Owens v. Traverso
| Decision Date | 09 June 1954 |
| Citation | 271 P.2d 164,125 Cal.App.2d 803 |
| Parties | OWENS v. TRAVERSO et al. Civ. 15889. |
| Court | California Court of Appeals Court of Appeals |
Mancuso, Herron & Winn, San Francisco, for appellant.
Ferrari & Ferrari, and Theodore Cicoletti, San Francisco, for respondents.
Plaintiff appeals from a judgment based upon an order sustaining a demurrer without leave to amend to her sixth amended complaint. The sixth amended complaint, considered alone, undoubtedly states a cause of action, good, at least, against a general demurrer. But the original complaint, the amended complaint, and the second and third amended complaints, all verified, alleged facts that were destructive of any cause of action. The fourth and fifth amended complaints omitted these facts, without explanation. The sixth amended complaint likewise comitted these facts, and alleged an insufficient explanation of why they were omitted. Thus, we are presented with the following problem: When prior verified complaints contain allegations that are destructive of any cause of action, can the defect be cured by omitting such allegations in complaints subsequently filed, without a proper explanation as to why the prior allegations were omitted? The answer must be that, although prior complaints are normally superseded by subsequent ones, and should be disregarded, a pleader cannot cure a defect in a verified complaint by simply, without legal explanation, omitting such allegations from subsequently filed pleadings. In such a case the original defect infects the subsequent pleading so as to render it vulnerable to a demurrer.
From all of the pleadings these underlying facts can be ascertained: Manuel Santos died on November 12, 1949, leaving as his heirs his son, Jose Santos, two daughters, Manuela Traverso and Carmela Owens, and two grandchildren who are children of a predeceased daughter. Carmela Owens is the plaintiff and Manuela Traverso and her husband are the defendants. The complaints generally allege that after Manuel Santos had suffered two strokes in 1947, he went to live with the Traversos; that he lived with them from December 5, 1947, until his death on November 12, 1949; that sometime during this period he sold certain real property for $24,500, which property he had bequeathed by a then existing will to all of the heirs equally; that after the sale he gave the Traversos the $24,500 received from the sale of this property, and also made a codicil to his will in which he recited that he had given the money to the Traversos in consideration of their promise to care for him the rest of his life; that the codicil also provided that if this transaction, for any reason, was found to be invalid then, as a special legacy, the $24,500 was bequeathed to the Traversos absolutely. It is the right to this fund that is here involved.
The last or sixth amended complaint alleges that when this money was delivered to the Traversos, Manuel instructed them, and they agreed, to hold it subject to an oral trust to pay it to designated beneficiaries, including plaintiff, upon Manuel's death. Repudiation of this claimed oral trust is properly alleged, and this complaint seeks to enforce that trust, and to secure punitive damages. This pleading contains this allegation: 'That this plaintiff had in prior complaints in this action alleged the existence of a fraudulent codicil to a will which was done in anticipation of certain defenses; that said allegations are not set forth in this complaint as they were not originally necessary to state a cause of action when pleaded and are not necessary now and are not a part of this complaint.'
A common count and a cause of action for conversion of personal property, based on the same transaction, are alleged. Without analyzing these allegations in detail, it can be stated that this complaint, standing alone, although subject in several respects to a special demurrer, states a proper cause of action good against a general demurrer for the breach and enforcement of an oral trust.
The original complaint was based on a basically different theory. It alleges, in several forms, a cause of action based on fraud and undue influence exerted by defendants on Manuel to induce him to execute the codicil to his will whereby Manuel 'left the sum of Twenty Four Thousand Five Hundred Dollars ($24,500.00) to said defendants to the exclusion of his other children.' It is alleged that plaintiff discovered this codicil upon its filing for probate in November, 1949. There is no allegation that plaintiff or any other person contested the admission of this codicil to probate.
There are other allegations to the effect that an intimate and confidential relationship existed between defendants and Manuel which permitted defendants to dominate and control his actions; that this control was exerted by defendants to poison the mind of Manuel against his other children; that this was done as part of a scheme or plan to secure the major portion of Manuel's estate; that in pursuance of this plan defendants induced Manuel to execute the codicil in question; that such codicil was secured by fraudulent representations made to, and undue influence practiced on, Manuel.
In this complaint the allegations in reference to the codicil were an integral part of the cause of action attempted to be pleaded. The theory of this original complaint is that the decedent was induced to execute the codicil and so transfer the $24,500 to defendants by the fraud and the undue influence of defendants. The objections to this disposition related to the manner of securing the execution of the codicil. Obviously, such a pleading was subject to demurrer because it is alleged that the codicil was filed at the time of decedent's death when plaintiff first learned about it but its execution was not challenged at that time in the probate court. That was the proper court and time to attack the due execution of the codicil. Clearly, the probate determination bars any further attack on the due execution of the codicil.
Thus, the allegations in reference to the codicil were indispensable to the cause of action pleaded in the original complaint. Even if this complaint hinted at the trust theory as an additional ground of recovery, this would not aid plaintiff. Once having pleaded the outright transfer of the funds to defendants by virtue of the recitations contained in the codicil, plaintiff could not ignore these facts and attempt to state an alternative cause of action based on the theory that the funds were given to defen...
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