Levinson v. Bank of America National Trust & Savings Ass'n

• Decision Date: 21 June 1954
• Citation: 126 Cal.App.2d 122,271 P.2d 632
• Court: California Court of Appeals Court of Appeals
• Parties: LEVINSON v. BANK OF AMERICA NAT. TRUST & SAVINGS ASS'N. Civ. 20129.

Page 632

271 P.2d 632

126 Cal.App.2d 122

LEVINSON v. BANK OF AMERICA NAT. TRUST & SAVINGS ASS'N.

Civ. 20129.

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

June 21, 1954.

Jesse A. Levinson, in propria persona.

Samuel B. Stewart, Jr., San Francisco, Hugo A. Steinmeyer, Robert Van Buskirk, Los Angeles, for respondent.

MOSK, Justice pro tem.

On May 25, 1948, respondent bank obtained a judgment in the Municipal Court of the City of Los Angeles against appellant on a promissory note. A motion for new trial was denied on September 7, 1948, no appeal was taken, and the judgment became final.

Thereafter, on September 24, 1948, appellant filed in the Superior Court a new suit in equity praying that the Municipal Court judgment be vacated and declared void, that respondent be enjoined from enforcing the judgment, and that the promissory note be delivered to appellant and cancelled.

The complaint alleged that the note was executed by appellant and delivered for the express purpose of securing a loan from respondent bank, 'and said Bank to pay over the proceeds of said loan to the Capital Company (a California corporation)'; that the bank accepted the note but at no time paid the proceeds to the Capital Company; that no consideration of any kind passed from respondent to appellant; that during the course of proceedings in the Municipal Court appellant 'was led to believe' from conversations with agents and employees of respondent bank that the proceeds of the note had been paid to the Capital Company; that 'immediately after the trial of the action in the Municipal Court' appellant discovered the statements made by respondent through its agents and employees were false; that the representations were known to be false by respondent's agents and employees and were made for the purpose of misleading and deceiving appellant, in order that appellant would not introduce evidence at the trial to the effect that the proceeds of the loan were not paid over to the Capital Company; that subsequent correspondence (quoted in haec verba) was not answered satisfactorily to appellant; that appellant has a good and sufficient defense to the Municipal Court action.

To this complaint the respondent demurred. On October 29, 1948, the demurrer was sustained and appellant was given fifteen days in which to amend. Notice of the ruling was waived in open court. Appellant did not amend during that period or at all.

The record discloses nothing further transpired until June 24, 1953, when motions of both appellant and respondent for dismissal came on for hearing. The court granted the motion of respondent pursuant to Code Civ.Proc. § 581(3), whereupon appellant withdrew his motion. Judgment was thereupon given to respondent, from which this appeal was taken.

Appellant maintains he has stated a proper cause of action based on extrinsic fraud, and that his complaint should have prevailed against the demurrer.

We are limited on this appeal to an examination of the complaint to ascertain if it states a cause of action, not to whether appellant might have been able to do so. Lynch v. Rheinschild, 86 Cal.App.2d 672, 673, 195 P.2d 448.

The final judgment of a court having jurisdiction over persons and subject matter can be attacked collaterally in equity after the time for appeal or other direct attack has expired only if extrinsic fraud is alleged. Westphal v. Westphal, 20 Cal.2d 393, 397, 126 P.2d 105. To constitute extrinsic fraud there must have been some representation or concealment by the defendant which prevented the plaintiff from having his day in court. Gale v. Witt, 31 Cal.2d 362, 366, 188 P.2d 755; Smith v. Smith, 125 Cal.App.2d 154, 270 P.2d 613.

Duffy v. Duffy, 82 Cal.App.2d 203, 186 P.2d 61, Bacon v. Bacon, 150 Cal. 477, 89 P. 317, Ringwalt v. Bank of America etc. Ass'n, 3 Cal.2d 680, 45 P.2d 967, and other cases cite with approval the illustrations in this quotation from United States v. Throckmorton, 98 U.S. 61, 65, 25 L.Ed. 93: 'But there is an admitted exception to this general rule, in cases where, by reason of something done by the successful party to the suit, there was, in fact, no adversary trial or decision of the issue in the case. Where the unsuccessful party has been prevented from exhibiting fully his case, by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a compromise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party and connives at his defeat; or where the attorney regularly employed corruptly sells out his client's interest to the other side--these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and a fair hearing.'

Where a party has been given proper notice of an action, has not been prevented from full participation therein, has had an opportunity to present his case to the court and to protect himself from any fraud attempted by his adversary, fraud perpetrated under such circumstances is intrinsic. This applies even though the unsuccessful party...