Babcock v. Omansky

• Decision Date: 13 April 1973
• Citation: 107 Cal.Rptr. 512,31 Cal.App.3d 625
• Court: California Court of Appeals Court of Appeals
• Parties: Miles C. BABCOCK and Bert Gervis, Plaintiffs and Respondents, v. Leon OMANSKY and Bertha Omansky, Defendants and Appellants. Civ. 39410.

Page 512

107 Cal.Rptr. 512

31 Cal.App.3d 625

Miles C. BABCOCK and Bert Gervis, Plaintiffs and Respondents, v. Leon OMANSKY and Bertha Omansky, Defendants and Appellants.

Civ. 39410.

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

April 13, 1973.

Rehearing Denied May 9, 1973.

Joseph W. Fairfield, Beverly Hills, for defendants and appellants.

Alvin Wechsler and Morris L. Marcus, Beverly Hills, for plaintiffs and respondents.

LILLIE, Associate Justice.

Defendants have separately appealed from those portions of an amended judgment whereunder Leon was held liable to plaintiffs on four promissory notes plus interest and ordered to pay attorneys' fees for services rendered in enforcing such obligations. Additional determinations made in the judgment will be discussed hereinafter.

The complaint's first four causes of action sought recovery on the four notes, each in the sum of $5,500, executed by Leon on March 25, 1965; a fifth cause of action related to subsequent transfer by Leon to Bertha (his wife) of certain property without valid consideration and for the purpose of defrauding creditors; other conveyances, allegedly fraudulent, were sought to be set aside in four additional causes of action (sixth through ninth), while a tenth cause of action alleged that Bertha was liable to plaintiffs on Leon's notes as a joint venturer. Upon commencement of the trial, plaintiffs' motion to dismiss the sixth, seventh, eighth, and ninth causes of action was granted. The trial then proceeded on the remaining portions of the complaint as well as on defendants' amended cross-complaint which alleged that Leon's promissory notes were obtained upon plaintiffs' fraudulent representations, and demanded damages therefor and, in a second cause of action, damages and other relief (indemnification) from other cross-defendants.

Defendants having demanded a jury, which was thereafter instructed on the applicable law, special verdicts (in response to pertinent interrogatories) were returned. Such verdicts found that (1) Leon was not induced to enter into a certain loan agreement (resulting in the execution of his four promissory notes) by reason of any fraud on plaintiffs' part and (2) the conveyances alleged in the fifth cause of action were fraudulent as to plaintiffs. The court adopted the foregoing determinations in the amended judgment from which this appeal is prosecuted. Thus, it was therein decreed that plaintiffs have judgment against Leon on each of the notes (first through fourth causes of action) plus designated interest plus attorneys' fees in a designated sum and costs (likewise determined by the court); the conveyances from Leon to Bertha were fraudulent (fifth cause of action); cross-defendants (plaintiffs) have judgment against both Leon and Bertha on the first cause of action of their cross-complaint; and an order of nonsuit was made against plaintiffs and in Bertha's favor on all other causes of action in which she was a named defendant. The judgment is silent as to any adjudication of the cross-complaints second cause of action involving B. M. Stewart and others although they participated in the trial; as will be shown, such omission is one of the grounds for reversal urged on this appeal.

Twelve assignments of error are advanced, some of which are repetitious of others; in none of them is it expressly contended that no substantial evidence was presented to support the jury's determinations on the two issues it resolved. Because it involves the present appealability of the amended judgment, we first discuss the claim that such judgment was interlocutory only, since (as indicated immediately hereinabove) all of the issues between all the parties were not therein finally adjudicated. The rule of 'one final judgment' is a settled principle of appellate practice, it being consistently held that piecemeal disposition and multiple appeals in a single action would be oppressive and costly. (Bank of America v. Superior Court, 20 Cal.2d 697, 701--702, 128 P.2d 357.) It is also settled, however, that where parties have distinct interests there can be a separate, final and appealable judgment for each: '(T)o hold the person bound to wait until the final judgment against the other party before taking an appeal from the judgment . . . already rendered is wholly unreasonable . . ..' (Rocca v. Steinmetz, 189 Cal. 426, 428, 208 P. 964, 965.) (Accord: Johnson v. Hayes Cal Builders, Inc., 60 Cal.2d 572, 578, 35 Cal.Rptr. 618, 387 P.2d 394.) The pre-trial order in the instant case makes reference to a stipulation between counsel for cross-complainants Omansky and cross-defendants Stewart and others, that the trial of the cross-complaints second cause of action (concerning a written indemnification agreement of February 2, 1967) 'may be stayed pending the outcome of the so-called main action under the indemnity agreement involved therein which is now set for trial on 7/13/70 but will be continued . . . and pending the outcome of a U.S. District Court case involving the same issues.' It seems clear that distinct and severable issues (indemnification of the Omanskys by Stewart and others) were involved in such second cause of action; for that reason, and in light of the stipulation just mentioned, 'the court could enter its judgment adjudicating all the claims between these two parties without pronouncing judgment on the yet unresolved controversies between (the cross-complainants and the other cross-defendants).' (Johnson v. Hayes Cal Builders, Supra, p. 578, 35 Cal.Rptr. p. 622, 387 P.2d p. 398.) For the foregoing reasons, the amended judgment was not prematurely made and entered.

On the merits, it is contended by Leon that the judgment as to him is void because the determinations made by the jury (thereafter adopted by the court) were not conclusions of fact but of law, contrary to the provisions of section 624, Code of Civil Procedure. ¹ The pertinent interrogatories, two in number, read as follows: 'Was Mr. Omansky induced to enter into the loan commitment agreement by reason of any fraud on the part of Mr. Babcock and Mr. Gervis?' (The answer thereto was 'No.') 'Were the transfers by which Mr. Omansky conveyed his interest to Mrs. Omansky in the Canyon Drive property and Almont Drive property fraudulent as to Mr. Babcock and Mr. Gervis?' (The answer thereto was 'Yes.') As to the first of such interrogatories and its answer, it is argued that the jury should have been instructed on All of the elements constituting fraud listed in Vogelsang v. Wolpert, 227 Cal.App.2d 102, 109, 38 Cal.Rptr. 440, and then asked to decide whether each of such elements was present; instead, the interrogatory confined itself to the words 'any fraud.' Although, as pointed out by Leon, the court in its own motion instructed the jury on all such elements (Inst. No. 2), we do not believe that a cumbersome interrogatory embracing each of the several elements was necessarily required. Said the court in McCloud v. Roy Riegels Chemicals, 20 Cal.App.3d 928, 936--937, 97 Cal.Rptr. 910, 915, 'Parties should have one chance (by request for special verdict forms) to have a jury's fact finding pinpointed.' Leon was apparently satisfied with the pinpointing form of his first interrogatory at the trial of the cause--the record is devoid of any showing that he objected thereto; having failed to do so below, any error inherent therein is waived. (Brokaw v. Black-Foxe Military Institute, 37 Cal.2d 274, 280, 231 P.2d 816; see also Bate v. Marsteller, 232 Cal.App.2d 605, 614, 43 Cal.Rptr. 149.) Furthermore, as noted by Witkin, 'The questions submitted in special issues must call for Ultimate facts, not for evidentiary facts or conclusions of law.' (Cal.Procedure, 2d Ed. p. 3074.) As applied to the point here under discussion such view is consistent with decisional law commencing with Hick v. Thomas, 90 Cal. 289, 27 P. 208, 376 that a finding as to fraud may be couched in general terms. (See also Weger v. Rocha, 138 Cal.App. 109, 111, 113, 32 P.2d 417; Bond v. DeWitt, 126 Cal.App.2d 540, 543--544, 272 P.2d 561 (rev. on other grounds).)

The foregoing discussion is also dispositive of Leon's criticism that the second of the two interrogatories likewise called for a conclusion of law as well as being uncertain and ambiguous in form. In the latter regard he contends that it is impossible to determine whether the conveyance in question was deemed fraudulent by reason of section 3439.04 ² or section 3439.07, ³ Civil Code. If defendants' conduct was fraudulent under either or both of these sections, plaintiffs were still entitled to the relief here granted. Too, 'All reasonable inferences will be indulged on appeal to support, rather than defeat, a jury's verdict and the judgment rendered thereon; and in construing a verdict, reference may be had to the pleadings, the evidence and the court's charge.' (Fairfield v. Hamilton, 206 Cal.App.2d 594, 605, 24 Cal.Rptr. 73, 80.) Leon has not called to our attention any evidentiary segments of the reporter's transcript which support his present claim.

It is next contended that the allegations concerning fraud in the fifth cause of action are insufficient. According to both defendants, they are based on information and belief without a statement of the facts upon which such belief is founded; they cite Woodring v. Basso, 195 Cal.App.2d 459, 465, 15 Cal.Rptr. 805, which so holds--in accord with established law. Inasmuch as the transactions were between husband and wife, the matters alleged were within defendants' knowledge and could be set forth on information and belief. (Schessler v. Keck, 125 Cal.App.2d 827, 835, 271 P.2d 588.) Unlike the situation in Woodring, the facts on which the belief is based Are set forth in the pleading. ⁴

Error is assigned by Leon to the admission of evidence bearing on his alleged insolvency due to the transfers of property mentioned above (fn. 4, Supra). 'A person is insolvent when...