Casey v. Katz
| Decision Date | 26 November 1952 |
| Court | California Court of Appeals Court of Appeals |
| Parties | CASEY v. KATZ. Civ. 15130. |
Lionel Browne, Harold A. Harwood, San Francisco, for appellant.
Henry F. Boyen, Frank J. Fontes, Douglas M. Moore, San Francisco, for respondent.
Plaintiff brought an action for malicious prosecution against defendant as administrator of the estate of Harry Lasky, deceased. A demurrer to the amended complaint was sustained without leave to amend and from the judgment which followed this appeal was taken.
The amended complaint alleges that Lasky died on September 21, 1949 and that defendant was appointed administrator of his estate on October 19, 1949. It contains no allegation that a claim was filed or presented.
Prior to October 1, 1949 section 707 of the Probate Code did not require the presentation of claims grounded in tort against the estates of decedents. National Auto. & Cas. Ins. Co. v. Ainge, 34 Cal.2d 806, 215 P.2d 13. In 1949 however the legislature amended sec. 707, Prob.Code to require the presentation of claims 'for damages for physical injuries or death or injury to property.' (Emphasis ours.)
This action is based on the prosecution for battery of plaintiff on the complaint of the decedent in May, 1949, and the cause of action which survived decedent's death on September 21, 1949 is one for 'injury to property.' Hunt v. Authier, 28 Cal.2d 288, 169 P.2d 913, 918 171 A.L.R. 1379; Moffat v. Smith, 33 Cal.2d 905, 206 P.2d 353. Since Prob.Code sec. 707 as amended requires the presentation of a claim for 'injury to property' the cause of action in this case falls squarely within its terms. The date on which the original complaint was filed does not appear in the transcript but since the appointment of defendant as administrator is alleged to have occurred in October 19, 1949 the original complaint must have been filed after the effective date of the amendment to Prob.Code sec. 707 which was October 1, 1949.
The 1949 amendment to Prob.Code sec. 707 is not to be given retroactive effect so as to apply to actions which had been commenced before it became operative, National Auto. & Cas. Ins. Co. v. Ainge, supra, 34 Cal.2d at page 810, 215 P.2d 13, but since it affects procedure only and not substantive rights it is properly applicable to all actions against representatives of decedent's estates commenced after its effective date. No litigant has any vested rights in mere matters of procedure, San Bernardino County v. Industrial Acc. Comm., 217 Cal. 618, 628 et seq., 20 P.2d 673; Arques v. National Superior Co., 67 Cal.App.2d 763, 778, 155 P.2d 643; City of Los Angeles v. Oliver, 102 Cal.App. 299, 315-316, 283 P. 298, so long as an adequate remedy remains. Kerckhoff-Cuzner Mill & Lumber Co. v. Olmstead, 85 Cal. 80, 24 P. 648; Lantz v. Fishburn, 17 Cal.App. 583, 590, 120 P. 1068. This rule finds frequent application where existing statutes of limitations are...
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