Porter v. Superior Court

• Decision Date: 30 September 1977
• Citation: 141 Cal.Rptr. 59,73 Cal.App.3d 793
• Court: California Court of Appeals Court of Appeals
• Parties: Sarah E. PORTER, Petitioner, v. SUPERIOR COURT of the State of California for the COUNTY OF SAN MATEO, Respondent; James Donald PORTER, Real Party in Interest. Civ. 41237.

Page 59

141 Cal.Rptr. 59

73 Cal.App.3d 793

Sarah E. PORTER, Petitioner, v. SUPERIOR COURT of the State of California for the COUNTY OF SAN MATEO, Respondent James Donald PORTER, Real Party in Interest.

Civ. 41237.

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

Sept. 30, 1977.

John Eshleman Wahl, San Francisco, for petitioner.

Cecil L. McGriff, San Francisco, for real party in interest.

SIMS, Acting Presiding Justice.

Petitioner wife seeks a peremptory writ of mandate to compel the respondent court to try all of the issues in proceedings instigated by her against her husband for dissolution of their marriage. The court, on the husband's motion, has removed the dissolution proceeding from the trial calendar pending the trial of the husband's independent action in which he seeks to set aside a deed from himself to himself and his wife as joint tenants.

The wife contends that the court in the dissolution proceedings has plenary jurisdiction to decide all issues including the disposition of the property, without a jury. The husband asserts that he is entitled to a jury trial in his independent action, and that the trial court properly abated the dissolution proceeding pending trial of that action. We conclude that the husband is not entitled to a jury trial on his action to set aside the deed, but that nevertheless the court in the dissolution proceeding should exercise restraint in attempting to exercise jurisdiction over the separate property of the parties in those proceedings. It is, however, authorized and directed to proceed on all other issues, including the question of whether the property in question is community property.

On December 16, 1972, the parties were married. They thereafter made their home at a residence at 2580 Ardee Lane in South San Francisco which the wife acknowledges was owned by the husband. On November 20, 1975, the husband deeded that property to himself and his wife as joint tenants. According to the allegations in the husband's subsequently filed "Complaint for Declaratory Relief, Rescission and Restitution, Cancellation of Deed" (No. 204314), the wife "falsely and fraudulently, and with intent to deceive and defraud plaintiff, represented to plaintiff, that since they (plaintiff and defendant) were husband and wife, that the said real property should be held in joint tenancy, in order that she would have the right of survivorship in the said property in case the plaintiff should predecease her." He further alleged: "Said representation was false and was then and there known by the defendant to be false; in truth and in fact defendant's true motive for persuading and inducing plaintiff to convey an interest in joint tenancy in said property to her, was so that upon dissolution of the marriage she could claim a one-half interest in said property. And at that time defendant was contemplating filing for a dissolution of the marriage of the said parties."

On January 12, 1976, the deed was recorded, and at or about that time the wife commenced her first action for dissolution (No. 181570). In that action the husband on February 24, 1976, filed a response in which he alleged: "The title to the Real Property commonly described as 2580 Ardee Lane, South San Francisco is presently in the names of the parties herein. However, petitioner by fraud and misrepresentation induced respondent to convey a one-half interest in said real property to her. Respondent intends to file an independent action to rescind the conveyance and cancel the deed." On March 30, 1976, the wife's attorney executed a request for dismissal of the entire action with prejudice; the husband's attorney consented to the dismissal the following day; and the dismissal was entered April 13, 1976.

On June 24, 1976, the parties separated again and the action for dissolution under review (No. 203384) was instituted June 29, 1976, by the wife. She treated the residence as property subject to disposition in the dissolution proceedings. On July 6, 1976, the husband filed a response in which he requested that the residence be confirmed as his separate property. He alleged that the property is presently in the names of both spouses as joint tenants, but was former community property of respondent and his deceased wife, and that on or about November 1975 respondent, while operating under the undue influence and/or fraud of petitioner, executed a deed conveying one-half interest to petitioner.

On July 23, 1976, pursuant to stipulation and agreement of the parties the court awarded the wife exclusive use and occupancy of the residence pendente lite, and ordered each party to pay one-half of the monthly payments on the house. (See Porter v. Superior Court, 1/Civil 40192.)

On August 4, 1976, the husband filed his complaint to set aside the deed (No. 204314). On September 22, 1976, the court overruled the wife's demurrer in that proceeding in a decision which recites: "The relief requested in this action is appropriately independent of the dissolution proceeding, and the allegations of the complaint are properly supportive. The ground of another action pending is not sustainable."

On October 27, 1976, the husband moved for a continuance of the dissolution action which had been set for trial on November 8, 1976, over his objection. The motion was denied November 3rd and on November 8th he filed his petition for a writ of prohibition to stay the dissolution action pending trial of his independent action (1/Civil 40192). A temporary stay was granted, but on December 7, 1976, his petition was denied.

Thereafter by notice of motion dated December 20, 1976, the husband sought to have the actions consolidated for trial and that motion was denied. The dissolution proceeding was then set for trial on February 22, 1977, and continued by the court until March 17, 1977. At that time the court granted the husband's motion for a continuance and the court thereafter on March 25, 1977, signed and filed the order removing the proceedings from the trial calendar. These proceedings ensued.

I

The husband insists that he is entitled to a separate trial on his "Complaint for Declaratory Relief, Rescission and Restitution, Cancellation of Deed" because the trial of the issue of the wife's alleged fraud and deceit, raised by that complaint, in the divorce action would deprive him of his constitutional right to a jury trial, and because if he is forced to try that issue in the divorce proceedings without a jury he will be deprived of equal protection of the law. It is axiomatic that there is no right to a jury trial in a divorce action. (Cassidy v. Sullivan (1883) 64 Cal. 266, 28 P. 234; McLachlan v. McLachlan (1929) 101 Cal.App. 106, 108-109, 281 P. 512.)

The husband predicates his right to a jury trial on the provisions of section 16 (former § 7) of article I of the state Constitution ¹ and of section 592 of the Code of Civil Procedure. ² With respect to the wife's claim, discussed below (part II), that the Legislature has given the superior court broad equitable jurisdiction to resolve property disputes in divorce proceedings, he points out, as stated in Donahue v. Meister (1891) 88 Cal. 121, 25 P. 1096: "It is quite clear that the legislature, by the mere device of adding new cases to those of a class to which former equitable remedies were applicable, cannot encroach upon that provision of the state constitution which says that 'the right to trial by jury shall be secured to all, and remain inviolate.' " (88 Cal. at p. 124, 25 P. at p. 1097; see also p. 127, 25 P. 1096.) The application of these postulates to this case is dependent upon the hypothesis that his pending action against his wife is one in which he is entitled to a jury trial.

He relies on principles and precedents collected in law review articles and in a text compiled by an authoritative commentator on California law. (See Lee, How Concurrent are the Restitutionary Remedies? (1968) 19 Hastings L.J. 1017, particularly pp. 1027-1036; Comment, Statutory Changes in the Law of Rescission in California (1968) 19 Hastings L.J. 1248; and 3 Witkin, Cal.Procedure (2d ed. 1971) Pleading, § 413, pp. 2069-2070, and 4 id., Trial, § 75, p. 2910; see also, 1 Witkin, Summary of Cal. Law (8th ed. 1973) Contracts, § 684, p. 578.) The husband has confused the right to bring an action at law to recover the consideration paid or damages, following an effective rescission, and the equitable action to cancel a deed. (Cf., Civ. Code, § 1692; Davis v. Security-First Nat. Bank (1934) 1 Cal.2d 541, 542, 36 P.2d 649; Philpott v. Superior Court (1934) 1 Cal.2d 512, 514-517, 36 P.2d 635; Johnstone v. Morris (1930) 210 Cal. 580, 586, 292 P. 970; Newman v. Duane (1891) 89 Cal. 597, 598-599, 27 P. 66; Donahue v. Meister, supra, 88 Cal. 121, 124-129, 25 P. 1096; Paularena v. Superior Court (1965) 231 Cal.App.2d 906, 911-913, 42 Cal.Rptr. 366; Bank of America v. Lamb Finance Co. (1956) 145 Cal.App.2d 702, 709-714, 303 P.2d 86; Peterson v. Peterson (1946) 74 Cal.App.2d 312, 322, 168 P.2d 474; and Mortimer v. Loynes (1946) 74 Cal.App.2d 160, 167-171, 168 P.2d 481 with Civ.Code, § 3412; Thomson v. Thomson (1936) 7 Cal.2d 671, 674-683, 62 P.2d 358; Pomeroy v. Collins (1926) 198 Cal. 46, 70-71, 243 P. 657; Holland v. Kelly (1917) 177 Cal. 43, 44-45, 169 P. 1000; Ballou v. Avery (1917) 175 Cal. 641, 642-643, 166 P. 1003; Vallejo etc. R.R. Co. v. Reed Orchard Co. (1915) 169 Cal. 545, 555-558, 147 P. 238; Davis v. Judson (1910) 159 Cal. 121, 126-128, 113 P. 147; De Arellanes v. Arellanes (1907) 151 Cal. 443, 449, 90 P. 1059; Santoro v. Carbone (1972) 22 Cal.App.3d 721, 731-732, 99 Cal.Rptr. 488; Hill v. Younkin (1969) 274 Cal.App.2d 880, 884, 79 Cal.Rptr. 509; Stearns v. Los Angeles City School Dist. (1966) 244 Cal.App.2d 696, 724-726, 53 Cal.Rptr. 482; Clyne v. Brock (1947) 82 Cal.App.2d 958, 961, 188 P.2d 263; Santa Ana M. & I. Co. v. Kinslow (1938) 30 Cal.App.2d 107, 109-110, 85 P.2d 899; Bennett v....