Coleman v. Twin Coast Newspaper, Inc.

This is an appeal from a judgment dismissing the action as against defendant-respondent Paul Shliff. The dismissal was ordered pursuant to section 581, subdivision 3, of the Code of Civil Procedure, plaintiffs having failed to amend their third amended complaint within the time allowed by the court in an order sustaining a demurrer to said complaint on the ground that there was a misjoinder of parties plaintiff.

Appellants were three chiropractors who practiced their profession at separate locations in the city of Long Beach. Respondent was an employee of the State Pood and Health

Each plaintiff set forth a separate cause of action against three named defendants sounding in trespass and alleging in substance as follows: That defendants had entered into a joint venture in which they conspired to molest, hinder and discredit plaintiff in his practice of chiropractic; that the joint venture was carried out through the actions of defendants in their individual capacities without official authority and under the guise of making an official investigation; that on a specified date defendants entered plaintiff’s office without Ms consent, took photographs, inspected plaintiff’s files, records and documents and ransacked through his papers, records and effects; that by reason of said acts of the defendants, plaintiff was prevented from using his premises as an office of chiropractic and was thereby prevented from carrying on Ms profession on said date; that by reason thereof plaintiff had been damaged in a specified sum.

Each plaintiff also alleged a second cause of action against two of the named defendants charging, in substance, that on a specified date said defendants had entered plaintiff’s office and converted to their own use certain particularly described personal property owned by plaintiff. Each such cause of action for conversion alleged the value of the personal property converted.

In other words, the complaint contained six separate causes of action, each of which referred only to the particular plaintiff involved. The first cause of action is preceded by a title reading as follows: “First Cause of Action of Carl W. Coleman against Twin Newspaper, Inc., a Corporation, doing business as Long Beach Independent and Long Beach Press Telegram, Paul Shliff, C. S. Mead, Does I to X, Inclu sive.” Each of the several causes of action was preceded by a similar title or heading. The complaint contains no allegation to the effect'that there was any community of interest among the three plaintiffs in any respect whatsoever.

Respondent’s demurrer was sustained on the ground that there was a misjoinder of parties plaintiff in that the causes of action alleged by each plaintiff were not only separate and distinct from the causes of action alleged by the other two but that the causes of action of each plaintiff were based

The ruling of the trial court was clearly correct. Section 378 of the Code of Civil Procedure reads as follows: “All persons may be joined in one action as plaintiffs who have an interest in the subject of the action or in whom any right to relief in respect to or arising out of the same transaction or series of transactions is alleged to exist, whether jointly, severally or in the alternative, where if such persons brought separate actions any question of law or fact would arise which are common to all the parties to the action; provided, that if upon the application of any party it shall appear that such joinder may embarrass or delay the trial of the action, the court may order separate trials or make such other order as may be expedient, and judgment may be given for such one or more of the plaintiffs as may be found to be entitled to relief, for the relief to which he or they may be entitled.”

The purpose of section 378 is to permit the joinder in one action of several causes arising out of identical or related transactions and involving common issues. The statute should be liberally construed so as to permit joinder whenever possible in furtherance of this purpose. (Dallman Supply Co. v. Sweet, 86 Cal.App.2d 780 , 784 [ 195 P.2d 864 ]; 37 Cal. Jur.2d 351, Parties, § 28.) The rules laid down by section 378 have been held to apply to actions in tort as well as in contract. (Colla v. Carmichael U-Drive Autos, Inc., 111 Cal.App.Supp. 784 , 786 [ 294 P. 378 ]; Peters v. Bigelow, 137 Cal.App. 135 , 140 [ 30 P.2d 450 ]; 37 Cal.Jur.2d 352, Parties §29)

There may be permissive joinder of parties plaintiff under section 378 in two situations: (1) Where there exists both a common interest in the subject of the action and, any question of law or fact common to all the plaintiffs (Parmely v. Boone, 35 Cal.App.2d 517 , 519 [ 96 P.2d 164 ]), and (2) where there exists both a right to relief arising out of the same transaction or series of transactions and any common question of law or fact (Peters v. Bigelow, supra; see also 37 Cal.Jur.2d 351-352, Parties, § 29.)

A common interest in the subject matter of the action has been found to exist where four plaintiffs sued upon four separate causes of action on common counts for money had and received in connection with purported sales of securities in violation of the Corporate Securities Act. (Parmely v. Boone, supra; see also Akely v. Kinnicutt, 238 N.Y. 466 [ 144

In the case at bar, appellants have sought to establish the existence of common questions of law and fact which may arise upon a trial of their respective causes of action. However, assuming that such common issues do exist, appellants do not and, we believe, clearly cannot, point to anything alleged in the complaint which establishes the existence of either a common interest in the subject matter of the action or a right to relief arising out of the same transaction or series of transactions. Three separate and distinct plaintiffs are suing to recover damages for alleged trespasses on separate and distinct premises and for alleged conversions of separate and distinct property. Clearly, these events did not constitute a single transaction and nothing is alleged to indicate a related series of transactions. The only fact which appears in the complaint is that three chiropractors, practicing in the same city, underwent scrutiny during the course of the same day. The community of interest necessary to allow permissive joinder under section 378 was entirely lacking.

Affirmed.

Fox, P. J., and Ashburn, J., concurred.