Dryer v. Dryer

Citation41 Cal.Rptr. 839,231 Cal.App.2d 441
CourtCalifornia Court of Appeals
Decision Date22 December 1964
PartiesJames M. DRYER, Administrator of the Estate of Nathan H. Dryer, Deceased, Plaintiff and Appellant, v. LaVey Louk DRYER, Defendant and Respondent. Civ. 415.

James A. Hayes, Long Beach, for appellant.

Noren Eaton, Sierra Madre, for respondent.

CONLEY, Presiding Justice.

The plaintiff, James M. Dryer, as administrator of the estate of Nathan H. Dryer, deceased, appeals from a summary judgment in favor of the defendant, LaVey Louk Dryer. The elder Dryer died on May 6, 1960, leaving three adult sons and a minor daughter aged 13 years. His first wife, Grace, predeceased him on October 1, 1959, after a marriage which lasted for 32 years. Four months later Nathan H. Dryer married the respondent herein, LaVey Louk Dryer, and, during a marriage which lasted only ten weeks, she was allegedly made the beneficiary of the following property which formerly belonged to him:

1) Approximately $9,000 as the cash proceeds of a Federal Group life insurance policy upon Nathan Dryer's life;

2) The real property and the family home in Santa Ana;

3) Approximately $1,335 in cash as the annual leave payment of Nathan Dryer from his employer, Long Beach Naval Shipyard;

4) $1,600 in cash from decedent's credit union; and

5) Cash from a bank account at First Western Bank and Trust Company and miscellaneous minor assets.

The complaint in the present case, after alleging his appointment as administrator, names the surviving sons and daughter of the decedent, specifies the duration of his mother's marriage and her death from cancer, after a lingering illness. The complaint continues by alleging that Nathan H. Dryer suffered substantial physical and mental deterioration by reason of the illness of his wife, and avers that while he was in such weakened physical and mental condition the defendant, LaVey Louk Dryer, falsely and fraudulently and with the intent to defraud him and acquire his property represented to him that she would care for him and for his minor daughter and would maintain a suitable home and environment for them, or their survivor.

Paragraph VI of the complaint is as follows:

'That all of said representations were false and fraudulent and were then and there known by said defendant to be false and fraudulent and untrue.

'That in truth and in fact said decedent died approximately ten weeks after participating in a marriage ceremony with said defendant, LaVey Louk Dryer and said LaVey Louk Dryer has failed and refused to care for said minor child of said decedent and has stated to plaintiff and to said minor child that she has no desire to maintain a home or to provide or care for said minor child.

'That within a few weeks after said decedent's death, said defendant LaVey Louk Dryer, applied for, and received, all insurance proceeds and entitlements arising from said decedent's death and has terminated all of said decedent's interests in joint tenancy property and the same now stands of record in her name alone.

'That in addition thereto, said defendant has not provided, is not providing, nor does she intend to provide, a home for said decedent's minor child. That said decedent's minor child is not being supported or maintained or cared for by said defendant LaVey Louk Dryer and has not been so cared for since a few days after said decedent's death.'

The complaint alleges that the decedent believed the defendant's statements and as a result transferred to the defendant all of his property either outright or in joint tenancy, and that he would not have done so except for the false and fraudulent representations of the defendant. The complaint says that all of the assets are presently in the hands of, or controlled by, the defendant; it further states that the real property in question has deteriorated so that a receiver should be appointed. Paragraph X avers that plaintiff has just discovered the nature and extent of the fraud and is therefore acting promptly in the prosecution of the cause.

An answer was filed by LaVey Louk Dryer in which she denies any fraudulent motive or misrepresentation, and in which she alleges that the questions involved in the case are res judicata by reason of a former judgment in her favor.

The essential pleadings under which the case was decided consist of a written motion for summary judgment supported by an affidavit which sets forth as exhibits copies of the essential pleadings in the former action (Orange County No. 89131), and which prays for a summary judgment against the plaintiff. The affidavit is by Noren Eaton, attorney for the defendant in both actions; a copy of the complaint in the earlier case is set forth as exhibit 'A' and a copy of the answer as exhibit 'B'; the affidavit alleges that the cause came on for trial before the Honorable William S. Lee, judge presiding, on July 11, 1962, and that thereafter judgment was entered in favor of LaVey Louk Dryer and against the plaintiff; a copy of the findings of fact and conclusions of law is set forth as exhibit 'C'; and a copy of the judgment that followed is attached and marked exhibit 'D.'

The affidavit continues:

'That the parties in this action and in action No. * [89131] are the same, and are suing and being sued in the same capacity as in No. * 89131 . That the properties referred to in action No. * [89131] are the same as the properties which are the subject of this action. That the cause of action of plaintiff herein, namely the recovery of properties, is the same in this action as that in No. * [89131]. That /in/ the original complaint No. * [89131], this plaintiff urged as a ground of his complaint the same charge of fraud as set forth in this complaint but in filing his amended complaint, omitted that ground.

'That by reason of the foregoing, this affiant alleges that this matter is res adjudicata.'

In the earlier case, the court found that the plaintiff was the administrator of his father's estate; that the father left four children surviving him and the defendant as his widow; that the illness and death of his first wife did not cause 'a marked and substantial physical and mental deterioration in said decedent * * *'; that LaVey Louk Dryer did not promote or effect 'a scheme, plan and design to secure and obtain' the assets and properties of decedent; that the second marriage of decedent was not a result of such a fraudulent motive; that the allegations of paragraph VI in complaint No. 89131, reading as follows, were untrue:

'That subsequent to said marriage ceremony on February 14, 1960 and prior to decedent's death on May 6, 1960 and while said decedent was still in a weakened physical and mental condition, said defendants, and each of them, took an unfair advantage of said decedent by causing said decedent to transfer and convey to said defendants, without any consideration from said defendants, all of his property, assets and estate, either individually to defendant LaVey Louk Dryer, or in joint tenancy with said defendant, LaVey Louk Dryer, and by naming said defendant, LaVey Louk Dryer, as the beneficiary of life insurance, policies and other benefits and entitlements accruing and arising upon said decedent's death.'

The findings in the earlier case were complete in their holding that the claims of the plaintiff as against the defendant were wholly without foundation and that the defendant held all of the property legally. The plaintiff never perfected an appeal.

The motion for a summary judgment in the instant case was opposed by the filing of the following documents:

1) A statement entitled 'Opposition to Motion for Summary Judgment,' in which it was alleged that the present action consists of a cause of action separate and distinct from that considered by the court in the prior case, and that the present suit involves factual matters which could not be determined summarily on a motion for summary judgment;

2) Declarations of James M. Dryer and James A. Hayes which set forth factual matters some of which counsel for appellant claims were not disposed of in the earlier case and which he says are not subject to a summary judgment;

3) Points and authorities, as well as supplemental points and authorities, in opposition to the motion.

The trial court granted the motion, the summary judgment was entered in due course, and the plaintiff appealed.

The appellant's contention that a summary judgment cannot be granted on the ground of res judicata is wrong; the authorities clearly hold that res judicata is a proper ground upon which to grant a summary judgment (Smith v. City of Los Angeles, 190 Cal.App.2d 112, 128, 11 Cal.Rptr. 898; Stafford v. Ware, 187 Cal.App.2d 227, 9 Cal.Rptr. 706; Olmstead v. Riley, 135 Cal.App.2d 117, 121-122, 286 P.2d 579; Poochigian v. Layne, 120 Cal.App.2d 757, 763-764, 261 P.2d 738; Gosnell v. Webb, 66 Cal.App.2d 518, 152 P.2d 463; 95 A.L.R.2d 654, et seq.; John A. Bauman, California Summary Judgment: A Search for a Standard, (1963) 10 U.C.L.A.L.Rev. 347, 358; Cal. Continuing Education of the Bar, Cal.Civ.Proc., Before Trial, pp. 852-853).

It is next contended that considering the moving papers and the affidavits in opposition thereto, the trial court did not have a legitimate basis upon which to grant the judgment. Again, appellant is wrong; he does not distinguish, as did the trial judge, between a cause of action and a ground of action. This distinction is made in Freeman on Judgments, 5th Edition, pages 1437-1438, where it is said:

'Where the parties and the gist of the action are the same, differences in the grounds of action which do not change the substantial cause of action do not prevent the second judgment from operating as a bar. There is an obvious distinction between grounds of action and cause of action; a single cause of action may be based upon several grounds, in which event, ...

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