Venza v. Venza

• Decision Date: 01 December 1949
• Citation: 94 Cal.App.2d 878,211 P.2d 913
• Court: California Court of Appeals
• Parties: VENZA v. VENZA et al. Civ. 7641. Sac. 6001.

Page 913

211 P.2d 913

94 Cal.App.2d 878

VENZA v. VENZA et al.

Civ. 7641.

Sac. 6001.

District Court of Appeal, Third District, California.

Dec. 1, 1949.

Preston, Braucht & George, Merced, for appellants.

C. Ray Robinson, Merced, for respondent.

ADAMS, Presiding Justice.

The complaint in this action alleged that plaintiff, Madeline P. Venza, and defendant Joseph J. Venza lived together from April 17, 1941, to March 5, 1945, under an agreement to pool their resources and efforts, and to share equally in their joint accumulations; that they accumulated property known as the Cannery which when acquired was of little value; that after its acquisition plaintiff devoted all her time working toward the development of same into a successful business, and through the joint efforts of the parties same repidly increased in value until, on March 27, 1947, it, with its assets and equipment, was worth $20,000; that on March 5, 1945, the parties were married, but on March 24, 1947, they entered into a property settlement, and on March 28, 1947, plaintiff was granted an interlocutory decree of divorce from defendant, the settlement agreement being adopted by the trial court and made a part of the said decree; that prior to said decree defendant had told her that she had no further interest in the cannery, all of her interests therein having been merged with his; that relying upon the statements of defendant she was induced to enter into the property settlement; that defendant had concealed from plaintiff the amounts of income received from their joint efforts and the value of their assets, and that because of the fraudulent concealment by defendant she had been deprived of great sums of money; that defendant was still in possession of and operating the cannery and its equipment, and had in his possession large sums of money, accounts receivable, etc., which properly belong to the community estate of plaintiff and defendant. An accounting by defendant was prayed, and an equitable division of the community assets.

After the filing of the complaint, an affidavit of plaintiff's attorney was filed in which it was averred that defendants had in their possession various products of the cannery in which plaintiff claimed a share, and that defendants would, during the current packing season, pack various agricultural products, and that they were negotiating for the sale of such assets and would sell them unless enjoined.

On October 2, 1948, an order to show cause and temporary restraining order were issued by the court. Defendants, on October 6th, filed a notice of motion for dissolution of the restraining order, or for the furnishing by plaintiff of an undertaking in the sum of $500,000 as a condition of its continuance.

Hearing on said motion was had on October 7, 1948, during which Mr. Venza testified, after which, in the presence of counsel for all parties, the following colloquy was had.

'The Court: What would be the objection to having a receiver appointed and keep the business rolling just as it now is?'

Mr. Hawkins, the attorney for Mrs. Venza, agreed, stating that since it was contended by plaintiff that she had been defrauded out of her proportion of the community property, that defendant Venza had concealed certain assets, and that she had joined in a property settlement by reason of fraud, and that certain products of the cannery were all of his visible assets, it was inequitable that she should be required to put up a bond of $500,000 or any bond. The court then said:

'No, but I would like to have a reply to my original question as to what would be the objection to a receiver? It would be fair to both of you certainly.

'Mr. Hawkins: We have no objection whatsoever. As a matter of fact, it is the suggestion of the plaintiff that a receiver be appointed, because to meet the technical position----

'The Court: How do you feel about the receiver?

'Mr. George [counsel for defendants]: I am not in a position to stipulate to such a thing, your Honor, for this reason. Counsel says it is very technical and it is very technical, and I take the position that the complaint doesn't state a cause of action and I take a position diametrically opposed to counsel, that anything out there has been an accumulation of community property, there is no such testimony, and we take the position that it is not community property and we consequently are opposed to that, that it is not a proper case for a receiver; however, I might say that if what counsel and his client are interested in, is making such that all the proceeds of any sale that may be made or borrowing of money is not dissipated and that they have something, in the event that they do get a judgment of some kind, that they have some place to reach out and collect it, that is one thing that would not be a pure receivership. I question whether a receiver, unless it is possible to find someone that is--has cannery experience, to go right in and completely operate it.

'The Court: That wouldn't be my idea, it would be a receiver to take charge of all the money that came in and look after the financial structure, but let Mr. Venza manage the cannery because he is the only one that knows how to do it, and on the other hand the wife would be protected, because if she got a judgment in the suit as she stated, she would have to go--to come in again and it looks to me like a receiver in that sense, that he would take the funds and impound them, pay off the mortgagees that are advancing against these cans of fruit and keep the business rolling would be good sense and not too expensive. If that would meet with more or less the approval of both of you, I would like to see that done and hold the money where we could get at it until the case is tried on its merits and decided.

'Mr. Hawkins: That is the recommendation of the plaintiff, if the Court please.

'The Court: Well----

'Mr. George: I don't want to be compelled to stipulate to that, your Honor, but off the record, if that is the order of the Court, that is the order of the Court. I think that as a practical matter that would work out all right.

'The Court: I make it as an order then, trying to act as a practical businessman and yet trying to protect the plaintiff in the case to the final gun. So if I can see you gentlemen outside, we will proceed to appoint a receiver, if that is agreeable to both of you.'

On the following day the court made and entered an order appointing a receiver 'of all of the personal and real property of every kind and character of the defendants' upon said receiver giving bond in the sum of $50,000 after the filing of such bond the receiver to 'take possession of all of the assets, files, papers, records, documents, monies, securities, choses in action, books of account and all other property, real and personal or mixed, of the said defendants, now in the State of California, and under the jurisdiction of this Court and all property in the custody and the control of said defendants, pending the final determination of this action, or until further order...