Dandini v. Dandini

• Decision Date: 14 September 1953
• Citation: 120 Cal.App.2d 211,260 P.2d 1033
• Court: California Court of Appeals Court of Appeals
• Parties: DANDINI v. DANDINI et al. Civ. 15211.

Page 1033

260 P.2d 1033

120 Cal.App.2d 211

DANDINI v. DANDINI et al.

Civ. 15211.

District Court of Appeal, First District, Division 2, California.

Sept. 14, 1953.

Frisbie & Hoogs, Berkeley, for appellants Johnson & Montreal corp.

Leo R. Friedman, San Francisco, Eugene K. Sturgis, Oakland, for appellants Dandini & Sesenna.

Sturgis, Den-Dulk, Douglass & Henes, Oakland, for appellant Stanley.

Kroninger & Zographon, Oakland, for all appellants.

Johnson, Harmon & Henderson, San Francisco, for respondent.

DOOLING, Justice.

The defendants appeal from a judgment in favor of the plaintiff. Plaintiff is the wife of defendant A. O. Dandini and secured a decree for separate maintenance against him in 1946. By the terms of that decree plaintiff herein was awarded all of the community property then disclosed to the court and A. O. Dandini was ordered to pay her $150 per month.

The basis of this action, count two thereof, on which the judgment is rendered is that A. O. Dandini and the defendants Sesenna conspired to defraud plaintiff of her interest in certain community property and to conceal from plaintiff and the court in the separate maintenance action the fact of the existence of such property. The basic facts will be disclosed in the discussion of the appeals of the several parties.

The Appeal of Dandini and The Sesennas.

Three defendants Sesenna are involved. Oreste and Rose, husband and wife, and Juliana their daughter. The judgment against these defendants is for $2,650, the amount received from the sale of two parcels of real property by the Montreal Corporation at a time when the Sesennas controlled that corporation.

In 1936 appellant Dandini caused the formation of the Montreal Corporation to deal in real estate. 15,000 shares were authorized to be issued at $1 per share. Dandini paid $2,300 to the corporation for 2,300 shares of its stock and the corporation purchased a parcel of real property for which it paid $2,300. In 1938 one Scarf who held a contract to purchase the unissued shares of the corporation, as agent for Dandini, assigned this agreement to Oreste Sesenna. Oreste testified that in 1938 he bought the 2,300 shares held by Dandini and paid Dandini $1,000 in 1938 and $1,000 in 1939, both payments in cash. Dandini had a contract with the corporation to act as its agent in the purchase and sale of its properties for 50% of the profit. This arrangement was continued after the acquisition of its stock by Oreste Sesenna until 1942 when the arrangement was terminated and $200 was paid to Dandini for a full release of any and all liabilities. In 1942 the Sesennas purchased the additional unissued stock of the corporation at $1 per share. A series of checks for amounts of $1,000 and less each were drawn by Rose Sesenna, on an account in which there was never more than slightly over $1,000 on deposit, and delivered to the corporation. In turn the corporation gave a series of checks to Rose Sesenna for the purchase from her of two parcels of unimproved realty. Thus by what the parties designate as a 'round robin' transaction Mrs. Sesenna appeared to pay the corporation over $12,000 in cash, when in fact $1,000 and lesser amounts were being shuttled back and forth between the bank accounts of the corporation and Mrs. Sesenna.

Juliana Sesenna, who was secretary of the Montreal Corporation during most of the period while the Sesennas controlled that corporation and who personally handled the sale of one of the properties involved, entered into a marriage ceremony with Dandini in Nevada, where the two are now living as husband and wife, in defiance of an injunctive order of the California Superior Court which held that the Nevada decree of divorce secured by Dandini from plaintiff was invalid. See Dandini v. Dandini, 86 Cal.App.2d 478, 195 P.2d 871.

In the separate maintenance action Oreste and Rose Sesenna were interrogated about their business dealings with Dandini and failed to disclose the purchase of the Montreal Corporation from him or any other fact connected with that transaction.

The trial court found that Dandini and the Sesennas had conspired together through the device of the Montreal Corporation to conceal the fact that Dandini was acquiring properties in the name of the corporation which in fact were the community property of the Dandinis. Appellants claim that this finding is not supported by the evidence.

Fraud and conspiracy are not generally practiced in the open light of day and for that reason are not ordinarily susceptible of direct proof but must be spelled out from circumstantial evidence. 'In cases of conspiracy to defraud it is not to be expected that direct evidence of the conspiracy can be secured, because such evidence could usually only be secured in the event one of the conspirators confessed. The jury may infer the conspiracy from all the circumstances, and, if the inference is a reasonable one, it will not be disturbed on appeal.' Johnstone v. Morris, 210 Cal. 580, 590, 292 P. 970, 975; Beeman v. Richardson, 185 Cal. 280, 282, 196 P. 774; Revert v. Hesse, 184 Cal. 295, 301, 193 P. 943; McPhetridge v. Smith, 101 Cal.App. 122, 142, 281 P. 419; McNulty v. Copp, 91 Cal.App.2d 484, 490, 205 P.2d 438; 10 Cal.Jur. 809-810; 12 Cal.Jur. 829.

The elaborate device of the 'round robin' exchange of checks between the corporation and Rose Sesenna to make it appear that the full $12,000 was being paid for the stock, standing alone, might as appellants argue be only a device to exchange the real properties for the stock while apparently complying with the corporation commissioner's permit which required the stock to be issued for cash. However there was other evidence from which the court could reasonably infer otherwise. Upon the trial of this action the Sesennas positively testified that they paid the full $12,000 and upon being asked where the $12,000 came from they testified that it had been secured by the sale of other securities. When it was later proved beyond question that this testimony was false neither Sesenna again took the stand to offer any further explanation. It was also proved that in 1936, Dandini had employed a surveyor to survey certain land belonging to a Mr. and Mrs. Rees and that during that year he was sending a check to Mrs. Rees monthly. A part of the property conveyed by Mrs. Sesenna to the Montreal Corporation had been conveyed to Mrs. Sesenna by the same Mr. and Mrs. Rees and was the same property of which Dandini had secured the survey in 1936. The reasonably permissible inferences from this chain of circumstances when fitted together hardly need to be elaborated. Why did Dandini have the property surveyed in 1936? Why was he making monthly payments to Mrs. Rees? Why did this same property pass from the Reeses to Mrs. Sesenna and from her to the Montreal Corporation? Why in connection with this transaction did the Sesennas go to such an elaborate effort to make the stock purchase appear to be a cash transaction and falsely testify in this proceeding that they had in fact paid the full $12,000 in money which they had obtained by the sale of other securities? And why, if the transaction was as innocent as counsel now argue on appeal, did not the...