Gaglione v. Coolidge

• Decision Date: 22 July 1955
• Citation: 286 P.2d 568,134 Cal.App.2d 518
• Court: California Court of Appeals Court of Appeals
• Parties: Alyssee I. Riley GAGLIONE, Plaintiff and Appellant. v. Margaret W. COOLIDGE, Defendant and Respondent. Civ. 16373.

Page 568

286 P.2d 568

134 Cal.App.2d 518

Alyssee I. Riley GAGLIONE, Plaintiff and Appellant. v. Margaret W. COOLIDGE, Defendant and Respondent.

Civ. 16373.

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

July 22, 1955.

Hearing Denied Sept. 15, 1955.

Joseph A. Brown, San Francisco, for appellant.

Frank J. Mahoney, San Francisco, for respondent.

KAUFMAN, Justice.

This is an appeal from a judgment entered on an order sustaining respondent's demurrer without leave to amend to appellant's third amended complaint.

Four different complaints were filed by appellant. The original complaint filed on August 26, 1953, contained two counts, one to quiet title and one for specific performance of an oral contract to convey real property. Respondent Margaret Coolidge was sued individually and as executrix of the estate of her father David Kelly, deceased. A demurrer to this complaint having been sustained, appellant filed the first amended complaint which consisted of one court for specific performance. Following the sustaining of a demurrer to this complaint, the second amended complaint was filed. It contained three counts, one for specific performance; one for damages, actual and punitive, and one for money had and received. A demurrer to this complaint was also sustained with leave to amend and a motion to strike granted.

The third amended complaint was for declaratory relief seeking a declaration of appellant's rights and duties in respect to certain real property therein described. It was then alleged 'That an actual controversy has arisen between plaintiff and said defendant, Margaret W. Coolidge, relating to the legal rights and duties of said parties, to wit, that plaintiff contends that plaintiff is entitled to the execution and delivery to plaintiff by said defendant, Margaret W. Coolidge, of a good and sufficient grant deed, granting and conveying the aforesaid real property in fee simple absolute to plaintiff, or, in the alternative, to the recovery from said defendant of the sum of $3,209.68, being the amount heretofore paid by plaintiff to said defendant pursuant to the terms of an oral contract wherein and whereby the said defendant agreed to sell and convey the said real property in fee simple to plaintiff; that said defendant, Margaret W. Coolidge, denies all and singular the aforesaid claims of defendant.'

Respondent demurred to the third amended complaint on the grounds that (1) it did not state a cause of action; (2) that no cause of action was stated inasmuch as any claim for relief was barred by the provisions of section 339(1), Code of Civil Procedure; (2) that it was uncertain in several particulars, that it was ambiguous and unintelligible.

It may be observed that this complaint is certainly subject to numerous defects raised by the special demurrer, but if the special demurrer had been sustained, leave to amend should have been granted. Respondent contends, however, that the demurrer was properly sustained without leave to amend, since the action was barred by the Statute of Limitations, sec. 339(1), Code of Civl Procedure, and furthermore did not state a cause of action for declaratory relief under section 1060 of the Code of Civil Procedure.

Appellant's first contention, that the trial court committed error in sustaining the demurrer to the second amended complaint, may be disposed of briefly. Appellant chose to amend and filed the third amended complaint. She therefore waived any error in these rulings if error had been committed by the court in sustaining the demurrers. Metzenbaum v. Metzenbaum, 86 Cal.App.2d 750, 195 P.2d 492; Dalzell v. Kelly, 104 Cal.App.2d 66, 230 P.2d 830; Sheehy v. Roman Catholic Archbishop, 49 Cal.App.2d 537, 540, 122 P.2d 60. Even if we assume that appellant could object at this stage of the proceedings to the sustaining of the demurrer to the second amended complaint with leave to amend, that complaint was subject to a great number of objections raised by special demurrer, and on that ground the ruling of the trial court may be upheld. Appellant has attacked this ruling simply on the ground that the Statute of Limitations may not be resorted to by respondent, because that complaint shows facts concerning respondent's conduct which give rise to an estoppel to plead the bar of the statute.

It is next contended that the third amended complaint stated a good cause of action for declaratory relief. Appellant stated that it has been held that a complaint for declaratory relief is sufficient where it shows the existence of an actual controversy, Tolle v. Struve, 124 Cal.App. 263, 12 P.2d 61; Northwest Casualty Co. v. Legg, 91 Cal.App.2d 19, 204 P.2d 106; Dowd v. Glenn, 54 Cal.App.2d 748, 129 P.2d 964, and that plaintiff need not allege facts showing that the adverse party has breached the terms of an agreement. Pacific States Corp. v. Pan American Bank, 213 Cal. 58, 1 P.2d 4, 981. It is sufficient it facts showing the existence of an actual controversy relating to the legal rights and duties of the parties are alleged, and the court is asked to adjudge these rights and duties. Oldham v. Moodie, 94 Cal.App. 88, 270 P. 688.

While it is true that the third amended complaint states that a controversy exists in relation to the rights and duties of the parties under an oral contract to convey real property, and therefore would appear to state a case for declaratory relief under section 1060, Code of Civil Procedure, the court may refuse to exercise its power under that section in any case where its declaration or determination 'is not necessary or proper at the time under all the circumstances.' Sec. 1061, Code of Civil Procedure. That declaratory relief may be proper under an oral contract is now established. 15 Cal.Jur.2d 230, sec. 72.

It is true that the action of a trial court in denying declaratory relief by sustaining a general demurrer to the complaint rather than by deciding the matter after answer has been filed has been criticized, Moss v. Moss, 20 Cal.2d 640, 128 P.2d 526, 141 A.L.R. 1422, still such error has not been considered prejudicial unless an abuse of discretion is affirmatively shown on appeal. 15 Cal.Jur.2d 166, sec. 37; Lord v. Garland, 27 Cal.2d 840, 168 P.2d 5.

In the instant case the alleged controversy consists of plaintiff's contention that she is entitled to the execution of a deed to the property involved in the oral contract, in other words, specific performance of said contract, or in the alternative to the recovery of the money already paid pursuant to the terms of the contract. This was the fourth complaint filed in this action. The two prior complaints had demanded specific performance, and the second amended complaint sought specific performance, compensatory damages, and punitive damages for fraud. On the fourth attempt, appellant has switched to the theory of declaratory relief, but the complaint still discloses that she is seeking specific performance of an oral contract to convey real property, or in the alternative, restitution of the money paid thereunder. Appellant is therefore attempting to state the same causes of action set forth in the prior complaints. The court could properly conclude, therefore, that appellant had a sufficient remedy in a suit for specific performance or damages. If, however, the court can determine that the complaint may be amended to state a cause of action it would be an abuse of discretion to sustain the demurrer without leave to amend. Wennerholm v. Stanford University School of Medicine, 20 Cal.2d 713, 719, 128 P.2d 522, 141 A.L.R. 1358.

It is necessary to decide, therefore, whether a cause of action is stated in either specific performance of damages for money paid out pursuant to the oral contract. Respondent contends that these causes of action are barred by the Statute of Limitations, and that the second amended complaint shows on its face that such is the fact. Appellant argues that the second amended complaint has been completely superseded by the third amended complaint, and may not be referred to in order to disclose such a defense. She contends further, that if such defense is disclosed, the second amended complaint also contains allegations showing conduct and representations of respondent which give rise to an estoppel to assert such defense.

It is true that the general rule is, as stated by appellant, that the Statute of Limitations is not available on demurrer unless all the facts which defendant would be required to prove appear on the face of the complaint. Stafford v. Russell, 117 Cal.App.2d 319, 255 P.2d 872; Los Angeles County v. Security First National Bank, 84 Cal.App.2d 575, 191 P.2d 78. The cases cited by appellant, however, do not deal with the question now before us, that is whether the prior verified complaint can be resorted to in an attack on the later complaint.

In Owens v. Traverso, 125 Cal.App.2d 803, at page 804, 271 P.2d 164, at page 165, the court had before it this same problem: 'When prior verified complaints contain allegations that are destructive of any cause of action, can the defect be cured by omitting such allegations in complaints subsequently filed, without a proper explanation as to why the prior allegations were omitted?' The court decided that 'The answer must be that, although prior complaints are normally superseded by subsequent ones, and should be disregarded, a pleader cannot cure a defect in a verified complaint by simply, without legal explanation, omitting such allegations from subsequently filed pleadings. In such a case the original defect infects the subsequent pleading so as to render it vulnerable to a demurrer. * * * [125 Cal.App.2d 808, 271 P.2d 165]. It is undoubtedly the general rule of law that an amended pleading takes the place of the original, and that thereafter the superseded complaint performs no function as a pleading. (Citations.) But to this general rule there is an equally well settled...