintiff by reason of the malicious acts of plaintiff in the prosecution of the injunction suit and the procurement of the injunctive orders therein. Judgment was entered jointly against National Automobile Insurance Co. and Goldstein for said sum of $1,107.
Appellant demurred to the complaint upon the ground, among others, that there was a misjoinder of causes of action and also a misjoinder of parties defendant; the demurrer was overruled. The following contentions are urged for a reversal of the judgment: (1) there was a misjoinder of causes of action; (2) there was a misjoinder of parties de
Of the enumerated contentions we find the first five to be without merit; as to the sixth contention we find the judgment to be subject to modification.
Points 1 and 2 may be considered together. The demurrer on the ground of misjoinder did not specify the particulars in which it was claimed that there was either a misjoinder of causes of action or parties. Being in general language it was not a good plea of misjoinder and the court properlv overruled the demurrer upon that ground. (Kreling v. Kreling, (1897) 118 Cal. 413, 420 [50 P. 546]; Gardner v. Samuels, (1897) 116 Cal. 84, 88 [47 P. 935, 58 Am.St.Rep. 135] ; O’Callaghan v. Bode, (1890) 84 Cal. 489, 495 [24 P. 269].)
It is true, as contended under the third point, that while a joint judgment was entered on the two causes of action, defendant Goldstein was not liable with appellant on the first cause of action, since she did not sign the undertaking, and appellant was not liable with Goldstein under the second cause of action for malicious prosecution. But these facts do not affect the validity of the judgment. Only actual damages were allowed plaintiff; in fact she sought no punitive damages. It would seem clear that neither of two defendants is prejudiced by a joint judgment against them where one has incurred liability for damages for his tort and the other by reason of his agreement of indemnity against the same damage. If, therefore, appellant was properly held liable upon either or both of the two undertakings for damages sustained by plaintiff by reason of the injunctive orders no possible prejudice could result to it by reason of the fact that defendant Goldstein was held liable in the same amount on the basis of malicious prosecution. Appellant and Gold-stein would be in substantially their present positions if separate judgments in the same amount had been rendered against them in separate actions. Where a case has been
The alleged waiver by plaintiff in connection with the dismissal of the action is predicated upon a written agreement signed by plaintiff and defendant Goldstein reading as follows: “This Covenant, made this 21st day of March, 1941, by and between Gizella Adams and Dorothy Ann Goldstein, Whereas, the said Dorothy Ann Goldstein is now about to dismiss with prejudice that certain Los Angeles Superior Court action number 461-279, and Whereas, upon said dismissal the said Gizella Adams may open and maintain a beauty shop in the premises located at 7775 Beverly Boulevard, in direct competition with the beauty shop now owned and operated by Dorothy Ann Goldstein, located at 308 N. Ogden Drive, Now therefore, the parties agree that they will not lower or cut prices listed as follows: [Here follows schedule of prices to be charged.] This agreement to not lower or cut the prices to extend for a period of six months from the date of execution hereof. This covenant shall not be construed as a waiver of the right of Gizella Adams to recover damages from any party to the said law suit known as Los Angeles Superior Court No. 461-279. This covenant shall be effectual upon execution to begin with the date of the filing of the dismissal provided that said dismissal is filed not later than seven days from date of execution.” The agreement was prepared by the attorney for defendant Goldstein and apparently at the latter’s suggestion. The question of waiver will be answered when it is determined which of two rules of law should be applied to the facts of the case. The first rule, which is the one the trial court applied, is that the voluntary dismissal by a plaintiff of an action for injunction is to be given the same effect in fixing the liability of a surety as follows a final determination by the court that the plaintiff was not entitled to the injunction. (Moore v. Maryland Casualty Co., (1929) 100 Cal.App. 658 [280 P. 1008].) The other rule is that where the dismissal results from a mutual and voluntary agreement of the parties it does not have the same effect as a determination by the court that the injunction was improperly issued but will be construed as a waiver by the defendant in the injunction suit of the right
There was also sufficient evidence to support the court’s finding of damage in the amount of $1,107. Plaintiff’s business was closed from the 20th day of February to the 21st day of March, 1941. During that time her assistants accepted employment elsewhere and she was unable to serve her customers, some 75 per cent of whom had sought and been refused appointments because of plaintiff’s inability to serve them. There was detailed evidence as to the amount of money spent in the process of moving to the new location, the installation of fixtures, the building of partitions, painting the shop and otherwise preparing it for occupancy. There was also evidence as to the value of plaintiff’s equipment as a part of an operating business and its value when detached therefrom and sold piecemeal, as well as evidence of the losses sustained in the sale of the equipment. Nothing was allowed plaintiff in the way of damages for loss of anticipated profits. Plaintiff lost her business, and equipment which had cost her in excess of $2,000 brought, on forced sale, only $650. These facts furnished a good basis for the allowance of damages. The award as to defendant Goldstein was fully sustained by the evidence and was reasonable.
As we have indicated, we think the judgment against appellant as surety was excessive and we reach this conclusion because we think it should have been limited to the penalty of the bond given upon issuance of the temporary injunction, namely, $1,000. It is appellant’s contention that the $500 bond was entirely ineffectual because it in terms referred to a restraining order that was about to be issued and not to one that had been previously issued, and because no restraining order was issued in connection with the giving of the bond. Reliance is placed upon Carter v. Mulrein, (1889) 82 Cal. 167 [22 P. 1086, 16 Am.St.Rep. 98], but that
The temporary restraining order was issued February 20, 1941, without the requirement of a bond; it was served on that day. On the return day, February 28, the hearing was continued until March 5 on which date demurrers were sustained with five days to amend, the hearing was continued to March 12, and the temporary restraining order was continued in force, upon condition that a $500 bond be given by 5 p.m. of March 5, which was done. On March 12 the temporary injunction was issued with bond of $1,000 and it remained in force until the action was dismissed on March 21. The $500 bond provided in part as follows: “WHEREAS, the above named Plaintiff has commenced, or is about to commence, an action in the Superior Court of the County of Los Angeles, State of California, against the above named Defendants and is about to apply for A Temporary Restraining Order in the said action against the said Defendants enjoining and restraining Them from the commission of certain acts, as in the Complaint filed in the said action is more particularly set forth and described. NOW, THEREFORE, in consideration of the premises, and of the issuing of the said Temporary Restraining Order, the NATIONAL AUTOMOBILE INSURANCE COMPANY,” etc. [here follow the usual provisions of an injunction bond]. The finding was that plaintiff sustained damage by reason of the restraining order and the preliminary injunction. Obviously the finding must be understood as implying that plaintiff sustained some damage by reason of the restraining order, since the judgment exceeds by $107 the penalty of the bond given upon issuance of the temporary injunction. There was no evidence that any of the damages awarded plaintiff accrued during the time when the restraining order alone was in force, February 20 to March 12, nor was there any finding that any damage accrued during that period. Plaintiff did not give up the business until after March 21 and since she was not
In furnishing the bond the surety did not assume liability for damages which had been theretofore suffered. The bond was not given to comply with any requirement made at the time of the issuance of the restraining order, because no bond had been required. Bonds given to indemnify against damage which may result from injunctive process are to be construed as operating prospectively unless they are so worded as to express an intention of the surety to assume liability for damage which has accrued before the giving of the bond. (Carter v. Mulrein, supra, (1889) 82 Cal. 167 [22 P. 1086, 16 Am.St.Rep. 98] ; Curtiss v. Bachman, (1895) 110 Cal. 433 [42 P. 910, 52 Am.St.Rep. 111]; Alaska Improvement Co. v. Hirsch, (1897) 110 Cal. 249, 251 [47 P. 124, 51 P. 340].) If, therefore, the closing of the business between February 20 and March 12 contributed to the total damage sustained by plaintiff it is impossible for us to tell from the record, and we are inclined to believe that it would' have been difficult, if not impossible, for the trial court to determine how much of the damage was sustained before and how much after the bond on the restraining order was given. As that may be, the court did not attempt to do so. There is therefore no basis in the evidence nor in the findings for
For the reasons we have stated, the judgment should be reduced to the amount of the penalty of the injunction bond, namely, $1,000. We think a judgment in this amount is a satisfactory result to be reached from a consideration of the rather difficult and intangible facts of the case.
The judgment is modified by reducing the same from $1,107 to $1,000, and as so modified is affirmed, neither side to recover costs on appeal.
Desmond, P. J., and Bishop, J. pro tern., concurred.
Reporter’s note: On February 10, 1943, the opinion and judgment were modified to read as above.