Ehret v. Ichioka

• Decision Date: 06 January 1967
• Citation: 247 Cal.App.2d 637,55 Cal.Rptr. 869
• Court: California Court of Appeals
• Parties: Toshiye EHRET et al., Plaintiffs and Appellants, v. Tsutayo Nakao ICHIOKA, Defendant and Respondent. Civ. 29051.

Page 869

55 Cal.Rptr. 869

247 Cal.App.2d 637

Toshiye EHRET et al., Plaintiffs and Appellants, v. Tsutayo Nakao ICHIOKA, Defendant and Respondent.

Civ. 29051.

Court of Appeal, Second District, Division 4, California.

Jan. 6, 1967.

As Modified on Denial of Rehearing Jan. 31, 1967.

Hearing Denied March 3, 1967.

Toshiye Ehert, Mia Ichioka Yamaoka, Shizuye Lewis, Futaba Ichioka, and Mia Ichioka Yamaoka as administratrix, in pro. per.

Tetsujiro Nakamura, Los Angeles, and Wayne M. Collins, San Francisco, for defendant and respondent.

KINGSLEY, Justice.

Plaintiffs Toshiye Ehret, Mia Ichioka Yamaoka, Shizuye Lewis and Futaba Ichioka are the issue of a marriage between Masako Ichioka and Toshio Ichioka, both now deceased. Plaintiff Mia Ichioka Yamaoka also appears as the administratrix of the estate of Masako Ichioka, deceased. Defendant Tsutayo Nakao Ichioka is the second wife of Toshio Ichioka. The action, described with more particularity below, is based on the claim that Toshio held certain property in trust for plaintiffs Toshiye, Mia, Shizuye and Futaba, and that he had violated that trust by transfers inter vivos and testamentary to Tsutayo, and that the latter is liable to account to them for this property and its proceeds. After sundry proceedings in the trial court, defendant's demurrer to the fourth amended complaint was sustained without leave to amend, judgment of dismissal was duly entered and the present appeal was taken.

I

Originally, the action was instituted for the plaintiff children by the law firm of Burton & Gauldin, appearing by Alexander D. Thomson, Esq. Subsequently, Shizuye was appointed as guardian ad litem for her incompetent sibling Futaba and, beginning with the first amended complaint, she appears in that capacity as well as individually. In that first amended complaint, also, Mia appears for the first time as administratrix of Masako's estate as well as in her individual capacity.

Shortly before the ultimate, fourth amended, complaint was filed, there was filed in the court below a document executed by plaintiff Shizuye only (together with consents by Thomson on behalf of Burton & Gauldin, and by Mr. Mostman, reading as follows: 'Plaintiff (sic) hereby substitutes Paul Ian Mostman as his (sic) attorney of record in place of BURTON & GAULDIN.' Thereafter, there was filed a document, executed by Shizuye only, 'as one of the plaintiffs above named,' (together with consents by Messrs. Mostman and Brooks) reciting the appointment by 'plaintiffs' of Arthur A. Brooks, Jr., as 'co-counsel' for 'plaintiffs.' Finally, there was filed a third document, again executed by Shizuye only (together with consents by Messrs. Mostman and Brooks), reciting that 'Plaintiffs hereby substitute SHIZUYE LEWIS, im (sic) propria personum (sic) of record, in place of PAUL IAN MOSTMAN and ARTHUR A. BROOKS, JR.' The notice of appeal is executed, purportedly on behalf of 'plaintiffs' by Shizuye Lewis 'Im Propria Personum.' (sic)

Supporting her motion by evidence that Shizuye is not, and never has been, a member of the California Bar, defendant has moved to dismiss the appeal as improperly taken. We deny the motion.

We know of no rule that requires the employment, or the discharge, of an attorney to bear the personal signature of each client, nor any rule that the employment or discharge may not be made by an agent. ¹ It follows that, if properly authorized by her co-plaintiffs, ² Shizuye was empowered to make the several changes above listed. It is true that she could not act as an attorney for her siblings, but the only act with which we are here concerned is the execution of the notice of appeal. Whether or not she or her co-plaintiffs were still represented by counsel at that moment, the California Rules of Court (Rule 1(a)) permit the notice of appeal to be signed by the party. Again, remembering that such notices are to be liberally construed, we can see no reason why Shizuye could not, as agent, sign the notice on behalf of the other plaintiffs; the notice before us purports to have been signed in exactly that capacity. We regard it as valid and effective. ³

II

We note that the caption of the fourth amended complaint purports to list, as one of the plaintiffs, an heir-at-law of Masako designated as 'Jane Roe.' The complaint alleges: 'The true name and address of said JANE ROE is presently unknown to the other plaintiffs herein who therefore name her under her fictitious name; when the true name is ascertained, plaintiffs herein will ask leave to amend their Complaint to specifically set forth the true name.'

From this allegation it is clear that 'Jane Roe' has not authorized the filing of this complaint on her behalf. Neither is there anything to indicate that she authorized anyone to prosecute an appeal from the judgment which has been entered. She cannot be regarded as an appellant here.

We need not decide whether 'Jane Roe,' as an heir of Masako, is an indispensable or a conditionally necessary party, nor what steps should be taken in the trial court to bring about her joinder in some proper way. (See Code Civ.Proc. §§ 382, 389.) It is sufficient here to deal with the question of whether the action should have been dismissed as against the plaintiffs who have joined voluntarily in the action and in this appeal.

Neither is it necessary to pass upon defendant's contention that the administratrix of Masako's estate was added as a party plaintiff after the statute of limitations had run. The case in this court, on the complaint before us, involves only the rights of the heirs as beneficiaries of a trust and, as appears below, such claims may be asserted directly by the heirs themselves.

III

The fourth amended complaint, although no model of pleading, seems to us adequately to allege (at least as against a general demurrer) that, under the law of Japan, the marriage of Masako and Toshio resulted in vesting in Toshio certain rights in Masako's theretofore separate property, that Toshio had the power of management of that property during Masako's lifetime and thereafter until his own death, but that those powers were powers in trust (referred to in the briefs as a 'Yoshi' trust) for the benefit of Masako while she lived and for the benefit of the issue of the Masako-Toshio marriage thereafter, the trust terminating and the rights of the children-beneficiaries vesting on their father's death. The complaint then alleges the existence of property of Masako at the time of her marriage, its management and investment (resulting in a substantial increase in value) by Toshio, the death of Masako and Toshio, and the diversion by Toshio of the trust estate. If these allegations are true, it is obvious that the complaint states a good cause of action for breach of trust.

In an action for constructive trust one must plead facts constituting the cause of action, such as fraud, breach of fiduciary duty, etc.; and specifically identifiable property. (See Burke v. Maguire (1908) 154 Cal. 456, 469, 98 P. 21.) In the instant case, all of these necessary elements were adequately pled.

Defendant contends that there are no facts tracing the specific trust property or alleging that the property transferred to defendant was actually property from Masako's estate. However, the complaint clearly alleges and lists eleven items of specific property that were purchased with the rents, issues, and profits of the original trust property, and so defendant's contention is without merit. Most of the property was specifically identified.

Further, the second element of the cause of action for a constructive trust (breach of fiduciary duty) was adequately pled. Plaintiffs pled the breach of duty of an actual trust by the trustee, Toshio, in which property was wrongfully transferred to defendant Tsutayo. A cause of action in Constructive trust may be based on a breach of fiduciary duty by a trustee of an express trust. (Truesdail v. Lewis (1941) 45 Cal.App.2d 718, 115 P.2d 218.)

Defendant argues that plaintiffs did not allege that defendant 'gained' a thing by fraud, accident, mistake, etc., as required by Civil Code section 2224. There is no magic in the use of the word 'gained.' The same meaning can be derived from the words that were actually used in the complaint in the case at bench.

Defendant alleges that the complaint did not state a cause of action because it failed to allege that respondent was not a bona fide purchaser for value and that it failed to allege that she took with notice of the plaintiffs' rights, and that such allegations are necessary. (Ferguson v. Ferguson (1943) 58 Cal.App.2d 811, 814, 137 P.2d 735.) Without here repeating the allegations of the complaint, paragraph XIV of the first cause of action contains allegations that the property was transferred without good faith and without consideration, and paragraph III of the second cause of action alleges that defendant knew of the existence of trust property.

Defendant correctly...