Stevens v. Torregano

• Decision Date: 15 May 1961
• Docket Number: No. 18986,18986
• Citation: 192 Cal.App.2d 105,13 Cal.Rptr. 604
• Court: California Court of Appeals Court of Appeals
• Parties: Gladys Torregano STEVENS, Plaintiff and Appellant, v. Alfred TORREGANO, also known as Alphonse Torregano, Defendant and Respondent.

Page 604

13 Cal.Rptr. 604

192 Cal.App.2d 105

Gladys Torregano STEVENS, Plaintiff and Appellant, v. Alfred TORREGANO, also known as Alphonse Torregano, Defendant and Respondent.

No. 18986.

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

May 15, 1961.

Bergen Van Brunt, San Francisco, for appellant.

Wallace, Garrison, Norton & Ray, San Francisco, for respondent.

DUNIWAY, Justice.

We granted a rehearing in this matter primarily to give further consideration to the question of whether plaintiff should be given leave to amend. We have concluded that she should be given such leave, as to her second, third and fourth causes of action only. We adhere to our previous views as to the present insufficiency of the complaint. They are as follows:

Plaintiff appeals from a judgment of dismissal which followed an order granting a judgment on the pleadings as to the first cause of action of her original complaint, an order sustaining without leave to amend demurrers to the second amendment to her second, third and fourth causes of action, and a similar order relating to a demurrer to the same amendment to her fifth cause of action.

The case is a companion to Estate of Torregano, decided by the Supreme Court on May 24, 1960, while this appeal was pending, and reported at 54 Cal.2d 234, 5 Cal.Rptr. 137. In that case the present plaintiff was the appellant, and the present defendant ('Alfred') was respondent. There, the court below had held that, as a matter of law, the will of Ernest Torregano ('Ernest') indicated an intention to omit provision for appellant, so that she was not a pretermitted child under Probate Code, section 90. The Supreme Court reversed, holding that the issue is one of fact. 54 Cal.2d at page 254, 5 Cal.Rptr. at page 149. That case involved a petition in the probate proceeding. The present action was filed because, at the time when appellant claims that she first learned of Ernest's death, the probate proceedings had progressed to a point where respondent, residuary legatee under Ernest's will, had already received assets of the estate under two decrees of partial distribution. Appellant seeks to have a constructive trust imposed upon those assets for her benefit (Civ.Code, § 2224), and to recover damages, both general and punitive. She also asks to have the decrees of distribution set aside, for an accounting, for a temporary restraining order and preliminary injunction, and for the appointment of a receiver.

'However logically professors or judges may argue in the realms of theory, there is always in case law systems such as ours the confusing influence of merits, the desire to reach a just result in a particular case that may lead us like a will o' the wisp on a dark night off the road of logic and into the bog.' (Lord Justice Pearce, in American Bar Association 1960 Proceedings of the Section of International and Comparative Law, pp. 28, 30.) This is such a case. After much consideration, we have concluded that we should stay on the road. The law regarding the finality of probate decrees is too important to the prompt and orderly administration of estates and the security of titles to warrant our stepping into the bog.

The importance of protecting the finality of probate decrees is well stated in Estate of Gardiner, 45 Cal.App.2d 559, at page 563, 114 P.2d 643, at page 645: 'To say that its judgment is final when right and interlocutory when wrong would open to attack the myriad of erroneous decrees that have confirmed the fallibility of man since Coke struck the royal shackles from the hands of a cringing judiciary. It would provide an orgy for the prurient army of litigious to the detriment of the peace, security and contentment of society.'

Error is claimed in the granting of the motion for judgment on the pleadings, the sustaining of the demurrers, the setting aside of a default taken for claimed failure to answer the first cause of action, and the failure to grant the preliminary injunction or to appoint a receiver.

1. There was no error in denying the injunction or refusing to appoint a receiver.

The order refusing to grant the injunction was appealable (Code Civ.Proc. § 963, subd. 2), but was not appealed. Moreover, both the granting of a preliminary injunction and the appointment of a receiver are within the court's discretion (42 Cal.Jur.2d 341, Receiver, § 10; 27 Cal.Jur.2d 109, 110, Injunction, § 8). The court below, having determined that plaintiff was entitled to no relief, naturally denied the interim relief sought. Cf. Agnew v. City of Los Angeles, 51 Cal.2d 1, 2, 330 P.2d 385.

2. There was no error in setting aside the default.

The question arises in this way. On May 28, the court overruled a general demurrer to the first cause of action and sustained it, with leave to amend, as to the others. Respondent's time to plead was kept open, and on July 9, appellant filed amendments to the second, third and fourth causes of action, which also added a fifth. On August 16, respondent filed a general demurrer to each cause of action, including the first, and the matter was argued and submitted on September 10. While the matter was under submission, and on December 5, counsel for appellant filed an 'affidavit in support of request for default,' reciting the overruling of the demurrer to the first cause of action, the expiration of the last extension of time, and that at the time set for hearing the demurrer on September 5, appellant's counsel asked respondent's counsel to answer. Default was entered on the same day, December 5.

On December 12, the court 'dismissed' the demurrer to the first cause of action on the ground that it had been theretofore overruled, and sustained the demurrer to the remaining four, with leave to amend. The order was silent as to the time within which to answer the first cause of action. Its effect was to overrule the demurrer, and under Rule 2, Rules of the Judicial Council for the Superior Courts, the time to answer was December 22. On December 20, respondent moved to set aside the default, on the ground that it was void because taken while the demurrer was under submission. The motion was granted on January 3, 1958, with leave to answer on or before January 6. On that day, respondent obtained an order extending time to answer to February 6. On January 30, appellant moved to strike and vacate the order of January 6, extending time to answer. The next day, January 31, answer was filed. On February 26, the court granted the motion of January 30, to strike and vacate the order of January 6, extending time.

Under Code of Civil Procedure, section 585, default may be entered if defendant fails to answer and no demurrer or notice of motion to strike is on file. See also Code of Civil Procedure, section 432. Both the filing of a demurrer (Code Civ.Proc. § 430) and the filing of a motion to strike (Code Civ.Proc. § 435) extend the time to answer. Moreover, the point that a complaint does not state a cause of action is never waived (Code Civ.Proc. § 434). The point may be raised by answer (Bracker v. American Nat. Food, Inc., 133 Cal.App.2d 338, 339-340, 284 P.2d 163) and it is not improper to do so, even though a previous demurrer on the same ground has been overruled. Such a ruling is interlocutory (39 Cal.Jur.2d 240, Pleading, § 166), and the court may, if it is willing to do so, hear the question again and decide it the other way. It has ample power over counsel, as officers of the court, to prevent imposition upon it by repeated demurrers or answers of this kind.

On December 5, when the default of respondent was taken, there was on file a general demurrer to the first cause of action, valid on its face, and raising a question that could also be raised by answer. It is not the business of the clerk, whose duties in entering defaults are ministerial, to pass upon the question of the sufficiency or validity of a pleading which has been filed within time as extended by the court. 28 Cal.Jur.2d 640, Judgments, § 20. Respondent therefore correctly urges that the default was void, and the court properly set it aside on January 3. Code Civ.Proc. § 473, last paragraph. The subsequent order of February 26, vacating the order of January 6 that extended the time to file the answer, was nugatory because by that time an answer was on file, and had been for 27 days. Cf. Reher v. Reed, 166 Cal. 525, 137 P. 263; Baird v. Smith, 216 Cal. 408, 14 P.2d 749. The fact that the order of January 6 was signed by a different judge from the judge who made the order of January 3 is immaterial. Both were judges of the same court, with the same powers (13 Cal.Jur.2d 752, Courts, § 194). Nor would the fact, if it be a fact, that the January order was obtained without compliance with Rule 22, Rules of the Superior Court, make the order void. Cf. Connell v. Higgins, 170 Cal. 541, 150 P. 769.

Appellant's position is highly technical, and it would have been quite unfair to respondents to allow the default to stand, as to one cause of action out of five, each of which related to the same basic facts.

3. The first cause of action is insufficient.

It alleges, in substance, that appellant is the daughter and sole surviving issue of Ernest, who left no spouse, and that she is a pretermitted child under Probate Code, section 90, and as such is entitled to the entire estate. Prob.Code, § 222. It pleads the death of Ernest, the probate of his will, and the appointment of Bank of America as executor. It then states that respondent Alfred has received property of the estate, 'resulting from two partial distributions.' There are also allegations that respondent will dispose of the property so received unless restrained or subjected to the appointment of a receiver.

The court's minute order states that under the terms of Ernest's will, a copy of which was attached to the amendments to the second, third and fourth causes of action, the plaintiff was specifically and...