Kennedy v. Bank of America

• Decision Date: 22 October 1965
• Citation: 237 Cal.App.2d 637,47 Cal.Rptr. 154
• Court: California Court of Appeals Court of Appeals
• Parties: LuJean KENNEDY, Plaintiff and Appellant, v. BANK OF AMERICA, as Executor of the Estate of Thomas J. McDermott, Deceased, Defendant and Respondent. Civ. 500.

Page 154

47 Cal.Rptr. 154

237 Cal.App.2d 637

LuJean KENNEDY, Plaintiff and Appellant, v. BANK OF AMERICA, as Executor of the Estate of Thomas J. McDermott, Deceased, Defendant and Respondent.

Civ. 500.

District Court of Appeal, Fifth District, California.

Oct. 22, 1965.

Colley & McGhee, by Nathaniel S. Colley, Sacramento, for plaintiff and appellant.

Frederick E. Hoar, Bakersfield, for defendant and respondent.

RALPH M. BROWN, Justice.

This appeal originated in an action brought by the plaintiff against the Bank of America National Trust & Savings Association, as executor of the will of Thomas J. McDermott, deceased (hereinafter referred to as executor), and the devisees and legatees under such will (hereinafter referred to as real parties in interest). The second amended complaint contained two causes of action. The first cause of action sought quasi-specific performance of an alleged oral contract between the plaintiff and the decedent, by which the decedent agreed to devise and bequeath his property to the plaintiff by his will as compensation for personal services rendered and to impose a constructive trust upon the property. The second cause of action sought the reasonable value of the services allegedly rendered by the plaintiff to the decedent during his lifetime. The executor interposed a general and special demurrer. By a minute order dated October 26, 1964, the demurrer to the first cause of action was substained without leave to amend, and a judgment of dismissal as to that cause was entered on November 4, 1964. As to the second cause of action plaintiff was given leave to amend. A third amended complaint, containing a single cause, was filed. The executor interposed a general and special demurrer which was again sustained with leave to amend. Plaintiff declined to amend further and a judgment of dismissal as to that cause was entered on January 5, 1965. Plaintiff filed a notice of appeal from both judgments of dismissal on January 5, 1965.

Appealability

The executor raises the question of whether or not the appeal from the judgment of dismissal entered on November 4, 1964, is timely, more than 60 days having elapsed between its entry and the filing of the notice of appeal. In order to properly determine the question of appealability of that judgment, the state of the pleadings at the time it was made must be borne in mind. That judgment removes from the case the first cause of action predicated upon the theory of quasi-specific performance of a promise to make a will. In such an action the executor is a proper party and may be joined as a defendant (Ludwicki v. Guerin, 57 Cal.2d 127, 130-132, 17 Cal.Rptr. 823, 367 P.2d 415); and those who will take under the will or by intestacy are the real parties in interest and are indispensible parties defendant in the action (Pluth v. Smith, 205 Cal.App.2d 818, 829-830, 23 Cal.Rptr. 550). So far as is disclosed by the record, the real parties in interest have never appeared in the action by demurrer or otherwise. Only the demurrer of the executor was before the trial court. The minute order filed after the hearing on demurrer recites in relevant part:

'General and Special Demurrer of Bank of America, as Executor, to the Second Amended Complaint. Ruling as follows: Demurrer to the Second Amended Complaint is sustained as to paragraphs I, III and sub-paragraphs (1), (2), (5) and (7) of paragraph IV thereof. As to the First Cause of Action, Demurrer is sustained without leave to amend for the reasons stated therein. * * *'

Although it clearly appears that the court limited its ruling to the demurrer of the executor, mevertheless the executor caused a formal judgment of dismissal to be signed and filed in which it is ordered:

'IT IS HEREBY ORDERED that the first cause of action set forth in said second amended complaint on file in said action be, and the same is hereby, dismissed.'

Upon its face the judgment terminates the action as to the real parties in interest and, if properly made, is clearly a final judgment as to them (Shepardson v. McLellan, 59 Cal.2d 83, 86, 27 Cal.Rptr. 884, 378 P.2d 108). But it was not properly made. Since the only vehicle before the trial court upon which it could act was the demurrer of the executor, the judgment of dismissal exceeds the scope of the court's ruling thereon insofar as it purports to flatly dismiss the first cause of action as to the non-demurring defendants. It must, therefore, be construed as a judgment dismissing the first cause as to the demurring executor alone. As so construed it was not an appealable order. The executor was a proper party defendant in both causes of action. Under the final judgment rule it has been held that when several counts are involved between the same parties, there cannot be a piecemeal disposition on each count, with a separate judgment and right of appeal each time one is disposed of; all of the errors of which complaint is made must be reviewed on a single appeal from the final judgment. (Western Electroplating Co. v. Henness, 172 Cal.App.2d 278, 282, 341 P.2d 718.) There is a comprehensive discussion of the problem in Gombos v. Ashe, 158 Cal.App.2d 517, 322 P.2d 933. In that case a husband and wife brought an action for damages arising from an automobile accident. The complaint was in three counts; the first two causes of action were predicated on charges of negligence and sought compensatory damages and the third cause of action sought punitive damages based on allegations that the defendant was intoxicated. A demurrer was sustained to the third cause of action and a judgment of dismissal was entered. Trial was had on the first two causes of action resulting in a plaintiff's verdict and the judgment entered thereon was satisfied. The plaintiff appealed from the judgment of dismissal as to the third cause, and the defendant moved to dismiss. At page 522, the reviewing court discusses this matter, stating:

'In Bank of America, etc., v. Superior Court, 20 Cal.2d 697, 701, 128 P.2d 357, 360, the court stated:

"These arguments are all predicated upon a fundamental fallacy. They assume that there can be a piecemeal disposition of the several counts of a complaint. They assume, when there is more than one count in a complaint, and a demurrer is interposed and sustained, and a judgment of dismissal entered, that there are as many separate judgments as there are counts in the complaint. That is not the law. There cannot by a separate judgment as to one count in a complaint containing several counts. On the contrary, there can be but one judgment in an action no matter how many counts the complaint contains. [Citations.]' The court then quoted from a number of opinions and concluded the discussion on the point (20 Cal.2d at page 702, 128 P.2d at page 360) by quoting from Potvin v. Pacific Greyhound Lines, Inc., 130 Cal.App. 510, 512, 20 P.2d 129, as follows:

"'Since a final judgment in an action contemplates a complete adjudication of the rights of the parties and a final determination of the matter in controversy, it is apparent that the so-called judgment rendered upon the sustaining of a demurrer to one cause of action of a complaint without leave to amend, leaving five other causes of action unimpaired presenting matters to be litigated during a trial of the issues of fact, cannot be regarded as a final determination and disposal of the cause."

'The same result has been reached in many other cases. See Daniels v. Daniels, 136 Cal.App.2d 224, 288 P.2d 910; Kennedy v. Kennedy, 130 Cal.App.2d 785, 279 P.2d 759; Murphy v. Fong Shuck, 151 Cal.App.2d 64, 311 P.2d 80.'

The rule of Gombos was followed by the Supreme Court in Shepardson v. McLellan, supra, 59 Cal.2d 83, 27 Cal.Rptr. 884, 378 P.2d 108.

Borrowing the reasoning of the Supreme Court in the last cited case and paraphrasing its language to conform to our facts, we summarize as follows: The judgment of dismissal of the first cause of action entered on November 4, 1964, was not a final judgment insofar as the executor was concerned since the litigation proceeded as to it on the second cause of action. That judgment of dismissal should not have been entered. The judgment of dismissal as to the third amended complaint, which restated the allegations of the original second cause of action, entered on January 5, 1965, was also not a final judgment because it did not dispose of the first cause of action. Thus, there never has been entered a final judgment. But 'in the interests of justice and to prevent unnecessary delay' (Gombos v. Ashe, supra, 158 Cal.App.2d 517, 524, 322 P.2d 933), we may order, on our own motion, that the second judgment of dismissal be amended by adding a paragraph dismissing the first cause of action as to the executor, and that the premature notice of appeal be treated as a notice of appeal from the judgment dismissing both causes of action as to the executor. (Shepardson v. McLellan, supra, at p. 88, 27 Cal.Rptr. 884, 378 P.2d 108.)

Quasi-Specific Performance Cause of Action

The first cause of action set forth in the second amended complaint alleges that the plaintiff rendered services as a domestic servant and as an assistant in the decedent's business from May 1, 1941, until June 15, 1953, at which time the decedent advised the plaintiff that he was retiring from business and would no longer need her services; that the plaintiff received no compensation for her services; that the decedent promised to compensate her by executing an irrevocable will in her favor; that on November 2, 1943, the decedent executed a holographic will naming the plaintiff as sole beneficiary, which will is pleaded in haec verba; that on March 1, 1944, the decedent executed a formal will naming the plaintiff as sole beneficiary, which later will is attached as an exhibit to the complaint; that the decedent reiterated his promise at the time of delivering each of the two wills to the plaintiff that the will would be...