Beach v. Arblaster

• Decision Date: 24 July 1961
• Citation: 194 Cal.App.2d 145,14 Cal.Rptr. 854
• Parties: Mildred BEACH, Plaintiff and Appellant, v. Gladys G. ARBLASTER, Executrix of the Last Will and Testament of William E. Arblaster, also known as W. E. Arblaster, Deceased, Defendant and Respondent. Civ. 25053.
• Court: California Court of Appeals Court of Appeals

Page 854

14 Cal.Rptr. 854

194 Cal.App.2d 145

Mildred BEACH, Plaintiff and Appellant, v. Gladys G. ARBLASTER, Executrix of the Last Will and Testament of William E. Arblaster, also known as W. E. Arblaster, Deceased, Defendant and Respondent.

Civ. 25053.

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

July 24, 1961.

Hearing Denied Sept. 20, 1961.

Morris Lavine and Roy B. Woolsey, Los Angeles, for appellant.

Gibson, Dunn & Crutcher, Sherman Welpton, Jr., and Robert S. Warren, Los Angeles, for respondent.

FOURT, Justice.

This is an appeal from a summary judgment and from an order denying a motion for reconsideration of the order granting the summary judgment and denying a motion for leave to file an amended complaint.

A resume of some of the events as set forth in the pleadings, statements and declarations in the case, is as follows: On February 11, 1960, plaintiff, an unmarried woman, filed a 'Complaint for Damages (Fraud and Estoppel)' against 'Gladys G. Arblaster, Executrix of the Last Will and Testament of William E. Arblaster, also known as W. E. Arblaster, Deceased.' It was therein alleged that William E. Arblaster (hereinafter referred to as 'deceased'), died on or about August 12, 1959; that his will dated March 19, 1929 was admitted to probate, and that Gladys G. Arblaster (wife of deceased) was appointed executrix. Plaintiff asserted that during January, 1955 and prior thereto, the deceased 'proposed to plaintiff that he and plaintiff marry, and he orally represented, warranted and promised that he would marry plaintiff. Said proposal was then and there accepted by plaintiff'; that from January, 1955 to August, 1959, deceased repeated his promise and representation and that deceased 'represented, warranted and promised that he had provided well for her and if anything happened to him she was and would be well provided for, meaning and representing thereby that, in the event of his death, she was and would be well provided for by him by will and otherwise.' Further it was alleged that plaintiff believed and relied upon the aforesaid representations and that she 'in reliance thereon and at his special instance and request gave to him companionship, comfort, society, all her love and affection, attention, rendered services to him, was ready, willing and able to marry him, refrained from encouraging and making other friendships, companionships and acquaintanceships, remained unmarried, and during or about 1955 gave up her career in television producing, writing and acting, has lost her contacts, connections and skill pertaining thereto which she had established by hard work during a period of over five years.' She also alleged on information and belief. that deceased made the above representations 'fraudulently without any intention on his part of performing or carrying out the same, for the purpose of inducing plaintiff' to pursue the course of conduct allegedly pursued. She then alleged that she did not discovered that deceased did not intend to marry her and that he did not provide for her until August 12, 1959 (i. e. date of deceased's death).

She asserted that by reason of the above, she sustained damages in the sum of $425,000. Upon information and belief, it was also alleged that deceased made the representations 'in a heartless way with malice * * * and the foregoing damages should be awarded to plaintiff, in addition to the foregoing reasons, for the sake of example.' Lastly, plaintiff alleged that on January 7, 1960, she presented a claim for damages to the executrix and thereafter on January 15, 1960, filed a claim in the Matter of the Estate of William E. Arblaster; that more than ten days elapsed since the presentation and filing of the claim and that the executrix orally rejected the claim.

On February 29, 1960, defendant's 'Answer to Complaint' was filed. The Answer denied all of the charging allegations of the Complaint, and also raised five separate and distinct affirmative defenses. ¹

On May 6, 1960, defendant filed a 'Notice of Motion for Summary Judgment' along with affidavits (statements) of Gladys G. Arblaster and George L. Roberts and a memorandum of Points and Authorities.

The affidavit of Gladys G. Arblaster provided in effect that she and deceased married 'on July 19, 1919, which said marriage was continuous up until the date of his death on August 12, 1959'; that they continuously resided together until the date of his death; that they never lived separate and apart from each other and that neither of them had ever sought to obtain a divorce nor separated or discussed obtaining a divorce; defendant stated 'Throughout our entire married life my husband and I never had discussed a property settlement agreement nor entered into one, rather most of our assets and securities were acquired and held in joint tenancy.'

The affidavit or statement of George L. Roberts provided in substance that he had known deceased 'from 1929 until his death in August, 1959'; that he had never heard or known of deceased's being separated from his wife; he stated 'I first introduced William E. Arblaster to Mrs. Mildred Matter Beach in or about 1952. At the time of said introduction * * * I stated and advised her at the time she first met William E. Arblaster that the latter was a married man.' ² (Emphasis added.)

A number of affidavits (i. e. declarations) in opposition to the motion for summary judgment were filed.

The declaration of Marjorie Peterson, filed May 24, 1960, set forth in effect that she had met deceased during December of 1951; that bout that time she had moved into an apartment near an apartment occupied by plaintiff and continued to occupy said apartment as plaintiff occupied her apartment for a period in excess of two years thereafter. She further set forth that during this two-year period she saw deceased at least once each week and generally several times each week except for a period of less than two months during said two years; that when she was at plaintiff's apartment as she often was during the two-year period, deceased called on the phone and he often called several times in one day and further that she saw deceased frequently during said two-year period and occasionally thereafter during each year through 1958. She stated that on most of the occasions when she was at plaintiff's apartment during the entire period from December, 1951 through 1958, deceased was there; that deceased was always affectionate and very attentive; that plaintiff and deceased seemed very much in love and very close together and at many times in 1952 and each year through 1958, deceased stated that he and plaintiff were going to be married; that deceased never stated that he was married or mentioned his marital status. (Note: see footnote No. 2.) She also asserted that approximately seven years ago, at a time when plaintiff was on a trip in the East, deceased came to declarant's apartment and told her that plaintiff would be returning soon, that he missed her, and that they were going to marry as soon as she (plaintiff) came back from her trip; that on New Year's Day or January 2, 1955, declarant was at a party at plaintiff's apartment and several people were there, including deceased, at which time he 'took declarant to the kitchen of said apartment out of the presence of the others and said: 'Marj, I have news for you. Mildred and I are going to get married.' Declarant interrupted and said, 'Excuse me, Bill, this is where I came in five years ago.' He said, 'No, I mean it, very soon.'' That deceased told plaintiff in declarant's presence that she should give up her television career.

The declaration of Charles Matter (plaintiff's brother), filed May 24, 1960, set forth among other things that during the period from early 1951 to December, 1958, he had resided in Los Angeles; that during the period from January 1, 1952 to December, 1958, he saw deceased at plaintiff's apartment hundreds of times and that he saw deceased and plaintiff at declarant's residence on six separate occasions when deceased and plaintiff were dinner guests of declarant; that he saw plaintiff prepare and serve food and drink to deceased at plaintiff's residence on numerous occasions and heard plaintiff tell deceased that he (deceased) should lie down and rest; that during 1958 deceased appeared to be in much poorer health than he had been in previous years and many times deceased called declarant and inquired where plaintiff was; that in 1954 at plaintiff's apartment, in the presence of plaintiff's aunt and uncle, deceased stated that he and plaintiff were going to be married very soon; that during the period from 1953 to 1955 and at other times, plaintiff produced, directed and acted in a number of television shows; that from 1954 to 1956, deceased stated to declarant and plaintiff that he (deceased) did not want plaintiff in television; that he wished she would give up her television career; that he hoped she would give it up because they would be married soon and he did not want her in television; that during or about 1956, plaintiff did give up her television career and subsequent thereto, deceased stated that he was glad that she did. Declarant further set forth that in June, 1956, deceased and declarant moved plaintiff's personal property and possessions from an apartment on Los Feliz Boulevard to an apartment on Beverly Glen; that deceased talked about the items of furniture he was going to buy when he and plaintiff were married and stated that the marriage would take place real soon; that in 1958 deceased had stated he had bought a house for plaintiff and himself in Arcadia but that the seller's wife refused to vacate the premises and that he expected to get possession very soon and spoke of how he expected the house to be furnished and that plaintiff and he would be very happy with it; that in May of 1959, deceased, plaintiff, one Alan Matter, declarant, and others had dinner...