Legg v. Ford

• Citation: 8 Cal.Rptr. 392,185 Cal.App.2d 534
• Court: California Court of Appeals
• Decision Date: 20 October 1960
• Parties: Leona LEGG, Plaintiff and Appellant, v. John FORD, Harold J. Ostly, Laura Breska, Mutual Benefit Health and Accident Association, J. Edward Haley, Harold W. Kennedy, County of Los Angeles Department of Charities, County of Los Angeles, a Corporation, Defendants and Respondents. Civ. 24706.

Page 392

8 Cal.Rptr. 392

185 Cal.App.2d 534

Leona LEGG, Plaintiff and Appellant, v. John FORD, Harold J. Ostly, Laura Breska, Mutual Benefit Health and Accident Association, J. Edward Haley, Harold W. Kennedy, County of Los Angeles Department of Charities, County of Los Angeles, a Corporation, Defendants and Respondents.

Civ. 24706.

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

Oct. 20, 1960.

Leona Legg, in pro. per., for appellant.

J. Edward Haley, Los Angeles, for respondent Mut. Benefit Health and Accident Ass'n.

Harold W. Kennedy, County Counsel, Wm. E. Lamoreaux, Asst. County Counsel; Edward A. Nugent, Deputy County Counsel, Los Angeles, for respondents John J. Ford, Harold J. Ostly, Laura Breska, Harold W. Kennedy and County of Los Angeles (Dept. of Charities).

ASHBURN, Justice.

On October 13, 1959, plaintiff filed her Third Amended Complaint for 'Fraud, Conspiracy, Perjury, Violations of Statutes, Injury and Damages.' Named as defendants are John Ford, Harold J. Ostly, Laura Breska, Harold W. Kennedy, County of Los Angeles Department of Charities, County of Los Angeles, a Corporation (hereinafter sometimes collectively referred to as the 'county defendant'), Mutual Benefit Health and Accident Association (hereinafter referred to as 'Mutual'), and J. Edward Haley (hereinafter referred to as 'Haley').

A general and special demurrer was filed by the county defendants and by defendants Mutual and Haley, each of which was sustained without leave to amend. Judgment was entered in favor of defendants Mutual and Haley on December 4, 1959, and on December 15, 1959 in favor of the county defendants. Plaintiff appeals from these two judgments and from an order denying her motion to open the judgment of December 4, 1959 and to permit the filing of a fourth amended complaint, or to vacate and set aside said judgment.

The complaint is in six causes of action, but as the second, third and fifth are for punitive damages based on facts alleged in the other causes, we will direct our attention to the first, fourth and sixth causes of action. Counsel for Mutual aptly comment that '[a] reading of the several complaints only leads one into a fog of uncertainty, bewilderment and a jungle of semantics.' ¹ In order to accurately portray the true nature of the complaint, it will be necessary to quote substantial portions thereof.

The basic allegation of each cause of action is to the effect that the defendants conspired to defraud plaintiff in her capacity of judgment creditor of the benefits due her under an insurance policy of Mutual. ² In each cause she then proceeds to assert what purports to be acts done by the individual defendants pursuant to said conspiracy.

In the first cause of action it is alleged that defendant Haley conspired with the other defendants to deprive her of said rights by 'fraudulently protecting the defendant's rights on appeal and trial proceedings in Action 653840 * * *.' (This paragraph is also incorporated in all other causes.) It is then alleged in the first cause that 'through and by the concerted acts and monetary motives' of all defendants to aid and abet defendants Mutual and Haley, the defendants 'with further judicial collaberation togather and corrupt conduct in office agreed that the defendant John Ford, Judge, and the defendant County of Los Angeles * * *, while reviewing another action (Clk Tr. No. 653840) for the Defendant County of Los Angeles Department of Charities, find facts sufficient to mitigate the age of plaintiff beyound the period of 60-years, and then and there said defendant * * * Judge, did find conflicting facts to be that your plaintiff was born in the year of 1887 or as a probable factition thereof your plaintiff was born again in the year of 1888 at a time when no such evidence appeared in any bone fida record upon which said judge * * * could make the above findings.' The concluding paragraph of this cause reads: 'That upon the rendition of the judgment in favor of your plaintiff and against the defendant Mutual Benefit Health and Accident Association and defendant J. Edward Haley as aforesaid, the defendant each and all of them through and by the concerted acts aforesaid, fraudulently and intentionally deprived your plaintiff of her subsidy life-subsidy, medical services and attendance judicially rendered her by the defendant County of Los Angeles a Corporation, administrated by the defendant County of Los Angeles Department of Charities, and as a direct result thereof your plaintiff was personally injured and damaged thereby in the sum of $5,571.36.'

In the Fourth cause of action, after incorporating the paragraphs hereinabove referred to, it is alleged that the defendants 'in pursuit of collusion and confederation in conspiracy togather, through and by judicial abuse of process and corrupt conduct in office, did willfully, fradulently and intentionally make use of legal proceedings in another action case No. 653840, to fraudulently mitigate your plaintiff's age, and did thereby wrongfully and conflictively establish the date of your plaintiff's birth to be either in the year of 1887 or in the year of 1888, when no such evidence appeared in any bone fida record on which said defendant Judge * * * could make the above findings for all of the defendants aforesaid.' That the judge made 'such false and conflicting findings' for the purpose 'of entraptment of your plaintiff in her reliance thereon, and for a further purpose of judicial seducement of an innocent person--your plaintiff into a Criminal Career in fraudulently applying for and accepting monetary benefits under the Old Age and Security Act on becoming 62-years of age on November 24, 1956.' Further assertions indicate the theory of this cause of action to be that the judge, in collaboration with the other defendants, fraudulently made a finding in case No. 654840 to the effect that plaintiff was born either in 1887 or 1888 (and thus over 65 years of age) for the purpose of forcing plaintiff to commit perjury by misstating her age in applying for Social Security 'at a time when each and all of said defendants had knowledge of the true facts of her birth in the year of 1894, of which your plaintiff had previously sworn to be true,' and to 'coerce your plaintiff into accepting the said proffered Old Age and Security Benefits by perjury commitments aforesaid, instead of the maintainance subsidy, medical services and attendance rendered her by the defendant County of Los Angeles, a Corporation, through and by the defendant County of Los Angeles Department of Charities and thereby, put your plaintiff into a position of death by starvation, disregarding any physical suffering and emotional distress which may well result form said deprivation.' All of which, it is asserted, caused plaintiff physical and mental damages in the amount of $50,000.

The Sixth cause of action alleges that the defendants conspired to defraud her, in her capacity of judgment creditor, of indemnity benefits due her under the Mutual policy. The further allegations of this cause of action are to the effect that defendants conspired to and did suppress the existence of a court reporter and withheld from her a reporter's transcript in case No. 653840, with assertions directed to acts of the individual defendants in this connection, performed in collaboration with the other defendants, as follows: That defendant Haley 'ordered and collaberated and conspired with all other defendants herein to act in their particular capacities' by 'fraudulently protecting the defendant's rights on appeal herein resulting from trial proceedings fraudulently conducted by the Defendant Judge * * * in another action Case No 653840 * * *.' That the judge, 'acting for all other defendants herein in violation of statutes, did withhold from his 'Minute Entry' under his admission and control the insertion of the name or any recognition of his Court Reporter the defendant Laura Breska,' and thereby concealed the existence of said reporter 'or her reporter's transcript transcribed under the command of said defendant [judge] to enable him to adequately make truthful findings,' and that he unlawfully omitted said reporter's transcript from the files at the time he made his findings and when the matter was transferred to the District Court on appeal. That Laura Breska, in conspiracy with the others, refused to identify herself as a reporter, and suppressed all evidence 'of the existance of a reporter's transcript transcribed by her while reporting in another action Case No 653840, and likewise withhold Notice of the estimate of the cost of preparing said reporter's transcript * * * and continues to refuse to produce her transcriptions * * *.' That Harold W. Kennedy, acting as County Counsel, 'falsely and fraudulently did state under oath and with the knowledge of its falsety deliberately lead others to believe that (Quote) 'Actually, a reporter's transcript is not involved, the case was heared in Department 34, no reporter being present' (unquote), at a time wherein it was necessary that said reporter's transcript be before the Reviewing Court to enable your plaintiff to adequately present and prosecute her appeal in said action.' That Harold J. Ostly, as County Clerk and Clerk of the Superior Court, 'did withhold Notice of Fees for preparing, certifying and transcribing the reporter's transcript of the proceedings of the action aforesaid, and did refuse to give plaintiff access to said transcribed records of court reporter the Defendant Laura Breska * * * at a time within the knowledge of all said defendants of facts of the filing of the Reporter's Cost Bill in said action 653840 noticed in the Registery of Actions under the definition and control of defendant Harold J. Ostly.' Further, that Ostly refused her tender of 'United States Currency' based on the above quoted statement of Kennedy, 'further stating that should there have been...