Clark v. Clark

• Decision Date: 05 September 1961
• Citation: 15 Cal.Rptr. 863,195 Cal.App.2d 373
• Court: California Court of Appeals Court of Appeals
• Parties: Tracille Ruth CLARK, Plaintiff and Appellant, v. Robert Lincoln CLARK, Bank of America National Trust & Savings Association, The Ryan Aeronautical Co., a corporation, et al., Defendants and Respondents. Civ. 6481.

Page 863

15 Cal.Rptr. 863

195 Cal.App.2d 373

Tracille Ruth CLARK, Plaintiff and Appellant, v. Robert Lincoln CLARK, Bank of America National Trust & Savings Association, The Ryan Aeronautical Co., a corporation, et al., Defendants and Respondents.

Civ. 6481.

District Court of Appeal, Fourth District, California.

Sept. 5, 1961.

Hearing Denied Nov. 1, 1961.

Holliday, Folsom & Winters and David S. Folsom, San Diego, for appellant.

Hunter M. Muir, San Diego, for respondent.

SHEPARD, Justice.

This is appeal by plaintiff (appellant herein) from a judgment of nonsuit, granted on motion of defendant Robert Lincoln Clark (respondent herein) after appellant's opening statement. (Wherever the term 'respondent' is hereinafter used, it will refer to said Robert Lincoln Clark. The other defendants, Bank of America and The Ryan Aeronautical Co., did not participate in the trial or this appeal, simply abiding the decision of the court.)

Facts

The facts as shown by the record before us are substantially as follows: Respondent herein commenced an action for divorce (San Diego County Civil No. 200221), listing therein certain community property of an alleged value of $1,500. Appellant herein cross-complained in that action, repeating substantially the same allegations as to community property as were contained in the complaint. That action was tried as to the community property relations on the basis of those allegations. The possibility of ownership by the community of an interest in 'The Ryan Retirement Trust', hereinafter called 'Trust', of The Ryan Aeronautical Co., respondent's employer was nover mentioned in that proceeding nor in any way brought to the attention of the trial court nor of appellant herein. There is nothing in the record to indicate that appellant had any intimation of the existence of the Trust such as would impose upon her the duty to inquire further. On February 24, 1956, at the close of the trial in that case, the trial court ordered judgment granting divorce to each party and dividing the community property described in the pleading equally. An interlocutory judgment was entered in accordance therewith March 12, 1956.

November 13, 1959, appellant herein commenced the present action, alleging that during the marriage relation respondent herein, by reason of his employment by The Ryan Aeronautical Co., did acquire a vested interest in the Trust; that the rights of the parties in such Trust was not disposed of by the decree in said action No. 200221; that a controversy had arisen over her rights therein. She prayed for a determination of the rights of the parties in said Trust. At the time of the commencement of trial in the present action, appellant made an opening statement to the essential effect that at the time of the original trial and judgment in action No. 200221, this appellant did not know of the existence of the Trust; that it was not mentioned in her pleadings, evidence or the judgment; that the existence of the Trust was concealed from appellant 'whether intentionally or negligently, we, of course, have no way of knowing'; that it was the community property of the parties hereto and had a value of $18,678.26. Thereupon respondent moved for judgment in his favor on the opening statement, stating as the grounds therefor that the pleadings did not state a cause of action and that the subject matter in dispute was res judicata.

After further discussion, in which the trial court pointed out to appellant the deficiencies in her original complaint, appellant was given permission to make a further offer of proof and to amend her complaint in accordance therewith if she could thereby state a cause of action. Appellant again offered to prove the existence of the Trust, the vested right therein acquired through earnings by respondent during the marriage relation; the value thereof; that appellant at the time action No. 200221 was proceeding had no knowledge of the existence of said Trust; that respondent had never told her of its existence; that appellant for about two years prior to said proceedings in action No. 200221 had been under adjudication of incompetency and had been restored to a competent status just before said proceedings commenced. Appellant then requested permission to amend the complaint to conform to such offer of proof. Respondent reiterated that his motion was for judgment on the opening statement, and was not a motion for judgment on the pleadings. The trial judge thereupon stated that even though the complaint were amended to conform to such offered proof, it would still be insufficient as a matter of law to support any relief to appellant. The motion for nonsuit was granted, and judgment entered accordingly. The propriety and timing of the motion for nonsuit were not questioned in the trial court, nor in the points on appeal presented to this court.

The Problem

The only question presented by appellant on this appeal is whether or not the facts set forth in the opening statement would, if properly pleaded, support a judgment in appellant's favor.

Nonsuit

Provision for nonsuit on plaintiff's opening statement is made by Code of Civil Procedure, section 581c, when it clearly appears from all the facts alleged in the complaint and the statements by counsel, and all favorable inferences that may be reasonably deduced therefrom, that no cause of action exists. Mendez v. Pacific Gas & Elec. Co., 115 Cal.App.2d 192, 196, 251 P.2d 773; Paul v. Layne & Bowler Corp., 9 Cal.2d 561, 564, 71 P.2d 817; Greenwood v. Mooradian, 137 Cal.App.2d 532 537 [la], 290 P.2d 955. Basically, this is the same rule that governs on a motion for nonsuit at the close of plaintiff's evidence, so that before the trial court may grant the motion it must first give 'to plaintiff's evidence all the value to which it is legally entitled, indulging every legitimate inference which may be drawn from such evidence, * * *'. Aguirre v. City of Los Angeles, 46 Cal.2d 841, 844, 299 P.2d 862, 864.

Judgment Vacated For Fraud

In United States v. Throckmorton, 98 U.S. 61, at page 65, 25 L.Ed. 93, at page 95, which has been recognized as the leading United States Supreme Court case on the subject, it is stated:

'Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by (citing certain examples)--these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and a fair hearing. (Citations.)

'In all these cases and many others which have been examined, relief has been granted, on the ground that, by some fraud practiced directly upon the party seeking relief against the judgment or decree, that party has been prevented from presenting all of his case to the court.' (Italics ours.)

In Pico v. Cohn, 91 Cal. 129, at page 133, 25 P. 970, at page 971, 13 L.R.A. 336, which has long been recognized as a leading case in California, the Court said:

'* * * we think it is settled beyond controversy that a decree will not be vacated merely because it was obtained by forged documents or perjured testimony. The reason of this rule is that there must be an end of litigation; and when parties have once submitted a matter, or have had the opportunity of submitting it, for investigation and determination, and when they have exhausted every means for reviewing such determination in the same proceeding, it must be regarded as final and conclusive, unless it can be shown that the jurisdiction of the court has been imposed upon, or that the prevailing party, by some extrinsic or collateral fraud, has prevented a fair submission of the controversy.' (Italics ours.)

Both the Throckmorton and Pico cases have been cited innumerable times by the courts of this and other States, approving the above quoted principles.

In more recent times, in Westphal v. Westphal, 20 Cal.2d 393, 397, 126 P.2d 105, 106, the Court said:

'The final judgment of a court having jurisdiction over persons and subject matter can be attacked in equity after the time for appeal or other direct attack has expired only if the alleged fraud or mistake is extrinsic rather than intrinsic. (Citations.) Fraud or mistake is extrinsic when it deprives the unsuccessful party of an opportunity to present his case to the court.'

Extrinsic and Intrinsic Fraud

From the foregoing, it is entirely clear that equitable attacks on judgments that have become final may be based only on extrinsic fraud. Counsel, in their briefs, recognized this, and all of their arguments revolve around the question of what can be classified as extrinsic fraud for which courts will grant relief. In the Throckmorton case the court suggests as examples of extrinsic fraud, being kept away from court by false promises, no knowledge of the suit, being kept in ignorance by the acts of the plaintiff and connivance of attorneys; but these, of course, were not intended to be exclusive, nor to be part of the rule itself. In literally hundreds of cases the courts have laboriously explained how intrinsic fraud may not be used to disturb a prior judgment. Brief examples are found in the following cases: Dillard v. McKnight, 34 Cal.2d 209, 214, 209 P.2d 387, 391, 11 A.L.R.2d 835: 'But the application of the principle of res judicata in a given case depends upon an affirmative answer to these three questions: Was the issue decided in the prior adjudication identical with the one presented in the subsequent litigation? Was there a final judgment on the merits? Was the party against whom the principle is invoked a party or in privity with a party to the prior adjudication?'; Estate of Bialy, 169 Cal.App.2d 479, 337 P.2d 511; Jorgensen v. Jorgensen, 32 Cal.2d 13, 18, 193 P.2d 728, 732: '* * * equitable relief will be denied where it is sought to...