Legg v. United Ben. Life Ins. Co. of Omaha

• Decision Date: 08 July 1960
• Citation: 182 Cal.App.2d 573,6 Cal.Rptr. 73
• Court: California Court of Appeals Court of Appeals
• Parties: Leona LEGG, Plaintiff and Appellant, v. UNITED BENEFIT LIFE INSURANCE COMPANY OF OMAHA, a corporation, Defendant and Respondent. Civ. 24415.

Page 73

6 Cal.Rptr. 73

182 Cal.App.2d 573

Leona LEGG, Plaintiff and Appellant, v. UNITED BENEFIT LIFE INSURANCE COMPANY OF OMAHA, a corporation, Defendant and Respondent.

Civ. 24415.

District Court of Appeal, Second District, Division 1, California.

July 8, 1960.

Hearing Denied Sept. 1, 1960.

Leona Legg, in pro. per.

J. Edward Haley, Los Angeles, for respondent.

LILLIE, Justice.

Appeal has been taken by plaintiff from a judgment of dismissal entered upon an order of the trial court sustaining without leave to amend defendant's demurrer to her complaint.

Preliminarily appellant complains that on the hearing of the demurrer the lower court, although allowing defendant to argue, 'did not permit the plaintiff to argue or object to the demurrer filed by the defendant'; and that the within judgment was entered 'on an ex parte application of defendants without written notice' to her, and thus was 'erroneous and corrupt.' The record before us lends no support to appellant's first claim of error; and the law clearly defines that no notice is necessary in connection with the second.

Not only did appellant file with the lower court, prior to the hearing on the demurrer, her written arguments in opposition thereto and a document entitled 'Points and Authorities in Resistance to Demurrer of Defendants' (a part of the record before us), but present at the hearing on the demurrer in 'Propria Persona' (Minute Order, April 13, 1959), she actually argued in opposition to the demurrer (Judgment of Dismissal, April 14, 1959). Relative to her contention that she received no notice that the judgment of dismissal was to be entered, it is clear that in the absence of a request for reconsideration after a demurrer is sustained without leave to amend the law requires neither a formal motion to dismiss (Michaels v. Mulholland, 115 Cal.App.2d 563, 252 P.2d 757) nor notice thereof (Oppenheimer v. Deutchman, 132 Cal.App.2d Supp. 875, 281 P.2d 650). The entry of the judgment of dismissal under these circumstances follows as a matter of course (Berri v. Superior Court, 43 Cal.2d 856, 279 P.2d 8).

Appellant appears herein in propria persona. Her briefs, devoted mainly to circumventing the real issue and vilifying both the lower court and opposing counsel, lend us little or no assistance.

The complaint under attack, and filed March 12, 1959, is on an insurance policy issued in October of 1948, under which she seeks monthly disability payments for an injury she suffered in February, 1947. It is apparent from the face of the complaint that issues arising out of this same insurance contract and injury have been previously litigated between the same parties. At the outset plaintiff in her pleading directly raised the issue of res judicata by reciting preliminarily that '(I)n this case,' several amended and supplemental complaints for accured disability benefits under the same policy were filed in action No. 541 710, and a judgment of dismissal was entered on her sixth amended and supplemental complaint under Section 583, Code of Civil Procedure; that said cause was 'erroneously and fraudulently' dismissed; and that 'this judgment entered thereon is not res judicata to any subsequent monthly disability benefits accrueing (sic) thereafter under said contract so long as plaintiff lives and suffers total loss of her time' (emphasis added). Plaintiff then proceeded to state her cause of action against defendant United Benefit Life Insurance Company for 'Subsequent Accrued Disability Benefits Under Said Policy Contract'. She alleged that on October 28, 1948, in consideration of payment of a premium to 'defendant Mutual Benefit Life Insurance Company of Omaha' she was delivered its policy of health and accident insurance which she 'incorporates herein by reference mutatis mutandis as though fully set forth herein in the several copies of documents identified as Exhibits in case No. 541 710 aforesaid, as follows:

'1. Exhibits, Case No. 541710, Legg v. United Benefit Et Al.

'(a) Insurance Policy No. UTR100--Plaintiff's Exhibit No. 1.

'2. Exhibits, Case No. 540669, Legg vs Mutual Benefit Et Al.

'(b) Receipt Plaintiff's Exhibit No. 2.

'(c) Receipt, Plaintiff's Exhibit No. 3.

'(d) Receipt, Plaintiff's Exhibit No. 4.';

that on February 6, 1947, while 'said policy contract of health and accident insurance' was in force she received personal injuries by accidental means which have wholly and continuously disabled her; that she is continuously under the care of a physician and suffers total loss of time from her occupation; that upon receiving said injuries she gave notice to defendant and demanded it pay all sums accruing under her policy; that said policy provides, in event of disability, payment to her of $100 per month; that defendant has refused to pay the same except the sum of $100; and that 'since the fraudulent entry of the judgment under Section 583, C.C.P., subsequent accrued disability benefits have become due to plaintiff from said defendant under said said (sic) policy to the date hereon in the sum of $3,045.63, plus costs'; and prayed for the same plus payments thereafter accruing.

The demurrer alleged (1) that the complaint does not state facts sufficient to constitute a cause of action; (2) improper joinder of causes of action; and that the complaint is (3) ambiguous; (4) unintelligible; and (5) uncertain in that it cannot be determined from a reading thereof the nature of plaintiff's action or claimed liability of the defendant; the nature and date of the judgment rendered in case No. 541 710, or in what court it was rendered, or the nature of the dismissal; and the nature or contents of the documents relied upon or their terms and conditions.

Nothing further, except the written points and authorities relative to the demurrer submitted to the trial court, the Minute Order and the Judgment of Dismissal is contained in the record before us.

The special demurrer was properly sustained. Claiming she received an injury in 1947 'while said policy contract of health and accident insurance was in full force and effect,' she nevertheless bases her right to recovery on a contract of insurance issued a year later in 1948. Plaintiff, suing one defendant, United Benefit Life Insurance Company of Omaha and for her cause of action against it, relies on a policy of health and accident insurance issued by another 'defendant', Mutual Benefit Life Insurance Company of Omaha, not a party to the within action. No explanation thereof is contained in her complaint and nothing therein makes defendant United Benefit Life Insurance Company of Omaha a party to any contract upon which she bases her cause of action; nor does she set forth in, or attach to her pleading, the contract of insurance upon which she claims this defendant is liable. Her only reference to any contract is that briefly made to certain documents identified only as 'exhibits' in other prior cases--Legg v. United Benefit Life Ins. Co. (No. 541 710), 103 Cal.App.2d 228, 229 P.2d 454; 136 Cal.App.2d 894, 289 P.2d 553; and Legg v. Mutual Benefit H. & A. of Omaha (No. 540 669), 136 Cal.App.2d 887, 289 P.2d 550, 290 P.2d 87. It cannot be determined from the face of the complaint what kind of documents these 'exhibits' constitute; if they are contracts, their terms or contents; the nature of plaintiff's claim thereunder or this defendant's liability; the nature, conditions, or contents of the insurance policy upon which the liability of defendant purportedly rests; and whether said insurance policy is still in full force and effect. 'Records and papers cannot be made a part of a pleading by merely referring to them, and parying that they may be taken as a part of such pleading, without annexing the originals or copies as exhibits or incorporating them with it so as to form a part of the record in the case.' People ex rel. Carrillo v. De La Guerra, 24 Cal. 73; 39 Cal.Jur.2d Sec. 56, p. 85, 86.

In this connection we refrain from discussing whether the trial court abused its discretion in denying plaintiff leave to amend inasmuch as a far more serious situation arises out of the issue plaintiff herself has raised in the preliminary recital of her complaint. It is apparent that, to justify her filing of the suit in the first instance and to avoid an adverse ruling on a demurrer, plaintiff assumed the burden of proving her action was not barred by raising the issue of res judicata on the face of her complaint, which she knew would eventually be pleaded against her. In doing so, she approached the matter in a purely negative way and, vague in her reference to prior litigation, alleged only that which she thought was necessary to by-pass a demurrer; but it appears that her evasive method of pleading provided the very means of defendant's successful attack on her complaint, entirely defeating her cause of action. The recital at the outset of her pleading entitled 'Identification of the Case before the Entry of Judgment' was an obvious attempt to summarily dispose of the issue of res judicata and avoid the application of the doctrine to the instant suit without allowing inquiry into the true nature of the vast number of cases filed by plaintiff since 1947 involving the same insurance contract, injury, parties and issues disposed of adversely to her, which litigation would bar recovery in the instant case--by alleging that the judgment entered in Legg v. United Benefit et al., No. 541 710, is not res judicata to any payments under the insurance contract falling due subsequent to the entry of judgment, thereby in effect conceding that the judgment constitutes a bar to all matters arising under the same insurance contract prior to its entry. A...