Freidberg v. Freidberg

• Decision Date: 20 July 1970
• Citation: 9 Cal.App.3d 754,88 Cal.Rptr. 451
• Court: California Court of Appeals Court of Appeals
• Parties: Elizabeth FREIDBERG, Plaintiff, Cross-Defendant and Appellant, v. Edward FREIDBERG, Defendant, Cross-Complainant and Respondent. Elizabeth FREIDBERG, Plaintiff, Cross-Defendant and Respondent, v. Edward FREIDBERG, Defendant, Cross-Complainant and Appellant. Civ. 12295, 12301.

Page 451

88 Cal.Rptr. 451

9 Cal.App.3d 754

Elizabeth FREIDBERG, Plaintiff, Cross-Defendant and Appellant, v. Edward FREIDBERG, Defendant, Cross-Complainant and Respondent.

Elizabeth FREIDBERG, Plaintiff, Cross-Defendant and Respondent, v. Edward FREIDBERG, Defendant, Cross-Complainant and Appellant.

Civ. 12295, 12301.

Court of Appeal, Third District, California.

July 20, 1970.

Lewis & Hendry by Jerome R. Lewis and Anthony Dick, Sacramento, for plaintiff, cross-defendant and appellant.

Cooper & Brodovsky by William Brodovsky, Sacramento, for defendant, cross-complainant and respondent.

MUNDT, Associate Justice Pro Tem.

In 3 Civil 12295, plaintiff Elizabeth Freidberg (hereinafter referred to as Elizabeth) has filed this appeal following a summary judgment entered in behalf of her former husband, the defendant, Edward Freidberg (hereinafter referred to as Edward).

On May 15 1969, pursuant to stipulation of counsel, the foregoing appeal was ordered to be consolidated with 3 Civil 12301, to be discussed hereinbelow.

3 Civil 12295

Elizabeth married Edward on April 19, 1962, at which time he was a young lawyer in a new law business. The couple separated on February 9, 1966, and on April 5, 1966, a divorce was granted Elizabeth in Sacramento County. Prior to the divorce, Edward had attorneys representing him draw up an Integrated Property Settlement Agreement which purported to dispose of all of the community and separate property of the parties. It is this property settlement which is in controversy in these proceedings, Elizabeth having moved to set aside the settlement on the grounds that it was procured by fraud of Edward and requesting a complete accounting of all the community assets of the parties at their true values, awarding to plaintiff a fair and equitable share of the community property and awarding plaintiff judgment against defendant for the value of said share of the community property. Edward moved for a summary judgment. The motion was granted and a summary judgment was entered. It is from this judgment that Elizabeth takes her present appeal.

Elizabeth alleges that at the time of the agreement she was under Edward's domination and emotionally dependent upon him, and that she executed the agreement relying upon the defendant's representations as to the value of the community property of the parties. Edward was, according to the complaint, wholly unmindful of his duty toward her to act fairly and candidly in the division of their joint property and did grossly defraud and deceive her as to its amount, nature and value. In so doing, Edward knowingly concealed the true, substantially greater values of community property, specifically, the true value of the community interest in the husband's law practice, which plaintiff is informed and believes, and therefore alleges, was of a value in excess of $200,000 at the time of the execution of the agreement. Plaintiff further alleges that she would not have executed the agreement had she been fully and accurately informed of the value of the community property of the parties and had she not been under the domination of the defendant. She asserts she did not discover the fraud of defendant until on or about January 18, 1967. Plaintiff further asserts in paragraph VII of her complaint as follows: 'That prior to February 25, 1966, Defendant caused his attorneys to draft the Integrated Marital Settlement Agreement which is attached hereto and incorporated herein as Exhibit A. That thereafter Defendant represented to plaintiff that said agreement set forth all the community assets of the parties hereto at their true value, and specifically represented to Plaintiff that the community interest in defendant's law practice was not more than $22,000.' The Integrated Marital Settlement Agreement was incorporated in and adopted as part of the complaint; in paragraph III of the agreement the parties agree that they were then possessed of the following community property: '* * * (j) That portion of the law practice of Edward P. Freidberg including all furniture, fixtures, goodwill, books, equipment, law office bank accounts with the Bank of California all receivables acquired subsequent to marriage.'

The practice was conveyed to Edward but the agreement did not set forth its value; neither did it set forth the value of any of the other various articles of property--and there were many--unless it had been liquidated. On July 7, 1967, during a deposition which was taken in Seattle, Washington, Elizabeth informed counsel that it was not true that Edward ever represented to her that the community interests in defendant's law practice was not more than $22,000. He did not, according to her deposition, state any figure: 'He just insisted that I had no community interest in the law practice.' It is suggested that this statement, under oath, is not consistent with the allegations of her complaint.

Her deposition also reveals that the property settlement agreement was handed to her some seven weeks before it was finally executed and that she was instructed by Edward to take the agreement to some attorney out of town in order that he might advise her in relation to it and to assure that she was properly advised in the premises. She took the document to Attorney Schwarz of San Francisco, a man with whom she had been acquainted. She asserts in the deposition that when she took the document to Mr. Schwarz she was still under the dominance of Edward, although she does not assert that Edward told her to go to this particular lawyer, since this man was a personal friend of hers, who was not acquainted with Edward. She told Mr. Schwarz that she had no interest in the law practice, a position with which he disagreed. She elected, however, to rely on Edward's advice to her that she had no interest in the law business.

The deposition of Mr. Peter Schwarz, a San Francisco attorney, was taken on September 22, 1967. Mr. Schwarz, first being sworn, testified that he has been an attorney since 1963 and that he had been acquainted with Elizabeth probably off and on for ten years. He had never represented her, however. He saw her during the month of February 1966 at his office. She had a marital settlement agreement she wanted him to look over; she inquired concerning the agreement, which he examined, discussing the various items of community property and what Elizabeth would be receiving and Edward would be receiving. They discussed the law practice. The lawyer was informed by Elizabeth that her husband was an excellent trial attorney and that he had made quite a success of himself during the short duration of his practice. Mr. Schwarz informed Elizabeth that the practice would be community property, at least from the time she got married. He identified the property settlement agreement and addendum to the agreement as being those which were left with him by Elizabeth at the time of the visit. The earnings of the practice were not discussed except to the general effect that he was doing very well. He had not seen the woman for some several years prior to the date of the visit. She did appear physically the same. During the discussion she was alert. She understood what they were talking about and was an intelligent person. On February 21, 1966, Mr. Schwarz wrote Elizabeth in part as follows: 'Although we may concede that the division of the existing property is favorable to you, you must realize that you are foregoing prospective community interests in an expanding, apparently prosperous law practice, as well as your community share of unliquidated receivables presently in the office. You are in a better position than I am in determining the monetary value of this concession.' Elizabeth was in possession of this letter and was aware of its contends when she signed the agreement. In fact, a suggestion by Mr. Schwarz also embodied in the letter recommending a provision that she be awarded attorney fees in the event an action was brought to enforce the agreement, was adopted in an addendum to the agreement. Other changes favorable to Elizabeth were incorporated in the agreement at her request.

In evaluating the factual averments with respect to the applicable law which will be discussed later, we must keep in mind that running through the case are the allegations by Elizabeth of her domination by Edward, her emotional dependence upon him, and that she acted in reliance on his representations in respect to the value of the community property of the parties. She accuses him of concealing the true, substantially greater values of the community property, specifically, the true value of the community interest in Edward's law practice. It also must be kept in mind that during January and February of 1966, when the agreement was prepared and executed, Edward repeatedly attempted to persuade Elizabeth to seek psychiatric treatment, as a result of which she became emotionally distraught and dependent upon Edward. These are her averments. Her allegations find support in her deposition where it is revealed that she was in the care of a psychiatrist and in a hospital during both 1965 and 1966 because of a mental illness. These asserted illnesses and emotional factors must be considered in determining whether or not there was, or is, a triable issue.

Edward has filed his affidavit in support of his motion for summary judgment, stating he restricts his practice to the representation of plaintiffs in personal injury litigation, and that by reasons of the ramifications thereof, it is difficult to evaluate such a practice. He avers that he did not at any time represent or indicate to Elizabeth that she had no community property interest in his law practice. He asserts that he did indicate to her that she did in fact have a community property interest in the law practice but that he was unaware of the dollar value of that interest.

On October 29, 1968, Elizabeth filed a notice of motion for...