Krug v. Meehan

• Citation: 109 Cal.App.2d 274,240 P.2d 732
• Court: California Court of Appeals
• Decision Date: 15 February 1952
• Parties: KRUG v. MEEHAN. Civ. 18248.

Page 732

240 P.2d 732

109 Cal.App.2d 274

KRUG v. MEEHAN.

Civ. 18248.

District Court of Appeal, Second District, Division 3, California.

Feb. 15, 1952.

Gilford & Mendelson and Roy M. Good, all of Los Angeles, for appellant.

Arthur G. Baker, Los Angeles, for respondent.

VALLEE, Justice.

Appeal by plaintiff from a judgment of dismissal in a suit to set aside conveyances of realty. Defendant's demurrer to the second amended complaint was sustained with leave to amend. Plaintiff declined to amend within the time allowed, hence the judgment.

The second amended complaint alleges:

1. Plaintiff is special administrator of the estate of James Cleary who died November 15, 1948, at the age of 78, leaving as his only heirs a son and a daughter.

2. March 11, 1948, Cleary purchased Parcel 1, and April 20, 1948, purchased Parcel 2; both parcels are in Los Angeles county. Title to both parcels was taken in the names of Cleary and defendant as joint tenants. All of the money used to purchase both parcels belonged to Cleary.

3. At the time of the purchases, and for many years prior thereto, Cleary and defendant, although not married, lived and resided together, and maintained the relation of husband and wife. At the time of the purchases Cleary reposed great confidence and trust in defendant, and in her judgment and advice.

4. During said period, and particularly at the time of the purchases, Cleary consulted with defendant relative to his business affairs and followed her advice and instructions in managing them; defendant controlled and influenced the mind and actions of Cleary to the extent that he did whatever she suggested or instructed him to do. Defendant succeeded in substituting her will for the will of Cleary; and by taking advantage of the trust and confidence he reposed in her, succeeded in obtaining her name along with his as grantees in joint tenancy of the properties.

5. The purchases were made and defendant was named as a joint tenant in the deeds as a direct result of the undue influence exerted as alleged; Cleary at the time of the purchases was acting under and subject to the undue influence of defendant.

6. Defendant sought out and located the properties prior to their purchase and advised, encouraged, and persuaded Cleary to purchase them. Defendant established escrows in connection with the purchases, accompanied Cleary to the place where the escrows were established, handled and took an active part in the preparation, and arranged the details of the signing by Cleary and the preparation of escrow instructions providing for the acquisition of title in her name with that of Cleary as joint tenants. Defendant concealed the fact of such purchases from the children of Cleary, and instructed Cleary to likewise conceal such fact from them.

7. By reason of the relation between Cleary and defendant and by taking advantage of the trust and confidence reposed in her by Cleary, and by the exercise of undue influence over Cleary by defendant as alleged, she acquired over his mind an influence whereby his free will was overborne and her own substituted for it, and thus she was enabled to, and did, procure Cleary to make the purchases and to name herself as a joint tenant in the deeds.

8. Defendant claims to be the surviving joint tenant and the sole owner of the properties.

Plaintiff asserts the complaint states facts sufficient to constitute a cause of action. Defendant says it does not. We have concluded it does. We have had occasion recently to state the rules governing the construction of a complaint on a general demurrer thereto, and they need not be repeated. Toney v. Security First Nat. Bank, 108 Cal.App.2d 161, 238 P.2d 645.

Undue influence consists: '1. In the use, by one in whom a confidence is reposed by another, or who holds a real or apparent authority over him, of such confidence or authority for the purpose of obtaining an unfair advantage over him; 2. In taking an unfair advantage of another's weakness of mind; or, 3. In taking a grossly oppressive and unfair advantage of another's necessities or distress.' Civ.Code, § 1575. We are concerned with the first class only as there is no allegation that Cleary was weak of mind. Defendant argues that the pleading does not allege any facts but only conclusions of the pleader. Of course a mere averment that an instrument was procured by undue influence is a statement of a conclusion of law. Estate of Stoddart, 174 Cal. 606, 610, 163 P. 1010. An averment of a conclusion of law is ordinarily deemed to be surplusage and will be disregarded in considering the sufficiency of a pleading. Ohm v. City and County of San Francisco, 92 Cal. 437, 449-450, 28 P. 580; Callahan v. Broderick, 124 Cal. 80, 82-83, 56 P. 782. The complaint must allege ultimate facts, not evidentiary facts or conclusions of law. The line of demarcation between a conclusion of fact and a conclusion of law is not easy to draw in all cases. The allegation of an ultimate fact usually, if not always, involves one or more conclusions. The rule which requires allegations of facts where undue influence is the issue does not require the allegation of evidentiary facts but only that ultimate facts be pleaded; it does not exclude conclusions of fact but only conclusions of law. Estate of Bixler, 194 Cal. 585, 589-590, 229 P. 704; Lewis v. Beeks, 88 Cal.App.2d 511, 521, 199 P.2d 413; Green v. Darling, 73 Cal.App. 700, 703, 239 P. 70; Lester v. Beer, 74 Cal.App.2d Supp. 984, 989, 168 P.2d 998. If substantial facts which constitute a cause of action are averred in the complaint or can be inferred by reasonable intendment from the matters which are pleaded, although the allegations of these facts are intermingled with conclusions of law, the complaint is not subject to demurrer for insufficiency.

The pleading alleges in effect that the...