Campbell v. Campbell
| Citation | 321 P.2d 133,157 Cal.App.2d 548 |
| Court | California Court of Appeals |
| Decision Date | 11 February 1958 |
| Parties | Emma Kozak CAMPBELL, Plaintiff and Appellant, v. William Giles CAMPBELL, Houghton-Miffin William Giles CAMPBELL, Houghton-Mifflin Defendants, William Giles Campbell, Respondent. Civ. 22682. |
Marvin Gross, Beverly Hills, for appellant.
Bertram L. Linz, Hollywood, for respondent.
This is an appeal from a judgment dismissing an action under the provisions of section 581, subdivision 3 of the Code of Civil Procedure after plaintiff had failed to amend, demurrers having previously been sustained to the original, first amended, second amended, third amended and fourth amended complaints.
The fourth amended complaint to which the demurrer was sustained with leave to amend set forth two counts. The second count for an accounting, having been directed against a non-appearing defendant, is conceded by appellant not to be pertinent in this appeal.
The first count to quiet title to personal property alleged the marriage of the parties, that the wife obtained an interlocutory decree of divorce on the 16th day of April, 1946, which decree became final in May, 1947, and prayed judgment declaring wife to have a good and valid one-half interest in the manual or publication entitled 'A Form Book for Thesis Writing.' The fourth amended complaint contained the following allegations:
'IV.
'That during the married life of plaintiff and said William Giles Campbell in the State of California, the said plaintiff and William Giles Campbell acquired and developed as community property and as a result of their joint labor and efforts, a manual or publication entitled 'A Form Book for Thesis Writing', hereinafter referred to as 'publication'; that for the purpose of convenience said publication was authored under the name of William Giles Campbell; that at all times herein mentioned, plaintiff and said William Giles Campbell treated and considered said publication as their community property and that the authorship of said publication under said name was for the convenience of plaintiff and William Giles Campbell and not otherwise.
'V.
'That pursuant to and in contemplation of said divorce action as hereinabove stated, plaintiff and defendant William Giles Campbell entered into a Property Settlement Agreement, which agreement provided, inter alia:
that at the time that the property settlement agreement was signed by the parties the parties were receiving royalties for some time from one book written by defendant, and it was intended by the parties at the time of the signing of the property settlement agreement that the husband was to receive the royalties from the said books to the extent of $300 and that said royalties became a part of his separate property, and as a result Paragraph (f) was incorporated into the property settlement agreement and signed by the parties. At the time of the signing of the said property settlement agreement the parties did not take into consideration that there was existing a community interest in a publication manual entitled 'A Form Book for Thesis Writing', and as a result there was no intention on the part of the parties to divide the community interest of said manual; no other arrangements or provisions were made for the division of said thesis manual as said parties had completely overlooked the existing community rights of said manual, and as a result no provision was made in the property settlement agreement which was later incorporated into the Interlocutory Judgment of Divorce; as a result of the omission of the part of the parties to consider the community interests of said thesis manual the said manual continues to be the property of plaintiff herein to the extent of a one-half interest therein.'
It is contended in this appeal that the fourth amended complaint stated a good and sufficient cause of action and that it was error to sustain a demurrer thereto for the following reasons:
1. the doctrine of res judicata does not apply;
2. it was the affirmative duty of the husband to disclose the existence of this asset;
3. it is immaterial whether the husband fraudulently or mistakenly failed to disclose this asset; and
4. the Statute of Limitations is tolled by the allegation that defendant has continuously resided outside the State of California from the time of the divorce.
The appellant has oversimplified the problems presented in this appeal. It is first stated that it is fundamental that allegations of a complaint are admitted by a demurrer thereto. From this, appellant argues that inasmuch as the doctrine of res judicata applies only to issues actually litigated and determined, and court must proceed to a hearing of the case and must determine as a question of fact whether the asset consisting of a manual or publication entitled 'A Form Book for Thesis Writing' was in fact covered by the Property Settlement Agreement or the prior judgment.
The correct rule is that a 'demurrer reaches only to the contents of the pleading and such other matters as may be considered under the doctrine of judicial notice.' Weil v. Barthel, 45 Cal.2d 835, 837, 291 P.2d 30, 31. (Emphasis added.) In addition, it is only facts which are well pleaded which are regarded as true (see Livermore v. Beal, 18 Cal.App.2d 535, 64 P.2d 987); and 'facts alleged, which are contrary to those facts of which judicial notice is taken, cannot be regarded as true.' Arnold v. Universal Oil Land Co., 45 Cal.App.2d 522, 529, 114 P.2d 408, 412.
With reference to the doctrine of res judicata, 'it is the general rule that a final judgment is res judicata of the issues involved therein where the trial court had jurisdiction.' Weil v. Barthel, supra. (Emphasis added.)
In the instant case the former judgment in the divorce action between the parties is pleaded. Such judgment, supplemented by the pleadings therein of which the court may take judicial notice, may be considered in determining whether it is res judicata of the alleged cause of action.
The verified cross-complaint for separate maintenance filed in the former action by this appellant on August 21, 1945, contains the following allegation:
'As to that portion of community property of which cross-complainant has knowledge, cross-complainant alleges that the parties hereto are the owners of community property described as follows:
* * *
* * *
'(h) Accounts Receivable and royalties due from the sale of books and articles written by cross-defendant, of the approximate value of $10,000 or more.'
The contested divorce trial commenced on April 2, 1946, and both parties appeared and were represented by competent counsel. Subsequently on April 8, 1946, 'pursuant to stipulation in open ...
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