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


Civ. 14640.

Decided: December 28, 1944

Mitchell, Silberberg & Knupp and Samuel V. Cornell, all of Los Angeles, for appellant. Bautzer, Ryan, Ford & Silbert, Robert E. Ford, and Bernard M. Silbert, all of Hollywood, for respondent.

This is an appeal from a judgment entered after the sustaining of a general and special demurrer to the complaint in an action to obtain a declaration of the rights of the parties with reference to a contract of employment. The demurrer was sustained without leave to amend the complaint.

The complaint alleges the making of an oral contract of employment by which appellant engaged the services of respondent as a motion picture director for a term of one year; that upon request of respondent this contract was cancelled; and that another contract was made between the parties, which contract appellant requested to be reduced to writing; but that respondent, although continuing for a considerable time to recognize such contract, and although continuing to perform the same until some time shortly prior to December 24, 1943, did nevertheless on this last date refuse and ever since has refused to reduce said agreement to writing or to be further bound thereby, and has refused to perform the same in whole or in part. The prayer of the complaint is ‘for a judgment and decree * * * which shall by its terms fix, determine and declare the rights and duties of the parties hereto in the premises and which shall determine and declare that said contract, as modified and extended, including the options granted to plaintiff to extend or renew the same as hereinabove set forth, is a valid and subsisting obligation between the parties hereto, and which shall determine and declare the rights and duties of each of the parties thereunder and award to the parties hereto such and all further relief as may be just and proper * * *.’

It is immediately apparent from an examination of the allegations of the complaint that whatever cause of action may exist has already accrued and that the only question for determination is the liability of the respective parties or the relief to which they are entitled. In such a case ‘the nature of the action is not a cause for declaratory relief, but is defined by the subject-matter of the accrued cause of action.’ Standard Brands of California v. Bryce, 1 Cal.2d 718, 37 P.2d 446, 447; Fritz v. Superior Court, 18 Cal.App.2d 232, 63 P.2d 872. It has been said that a proceeding for declaratory relief can only be invoked to declare rights and not to determine or try issues. Loomis F. G. Ass'n v. California Fruit Exchange, 128 Cal.App. 265, 281, 16 P.2d 1040. Moreover, section 1061 of the Code of Civil Procedure, with respect to actions for declaratory relief, provides: ‘The court may refuse to exercise the power granted by this chapter in any case where its declaration or determination is not necessary or proper at the time under all the circumstances.’

The trial court properly sustained the general demurrer to the complaint without leave to amend. The judgment of dismissal is affirmed.


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