HEYER v. FLALG

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Court of Appeal, Second District, Division 4, California.

arden Bovee HEYER et al., Plaintiffs and Appellants, v. Joseph Lawrence FLALG, Defendant and Respondent.

Civ. 30512.

Decided: March 14, 1968

Vernon S. Gray, Los Angeles, for plaintiffs and appellants. Crider, Tilson & Ruppé and Abe Mutchnick, Los Angeles, for defendant and respondent.

Plaintiffs sought a judgment for $50,000 actual damages and a like sum for punitive damages in the complaint they filed June 3, 1965, labeled ‘Damages—Malpractice—Legal.’ The procedural history of the case is brief: A demurrer was filed to the complaint; sustained, with ten days given to amend; plaintiffs did not amend; defendant moved to dismiss, as authorized by subdivision 3 of section 581, Code of Civil Procedure; an order was made granting the motion on October 18, 1965, and ten days later a written order dismissing the action was filed. On December 3, 1965, the plaintiffs filed their notice of appeal ‘from the order of dismissal and judgment of dismissal entered * * * on October 18, 1965.’ We are affirming the orders of dismissal. (See Haldane v. Bogy (1962) 208 Cal.App.2d 298, 229. 25 Cal.Rptr. 389, 390.)

Defendant's demurrer was based on several grounds:

I. Insufficient facts to constitute the cause of action; II. The same ground but with the added specification: ‘in that said Complaint is barred by the Statute of Limitations, Section 339, Subdivision 1, of the Code of Civil Procedure.’ III. The complaint is uncertain in seven particulars; IV. It is ambiguous, and, V. Unintelligible, for the reasons it is uncertain.

In sustaining the demurrer, the trial court obeyed the directions given by section 472d, Code of Civil Procedure, and ‘included in its decision or order a statement of the specific ground or grounds upon which the decision or order is based.’

The specific ground upon which the trial court placed its order was the second ground of the demurrer, that of the statute of limitations. We are satisfied that we may, if we determine that the first, the general demurrer, was well taken, uphold the court's ruling on that ground even though it was not the one specified. Prior to the addition of section 472d to our Code of Civil Procedure (in 1961), it was not at all an unknown practice for a judge, in ruling on a demurrer, to specify the ground of his ruling. What if, on appeal, the ground designated was found not to be a good one, but on some other ground that had been urged the ruling could be supported? We have this answer in Southall v. Security Title Ins. etc. Co. (1952) 112 Cal.App.2d 321, 323, 246 P.2d 74, 75:

‘[W]e are convinced that the demurrer must be sustained on the ground that, regardless of the character of the action, the complaint does not state facts sufficient to constitute a cause of action against defendant. This was one of the grounds urged upon demurrer, and while the court sustained the demurrer on the assigned ground ‘that the alleged cause of action is barred by the provisions of subdivision 1 of section 339 of the Code of Civil Procedure,’ no citation of authority is required for the statement that if the demurrer should have been sustained upon any of the grounds urged, the judgment will not be reversed. It is the validity of the court's action in sustaining the demurrer which is here reviewable, and not the court's opinion or statement of reasons for its action.'

As a consequence of the addition of section 472d to our Code of Civil Procedure we might expect the last sentence of our quotation no longer to be true, but instead that the action taken would be upheld only if the ground assigned for it was sufficient. We find, however, our quotation still is good gospel.

For example we find in Weinstock v. Eissler (1964) 224 Cal.App.2d 212, 224–225, 36 Cal.Rptr. 537, 545: ‘In the case before us, the trial court in apparent compliance with section 472d of the Code of Civil Procedure included in its judgment a statement to the effect that the general demurrers interposed by all defendants were sustained with leave to amend * * *. No mention is made in the judgment or in any order antecedent thereto of the special grounds of demurrer. However, it is to be noted that all demurrers specified two general grounds: (1) failure of the complaint to state facts sufficient to constitute a cause of action; and (2) (statute of limitations). This second ground must be considered one of general demurrer. * * *

‘The instant case is therefore similar to Southall v. Security Title Ins. etc. Co., supra * * *. On appeal the court deeming it unnecessary to determine the question of the statute of limitations concluded that the demurrer should be sustained on the former ground, stating that ‘if the demurrer should have been sustained upon any of the grounds urged, the judgment will not be reversed. It is the validity of the court's action in sustaining the demurrer which is here reviewable, and not the court's opinion or statement of reasons for its action.’' (See also Morgan v. County of Yuba (1964) 230 Cal.App.2d 938, 940, 41 Cal.Rptr. 508, 510, and Ostrowski v. Miller (1964) 226 Cal.App.2d 79, 85–86, 37 Cal.Rptr. 790, 793.) This ruling is not to be confused with such cases as Stowe v. Fritzie Hotels (1955) 44 Cal.2d 416, 425–426, 282 P.2d 890, 895, and cases following it, (Estate of O'Brien (1966) 246 Cal.App.2d 788, 55 Cal.Rptr. 343, 350, and Lewis Avenue Parent Teachers' Ass'n. v. Hussey (1967) 250 Cal.App.2d 232, 58 Cal.Rptr. 499, 503) where general demurrers had been sustained in error, and reversals followed with orders to the trial court to pass on the separate demurrers that had not been ruled on. We make one more quotation from Weinstock v. Eissler, supra, 224 Cal.App.2d 212, 224–225 36 Cal.Rptr. 537, 546: ‘While section 472d imposes procedural requirements which undoubtedly assist reviewing courts, it prescribes no rule regulating the reviewing process. Nowhere does it provide, as plaintiff would have it, that the order must be tested only according to the reasons given by the trial court.’ To which we add: Possibly such a rule would be wise, but the Legislature has not so provided, and the authorities are contrary to it.

We hold, therefore, that, in spite of the fact that the trial judge specified that he sustained the demurrer on the ground that the action was outlawed by the statute of limitations, we may affirm his ruling if we find that the complaint fails to state a cause of action.

First of all we wish to make it clear that we agree with the appealing plaintiffs that the theory of their complaint was not a hopeless one. Stated quite generally, that theory is that plaintiffs' mother retained the defendant to draw her will, in which she wished to leave her estate to her daughters. As all parties knew, she expected to get married very shortly. The defendant bungled the job given him in some way so that, after the marriage, followed by the death of this mother, the will left the bequest to the daughters defeated by the claim of their stepfather. Under such circumstances it might be that, as third party beneficiaries, the daughters had a cause of action. We quote from Lucas v. Hamm (1961) 56 Cal.2d 583, 591, 15 Cal.Rptr. 821, 825, 364 P.2d 685, 689: ‘We conclude that intended beneficiaries of a will who lose their testamentary rights because of the failure of an attorney who drew the will to properly fulfill his obligations under his contract with the testator may recover as third-party beneficiaries.’

Now let us look more carefully at the allegations of the complaint. It alleges that the defendant was an attorney licensed to practice in all the courts of this state and that the plaintiffs are the daughters of Doris Hume Bovee Kilburn. (Mrs. Kilburn, for further references.) In December 1962, Mrs. Kilburn ‘retained defendant to prepare the will. * * * On December 21, 1962, said will was executed in the office of the defendant, and said will was signed by * * * [two] secretaries of defendant.’

Mrs. Kilburn advised the defendant, both before and on December 21, 1962, that she intended to marry Glen A. Kilburn but that she ‘desired all of her property * * * to go to her daughters, plaintiffs herein,’ upon her death. On December 31, 1962, she married Glen A. Kilburn. She died July 9, 1963. Her will was admitted to probate and defendant claimed a portion of Mrs. Kilburn's estate.

So far, no wrongdoing is charged against defendant. We find that in the sixth paragraph of the complaint where it is alleged: ‘* * * defendant negligently failed to advise [Mrs. Kilburn] and negligently failed to provide in the will drafted by defendant, any provision relative to the intended marriage [of Mrs. Kilburn to defendant]. That after the execution of said will on December 21, 1962, and after the marriage [of Mrs. Kilburn to defendant] on December 31, 1962, and up to the death [of Mrs. Kilburn] on July 9, 1963, defendant negligently failed to advise [Mrs. Kilburn] of the legal consequences of the omission to make any reference to [defendant as] husband [of Mrs. Kilburn], and of the fact that by reason thereof [defendant] would be able to claim a part of the property [of Mrs. Kilburn].’

The complaint fails to tell us what the will in question did contain, but, as we are advised of the Kilburn probate proceedings, No. P471200, we take judicial notice of the will there admitted to probate and of its contents. (See discussion in Stafford v. Ware (1960) 187 Cal.App.2d 227, 9 Cal.Rptr. 706, and in Flores v. Arroyo (1961) 56 Cal.2d 492, 496–497, 15 Cal.Rptr. 87, 89–90, 364 P.2d 263.) We are told in Contractor's Safety Ass'n. v. California Comp. Ins. Co. (1957) 48 Cal.2d 71, 75, 307 P.2d 626, 628, ‘that matters judicially noticed may be considered in construing the pleadings is well settled [citing cases].’ (See further sections 452 and 459, Evidence Code.)

We begin to be more critical. We read in the will that Mrs. Kilburn ‘retained defendant to prepare’ her will. There is no allegation that the will spoken of in the complaint was prepared by the defendant. To be sure, at one place we see the words ‘in the will drafted by defendant,’ but this recital is not effective as the allegation that is lacking. (Stefani v. Southern Pacific (1931) 119 Cal.App. 69, 73, 5 P.2d 946, 948; Vilardo v. County of Sacramento (1942) 54 Cal.App.2d 413, 419, 129 P.2d 165, 168.) We read in the complaint: ‘* * * said will was executed in the office of the defendant, and said will was signed by Hilda Jarmath and Helen Wilson, who were then secretaries of defendant.’ The complaint tells us of the two secretaries who signed the will, but not a word to the effect that the supposed testatrix ever did, or that she subscribed her name to it, or that it was she who ‘executed’ it.

The complaint, to state its cause of action, had to pin some negligence on defendant. It attempts to. We read, in paragraph VI: ‘* * * defendant negligently failed to advise [Mrs. Kilburn] and negligently failed to provide in the will drafted by defendant, any provision relative to the intended marriage [of Mrs. Kilburn] to Glen A. Kilburn.’ What duty was there on the part of the defendant to advise his client of a provision relative to her intended marriage? Obviously these words are just a jumble; they fill no purpose.

The words that follow: ‘* * * negligently failed to provide in the will,’ etc., come nearer to stating a cause of action. To understand the situation we must have in mind the terms of section 70 of the Probate Code: ‘If a person marries after making a will, and the spouse survives the maker, the will is revoked as to the spouse, unless * * * the spouse is provided for in the will, or in such way mentioned therein as to show an intention not to make such provision; * * * ’

Perhaps we do plaintiffs' counsel an injustice to even suggest that section 70 contains a requirement that defendant failed to meet, assuming again, for the purposes of the discussion, that he drafted the will in question. No mention is made in plaintiffs'—or defendant's—brief of section 70, but it comes the nearest of anything that can be said to have created a standard to which defendant failed to rise. But to allege that defendant failed to provide in the will he drafted, ‘any provision relative to the intended marriage’ does not charge him with not complying with a requirement of section 70, for it contains no requirement that a will of a person about to be married shall refer to the coming event.1

We should note, further, that in the latter half of paragraph VI of the complaint, the defendant is charged with negligence taking place within the two-year period that immediately preceded the commencement of this action. If these charges constituted a cause of action, we would agree that the demurrer should not have been sustained on either general ground. But they do not. ‘That after the execution of said will on December 21, 1962, and after the marriage * * * on December 31, 1962, and up to the death [of Mrs. Kilburn] on July 9, 1963, defendant negligently failed to advise [Mrs. Kilburn] of the legal consequences of the omission to make any reference to Glen A. Kilburn as husband [of Mrs. Kilburn], and of the fact that by reason thereof Glen A. Kilburn would be able to claim a part of the property [of Mrs. Kilburn].’ If he was under any duty so to advise her, it was not a duty he owed her daughters, and it is not one of whose neglect they can complain.

What was it that the plaintiffs were trying to allege? We can only surmise that it was that the will, as drafted by the defendant, did not avoid the effect of section 70 and its declaration that ‘unless the spouse is provided for in the will, or in such way mentioned therein as to show an intention not to make such provision’ the consequence is that, as to the spouse, ‘the will is revoked.’ As we read the will, with our judicial notice glasses, we find, admittedly, no ‘provision’ was made for the one who became the spouse of the testatrix. But, in its fourth numbered paragraph, the will stated: ‘I give, devise and bequeath all of my estate, real, personal or mixed, and wherever the same may be situated to [the plaintiffs].’ The paragraph immediately succeeding this one declares: ‘I hereby nominate and appoint my dear friend, Glen A. Kilburn, Executor of this, my Last Will and Testament. * * *’

Succinctly stated, this is what we have: ‘All my estate goes to my two daughters. The man I am about to marry shall be the executor of this will.’ That man is mentioned by name, and as plainly as though put in letters ten feet high, he was to take no part of the estate, for there was no more in it than ‘all,’ which went to the daughters. For a lawyer to interpret this will, at the crucial time it was being drafted and executed, as not falling within the devastating provisions of section 70 of the Probate Code, was not malpractice. Should the probate court reach a different conclusion it would not alter the result in this case. We are concerned only with a question of the defendant's good judgment.

The trial court's order sustaining the demurrer to the complaint was well founded; that pleading did not come anywhere near stating a cause of action against the defendant. Opportunity to amend was given but not availed of. Quite properly the action was dismissed. As the complaint did not state a cause of action we see no need to debate whether or not the statute of limitations would be a good defense. The answer to that problem depends upon the nature of the cause of action and we have none. Under the circumstances we dispose of the appeal by taking the action forecast in the opening paragraph:

The orders of dismissal are affirmed.

FOOTNOTES

FOOTNOTE.  

1.  Under some circumstances such a reference may be required. (See Estate of Poisl (1955) 44 Cal.2d 147, 280 P.2d 789.) But those circumstances are not present in this case.

BISHOP, Associate Judge.* FN* Retired judge of the superior court sitting under assignment by the Chairman of the Judicial Council.

JEFFERSON, Acting P. J., and KINGSLEY, J., concur.

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