Smith v. Williams
| Decision Date | 07 December 1960 |
| Citation | 9 Cal.Rptr. 517 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Edith SMITH, Plaintiff and Appellant, v. Henry WILLIAMS et al., Defendants, Henry Williams, Respondent. Civ. 6366. |
Leonard Nasatir, Los Angeles, for appellant.
Otis Babcock and Heinly & Heinly, Santa Ana, for respondent.
This is an appeal from an order of dismissal following failure to amend a complaint after a demurrer thereto had been sustained. To the plaintiff's and appellant's complaint, which separately stated three purported causes of action and was entitled, 'Cancellation, Damages and Quiet Title', the defendant and respondent Henry Williams entered a general demurrer as to each of the three causes of action, and a special demurrer as to two of them. After hearing, the trial court made an order sustaining the demurrer to the complaint and granting plaintiff 20 days within which to amend.
On December 28, 1959, a notice of the aforesaid order sustaining the demurrer was served on the attorney for appellant by mailing a copy thereof, at the United States Post Office in Santa Ana, California, addressed to said attorney at his office in Los Angeles, California. No amended complaint was filed. On January 22, 1960 the respondent Williams served the attorney for appellant, by mail, with a notice of motion to dismiss the action as to said respondent for failure to file an amended complaint within the time allowed. At the time specified in the aforesaid notice the respondent Williams moved the court for a dismissal; no appearance was made on behalf of the appellant; and the court granted the motion by written order dated February 10, 1960. On February 11, 1960 the appellant filed a notice of appeal from this order. She contends that her complaint sets forth three valid causes of action; that respondent's demurrer thereto should have been overruled; and that the judgment of dismissal was improper.
The respondent has not filed any brief herein, although notified to do so on August 5, 1960, in accord with rule 16(a) of Rules on Appeal; the matter was placed on the November 16, 1960 calendar for oral argument; neither party appeared; and the case was submitted for decision on that date.
The judgment dismissing the action as to respondent must be affirmed if the order of the trial court sustaining his demurrer to the complaint was proper. Oppenheimer v. Robinson, 150 Cal.App.2d 420, 424, 309 P.2d 887; Daniels v. Daniels, 136 Cal.App.2d 224, 288 P.2d 910; Litch v. Kerns, 8 Cal.App. 747, 97 P. 897. The correctness of this order therefor must be determined. It is apparent that appellant chose to rely upon the sufficiency of her complaint and for this reason did not contest the motion to dismiss. Her brief merely sets forth in general terms the substance of the three causes of action alleged in her complaint; states that 'because she was not apprised of the particular grounds on which the demurrer was sustained, and the total lack of case law appearing in the 'Points and Authorities' submitted by the defendant, she did not amend'; and does not attempt to advise this court of the arguments presented to the trial court at the time the demurrer was heard. Not having filed any reply brief, the respondent has not revealed to this court his contentions respecting the alleged insufficiencies of the complaint which were the subject of his demurrer.
The complaint contained three separately stated causes of action; the first attempted to allege a cause of action for cancellation of a deed of trust to real property in which appellant owned an interest upon the ground of fraud and, as an incident thereto, alleged exemplary damages in the sum of $50,000; the second alleged a cause of action to set aside a foreclosure sale under the aforesaid deed of trust upon the ground that notice of default and of sale had not been given as required by the deed of trust and by law; the respondent purportedly purchased said real property at said sale and obtained a deed thereto from the trustee; and the third was a cause of action to quiet appellant's title to the real property which was the subject of the deed of trust and the foreclosure sale. The respondent demurred to the complaint upon the ground that each alleged cause of action did not constitute facts sufficient to constitute a cause of action against him, and upon the further ground that the first and second causes of action were uncertain in specified particulars.
Although the complaint is uncertain in many respects, the alleged uncertainties specified in the demurrer were not legally objectionable. People v. Lim, 18 Cal.2d 872, 882, 118 P.2d 472; Aronson v. Bank of America, 42 Cal.App.2d 710, 720, 109 P.2d 1001; Bacon v. Wahrhaftig, 97 Cal.App.2d 599, 605, 218 P.2d 144.
The general demurrer to the first cause of action properly was sustained. Insofar as it attempted to state a cause of action for cancellatin of the deed of trust there is no allegation of injury arising out of the alleged fraudulent representation relied upon (Neet v. Holmes, 25 Cal.2d 447, 456, 154 P.2d 854), and there is no showing of notice of cancellation or of an offer to place the defendants in status quo (Leeper v. Beltrami, 53 Cal.2d 195, 215, 1 Cal.Rptr. 12; Neet v. Holmes, supra, 25 Cal.2d 447, 457, 154 P.2d 854); and insofar as it might be an attempt to state a cause of action for damages, not...
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