Beehler v. Beehler

• Decision Date: 24 December 1979
• Citation: 161 Cal.Rptr. 30,100 Cal.App.3d 376
• Court: California Court of Appeals Court of Appeals
• Parties: Mary Isabel BEEHLER, Plaintiff and Appellant, v. William G. BEEHLER, Pacific Trust Deed Co., Inc., Samuel Goldhagen, Bernice M. Goldhagen, Maynard Lee Samms, also known as Lee Samms, Pacific Pen Share Investment, Inc., Defendants and Respondents. Civ. 18084.

Page 30

161 Cal.Rptr. 30

100 Cal.App.3d 376

Mary Isabel BEEHLER, Plaintiff and Appellant, v. William G. BEEHLER, Pacific Trust Deed Co., Inc., Samuel Goldhagen, Bernice M. Goldhagen, Maynard Lee Samms, also known as Lee Samms, Pacific Pen Share Investment, Inc., Defendants and Respondents.

Civ. 18084.

Court of Appeal, Third District, California.

Dec. 24, 1979.

Mikacich, Schenk & Gale and Stanley J. Gale, Sacramento, for plaintiff and appellant

Thomas W. Bell, Jr. & Associates and Thomas W. Bell, Jr., Sacramento, for defendants and respondents.

REYNOSO, Associate Justice.

May a demurrer be sustained and the action dismissed with prejudice on the basis that there is another action pending when: (1) the first action is for dissolution of marriage, and (2) the second seeks to protect the community assets against defendant husband and several business associates not named in the dissolution action? We hold that there was not an action pending between the same parties (except as to that cause which seeks a declaration of plaintiff's community interest against defendant husband), and thus a demurrer may not be entered. While joinder in the first action of all defendants in the second is permitted by the Rules of Court, it is not required.

Plaintiff Mary Isabel Beehler appeals from a judgment of dismissal entered after the Sacramento County Superior Court sustained without leave to amend the demurrer of defendants William G. Beehler; Pacific Trust Deed Co., Inc.; Samuel Goldhagen; Bernice M. Goldhagen; Maynard Lee Samms, also known as Lee Samms; Pacific Pen Share Investment, Inc.; and Pacific Pen Shares. The trial court sustained the demurrer on the ground that there was another action already pending. Plaintiff contends that the trial court erred in sustaining the demurrer and entering judgment on that ground. Since we agree we reverse and remand the matter to the trial court for further proceedings.

I

In order to consider the issues raised by this appeal it is necessary to understand the particular causes of action articulated in the complaint. In reviewing a judgment of dismissal after a trial court sustains a demurrer we consider that all the allegations of the complaint are true and the question is whether the plaintiff has shown that she may be entitled to some relief. (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496, 86 Cal.Rptr. 88, 468 P.2d 216.) We thus take the following statement of facts from plaintiff's complaint without regard to whether she may ultimately be able to prove such allegations.

THE FIRST CAUSE OF ACTION

Plaintiff entered into an agreement with Pacific Trust Deed Co., and others whereby she invested $10,000.00 in certain land to be developed, and Pacific Trust Deed Co., Inc., agreed to act as trustee in holding title for the investors. Defendant Beehler is the alter ego of Pacific Trust Deed Co., Inc., and defendants Pacific Pen Share Investment, Inc., Pacific Pen Shares, Samuel Goldhagen and Bernice Goldhagen have some interest in the property subsequently purchased.

The property which was purchased is described in Exhibit 1 to the complaint (hereinafter referred to as parcel 1). When the property was acquired title was taken in some of the defendants' names, but not in plaintiff's name. After the acquisition of the property some of the defendants sold, transferred, and hypothecated the property, in whole or in part, and portions of the large sums which were thus acquired were diverted to the personal use of some of the defendants and other portions were used to acquire other parcels of land described in exhibits 2 and 3 to the complaint (hereinafter parcels 2 and 3). At all times defendants had knowledge of plaintiff's interest in the property.

Defendants failed and refused to account to plaintiff for the rents, issues and profits of the property and failed to include her as an owner of parcels 2 and 3. Plaintiff sought an accounting of the rents, issues and profits of parcels 1, 2, and 3; to have her ownership declared; to have defendants reimburse her for her shares of the monies derived from such property; and to have defendants ordered to inform her of all matters affecting the ownership, development and sale of the property.

THE SECOND CAUSE OF ACTION

Plaintiff is the wife of defendant Beehler. During their marriage Beehler formed the corporation known as Pacific Trust Deed Co., Inc., and caused all of the shares to be issued to him. The corporation, the property owned by it, and all of the shares of the stock, are community property. Beehler is the alter ego of the corporation.

Beehler and Pacific Trust Deed Co., Inc., acquired real property, or interests therein, described in Exhibits 1 through 8, attached to the complaint (hereinafter parcels 1 through 8). During marriage Beehler made gifts of the properties to defendant Samms and/or defendants Pacific Pen Share Investment, Inc., and Pacific Pen Shares. The transfers were made without plaintiff's consent. Samms knew at all times of Beehler's marital status. Plaintiff sought to have the gifts restored to the community and to have Samms ordered to reimburse the community for all the rents, issues and profits which he has received therefrom.

THE THIRD CAUSE OF ACTION

Beehler and Pacific Trust Deed Co., Inc., sold parcel 8 located in Lake County, to L & H Investment Co., on or about March 15, 1978. Plaintiff had a community interest in that property and did not join in the conveyance. The property was sold for $500,000.00, with an initial payment of $200,000.00. Defendants Beehler, Pacific Trust Deed Co., Inc., Samms, and Pacific Pen Shares took the initial payment without accounting to plaintiff. There is further an outstanding promissory note secured by a deed of trust in the amount of $300,000.00 in which plaintiff asserts a community property interest.

II

Defendants filed a demurrer to the complaint on the grounds that (1) the court had no jurisdiction to determine community property interests since plaintiff had filed a petition for dissolution of marriage which was then pending, and (2) there was another action pending between the same parties on the same cause of action, that being the dissolution action. When the matter came on for hearing the trial court took judicial notice of domestic relations file No. 731478 and placed the clerk's file before it. The defendants stipulated to the court that if any of the subject property should be sold 10 percent of the net profit would be placed in a bank account to bear interest at pass-book rates, to be held there until plaintiff could litigate her claim to an interest therein. The court sustained the demurrer on the grounds of another action pending, and suggested that any further action be brought as an ancillary action in the dissolution proceedings. The court finally ordered that the defendants were to keep and give a complete accounting to the court of all transactions involving the subject land upon demand of the court.

Based upon the ruling sustaining the demurrer the trial court entered an order sustaining the demurrer without leave to amend, for expunging lis pendens, and for the deposit of 10 percent of the net profits from the sale of the subject properties pending the determination of plaintiff's interest therein. Based upon the order sustaining the demurrer without leave to amend, a judgment of dismissal was entered and plaintiff appeals.

III

We will consider first the demurrer as it relates to the causes of action stated against the defendants other than William Beehler.

Code of Civil Procedure section 430.10, subdivision (c) provides that a party against whom a complaint has been filed may file a demurrer to the complaint on the ground that "(t)here is another action pending between the same parties on the same cause of action." The dissolution action involves only plaintiff and defendant Beehler, the other defendants in this action not having been joined as defendants. Defendants contend, nonetheless, that there is an identity of parties because they are in privity with Beehler. An examination of the causes of action herein refutes such a contention.

In the dissolution action the trial court has the jurisdiction to determine whether plaintiff has a community property interest in any of the parcels involved herein, and, if so, to make an appropriate division of the community property between plaintiff and defendant Beehler. (Civ.Code, § 4800; Cal.Rules of Court, rule 1242.) The jurisdiction to determine whether property is subject to division necessarily includes the jurisdiction to determine whether property is separate property of one spouse and hence not subject to division. In the absence of joinder of other parties the trial court does not have the jurisdiction to interfere with any rights acquired or claimed by parties other than the husband and wife. (Cal.Rules of Court,...