Phillips v. Phillips

• Decision Date: 08 December 1955
• Citation: 290 P.2d 611,137 Cal.App.2d 651
• Court: California Court of Appeals Court of Appeals
• Parties: Rena S. PHILLIPS, Plaintiff and Appellant, v. Mildred C. PHILLIPS, Defendant and Respondent. Civ. 5202.

Page 611

290 P.2d 611

137 Cal.App.2d 651

Rena S. PHILLIPS, Plaintiff and Appellant, v. Mildred C. PHILLIPS, Defendant and Respondent.

Civ. 5202.

District Court of Appeal, Fourth District, California.

Dec. 8, 1955.

William G. Junge, Los Angeles, Lance D. Smith, Willard P. Netzley, Puente, and Thomas L. Roquemore, Los Angeles, for appellant.

L. Donald St. Clair, Riverside, for respondent.

MUSSELL, Justice.

This is an action for equitable relief in which plaintiff seeks to set aside a judgment; to create and declare a constructive trust and for declaratory relief. Defendant Mildred C. Phillips demurred to the complaint and her demurrer, which is both general and special, was sustained by the trial court without leave to amend. Plaintiff appeals from the judgment thereupon entered in favor of the defendant Mildred C. Phillips.

The sole question here involved is whether the trial court abused its discretion in sustaining the demurrer without leave to amend. The general rule is that it is an abuse of discretion to sustain without leave to amend a demurrer to an original complaint unless the complaint shows on its face that it is incapable of amendment. Temescal Water Co. v. Department of Public Works, 44 Cal.2d 90, 107, 280 P.2d 1; King v. Mortimer, 83 Cal.App.2d 153, 158, 188 P.2d 502; C. Dudley De Velbiss Co. v. Kraintz, 101 Cal.App.2d 612, 617, 225 P.2d 969. This rule applies irrespective of whether leave to amend is requested or not. MacIsaac v. Pozzo, 26 Cal.2d 809, 816, 161 P.2d 449; King v. Mortimer, 83 Cal.App.2d 153, 158, 188 P.2d 502, supra; Code Civ.Proc., Sec. 472c. It is also the rule that a judgment may be reopened or vacated in an equitable action for extrinsic fraud. Giavocchini v. Bank of America Nat. Trust and Savings Ass'n, 39 Cal.App.2d 444, 447, 103 P.2d 603; Baker v. Baker, 217 Cal. 216, 18 P.2d 61. In Metzger v. Vestal, 2 Cal.2d 517, 524, 42 P.2d 67, 70, the court said:

"As types of extrinsic fraud, the courts of appellate jurisdiction of this state have adopted the classic definition, found in United States v. Throckmorton, 98 U.S. 61, 65, 25 L.Ed. 93, in which the Supreme Court of the United States said: 'But there is an admitted exception to this general rule in cases where, by reason of something done by the successful party to a 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.' * * * The gravamen of the rule thus expressed lies in the fact that 'the unsuccessful party has been prevented from exhibiting fully his case.' Bacon v. Bacon, 150 Cal. 477 ." (Italics ours.)

It is alleged in the complaint herein, inter alia, that at all times mentioned therein plaintiff has been a resident of the counties of Los Angeles and San Bernardino; that for many years last past defendant Harold B. Phillips owned certain real property therein described; that on February 5 1946, plaintiff obtained a final decree of divorce from Harold B. Phillips under the terms of which he was required to pay plaintiff certain sums as support and maintenance for herself and two minor children; that on or about May 16, 1952, plaintiff notified defendant Harold Phillips to make the payments specified in said final decree; that on or about May 27, 1952, Harold Phillips conveyed the property involved to his then wife, Mildred C. Phillips; that plaintiff is informed and believes and therefore alleges that said conveyance was made without consideration and for the sole purpose of defrauding her; that plaintiff on or about January 26, 1953, obtained an execution in said action and levied upon the property; that on or about May 10, 1953, Mildred Phillips filed an action against plaintiff and Harold Phillips in Riverside County, being action number 56611; that said action was brought to quiet title to the property involved; that the summons therein was purportedly served upon plaintiff Rena S. Phillips by...