McHugh v. Howard

• Citation: 331 P.2d 674,165 Cal.App.2d 169
• Court: California Court of Appeals
• Decision Date: 17 November 1958
• Parties: Thomas L. McHUGH, Plaintiff and Appellant, v. Orin T. HOWARD, Defendant and Respondent. Civ. 18141.

Page 674

331 P.2d 674

165 Cal.App.2d 169

Thomas L. McHUGH, Plaintiff and Appellant, v. Orin T. HOWARD, Defendant and Respondent.

Civ. 18141.

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

Nov. 17, 1958.

Rehearing Denied Dec. 17, 1958.

Frederick S. Reinheimer, San Jose, for appellant.

Bert W. Levit, Victor B. Levit, John B. Hook, Long & Levit, San Francisco, for respondent.

KAUFMAN, Presiding Justice.

Plaintiff and appellant, Thomas L. McHugh, filed a complaint in the Superior Court of Santa Cruz County, seeking an injunction against the execution of a judgment obtained by defendant and respondent, Orin T. Howard, in a prior action sounding in libel. After motion by respondent, a summary judgment was entered in his favor. It is from this summary judgment that plaintiff appeals.

Respondent, in April of 1954, brought an action sounding in libel against appellant. After trial by jury, judgment was rendered in favor of Howard. A motion for new trial was denied and as no appeal was taken this judgment became final.

In December 1956, McHugh filed an amended complaint in this action, alleging that the judgment rendered in the libel action was procured by means of extrinsic fraud consisting of collusion between his counsel and his opponents. He further alleges that the complaint in the libel proceeding did not state a cause of action and that the action went to trial only by reason of this collusion.

After a demurrer to this amended complaint was overruled and his answer was filed, respondent made a motion for summary judgment under Code of Civil Procedure, § 437c. In support of this motion, affidavits were filed by respondent, by Victor B. Levit, his counsel in said action, and by Melvin R. Dykman, appellant's counsel in said libel action.

Respondent, in his own affidavit, alleges he did not collude with Dykman or with anyone at all; that prior to the libel action Dykman was entirely unknown to him and that he knows Dykman now only by virtue of said action; that he has never had any contact or communication with Dykman concerning said action, except for cross-examination during the trial.

Victor B. Levit, respondent's attorney, in his affidavit alleges that he did not collude with Dykman or with anyone at all concerning said action; that prior to the commencement of the libel action Dykman was entirely unknown to him and that he knows Dykman now only by virtue of his participation in said action; that to his knowledge respondent had no connection or communication with Dykman concerning said action; that all dealings he had with Dykman concerning the trial were at arms length; and that to his knowledge Dykman at all times acted to protect the best interests of appellant.

Dykman, in his affidavit, alleges that he had never been authorized or requested by appellant to take an appeal in the libel action; that he performed his services to the best of his ability and at all times acted in what he believed to be the best interests of appellant. He states that he has not colluded with respondent or with anyone representing him; that respondent was unknown to him prior to the commencement of the libel action; and that except for cross-examination he has had no contact or communication with respondent concerning said action.

The only affidavit filed in opposition to the motion was that of appellant. This affidavit discloses that appellant turned over to his attorney all of his available correspondence dealing with his business and political activities over a period of several years, including all of his cancelled checks and bank statements dating back to 1948. These documents were given to Dykman, at his request, approximately one month before the trial commenced and were for his sole use and information in the preparation of the pending case. A few moments before the trial opened, appellant observed respondent's attorney entering the courtroom and saw him place a familiar looking manila envelope on Dykman's desk. Upon investigation he discovered that this envelope contained the above-named papers. It is alleged that these documents were turned over to his adversary without appellant's consent or knowledge, without legal process, and in violation of a confidential relationship.

The trial court, after hearing oral argument, granted respondent's motion, and a judgment of dismissal was entered accordingly. This appeal is from that judgment.

Appellant apparently contends that after a court has overruled a demurrer it cannot later in the action entertain a motion for a summary judgment. He bases this argument upon the rule that a demurrer admits all issuable facts properly pleaded in the complaint. Woodroof v. Howes, 88 Cal. 184, 26 P. 111; Jones v. American President Lines, Ltd., 149 Cal.App.2d 319, 308 P.2d 393.

Appellant reasons that the existence of a factual issue was affirmatively decided in his favor when respondent's demurrer was overruled. In other words, a sufficient pleading raises a triable issue of fact requiring the denial of a motion for summary judgment.

This theory is erroneous. The purpose of a demurrer is to test the legal sufficiency of a pleading, not to test the evidence or other extrinsic matters. A demurrer admits all material and issuable facts properly pleaded, however, these facts are admitted solely and provisionally for the purpose of testing the question of law raised by the demurrer. No binding judicial admission is made by the filing of a demurrer. (2 Witkin, Calif.Proc. § 484, p. 1471.)

The difference between a motion for a summary judgment and a demurrer was clearly stated by the court in Coyne v. Krempels, 36 Cal.2d 257, at page 262, 223 P.2d 244, at page 247:

'* * * 'It is not the purpose of the procedure under section 437c to test the sufficiency of the pleadings.' (citation) If the pleadings are insufficient, the defect may be raised by demurrer or motion to strike, or by motion for judgment on the pleadings. The procedure for the entry of a summary judgment provides a method by which, if the pleadings are not defective, the court may determine whether the triable issues apparently raised by them are real or merely the product of adept pleading. The question therefore is not whether defendant states a good defense in his answer but whether he can show that the answer is not an attempt 'to use formal pleading as means to delay the recovery of just demands.' (citations)'.

It was therefore proper for the court to entertain and rule on the motion.

The...