Poon v. Poon

• Decision Date: 08 September 1966
• Citation: 53 Cal.Rptr. 365,244 Cal.App.2d 746
• Parties: Rose POON, Plaintiff, v. Paul W. POON, as Administrator of the Estate of Rose Poon, Deceased, Movant and Appellant, William J. Poon, Defendant and Respondent. Civ. 22724.
• Court: California Court of Appeals Court of Appeals

Page 365

53 Cal.Rptr. 365

244 Cal.App.2d 746

Rose POON, Plaintiff, v. Paul W. POON, as Administrator of the Estate of Rose Poon, Deceased, Movant and Appellant William J. Poon, Defendant and Respondent.

Civ. 22724.

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

Sept. 8, 1966.

Joseph L. Bortin, San Francisco, for appellant.

Bowman, Trant & Colthurst, Oakland, W. Scott Barrett, Oakland, for respondent.

MOLINARI, Justice.

This is an appeal by Paul W. Poon, the administrator of the estate of Rose Poon, from that portion of the order of the trial court denying his motion to substitute himself as plaintiff in an action brought by Rose Poon against William Poon and other named defendants. ¹ This motion was made by appellant following the death of Rose Poon, which occurred during the course of trial. The sole issue raised on this appeal is whether the trial court erred in refusing to allow the requested substitution.

The Record

This action was commenced on October 10, 1962 by the filing of a complaint by Rose Poon against William Poon and various other individuals, banks, and savings and loan associations. This complaint, which was entitled 'Complaint for Divorce,' set forth three causes of action. The first contained a statement of the statistical facts required in an action for divorce, allegations that William had treated Rose with extreme mental and physical cruelty, and an allegation that the community property of Rose and William consisted of 'bank accounts, real property, furniture, furnishings, stocks, bonds, and miscellaneous items which plaintiff believes are concealed by the said defendant.' As a 'Second Cause of Action for Fraud' Rose alleged that prior to March 29, 1954 she was a co-owner in fee simple of certain real property situated in San Francisco and that she possessed a community interest in two insurance policies on the life of her husband; that William, by fraud and misrepresentation, induced Rose to execute an agreement conveying to him all of Rose's interest in this realty and these insurance policies; that Rose delivered to William deeds to this realty; that William misrepresented to Rose that his execution of a promissory note in the amount of $2,500 was fair and reasonable consideration to Rose for her interest in the realty and insurance policies; that in fact William knew that the promise to pay $2,500 was not fair and reasonable; that in reliance upon William's representations, Rose conveyed her interest in the realty and insurance policies to William; and that William has continued to receive income from the realty and has deposited such income with one or more of the savings and loan associations and banks named as defendants in the action. As a 'Third Cause of Action to Establish Trust and to Quiet Title' Rose alleged that a confidential relationship existed between her and William; that notwithstanding this relationship William misrepresented and defrauded Rose of her rights in three specifically described parcels of realty; and that these parcels stand in the name of William and several of the other individual defendants, who continue to receive the income and benefit from these parcels. Based upon these three causes of action Rose prayed for a decree of divorce from William, for custody of their minor child, for support for herself and the minor child, and for attorney's fees and costs. In addition she prayed that the community property of the parties be awarded to her; that the agreement and deeds executed by her be set aside; that the real property interest of the parties be awarded to her; that title to the real property be quieted in her; and that an accounting of all income from the properties of Rose and defendants be made.

On October 31, 1962 William filed an answer to Rose's complaint in which he essentially denied all of the allegations thereof. Accompanying his answer, William filed a cross-complaint against Rose for divorce. In this cross-complaint William alleged that there was no community property and that he and Rose had executed a property settlement agreement settling their respective property rights. Accordingly, William prayed that the court determine that there was no community property of the parties and, alternatively, if the court determined that there was community property, that the same be equitably divided.

On April 22, 1964, following the filing of Rose's answer to William's cross-complaint, and after some discovery had been undertaken, a pretrial conference was held, resulting in a pretrial conference order which labelled the action as one for divorce and set forth the issues to be determined as follows: '1. Whether either or both parties are entitled to a divorce. 2. The nature, character, and extent of all of the property of the parties whether separate, community, joint tenancy, or what not, and the division thereof. 3. Whether the plaintiff and cross-defendant is entitled to support. 4. Custody of minor child and support thereof. 5. Whether the plaintiff and cross-defendant is entitled to counsel fees and costs.'

On June 8, 1964 the cause proceeded to trial as between Rose and William, they being the only parties who had appeared in the action. At the commencement of the trial, the trial court, noting that there had been a previous discussion in chambers, made the following statement: 'Now, I think what we have agreed, then, gentlemen, is that the plaintiff may establish a prima facie case for divorce; then the next issue to be determined then will be the validity of the property settlement agreement which was entered into sometime in 1954.' Counsel for Rose orally acquiesced to this statement. No statement or objection was made by William's counsel. Following brief testimony by Rose and by a corroborating witness as to the issue of extreme cruelty, the cause proceeded on the issue of the validity of the property settlement agreement. On July 9, 1964, following six days of trial, the court was informed that William had killed Rose and the cause was ordered off calendar. Thereafter, on August 5, 1964, appellant noticed a motion for his substitution as plaintiff in the instant action. In support of this motion, Rose's attorney filed a declaration in which he stated that Rose had been killed by William on July 9, 1964 and that appellant had been duly appointed administrator of her estate. Subsequently, appellant's motion came on for hearing and was denied by the court in an order which recited that the denial was based on the ground that the court lacked jurisdiction to order the requested substitution. It is from this order that appellant appeals. ²

Applicable Law

The starting point in our determination of whether the trial court erred in refusing to substitute appellant into this action in the place of the deceased plaintiff is Code of Civil Procedure section 385, which provides in pertinent part as follows: 'An action or proceeding does not abate by the death, or any disability of a party, * * * if the cause of action survive or continue. In case of the death or any disability of a party, the Court, on motion, may allow the action or proceeding to be continued by or against his representative or successor in interest.' However, since this section, which has been interpreted as Requiring the trial court to allow substitution of the representative of the deceased party if the cause of action on which the suit was commenced by the decedent during his lifetime survives (Majors v. County of Merced, 207 Cal.App.2d 427, 434, 24 Cal.Rptr. 610), does not indicate what causes of action do survive (Estate of Baker, 170 Cal. 578, 586, 150 P. 989; Clark v. Goodwin, 170 Cal. 527, 530, 150 P. 357, L.R.A.1916A, 1142; Myers v. Harrington, 70 Cal.App. 680, 689, 234 P. 412), our inquiry as to whether the instant action survived Rose's death must be directed elsewhere.

Initially we note that appellant concedes that upon Rose's death the jurisdiction of the trial court to enter a decree of divorce was terminated. This concession is based upon the rule of long-standing that a divorce action does not survive the death of either spouse. (McClenny v. Superior Court, 62 Cal.2d 140, 144, 41 Cal.Rptr. 460, 396 P.2d 916; Stevenson v. Superior Court, 62 Cal.2d 150, 152, 41 Cal.Rptr. 466, 396 P.2d 922; Darter v. Magnussen, 172 Cal.App.2d 714, 718, 342 P.2d 528; Bevelle v. Bank of America, etc., 80 Cal.App.2d 333, 334, 181 P.2d 730; Hamilton v. Hamilton, 83 Cal.App.2d 771, 773--774, 189 P.2d 722; Kellett v. Marvel, 9 Cal.App.2d 629, 630, 51 P.2d 185; Kirschner v. Dietrich, 110 Cal. 502, 504, 42 P. 1064.) ³ Additionally upon the authority of the Darter, Hamilton and Bevelle cases, appellant concedes that upon Rose's death and the abatement of her action for divorce the trial court also lost jurisdiction to apportion the community property of the parties. (See also Civ.Code, § 146, which gives a court power to divide the community property where the marriage has been dissolved.)

However, while conceding that the instant action, insofar as it was an action for divorce and for division of the community property, abated with Rose's death, appellant contends that the second and third causes of action of Rose's complaint by which she sought to recover her community share of certain realty and insurance policies which she had agreed to transfer and had in fact transferred to William survived Rose's death.

Prior to 1961 and the amendment to Probate Code section 573 it was recognized by virtue of Civil Code section 954 and Probate Code section 574 ⁴ that all causes of action relating to the recovery of property and to the setting aside of a fraudulent conveyance survived. (1 Witkin, Cal.Procedure (1954) Actions, § 179, p. 693; see Hardy v. Marcus, 15 Cal.App.2d 244, 244--245, 59 P.2d 421; Harris v. Harris, 57 Cal.2d 367, 370, 19 Cal.Rptr. 793, 369 P.2d 481; Vragnizan v. Savings Union etc. Co., 31 Cal.App. 709, 712--714, 161 P. 507; see also,...