Saltares v. Kristovich

• Decision Date: 10 April 1970
• Court: California Court of Appeals Court of Appeals
• Parties: Rodolfo SALTARES, Administrator of the Estate of Anibal Saltares, Deceased, Plaintiff and Appellant, v. Baldo M. KRISTOVICH, as Public Administrator for the County of Los Angeles, Baldo M. Kristovich, as Public Administrator of the Estate of Carmen Saltares, Deceased, and Baldo M. Kristovich, as an individual, Defendants and Respondents. Civ. 33586.

Page 866

85 Cal.Rptr. 866

6 Cal.App.3d 504

Rodolfo SALTARES, Administrator of the Estate of Anibal Saltares, Deceased, Plaintiff and Appellant, v. Baldo M. KRISTOVICH, as Public Administrator for the County of Los Angeles, Baldo M. Kristovich, as Public Administrator of the Estate of Carmen Saltares, Deceased, and Baldo M. Kristovich, as an individual, Defendants and Respondents.

Civ. 33586.

Court of Appeal, Second District, Division 5, California.

April 10, 1970.

Morgan D. Goldie, for plaintiff and appellant.

John D. Maharg, County Counsel of Los Angeles County, John F. Keating and Edward G. Pozorski, Deputies County Counsel, for defendants and respondents.

AISO, Associate Justice.

Plaintiff Rodolfo Salteres, administrator of the estate of Anibal Salteres, deceased, (hereafter 'plaintiff') appeals from a judgment of dismissal entered upon an order sustaining without leave to amend the general demurrer of defendant, Baldo M. Kristovich, public administrator, as the administrator of the estate of Carmen Saltares, deceased, (hereafter 'defendant' in the singular form) ¹ interposed to plaintiff's 'Second Amended Complaint for Money Damages.' ² We have concluded that the judgment should be affirmed.

The Demurrer

The gravamen of defendant's demurrer is that the second amended complaint fails to state a cause of action against him as the public administrator of the estate of Carmen Saltares, deceased, or as the public administrator of Los Angeles County, or as an individual, because the pleadings disclose that all of the acts and omissions of which plaintiff complains are discretionary acts or omissions on his part as the public administrator of the estate of Carmen Saltares, deceased, and because as such government employee he was immune from liability for the results of his discretion exercised within the scope of his duties. (Gov.Code, § 820.2.)

The Pleadings

The second amended complaint purports to allege a cause of action against defendant, Baldo M. Kristovich as the public administrator for the County of Los Angeles, and Baldo M. Kristovich as an individual. It then, in substance, alleges the following:

'(O)n December 19th, 1966, Anibal Saltares and his wife, Carmen Saltares, died of gun shot wounds, Carmen Saltares expiring at 11:30 AM and Anibal Saltares expiring at 2:15 PM on said date.'

On that date, Anibal Saltares (hereafter 'Anibal') and Carmen Saltares (hereafter 'Carmen') held two parcels of improved real property in joint tenancy. For convenience they are designated as the Monroe property and the Madison property. ³ The Monroe property was encumbered with a first trust deed securing an indebtedness of $14,799.38 to the Pacific Savings and Loan Association of Downey, California, and a second trust deed securing an indebtedness of $651 to Archie and Audrey Ciemny of Long Beach. 'The monthly payments on the First Trust Deed were $99.00 per month, and the monthly payments on the Second Trust Deed were $15.00 per month.' The Madison property was encumbered with a trust deed securing an indebtedness of $9,792 to Trans World Savings and Loan Association of Lynwood, California. The monthly payments on this obligation were $70 per month. Monthly payments on all three obligations secured by the trust deeds were current as of December 19, 1966, when Anibal and Carmen died.

Anibal died intestate leaving his parents as heirs, and plaintiff as the duly appointed and acting administrator of his estate (Estate of Anibal Saltares, Deceased, Los Angeles Superior Court No. SOP 11013) 'had (the) right to the premises of the herein described real property with right of control and management' thereof as part of Anibal's estate.

Defendant listed an undivided one-half interest in the real properties as an asset of Carmen's estate to which he had been appointed the administrator (Estate of Carmen Salteres, Deceased, Los Angeles Superior Court No. P 517335). '(A)t the time of the demise of Anibal Saltares, defendants, and each of them' through an agent contacted the tenants of the real properties and 'demanded that the tenants make all rental payments to said defendant, Baldo M. Kristovich, Public Administrator for the County of Los Angeles, and administrator of the Estate of Carmen Saltares.' '(D)efendants, and each of them, acted wrongfully and tortiously in contacting said tenants and collecting by demand, rental payments for said property.'

Defendants, starting with the rental payments due for January 1967, collected $135 per month from the Monroe property and $100 per month from the Madison property despite plaintiff's demand on February 9, 1967, to desist from collection of rentals and for an accounting thereof. From the collection of these rentals, defendants had ample funds to pay the payments due on the indebtednesses secured by the trust deeds, but 'except for the payment of $297.00 paid May 22nd, 1967, on the Monroe * * * property; and the sum of $210.00 paid March 10th, 1967, on the Madison * * * property' they failed to make such payments, causing 'the beneficiaries of the trust deed notes (to threaten) foreclosure sales of the properties * * *.'

On May 1, 1967, plaintiff filed a petition for instructions in Estate of Anibal Saltares (Los Angeles Superior Court No. SOP 11013) requesting an order permitting plaintiff to expend funds from said estate to bring the payments on the 'trust deed notes' up to date and to restrain defendants from interfering with plaintiff's collection of rentals. Defendants, however, interposed objections and the petition was denied by the court. Plaintiff had no other funds except the rental payments collected by defendants from which to prevent 'foreclosure' of the real properties.

The 'Monroe * * * property was sold at a foreclosure sale on or about July 10th, 1967; and * * * the Madison * * * property was sold at a foreclosure sale on or about September, 1967.'

Defendants had collected a total of $1,357 as rental payments between the date of Anibal's death (December 19, 1966) and the 'date of foreclosure sales.'

'(T)he wrongful, wilful and malicious misconduct of the defendants, in failure by intention, to apply rental payments to the trust deed notes, after wrongfully collecting said rental payments, is the direct cause of the foreclosure sales, and the loss of the real properties to the Estate of Anibal Saltares.'

The reasonable market value of the Monroe property was $19,500 and the equity therein $5,049.62; the market value of the Madison property was $14,500 and the equity therein $4,708; thus the estate of Anibal Saltares has suffered loss in the amount of $9,757.62.

Plaintiff filed a claim with the Clerk of the Board of Supervisors of Los Angeles County on September 6, 1967, but the Board of Supervisors did not act upon the claim within 45 days from September 6, 1967, the date upon which it acknowledged its receipt.

Facts Judicially Noticed

A demurrer reaches not only the contents of the pleading itself, but also such matters as may be considered under the doctrine of judicial notice. (Weil v. Barthel (1955) 45 Cal.2d 835, 837, 291 P.2d 30; Agostini v. Strycula (1965) 231 Cal.App.2d 804, 806, 42 Cal.Rptr. 314.) The complaint is to be read as if it contains all matters of which the court can take judicial notice even in the face of allegations to the contrary. (Chavez v. Times-Mirror Co. (1921) 185 Cal. 20, 23, 195 P. 666; Loranger v. Nadeau (1932) 215 Cal. 362, 365, 10 P.2d 63 (overruled on another ground in Reich v. Purcell (1967) 67 Cal.2d 551, 555, 63 Cal.Rptr. 31, 432 P.2d 727); Wilson v. Loew's Inc. (1956) 142 Cal.App.2d 183, 187--188, 298 P.2d 152, writ of certiorari dismissed 355 U.S. 597, 78 S.Ct. 526, 2 L.Ed.2d 519.) '(A) complaint otherwise good on its face is nevertheless subject to demurrer when facts judicially noticed render it defective' (Watson v. Los Altos School Dist. (1957) 149 Cal.App.2d 768, 771, 308 P.2d 872, 874). (Accord: Chas. L. Harney, Inc. v. State (1963) 217 Cal.App.2d 77, 86--87, 31 Cal.Rptr. 524; Arthur v. Oceanside-Carlsbad Junior College Dist. (1963) 216 Cal.App.2d 656, 661, 31 Cal.Rptr. 177.)

A court may judicially notice documents in the file of the case wherein the demurrer is interposed (Dwan v. Dixon (1963) 216 Cal.App.2d 260, 265, 30 Cal.Rptr. 749), its own records (Nulaid Farmers Assn. v. LaTorre (1967) 252 Cal.App.2d 788, 791, 60 Cal.Rptr. 821), as well as the files of another case pending in the court (Evid.Code, § 452, subd. (d); Flores v. Arroyo (1961) 56 Cal.2d 492, 487, 15 Cal.Rptr. 87, 364 P.2d 263; Artucovich v. Arizmendiz (1967) 256 Cal.App.2d 130, 133--134, 63 Cal.Rptr. 810). These matters are likewise to be judicially noticed by a reviewing court. (Evid.Code, § 459, subd. (a).)

In drafting amended pleadings, '(a) pleader may not attempt to breathe life into a complaint by omitting relevant facts which made his previous complaint defective.' (Hills Trans. Co. v. Southwest Forest Industries, Inc. (1968) 266 Cal.App.2d 702, 713, 72 Cal.Rptr. 441, 448; accord Lee v. Hensley (1951) 103 Cal.App.2d 697, 709, 230 P.2d 159, and cases cited; and see 2 Chadbourn et al., Cal.Pleading (1961) § 1167, p. 393.)

In his superseded verified first amended complaint, plaintiff pleaded the file in Rodolfo Saltares, Administrator, etc. v. Baldo M. Kristovich, Public Administrator, etc. (Los Angeles Superior Court No. SOC 15427) by way of incorporation by reference. Perusal of this file discloses that the present action is but a continuation of that earlier action, which was originally commenced as one for declaratory relief and later sought to be amended into one for money damages. A demurrer to plaintiff's second amended complaint therein was sustained and plaintiff thereupon dismissed that action without prejudice. Nevertheless, defendant's cross-complaint which was filed against and answered by plaintiff as the cross-defendant has not been dismissed. The verified cross-complaint for quiet title, constructive...