Opinion
9-1-1953
WILSON v. SHARP et al. * Civ. 19540.
John J. Guerin, Los Angeles, for appellant. Harold W. Kennedy, County Counsel, John B. Anson and Arno Van Alstyne, Deputy County Counsel, Los Angeles, for respondent.
WILSON
v.
SHARP et al. *
Sept. 1, 1953.
Rehearing Denied Sept. 17, 1953.
Hearing Granted Oct. 29, 1953.
John J. Guerin, Los Angeles, for appellant.
Harold W. Kennedy, County Counsel, John B. Anson and Arno Van Alstyne, Deputy County Counsel, Los Angeles, for respondent.
VALLEE, Justice.
Appeal from a minute order granting a motion of the defendants to strike from plaintiff's second amended complaint the second cause of action against defendant Harold W. Kennedy, County Counsel of the County of Los Angeles.
The facts alleged in the original complaint were substantially reiterated in the first and second amended complaints. The complaints alleged: A vacancy had arisen in the office of Executive Assistant, County Clerk, a position in the classified service of the County of Los Angeles. On June 5, 1946, the Civil Service Commission of the county called a promotional examination to fill the position. The Commission so fixed and determined the requirements of the applicants that only defendant Sharp was eligible, and the Commission knew that only Sharp would be able to qualify. The Commission promulgated an eligible list showing that Sharp had been the only applicant and his rating was determined by investigation and not by a competitive examination. The County Clerk, acting in reliance upon the certification made to him by the Commission that Sharp was an eligible for permanent appointment, appointed Sharp to the position. Sharp served in the position from August 5, 1946, to June 28, 1949, except for the period from October 6, 1948, to March 20, 1949. Since August 5, 1946, defendant Lowery, Auditor of the County of Los Angeles, caused public moneys to be paid to Sharp without demanding or receiving the certification of the Commission as provided in article IX, section 38, of the Charter of the county. The eligible list is void; the appointment made thereunder is void; and the public moneys paid to Sharp while serving under the permanent appointment were paid without authority of law and should be recovered and paid into the treasury of the County of Los Angeles.
The original complaint, filed December 3, 1951, named as defendants: William G. Sharp; Charles C. Mack, and Thomas J. O'Keefe, as members of the Los Angeles County Civil Service Commission; Clifford N. Amsden, as Acting Secretary and Chief Examiner of the Los Angeles County Civil Service Commission; Joseph M. Lowery, as Auditor of the County of Los Angeles; the County of Los Angeles; and six John Does. A declaratory judgment was sought declaring that Sharp was a de facto officer and had no promotional rights in the classified service. A judgment for $11,183.65, salary paid to Sharp, was also prayed for. Harold W. Kennedy, County Counsel of the County of Los Angeles, was not named a defendant and no recovery was sought against him. However, plaintiff referred to him as being, and as having been at all times therein concerned, the County Counsel of the County of Los Angeles, and that previous to the filing of the action he had made demand upon the County Counsel to institute such proceedings as were proper under the provisions of section 26525 of the Government Code for the purpose of recovering the public moneys paid to Sharp; and that he failed and refused to institute such proceedings.
The first amended complaint named the same defendants and sought: (1) a declaratory judgment that Sharp was a de facto officer and had no promotional rights in the classified service; (2) a judgment in the sum of $1,446.79 for salary paid to Sharp from March 21, 1949, through June 28, 1949; (3) an injunction restraining Lowery from paying Sharp's salary; and (4) recovery of $15,383.86, salary paid to Sharp. This complaint made the same allegations with respect to Harold W. Kennedy as did the original complaint.
The second amended complaint, for the first time, made Kennedy a defendant. The second cause of action alleged that on October 5, 1951, plaintiff made demand upon Kennedy, as County Counsel, to take such action as was necessary and proper to recover for the County of Los Angeles the public moneys paid to Sharp from August 5, 1946, through June 26, 1949; that Kennedy failed and refused to bring suit against Sharp and allowed the statute of limitations to run against all payments made to him from August 5, 1946, to December 3, 1948, in the sum of $9,736.86. Plaintiff prayed judgment against Kennedy for $9,736.86. A motion to strike this second cause of action was granted. Plaintiff appeals from the minute order granting the motion.
The parties disagree as to the ground on which the motion was granted. The record does not disclose the ground. If the motion was correctly granted on any ground the order must be affirmed. A reviewing court is concerned with the correctness of a trial court's action and not with the reasons assigned therefor. Bealmear v. Southern Cal. Edison Co., 22 Cal.2d 337, 339, 139 P.2d 20.
The authorities recognize the propriety of a motion to strike an amended complaint setting up an entirely new cause of action. Neal v. Bank of America, 93 Cal.App.2d 678, 682, 209 P.2d 825; Burnett v. Boucher, 108 Cal.App.2d 37, 238 P.2d 1; Shenberg v. De Garmo, 61 Cal.App.2d 326, 143 P.2d 74; Pagett v. Indemnity Insurance Co., 54 Cal.App.2d 646, 129 P.2d 700; 71 C.J.S., Pleading, § 455, p. 919. The court in Pagett v. Indemnity Insurance Co., supra, stated 54 Cal.App.2d at page 649, 129 P.2d at page 702: 'It is well settled that a new and different cause of action may not be set up in an amended complaint and that the trial court should grant a motion to strike an amended complaint which sets up an entirely new and different cause of action.'
The test for determining whether a wholly different cause of action has been introduced by amendment is whether a wholly different legal liability or obligation is pleaded from that originally averred. '[T]he test is not whether under technical rules of pleading a new cause of action is introduced, but rather, the test is whether an attempt is made to state facts which give rise to a wholly distinct and different legal obligation against the defendant.' Klopstock v. Superior Court, 17 Cal.2d 13, 21, 108 P.2d 906, 910, 135 A.L.R. 318.
In applying the test, the court should consider: First, whether the new count is consistent with the former count or counts. It must be a like kind of action and such as might have been originally joined with the others. Second, whether it is the same cause of action. The subject matter of the new count must be the same as that of the old; it must not be for an additional claim of demand but only a variation of the form of demanding the some thing. Union Lumber Co. v. J. W. Schouten & Co., 25 Cal.App. 80, 82, 142 P. 910; 21 Cal.Jur. 199, § 137. See 71 C.J.S., Pleading, § 290, p. 649.
New parties may be brought into an action by amendment, but only if they are necessary parties. Code of Civ.Proc. § 473; 1 Bancroft's Code Pleading, 821, § 567. A complaint may be amended to add a defendant as long as there is no change in the cause of action. Karlik v. Peters, 106 Cal.App. 126, 288 P. 863.
Here Kennedy as a new defendant is required to answer a wholly different legal liability or obligation from that alleged against the original defendants. The second amended complaint attempts to set up a cause of action on a different basis of recovery or relief from that originally pleaded against the other defendants. The basis of the action against Kennedy is that he did not correctly exercise his judgment and discretion in refusing to institute a suit against Sharp and that he thereby allowed the statute of limitations to run. Plaintiff seeks to hold him liable for the barred payments. The second cause of action is not a mere variation of the original allegations, but it is an entirely new, distinct, and independent cause of action against Kennedy and not against the other defendants. It does not arise out of the same transaction as that out of which the other causes of actions arose, and is a cause of action which cannot, with propriety, be joined with the others.
The court did not abuse its discretion in granting the motion to strike the second cause of action from the second amended complaint.
Affirmed.
SHINN, P. J., and WOOD, J., concur. --------------- * Subsequent opinion 268 P.2d 1062.