“Every fact which, if controverted, plaintiff must prove to maintain his action must be stated in the complaint”
Jerome v. Stebbins (1859), 14 C. 457: Green v. Palmer (1860), 15 C. 411, 76 Am. Sec. 492; Johnson v. Santa Clara County (1865), 28 C. 545

“The complaint, on its face, must show that the plaintiff has the better right.”
Rogers v. Shannon (1877), 52 C. 99

“Complaint, to be sufficient, must contain a statement of facts of which, without the aid of other facts no stated shows a complete cause of action.”
Going v. Dinwiddle (1890), 86 C. 633, 25 P. 129

“Pleadings should set forth facts, and not merely opinions of the parties”.
Snow v. Halstead (1851), 1 C. 359

“A complaint must contain a statement of facts showing the jurisdiction of the court, ownership of a right by plaintiff, violation of that right by the defendant, injury resulting to plaintiff by such violation, justification for equitable relief where that is sought, and a demand for relief.”
Pierce v. Wagner, 134 F.2d 958

“Essential facts on which legal points in controversy depend, should be pleaded clearly and precisely, so that nothing is left for the court to surmise.”
Gates v. Lane (1872), 98 C. 499

“In pleading, the essential facts on which a determination of the controversy depends should be stated with clearness and precision so that nothing is left to surmise.”
Bernstein v. Piller (1950), 98 C.A.2d 441, 220 P.2d 558

“The ‘facts’ which the court is to find and the ‘facts’ which a pleader is to state lie in the same plane - that is, in both connections, ‘facts’ are top be stated according to their legal effect.”
Hihn v. Peck (1866), 30 C. 280

“A plaintiff must set forth in his complaint the essential facts of his case with reasonable precision and with sufficient clarity and particularity that defendant may be apprized of nature, source and extent of his cause of action.”
Metzenbaum v. Metzenbaum (1948), 86 C.A.2d 750, 195 P.2d 492

“In general, matters of substance must be alleged in direct terms, and not by way of recital or reference.”
Silvers v. Grossman (1920), 183 C. 693, 192 P. 534; Reid v. Kerr (1923), 64 C.A. 117, 220 P. 688

“A fact which constitutes an essential element of a cause of action cannot be left to inference.”
Roberts v. Roberts, 81 C.A.2d 871, 185 P.2d 381

Material facts must be distinctly stated in a complaint.
Goland v. Peter Nolan & Co. (1934), 33 P.2d 688, subsequent opinion 38 P.2d 738, 2 C.2d 96

“Matters of substance must be presented by direct averment and not by way of recital.”
Stefani v. Southern Pacific Co. (1932), 119 C.A. 69, 5 P.2d 946

“A pleading which leaves essential facts to inference or argument is bad.”
Ahlers v. Smiley (1909) ,11 C.A. 343, 104 P. 997

“The forms alone of the several actions have been abolished by the statute.  The substantial allegations of the complaint in a given case must be the same under our practice as at common law.”
Miller v. Van Tassel (1864), 24 C. 459

“A pleading can not be aided by reason of facts not averred.”
San Diego County v. Utt (1916), 173 C. 554, 160 P. 657

“Facts necessary to a cause of action but not alleged must be taken as having no existence”
Frace v. Long Beach City High School Dist. (1943), 137 P.2d 60, 58 C.A.2d 566

“A fact necessary to the pleader’s cause of action, if not pleaded, must be taken as having no existence.”
Feldesman v. McGovern (1941), 44 C.A.2d 566

In pleading, the essential facts upon which a determination of the controversy depends should be stated with clearness and precision so that nothing is left to surmise.
Philbrook v. Randall, 195 Cal 95, 103 [231 P. 739].)

“When pleading is silent as to material dates, or does not clearly state facts relied on, it must be presumed that statement thereof would weaken pleader’s case.”
Whittemore v. Davis (1931), 112 C.A. 702, 297 P. 640

“... if a fact necessary to the pleader's cause of action is not alleged it must be taken as having no existence.
Hildreth v. Montecito Creek Water Co., 139 Cal. 22 [72 P. 395]; Callahan v. Loughran, 102 Cal. 476 [36 P. 835].

Facts necessary to a cause of action but not alleged must be taken as having no existence.
21 Cal.Jur., p. 54.

Goland v. Peter Nolan & Co. , 2 Cal.2d 96
[L. A. No. 13090. In Bank. December 21, 1934.]

H. GOLAND et al., Appellants, v. PETER NOLAN & COMPANY (a California Corporation) et al., Respondents.

COUNSEL

Joe Wapner and Henry Cohen for Appellants. [2 Cal.2d 97]

Freston & Files for Respondents.

OPINION

PRESTON, J.

Plaintiffs appeal from a judgment for defendant corporation following an order sustaining, without leave to amend, a general and special demurrer to the second amended complaint.

[1] This complaint is in two counts, the first for malicious prosecution of a civil action and the second upon stockholders' liability for the same cause of action. Count one states a cause of action. Count two is defective and ordinarily we would sustain the ruling of the trial court as to it, but the defendants are all sued by fictitious names and no one of them has been served with process or has appeared in the action. The ruling of the court on this count is, therefore, premature.

[2] The first count recites that on June 8, 1928, the corporate defendant instituted in the superior court against plaintiff H. Goland an action for the sum of $6,000, and procured an attachment therein and levied it upon the interests of plaintiffs in certain described real property; that said attachment remained in force until May 12, 1930, when the action and the attachment were dismissed and withdrawn, ending the litigation in the equivalent of a judgment for plaintiffs.

Said count one also recites that said claim was fictitious and known by said corporation to be such at all times and that the suit was instituted and the attachment secured and levied without probable cause, maliciously and with the design to injure, harass and annoy plaintiffs; that as a result of such action and such attachment, plaintiffs suffered various items of damages, to only two of which we need refer: First, that plaintiffs were purchasing the property levied upon and had paid a deposit thereon of $5,000, pursuant to an escrow agreement and by reason of the levy of said attachment they were unable to complete the purchase and lost the said deposit, to their damage in said sum; second, that punitive damages should be awarded. As to the other items of damages, it may be that on further consideration they will be found too speculative or conjectural to be the basis of relief, but so long as one or more appropriate items of injury are found in the complaint, it is good [2 Cal.2d 98] as against a general demurrer and other items, if objectionable, may be treated as surplusage.

[3] Among the allegations of special demurrer are the following: That the wife of plaintiff is not a proper party, but we cannot see where this would injure defendants as she is identified with the property on which the attachment was levied. [4] The main special ground urged is that count one contains two causes of action, one for malicious prosecution and one for malicious attachment. This claim likewise is unfounded. The count is clearly one for malicious prosecution, with the attachment in aggravation of damages. A malicious attachment may be procured in an action instituted in good faith. Such a case was McCusker v. Walker, 77 Cal. 208 [19 P. 382]. But it is often found that the action was prompted by malice and the attachment procured in furtherance of the malicious intent. This is the case here alleged and it is supported by the following authority: Berson v. Ewing, 84 Cal. 89 [23 P. 1112].

The fact that the statute of limitations begins to run at the time of the levy in the first illustration and at the successful termination of the litigation in the other is not material here in view of the classification we have made of the complaint.

The judgment is reversed and as to count one the direction is made to overrule the demurrer.

Langdon, J., Curtis, J., Seawell, J., and Waste, C.J., concurred.

Feldesman v. McGovern, 44 Cal.App.2d 566
[Civ. No. 11391. First Dist., Div. One. April 29, 1941.]

SOLOMON FELDESMAN, Appellant, v. WALTER McGOVERN, Respondent.

COUNSEL

Harry L. Meyers and George Olshausen for Appellant.

Keyes & Erskine and Douglas M. Moore for Respondent.

OPINION

KNIGHT, J.

This is an action by a client against his attorneys for damages, based on allegations to the effect that they negligently failed to perform one of the duties for [44 Cal.App.2d 568] which they were employed, namely, to file a petition for his discharge in bankruptcy. The respondent is one of the two attorneys sued. He appeared separately and his demurrer to the second amended complaint was sustained without leave to amend. Accordingly judgment was entered in his favor, and the client appeals. The record on which the appeal was taken does not disclose whether respondent's co-defendant was served with summons, or if so what disposition was made of the case as to him. [1] The trial court's order sustaining the demurrer was general in terms; therefore, if it appears that the demurrer was well taken as to any of the grounds urged therein, the judgment based on the trial court's order must be affirmed. (Haddad v. McDowell, 213 Cal. 690 [3 PaCal.2d 550], citing numerous authorities.)

[2] The principal ground of demurrer was that the second amended complaint failed to state a cause of action, and the important point urged in this behalf is that in an action brought by a client against his attorney for the latter's alleged negligence in failing to perform some act in behalf of the client, the complaint must not only specify the act, but must specifically allege and the plaintiff must prove that if the attorney had performed the act it would have resulted beneficially to the client. A large number of cases from other jurisdictions, including one from the federal court, are cited by respondent, which doubtless sustain the rule contended for by him. Among them are Vooth v. McEachen, 181 N.Y. 28 [73 N.E. 488, 2 Ann. Cas. 601]; Maryland Casualty Co. v. Price, 231 Fed. 397 [145 C.C.A. 391, Ann. Cas. 1917B, 50]; Laux v. Woodworth, 195 Wash. 550 [81 PaCal.2d 531]; Martin v. Nichols, 110 Wash. 451 [188 P. 519]; Schmitt v. McMillan, 175 App. Div. 799 [162 N.Y. Supp. 437]. And in the following cases cited by him the attorney's demurrer was sustained and the judgment affirmed on appeal because of the fact that the client failed to allege specifically that if the attorney had not been negligent, the client would have been successful in the litigation: National Hollow Brake Beam Co. v. Bakewell, 224 Mo. 203 [123 S.W. 561]; Brainard v. Singo, 164 Ala. 353 [51 So. 522]; Jones v. Wright, 19 Ga. App. 242 [91 S.E. 265].

Respondent also cites the following California cases, which contain language indicating that the same rule prevails in this jurisdiction: Lally v. Kuster, 177 Cal. 783 [171 P. 961]; McMillan v. Greer, 85 Cal.App. 558 [259 P. 995]; [44 Cal.App.2d 569] Martin v. Hood, 203 Cal. 351 [264 P. 478]. In this regard the decision in the first of the three cases just cited contains the following: "'He [the client] must allege and prove that the claim was turned over to the attorney for collection; that there was a failure to collect; that this failure was due to the culpable neglect of the attorney, and that, but for such negligence, the debt could, or would, have been collected. ...' (6 Cor. Jur., p. 710, sec. 260, cited as authority in Vooth v. McEachen, 181 N.Y. 28 [2 Ann. Cas. 601, 73 N.E. 488].)" (Italics ours.)

The bill of exceptions upon which the appeal herein is presented embodies the first and second amended complaints, and neither contains any allegation which directly or by implication alleges that if appellant's attorneys had filed a petition for his discharge in bankruptcy, it would have been or he would have been entitled to have the same granted. Therefore, under the rule of the cases above referred to, the second amended complaint was fatally defective in stating a cause of action.

Appellant in effect concedes the existence of the rule as declared by the cases cited by respondent, but contends that while such rule is applicable where the attorney has been employed in contested civil litigation, it is not here controlling, because, so he contends, the granting of a discharge in bankruptcy is mandatory, unless the bankrupt has committed certain prohibited acts, and that these prohibited acts are in effect affirmative defenses which need not be pleaded. In this behalf appellant argues that other things being equal, the bankrupt is entitled to his discharge upon the mere filing of his petition, and any attempt to plead facts showing that the discharge would have been granted would be merely pleading that plaintiff had not committed any of the prohibited acts which might have prevented his discharge, which would amount to anticipating a defense.

[3] As pointed out by respondent, however, the granting of a discharge is not mandatory; that is to say, a bankrupt is entitled to a discharge only if he has complied with the provisions of the Bankruptcy Act and has not committed any of the offenses listed. It is in effect so held in In re Northridge, 53 Fed.2d 858, wherein the court said: "The right to a discharge is not something which the bankrupt is entitled to for the mere asking. It is a high privilege which [44 Cal.App.2d 570] should not be granted except in clear cases where all the statutory conditions and requirements have been fully met and complied with ..." (See, also, In re Weisberger, 41 Fed.2d 275; Holmes v. Davidson, 84 Fed.2d 111.) Furthermore, as respondent points out, in cases where the attorney was sued by the client for failure to enforce the collection of a note, it is held that the client must allege and prove not only that he would have obtained judgment on the note, but that the debtor was solvent and the judgment would have been collected; all of which are really matters of defense. Nevertheless, as contended by respondent, the cases hold they are not matters of defense in an action against the attorney, but are essential elements to the cause of action. (See Lally v. Kuster, supra, and authorities cited therein.)

[4] Appellant also contends that even if such an allegation were necessary to the statement of a cause of action, its absence is not ground for affirmance of the trial court's order, because the defect could have been cured by amendment; and appellant asked permission to amend. However, so far as the record shows, in asking leave to amend he did not indicate how or in what manner he proposed to amend. As said in Stewart v. Douglass, 148 Cal. 511 [83 P. 699], "When a demurrer is sustained to a complaint it is within the discretion of the court either to allow an amended complaint to be filed or to give judgment forthwith in favor of the defendant. The appellate court will in every such case sustain the action of the court below, whatever course it may take, unless it is made to appear by the record that there has been an abuse of discretion. The plaintiff merely asked leave to file an amended complaint, and, so far as the record discloses, did not show that there were any allegations of fact omitted from the complaint to which the demurrer had been sustained which, if inserted therein, would in any respect change its legal effect, nor make any statement whatever of the grounds or reasons for making the application for leave to amend. There was clearly no abuse of discretion shown. (Kleinclaus v. Dutard, 147 Cal. 245 [81 P. 516].)" (See, also, Marsh v. Lott, 156 Cal. 643 [105 P. 968].) The action was pending prior to the adoption of section 472c of the Code of Civil Procedure, and therefore said section by its express terms has no application here. [5] Furthermore it [44 Cal.App.2d 571] is well settled that the presumptions are always against the pleader, and all doubts are to be resolved against him, for it is to be presumed that he stated his case as favorably as possible to himself (Joseph v. Holt, 37 Cal. 250; Silvers v. Grossman, 183 Cal. 696 [192 P. 534]; Burrowes v. Bosworth, 68 Cal.App. 117 [228 P. 667]; Higgins v. Security Trust and Savings Bank, 203 Cal. 398 [264 P. 744]; Smith v. Buttner, 90 Cal. 95 [27 P. 29]); if a fact necessary to the pleader's cause of action is not alleged it must be taken as having no existence (Hildreth v. Montecito Creek Water Co., 139 Cal. 22 [72 P. 395]; Callahan v. Loughran, 102 Cal. 476 [36 P. 835]).

Appellant makes the further contention that the complaint is sufficient even without the allegation in question, because it is alleged that his attorneys "negligently omitted" to obtain appellant's discharge; also because of the allegations relating to the matter of damages, citing Dunn v. Dufficy, 194 Cal. 383 [228 P. 1029]. However, that was a medical case, and presents an entirely different situation from the one with which we are here dealing. [6] Nor does the rule of liberal construction embodied in section 452 of the Code of Civil Procedure permit the insertion, by construction, of averments which are neither directly made nor within the fair import of those which are set forth. On the contrary, facts necessary to a cause of action but not alleged must be taken as having no existence. (21 Cal.Jur., p. 54.) Moreover, it would seem that where as here a charge of breach of duty by an attorney has been made by a client, for which he is seeking damages, the attorney is entitled to insist that the complaint contain all allegations essential to the complete statement of a cause of action. As said in Pennington Exrs. v. Yell, 11 Ark. 212 [52 Am. Dec. 262], "As, in the very nature of things, a charge of this nature, if well founded, must seriously affect the professional character of the attorney, he is entitled, to the fullest extent, to the benefit of that rule of universal application extending to all the relations of society, that every one shall be presumed to have discharged his legal and moral obligations until the contrary shall be made to appear. (Citing cases.)"

Appellant has stated his cause of action in two counts, but what has been said applies with equal force to both counts; and in view of the conclusion reached on the point [44 Cal.App.2d 572] discussed it becomes unnecessary to inquire into the remaining points made in support of the judgment, including the question of the statute of limitations, or to consider the correctness of the trial court's ruling striking out certain allegations relating to the elements of damages.

The judgment is affirmed.

Peters, P. J., and Ward, J., concurred.

Frace v. Long Beach City High School Dist., 58 Cal.App.2d 566
[Civ. No. 13800. Second Dist., Div. Three. May 12, 1943.]

CHARLES FRACE, a Minor, etc., Appellant, v. LONG BEACH CITY HIGH SCHOOL DISTRICT et al., Respondents.

COUNSEL

Merrill Brown for Appellant.

Joseph A. Ball, J. H. O'Connor, County Counsel, and Kenneth Sperry for Respondents.

OPINION

SHAW, J. pro tem.

Plaintiff was injured by the explosion of chemicals with which he was attempting to perform an experiment, and in this action seeks to recover damages for the injuries so received. A demurrer to his amended complaint was sustained with leave to amend, he did not amend, and he appeals from the ensuing judgment.

[1] Since plaintiff declined to amend his complaint, we do not consider the possibility that any defects in it could be cured by amendment, but presume that the pleader has stated his case as strongly as it can be stated in his favor. (Royal Ins. Co. v. Mazzei, (1942) 50 Cal.App.2d 549, 555 [123 P.2d 586].) [2] While the complaint should be liberally construed, with a view to substantial justice between the parties (Code Civ. Proc., sec. 452), that rule "does not, however, permit the insertion, by construction, of averments which are neither directly made nor within the fair import of those which are set forth. On the contrary, facts necessary to a cause of action but not alleged must be taken as having no existence." (21 Cal.Jur. 54; Feldesman v. McGovern, (1941) 44 Cal.App.2d 566, 571 [112 P.2d 645]; Estrin v. Superior Court, (1939) 14 Cal.2d 670, 677 [96 P.2d 340].)

[3] From the amended complaint the following facts appear. The defendant district conducted a high school, consisting of several buildings, in one of which there was a small chemical [58 Cal.App.2d 569] supply room. In this room chemicals, some of which would, upon admixture, burn and explode, were stored for the use of chemistry students in performing laboratory tests and experiments. The defendant Lewarton was employed by defendant district as janitor and custodian and as such had the care and custody of this supply room and the keys thereto. On several occasions, shortly before plaintiff was injured, Lewarton unlocked this supply room and permitted two high school students, named Murphy and McNanamy, to enter this room, and to remain there and leave without their being under observation, all of which was contrary to the rules of the school. These two students, although not authorized so to do, took from the storeroom potassium chlorate and phosphorus and kept these chemicals in the garage at the home of McNanamy, where plaintiff watched the other two boys experiment with them without injury. Plaintiff thereupon asked McNanamy if he could use the chemicals for an experiment, McNanamy gave plaintiff small quantities of them, plaintiff mixed them in a container and shook them, and from the resulting explosion received the injuries for which he sues. Plaintiff was, at the time, a boy of seventeen, and it is alleged that "by reason of their immature age, inexperience and lack of knowledge of chemicals neither the said McNanamy nor the plaintiff knew that use of said chemicals by them was dangerous and hazardous or would cause an explosion or that the use of said chemicals by plaintiff was likely to injure person or property."

It is obvious that the facts thus far set forth are not sufficient to impose any liability on the defendants. They show merely that unauthorized persons took, in legal effect stole, some chemicals from defendant's storeroom, and that plaintiff, obtaining possession of some of these chemicals, was injured by reason of his unwitting mishandling of them. Responsibility for such results does not attach to the owner whose property is wrongfully taken. Indeed, we do not understand plaintiff to contend otherwise. He points to certain additional allegations and contends that they avoid the conclusion just stated, and that defendants may be held here by the joint operation of the rule fastening liability in certain cases upon one who permits children to play with an attractive but dangerous device (the rule of the "turn-table cases") and the other rule holding a negligent actor liable for the results of his negligence even though the independent act of another [58 Cal.App.2d 570] intervenes between his negligence and the results, where that intervening act is one which he ought, in reason, to have anticipated. The allegations thus pointed out are these: "That at all times herein mentioned the defendants and each of them knew: that the use of said chemicals by students, except under the personal supervision and direction of one skilled in the science of chemistry, was apt to cause injury to person and property; that said supply room and the chemicals therein was an attraction and allurement to the students of the high school; and that if given an opportunity some of said students would steal chemicals therefrom for the performance of their own and unsupervised tests and experiments thereby exposing themselves and others to serious personal injury."

The rule regarding an independent intervening cause on which plaintiff relies is thus stated in Hale v. Pacific Tel. & Tel. Co., (1919) 42 Cal.App. 55, 58 [183 P. 280], one of the cases cited by him: "... where the original negligence of a defendant is followed by an independent act of a third person which results in a direct injury to a plaintiff, the negligence of such defendant may, nevertheless, constitute the proximate cause thereof if, in the ordinary and natural course of events, the defendant should have known the intervening act was likely to happen, but if the intervening act constituting the immediate cause of the injury was one which it was not incumbent upon the defendant to have anticipated as reasonably likely to happen, then, since the chain of causation is broken, he owes no duty to the plaintiff to anticipate such further acts, and the original negligence cannot be said to be the proximate cause of the final injury."

[4] The negligence of which defendants were guilty, according to plaintiff's argument, is that with the knowledge depicted in the allegation last quoted, they permitted Murphy (whom we so name in spite of the curtailment of his surname in the allegation next to be quoted) and McNanamy to take the chemicals from the storeroom, or at least made it possible for them to do so. To appraise this argument we must examine more closely the allegations regarding the taking. They are that Lewarton "negligently and in violation of his duties as such custodian, permitted two students of said high school, to wit, Robert Murph and Ralph McNanamy to take certain chemicals from said supply room, in that with knowledge that said students were not authorized by any teacher or other [58 Cal.App.2d 571] agent or employee of his codefendants, to enter said chemical supply room or to take chemicals therefrom; he unlocked said supply room for said students and permitted them to remain therein and leave therefrom unobserved by himself or any other agent or employee of his codefendants; all of which was in violation of the rules and regulations of said high school and of his duties as such custodian." It is to be noted here that the allegation that Lewarton permitted the students named to take chemicals is followed and qualified by the words "in that." This phrase means "because, for the reason that" (Webster's New International Dictionary, 1942 ed.), and its effect is to reduce the allegation preceding it to a mere conclusion, and limit the scope of that allegation to that of the one which follows. So limited, the language last quoted contains no statement that Lewarton knew the chemicals were being taken, or with such knowledge allowed that to be done, but amounts merely to a statement that he did acts which facilitated, and omitted precautions which would have prevented, such taking, and in so doing violated the rules. If this language were capable of any stronger construction, which we doubt, it would be ambiguous, and against such ambiguity the demurrer which was sustained aimed a specification. Since plaintiff failed to amend in the face of this demurrer, we can give the allegation no stronger construction in favor of plaintiff than that above stated.

[5] So construing the complaint we have nothing more than a statement that defendants allowed two certain students to enter and remain in the storeroom without watching them and that they knew the supply room "was an attraction and allurement to the students of the high school; and that if given an opportunity some of said students would steal chemicals therefrom." The negligence, if any, thus charged is not a general failure to watch the chemicals or take precautions against their surreptitious removal. These chemicals were not in the open or exposed to taking by any who were so minded, as were the dynamite caps in Hale v. Pacific Tel. & Tel. Co., supra, 42 Cal.App. 55, and in Lambert v. Western Pac. R. R. Co., (1933) 135 Cal.App. 81 [26 P.2d 824], and the mortar box in Katz v. Helbing, (1928) 205 Cal. 629 [271 P. 1062, 62 A.L.R. 825], on which plaintiff relies. On the contrary they were in a closed storeroom which, as the complaint shows, was kept locked and access to which was obtained only by inducing defendant Lewarton, who "had the keys thereto," [58 Cal.App.2d 572] to unlock it. [6] The mere act of unlocking this room and permitting two high school students to enter and remain in it, even though a violation of rules, without more, does not seem to us to be actionable negligence; but if it can be so characterized, it is not the direct cause of plaintiff's injuries. Between those injuries and the acts of defendant intervene the independent acts of Murphy and McNanamy in stealing the chemicals and in giving them to plaintiff, as well as his own act in experimenting with them. We assume that plaintiff's act is removed from consideration by the allegation, above quoted, of his youth and inexperience. But the acts of Murphy and McNanamy break the chain of causation and relieve defendants of responsibility for plaintiff's injuries, assuming they were guilty of some negligence, unless, as stated in Hale v. Pacific Tel. & Tel. Co., supra, defendants should have anticipated those acts "as reasonably likely to happen." There is no basis in the complaint for fastening such anticipation on defendants. Nothing is alleged in the complaint about the age, character or habits of Murphy or McNanamy--nothing to make it appear that defendants should reasonably have anticipated that if left alone in the storeroom they would steal and carry away the chemicals there stored. They were high school students; and while their ages are not stated, such students are usually above the age of fourteen, at which, in the eyes of the law, children become capable of committing crimes (Pen. Code, sec. 26). It has been held that one who leaves dynamite caps (which are, of course, a dangerous device) in a place accessible to the public and unguarded is not liable for injury to boys (aged in one case 10, and in the other 11) who steal them, play with them and are injured in resulting explosions, in the absence of allegations that the boys did not know it was wrong to take the caps, the ground of decision being that boys of these ages presumably know the moral character of their acts in taking the caps, and defendants were therefore not bound to anticipate such acts. (Nicolosi v. Clark, (1915) 169 Cal. 746 [147 P. 971, L.R.A. 1915F 638]; Bradley v. Thompson, (1924) 65 Cal.App. 226 [223 P. 572].) But no authority is needed for the proposition that not all high school students are given to misappropriation of property such as that of which these two students were guilty; indeed, plaintiff admits as much by his allegation that "some" students would so act. This allegation would possibly be sufficient to show negligence on defendants' [58 Cal.App.2d 573] part if the chemicals were so kept that all students could have free access to them; but to serve that purpose where it appears that only a few gained access to them and those few could gain it only by affirmative acts of the defendants, there is needed a further showing that the defendants had some reason to anticipate stealing by those to whom they did allow access to the storeroom. For all that appears in the complaint here, the two students who did have access to the chemicals were up to that time of unimpeached reputation and unblemished character and their misappropriation of the chemicals the first such act in which they had ever engaged. If any different state of facts existed, it should have been alleged; and in the absence of an allegation we must presume its nonexistence, under the rules already stated. The complaint fails to show either that defendants were negligent in admitting the two students to the storeroom or that they should have anticipated that their acts in doing so would or might result in such an accident as that which occurred to plaintiff.

The judgment is affirmed.

Shinn, Acting P. J., and Wood (Parker), J., concurred.

Estrin v. Superior Court , 14 Cal.2d 670
[Sac. No. 5337. In Bank. November 30, 1939.]

SIDNEY E. ESTRIN, Individually, etc., Petitioner, v. SUPERIOR COURT OF SACRAMENTO COUNTY et al., Respondents.

COUNSEL

Busick & Busick for Petitioner.

Robert H. Schwab and Richard S. Goldman for Respondents.

OPINION

THE COURT.

A hearing was granted by this court in the above-entitled action after the District Court of Appeal had dismissed proceedings following the issuance of a writ of certiorari, by which the petitioner Estrin sought to have reviewed proceedings theretofore had in the Superior Court on a trial de novo, after an appeal had been taken to that court from a justice's court. [1] On the return day the respondents filed a demurrer to the petition, together with a motion to dismiss the certiorari proceedings for the reason that the [14 Cal.2d 672] petitioner had failed to file a certified transcript of the proceedings sought to be reviewed, as required by a direction of the District Court of Appeal, pursuant to the provisions of sections 1070 and 1071, Code of Civil Procedure. The dismissal was granted on the grounds advanced in the motion. No ruling was made on the demurrer to the said petition, and the hearing herein was granted in order to give further consideration to the contention of the petitioner that, inasmuch as the filing of the demurrer had the effect of admitting the facts set forth in his petition, he was not required to provide the appellate court with a transcript of the proceedings had in the trial court.

That contention must be upheld. In the case entitled Bryant v. Superior Court, 16 Cal.App.2d 556, 566 [61 PaCal.2d 483], it was said: "The effect of the demurrer to the petition ... [was] to adopt as the return to the writ the facts alleged therein (Burlingame v. Justice's Court, 1 Cal.2d 71 [33 PaCal.2d 669].) ...". And in the case last cited, in which the appeal was from a judgment of the Superior Court in a certiorari proceeding, wherein the latter court had annulled an order of the justice's court, it was said: "The matter was submitted to the court on a demurrer to the petition. The effect of the demurrer was to adopt as the return to the writ the facts alleged in the petition. (Stoner v. City Council of Los Angeles, 8 Cal.App. 607 [97 P. 692].) The facts set forth in the petition are therefore uncontroverted ..." To the same effect is the case entitled Holmes v. Justice's Court, 19 Cal.App.2d 362, 364 [65 PaCal.2d 820, 822], wherein the court said: "When the petitioner herein asked for a writ of review and pleaded all the proceedings had in the justice's court, the demurrer to that petition made the petition the return upon which the review should have been heard. ... The sole issue before the court was whether the justice's court exceeded its jurisdiction in ordering the perpetual stay of execution, and that issue could be determined upon examination of the record of the Justice's Court as pleaded in the petition and admitted by the return." (See, also, Stewart v. Superior Court, 101 Cal. 594 [36 P. 100]; 4 Cal.Jur., p. 1094.)

Passing to a consideration of the averments of the petition,--in the light of the effect of the demurrer,--from the facts set forth therein it appears that: On or about September 3, [14 Cal.2d 673] 1937, the plaintiff, Novelty Electric Sign Company, a corporation, filed an amended complaint in an action pending in the justice's court, in which the petitioner herein was named as defendant. By the allegations of the complaint the plaintiff sign company stated a cause of action for the recovery of a judgment against the defendant in the sum of $556.20, based upon an agreement in writing made and entered into between the plaintiff and the defendant on or about the 15th day of September, 1936, by the terms of which agreement the plaintiff agreed to construct and sell to the defendant a Neon electric sign, and to install the same upon the premises operated by the defendant under the name of Estrin's Style Shop. It was further alleged that the defendant agreed to pay to the plaintiff as consideration for the agreement the total sum of $556.20, within thirty-five days after completion and installation of the sign, but that no part of such sum had been paid. The complaint also contained a separate cause of action against the defendant for recovery of the sum of $125, which, it was alleged, represented the cost of work, labor and services furnished by the plaintiff to the defendant at the latter's instance and request.

In his answer to the complaint the defendant admitted the execution of the said written agreement for the purchase by him of an electric sign, but alleged that the sign thereafter installed by the plaintiff did not comply with certain specifications with respect to quality, as set forth in the agreement, and, further, that it was not installed in accordance with the terms of the said agreement. After trial was had in the justice's court on those issues, judgment was rendered in favor of the defendant. Thereupon the plaintiff sign company filed its appeal in the Superior Court, and a trial de novo was had therein, the court sitting without a jury. The Superior Court made findings in favor of the appellant sign company and rendered its judgment in accordance therewith. Thereafter the defendant made a motion for a new trial, which the court denied.

The findings recited that: "... plaintiff agreed to construct and sell to defendant a Neon electric sign and to install said sign on the premises operated by defendant in Sacramento, California, and service the same for a period of one year after installation; that plaintiff did construct and install a Neon electric sign, ... and said sign as finally [14 Cal.2d 674] installed, was accepted by defendant and used continuously by him since the date of installation"; that, as agreed upon with said defendant, and "for a period of one year after installation", the plaintiff "serviced said sign and kept the same in operating condition during said period"; and that the "reasonable value of the construction, installation and servicing of the sign is the sum of $517.20". The court also found that all the allegations in the answer of the defendant which were inconsistent with the foregoing findings were "untrue and unsupported by evidence".

The principal contention of petitioner herein is that the Superior Court exceeded its jurisdiction in rendering a judgment based on a finding as to the "reasonable value of the construction, installation and servicing of the sign", whereas the complaint set out a cause of action on an express contract. Petitioner asserts that at the trial he objected to the reception of evidence relating to an implied contract; that findings based thereon were wholly outside the issues presented by the pleadings and, therefore, that the making of such findings was in excess of the court's jurisdiction. On the other hand, the respondents contend that the matters complained of by petitioner did not amount to the performance of acts in excess of the court's jurisdiction, but that, at most, they merely constituted error on the part of the Superior Court in pursuance of its authority to act in the matter (Code Civ. Proc., sec. 1074). If the latter contention is correct, the demurrer should be sustained and the judgment affirmed.

[2] It is well settled that the writ of certiorari will not lie unless it can be said that the inferior tribunal has exceeded its jurisdiction. (Code Civ. Proc., sec. 1068.) As was said in the case entitled Howe v. Superior Court, 96 Cal.App. 769, 772 [274 P. 992], "The writ of certiorari is an extraordinary remedy, equitable in its nature, the issuing of which rests in the sound discretion of the court." It lies only when the final determination of an inferior court, tribunal, or board is in excess of its jurisdiction. "The language of the section [Code Civ. Proc., sec. 1068], limits it to cases where the tribunal 'has exceeded' its jurisdiction." (Holabird v. Railroad Commission, 171 Cal. 691, 694 [154 P. 831]; Sayers v. Superior Court, 84 Cal. 642 [24 P. 296].)

To the same effect is the case entitled McLaughlin v. Industrial Acc. Com., 87 Cal.App. 469, 470 [262 P. 53], [14 Cal.2d 675] where the court said: "In order that relief by certiorari may be granted there must have been an excess of jurisdiction by a tribunal exercising judicial functions; and an excess of jurisdiction is to be distinguished from errors of either law or fact committed by a judicial tribunal within the limits of its jurisdiction (In the Matter of Hughes, 159 Cal. 360, 363 [113 P. 684]; Karry v. Superior Court, 162 Cal. 281 [122 P. 475, 128 P. 760])." (See, also, authorities cited in Vol. 3, Cal.Jur. Ten-year Supp., p. 363.)

Likewise, in the case entitled Monreal v. Bush, 46 Cal. 79, it was said (syllabus) that, "Certiorari does not lie to review an erroneous judgment which the Court below had jurisdiction to render", and it was there held that rendition of a judgment for a demand which was not due when the action was commenced was not an act in excess of jurisdiction, but was merely error in the exercise of jurisdiction. (Emphasis added.)

In the case of Karry v. Superior Court, 162 Cal. 281, 284-286 [122 P. 475, 128 P. 760], the distinction between error in the exercise of jurisdiction and a judgment rendered in excess of jurisdiction is discussed. In that case the court said, "a court has jurisdiction to decide wrongly as well as correctly, and the only remedy of a party aggrieved by a merely erroneous decision is such as may be afforded by our statutory provisions relating to motions for a new trial and appeals. If no such remedy be given, the action of the trial court within its jurisdiction is conclusive. ... We have here no different case in principle from the one we would have if the action had been one on a promissory note for one hundred dollars, appealed to the superior court, and not only the answer and the uncontradicted evidence, but also the findings showed that the note had been fully paid, and nevertheless the superior court had given judgment in favor of the plaintiff for the full amount of the note. Such a judgment would, of course, be erroneous, but there would have been no excess of jurisdiction, and the aggrieved party would have been without any remedy by way of certiorari. A judgment that fails to accord to a party his legal rights is, of course, always to be regretted. But there must be a point in every proceeding beyond which the law will not permit further controversy as to the merits of the case. In actions of the character of the one under consideration, ... the final appellate jurisdiction [14 Cal.2d 676] is in the superior court. Even if the judgment of that court on the merits was clearly erroneous in this case, a question we do not decide, it is final and conclusive, no excess of jurisdiction being made to appear." (See, also, to the same effect, Borchard v. Board of Supervisors, 144 Cal. 10, 14 [77 P. 708].)

However, in the instant case it is contended by the respondents that the findings were not in fact outside the issues raised by the pleadings. Petitioner's contention that plaintiff's recovery, if any, must have been based only on the allegations of his complaint is not tenable. [3] In determining the issues raised, the pleadings of both parties must be considered. (14 Cal.Jur., p. 973.) In view of the admissions and the other matters set up by defendant in his answer in the instant case, the issues before the court necessarily would not be limited to the allegations of the complaint. Thus in the case entitled Rogers v. Riverside Land etc. Co., 132 Cal. 9, 11 [64 P. 95], the court said: "Appellant's counsel is mistaken in supposing that issues in a cause can be raised only by allegations in the complaint controverted by the answer. Very frequently the most important issues tried in a cause arise outside of the allegations in the complaint. In addition to the denials contained in the answer, it may contain a statement of new matter constituting a defense, and the statement of such new matter in the answer, on the trial, is deemed controverted by the opposite party; and an issue arises from such new matter in the answer thus controverted by implication of law. (Code Civ. Proc., secs. 437, 462, 588, 590.)"

Also, in 14 Cal.Jur., pp. 986, 987, the rule is stated that "... in contested cases the relief granted is not limited to that specifically prayed for, as is the case where judgment goes by default; any relief authorized by the facts alleged and proved or admitted may be awarded. The defendant, by answering, may enlarge the scope of the relief to any extent consistent with the pleadings and embraced within the issues. Hence relief, though not specifically prayed for, may be granted with respect to matters as to which an issue is raised by the denials and averments of the answer". Again, at page 990, it is said, "Since there is but one form of civil action under the code the court may grant any relief embraced within the issues. The fact that a party has misconceived [14 Cal.2d 677] the relief to which he is entitled does not alone justify a total denial of relief, but a plaintiff may recover if his complaint states any cause of action entitling him to any relief either at law or in equity." Likewise, it is stated in Union Oil Co. v. Mercantile Refining Co., 8 Cal.App. 768, 771 [97 P. 919], "Under our liberal system of pleading and practice plaintiff is not [to be] denied any relief, if justified by his pleading and evidence, simply because he fails to prove that he is entitled to the full measure that he claims."

To the same effect is the case entitled Howard v. D. W. Hobson Co., 38 Cal.App. 445, 449, 452 [176 P. 715], where it is said: "The rule in this state with respect to the construction of a pleading, for the purpose of determining its effect, is that its allegations must be liberally construed, with a view to substantial justice between the parties. (Code Civ. Proc., sec. 452.) It is not to be assumed from that rule of construction, however, that by construction there may be inserted in a pleading vital pretermitted averments, or averments which are neither directly set forth therein nor reasonably within the fair import of the language of those which are set forth. But if the averments themselves may, without a strained construction, or without doing violence to language, be held clearly to imply or state a fact essential to the statement of a cause of action or to the support of the theory upon which reliance must be had to make out a case or a defense, then the rule of the code should be invoked and the pleading construed with a view to the promotion of substantial justice between the parties to the action."

[4] An analysis of the pleadings in the instant case shows that an express contract for the construction and installation of an electric Neon sign was entered into between the parties; that an electric Neon sign was so installed by plaintiff on the premises of defendant, where it remained; and that defendant had paid nothing to plaintiff as consideration therefor. It was also alleged in the complaint that plaintiff had "fully performed all of the conditions of said agreement on its part to be performed". That allegation was denied in the answer, and it was affirmatively alleged therein that the sign that was erected was neither constructed nor installed in accordance with the terms of the express agreement; and that defendant had refused to accept the sign and had requested its removal. Therefore, it appears that the answer [14 Cal.2d 678] sufficiently enlarged the issue tendered by the complaint to have permitted the reception of evidence relating to the question whether the sign so constructed and installed on defendant's premises was in accordance with the specifications of the agreement and thus entitled plaintiff to the full contract price; also, evidence thereby was admissible with respect to the amount of the reasonable value of said sign if it was found not to have been so constructed and installed, as alleged in the answer, but nevertheless had been accepted and retained by defendant. The trial court found that "said sign as finally installed was accepted by defendant and used continuously by him since the date of installation" (emphasis added) and that, "as agreed upon with said defendant", plaintiff "serviced said sign and kept the same in operating condition" for the period of one year after its installation. In the absence of a transcript of the evidence, we may assume that sufficient evidence was adduced to support those findings. Nor do we understand that they are challenged as being without evidentiary support. Considering the allegations of the pleadings, if there was evidence to show that defendant retained the sign, notwithstanding his asserted objections thereto, it may not fairly be urged that the trial court went outside the issues in imposing liability on him for the reasonable value thereof. [5] A party is entitled to "any and all relief which may be appropriate under the scope of his pleadings and within the facts alleged and proved, irrespective of the theory upon which they may be alleged. (Haight v. Stewart, 36 Cal.App. 514 [172 P. 769]; Corey v. Struve, 170 Cal. 170, 172 [149 P. 48].)" (Lacey v. McConnell, 9 Cal.App.2d 6, 9 [48 PaCal.2d 161].) To the same effect, see, also, McLean v. Ladewig, 2 Cal.App.2d 21, 25 [37 PaCal.2d 502]; McAllister v. Union Indemnity Co., 2 Cal.2d 457, 460 [42 PaCal.2d 305].

[6] Even if we were to assume, for the purpose of illustration only, that the pleadings interposed by the parties in the instant case were not broad enough in their scope to justify the relief granted by the Superior Court, the error committed would have been merely an error in the exercise of jurisdiction. The court had jurisdiction of the parties and of the subject- matter. It had the authority to hear and determine, and to render a judgment on the issues presented. [14 Cal.2d 679] Manifestly, the rendition of the judgment was not an act in excess of the jurisdiction of the court.

The demurrer is sustained, and the judgment is affirmed.

Roberts v. Roberts, 81 Cal.App.2d 871
[Civ. No. 15818. Second Dist., Div. Two. Oct. 17, 1947.]

ROSALIE THERESA ROBERTS, Appellant, v. LEE ROBERTS, Respondent.

COUNSEL

Hardy and Hardy and Carlos S. Hardy for Appellant.

Reynolds, Painter & Cherniss and Louis Miller for Respondent.

OPINION

MOORE, P. J.

By her amended complaint appellant sued (1) to annul a decree of divorce granted to herself in the State of Nevada on the grounds that (a) such decree was obtained through her collusion with respondent and that (b) the Nevada court was without jurisdiction of the parties; (2) to set aside a property settlement agreement executed by her as having been effected by means of respondent's fraudulent representations and without independent legal advice; and (3) for a judgment dissolving the marriage of the parties. This appeal is from the judgment of dismissal after appellant had declined further to amend, a demurrer having been sustained.

The Pleading Abridged

[1] The third count of the pleading is for a divorce. It is in orthodox form and contains appropriate declarations as to (1) the marriage, (2) the lawful issue, (3) the ownership of community property, (4) respondent's acts of extreme cruelty, (5) appellant's need for support and respondent's ability to provide, and (6) appellant's residence in Los Angeles County for more than one year. The joinder of count three was correct practice although it was triable only in the event of the success of count one. Omitting the conclusions as surplusage the substance of count one is as follows:

Count One

I and II. The parties were married May 10, 1941, and were thereafter until October, 1944, husband and wife. With their one child, age four, they have resided continuously in Los Angeles County. III. On August 30, 1944, they owned a home at Long Beach, the title to which stood in defendant's name. Large sums of community funds have been invested in the home and furnishings, the amount of which is unknown to plaintiff but is known to defendant.

IV. On and immediately prior to said last-mentioned date defendant stated to plaintiff that although he loved [81 Cal.App.2d 876] her and their child and desired to do all in his power to provide for them, yet it would be better for him and his business and for the advancement of his financial affairs, and he would be able to do more for the support and care of plaintiff and their child, if he were not married to plaintiff; that she could go to Nevada and within less than two months obtain a divorce, gain a rest and return to their Long Beach home;

V. that if she would proceed at once to Nevada and secure a divorce he would give her $1,000 in cash, $300 as her allowance for three months and would pay all expenses of her trip and of her sojourn at Reno, including costs of court and attorney's fees; during her absence from Long Beach he would employ a nurse and housekeeper to care for the child at home; that immediately following the divorce plaintiff should return to their home and resume the care of the child as well as her marital relations and her position as defendant's wife in their home; that he would place the title of the home in the child and would have its life insured in favor of plaintiff.

VI. The birth of her child had impaired the health of plaintiff, from which she had not recovered on said August 30; plaintiff was then in a weak physical state, highly nervous, mentally distraught by reason of her said infirmities and of defendant's persuasive statements, which facts were well known to defendant. By reason of such afflictions and distress plaintiff was wholly under defendant's control and dominance, as a result of which she could not exercise an independent judgment with respect to said representations but by reason of her physical and mental condition believed his statements to be true and that her best interests would be served by a compliance with his requests.

VII. Plaintiff believed said statements to be true and to have been made in good faith; while in said condition of mind and body and under the control of defendant and believing in the truth and good faith of his statements and promises, on August 30, 1944, plaintiff orally promised to comply with all of defendant's requests, secure a Nevada divorce and return to their home as soon as the decree was obtained.

VIII. Whereupon defendant gave her $100 for one month's support and $100 for her attorney's fee, gave her a round trip ticket to Reno, and stated to her that she [81 Cal.App.2d 877] should hurry to Nevada, secure the divorce and return immediately to her home in Long Beach. Subsequently, defendant paid her the two succeeding monthly payments of $100 each. At the time he gave her the ticket defendant gave plaintiff the name and address of a Reno attorney and told her to employ him upon her arrival there. Plaintiff was then without experience in legal matters.

IX. She was ignorant of the laws of Nevada and was not advised as to her rights; she believed it was best to rely upon defendant's statements. She was then under his control and unable to exercise an independent judgment.

X. While relying solely upon such statements and promises, and while under defendant's control, plaintiff, on or about September 1, 1944, left her Long Beach home and her child of two and a half years and entrained for Reno, where she arrived within three days and thereafter filed a complaint for divorce. Defendant promptly filed his written appearance in the proceeding. A decree was entered on October 20, 1944, purporting (1) to dissolve the marriage of the parties on the ground of extreme cruelty, (2) to award plaintiff custody of her child and (3) to direct respondent to pay her $50 monthly for the infant's support until she attains her majority. During plaintiff's sojourn in Reno she continued to be under the dominance of defendant and received his frequent letters directing her to hasten the divorce proceeding and to return home as soon as possible.

XI. In departing from Long Beach for Reno plaintiff did not intend to reside or to remain in Nevada permanently or for an indefinite period, but purposed to stay there only so long as was necessary to secure a divorce and then to return to her Long Beach home. She left Nevada on the very day the decree of divorce was granted, immediately returned to her said Long Beach home, at which she resumed marital relations with defendant at his request, and there continued such relations until December, 1945. She resided in the home at the time of filing the amended complaint, June 11, 1946.

Count Two

Count two, by express declaration in its first paragraph, adopts only that part of count one which alleges the marriage, the issue and the Los Angeles County residence of both parties. [81 Cal.App.2d 878]

II. While plaintiff was physically sick and mentally distraught, which was known to defendant, she was under the control and dominance of defendant on August 30, 1944, and by reason of said condition of health and of said control of defendant she was unable to exercise an independent judgment.

III. She then executed a property settlement agreement which purported to settle the property affairs of herself and husband, whereby she relinquished all interest in the home of the parties and in the movable property therein other than her own personal effects and accepted $1,000 as her share of the community property in satisfaction and discharge of defendant's obligation to support her. Such sum was less than plaintiff's interest in the community estate. She will credit such payment upon any sum awarded as her interest in said estate.

IV. Such agreement was prepared by attorneys selected by defendant and was executed by plaintiff without first having an opportunity to gain independent legal advice as to her rights against defendant relating to said community property and to her support by defendant. She was advised and urged by said attorneys and defendant to execute the agreement as being for her best interests. She was then upset and ill, inexperienced in such matters and was not informed of her right to independent legal advice as to her legal position and privileges. The agreement was unfair to plaintiff and was against public policy.

V. Following the execution of the purported agreement the parties continually engaged in marital relations in the family home until December 25, 1945, with the exception of the period of plaintiff's sojourn in Nevada.

The merits of the general demurrer to count one are to be tested by the allegations of fact with respect to (1) the jurisdiction of the Nevada court fn. *, (2) appellant's conscious participation [81 Cal.App.2d 879] in imposing upon that court, and (3) the abuse of her confidence by respondent.

The Merits of Count One

[2] The jurisdiction of any court to grant a divorce is determined by the bona fide domicile of at least one of the spouses. Where neither has established a statutory domicile in the state with honest intentions to reside there permanently or indefinitely, a decree of divorce by a court of such state based upon the simulated residence of the plaintiff only is void. [3] Such decree may be impeached collaterally by extrinsic evidence. This is true notwithstanding either the recitals of such decree or the false testimony given by the plaintiff in support of the judgment. (Crouch v. Crouch, 28 Cal.2d 243, 249 [169 P.2d 897]; Williams v. North Carolina, 325 U.S. 226 [65 S.Ct. 1092, 89 L.Ed. 1577, 157 A.L.R. 1366].) The allegations of count one emphasize the facts of (1) appellant's actual and continuous domicile in California, (2) her intention to visit Reno solely for the purpose of obtaining a divorce, (3) her illness and respondent's dominance over her at the time of her departure for and her sojourn in Nevada, (4) her prompt return to Long Beach and the resumption and continuance of the marital relation for more than a year thereafter. Since the Nevada court did not have jurisdiction to determine the cause, its decree is void.

[4] In all domestic concerns each state of the Union is to be deemed an independent sovereignty. As such, it is its province and its duty to forbid interference by another state as well as by any foreign power with the status of its own citizens. Unless at least one of the spouses is a resident thereof in good faith, the courts of such sister state or of such foreign power cannot acquire jurisdiction to dissolve the marriage of those who have an established domicile in the state which resents such interference with matters which disturb its social serenity or affect the morals of its inhabitants. [5] Jurisdiction over divorce proceedings of residents of California by the courts of a sister state cannot be conferred by agreement of the litigants. [6] As protector of the morals of her people it is the duty of a court of this commonwealth to prevent the dissolution of a marriage by the decree of a court of another jurisdiction pursuant to the collusion of the spouses. If by surrendering its power it evades the performance of such duty, marriage will ultimately be considered as a formal device and its dissolution freed from legal inhibitions. [7] Not only is a divorce of California [81 Cal.App.2d 880] residents by a court of another state void because of the plaintiff's lack of bona fide residence in the foreign state, but it is void also for lack of the court's jurisdiction over the State of California. [8] This state is a party to every marriage contract of its own residents as well as the guardian of their morals. Not only can the litigants by their collusion not confer jurisdiction upon Nevada courts over themselves but neither can they confer such jurisdiction over this state.

[9] It therefore follows that a judgment of divorce by a court of Nevada without first having pursuant to its own laws acquired jurisdiction over one of the parties is a void decree and may be impeached in the state of the domicile and its effect erased by showing that the Nevada court had no jurisdiction of the parties. (Kegley v. Kegley, 16 Cal.App.2d 216, 220 [60 P.2d 482]; Ryder v. Ryder, 2 Cal.App.2d 426, 433 [37 P.2d 1069].) Such decree may always be attacked for lack of jurisdiction in the foreign court. (Crouch v. Crouch, supra, 250.)

[10] It is equally well settled that the collusion of the parties is sufficient to render the decree voidable even though the court had had jurisdiction and respondent had not fraudulently induced her to institute the Nevada proceeding. (Ryder v. Ryder, supra.)

[11] The contention that appellant is estopped to plead the nullity of a void decree because (1) it was procured by her in an alien jurisdiction and (2) was the result of her instituting the action in another state in collusion with respondent is not supported. Generally, estoppel will not prevail to support either a decree granted by a foreign court without jurisdiction of the parties or a decree obtained by a wife at the direction of her husband. (Code Civ. Proc., § 1916; Ryder v. Ryder, supra; Estate of Bruneman, 32 Cal.App.2d 606, 608 [90 P.2d 323]; Kegley v. Kegley, supra.) This rule is emphasized in the instant case by the fraudulent conduct of respondent in inducing appellant to procure a divorce and to visit Nevada for that purpose at his expense. In the Kegley decision whose facts parallel those at bar the appellant urged in support of his plea of estoppel Bisconer v. Billing, 71 Cal.App. 779 [236 P. 329]; Eaton v. Wilkins, 163 Cal. 742 [127 P. 71]; and Bruguiere v. Bruguiere, 172 Cal. 199 [155 P. 988, Ann.Cas. 1917E 122]. The first two are distinguished by their facts and cast no light upon the issues here involved except that in the Bisconer case the court held that there can be no estoppel in pais against a plaintiff where he does not know the full truth [81 Cal.App.2d 881] of the facts constituting the basis of the alleged estoppel. In the Bruguiere case plaintiff's husband had visited Nevada for the purpose of obtaining a divorce. Although the decree granted him was void for lack of jurisdiction in the court, Mrs. Bruguiere contracted another marriage. After it had been annulled by the court of New York she subsequently sued her first mate for support and maintenance. Because she knew that the Nevada decree purported to dissolve her marriage and to give her freedom to effect a new marital alliance she was estopped to question the validity of the Nevada divorce. She was free to waive all questions of the effect upon her of such decree and accept the status it conferred upon her. The Bruguiere case and many others hold to the doctrine that a remarriage by a spouse who has acknowledged the validity of the void decree estops him from subsequently denying its validity. Because Mrs. Kegley had not remarried the court denied the plea of estoppel filed by her husband, annulled the Mexican decree and granted her a divorce although she had by her wilful appearance in the Mexican court confessed the cruelties alleged.

[12a] Appellant's position is not different from that of Mrs. Kegley. While the latter's decree was granted by the court of a sister republic, she there confessed herself in the wrong. While Mrs. Roberts actually sued for the divorce in a sister state, she was persuaded to do so by the fraudulent inducements of her husband. "He was the prime mover in the fraud upon the Nevada Court." (Estate of Davis, 38 Cal.App.2d 579, 585 [101 P.2d 761, 102 P.2d 545].) To apply the doctrine of estoppel against her would effectually guarantee the success of every husband who is so base and so clever as to convince his wife that the welfare of herself and her child will be enhanced by the entry of a divorce decree against him in another state. [13] Estoppel is to be applied against wrongdoers, not against the victim of a wrong. (Harlan v. Harlan, 70 Cal.App.2d 657, 662 [161 P.2d 490]; Estate of Davis, supra.) [14] It does not operate to defeat positive law or public policy. (Panzer-Hamilton Co. v. Bray, 96 Cal.App. 460, 464 [274 P. 769].) [15] Where a divorce decree is void it cannot be given validity by estoppel. (Garman v. Garman, 102 F.2d 272, 274 [70 App.D.C. 4], citing Kegley v. Kegley, supra.) [16] When misapplied, the doctrine of estoppel may be a most effective weapon for the accomplishment of injustice. (19 Am.Jur. 602.) [81 Cal.App.2d 882]

[12b] Respondent attacks count one as though it were purely a fraud action whereby he is accused of obtaining the goods of appellant by his false representations and promises and as though such averments had been made as a basis of recovery. Such is not the office of the allegations of respondent's fraudulent representations and of appellant's physical, nervous and mental infirmities. While the misrepresentations are not traversed and the causes of appellant's bodily and mental ills are not alleged at length, yet the declarations of the pleading show that respondent had the confidence of appellant and that she believed his statement that it was for her own best interest to do as he requested. Her mind and body had been weakened; she was mentally distressed and distraught by reason of her infirmities, and on account of such afflictions was incapable of exercising an independent judgment with respect to respondent's statements. By the demurrer he confesses that while she was debilitated as a result of childbirth and of his demands that she obtain a divorce he told her not only that his own financial interests and welfare would be advanced but also that the best interests of her child and herself would be served by his being divorced from her, and that such divorce quietly obtained in another state would not interfere with her marital relations or rob her of her position as his wife or of living in their Long Beach home. He confesses that he urged her to hasten her departure for Reno; that he supplied her with the name of an attorney residing there who would aid her in consummating the fraud; that he effected her departure within two days after he had gained her promise to go to Nevada to obtain a decree; and that he provided her with all funds necessary for her to accomplish his plans which were a fraud upon the courts of California as well as of Nevada.

Respondent contends that when a wife agrees with her husband that she will visit a foreign jurisdiction to obtain a decree of divorce based upon her simulated residence she cannot thereafter repudiate the decree thus obtained by her. In support of such thesis he cites and quotes from many authorities. By such authorities it is held (1) that in divorce cases, as in others, equity will not interfere with judgments obtained through collusion (Hendricks v. Hendricks, 216 Cal. 321, 323 [14 P.2d 83]; Bancroft v. Bancroft, 178 Cal. 359, 364 [173 P. 579, L.R.A. 1918F 1029]; Ettlinger v. Ettlinger, 46 Cal.App.2d 628, 632 [116 P.2d 482]; Lanktree v. Lanktree, [81 Cal.App.2d 883] 42 Cal.App. 648, 652 [183 P. 954]); (2) that where evidence of the alleged coercion, duress or fraud could have been presented to the court or to an attorney of complainant's own choosing during the pendency of the action, seasonably to enable the court to protect the rights of the parties, equity will not disturb the judgment of such court (Hendricks v. Hendricks, supra; Godfrey v. Godfrey, 30 Cal.App.2d 370, 379 [86 P.2d 357]; Thompson v. Thompson, 38 Cal.App.2d 377 [101 P.2d 160]); (3) that a party who has obtained a decree of divorce upon simulated residence in a foreign jurisdiction is estopped from thereafter attacking the decree as invalid for want of jurisdiction in the court (Harlan v. Harlan, supra; Estate of Davis, 38 Cal.App.2d 579, 584 [101 P.2d 761, 102 P.2d 545]; Seymour v. Seymour, 18 Cal.App.2d 481 [64 P.2d 168]; 1 Freeman on Judgments, 5th ed., § 1438; Rest. Conflict of Laws, § 112).

While a number of the cited authorities have already been discussed, neither they nor respondent's thesis are pertinent to the issues presented by count one. In each instance the petitioner who sought to have the foreign decree annulled was a free moral agent in procuring the divorce, or he had sat passively by and knowingly acquiesced in the action of his spouse in seeking the foreign decree, or had financed her litigation, or had enjoyed the fruits of such decree while acknowledging the validity thereof. Appellant here was the agent of respondent in her journey to Nevada and in all that she did while there in employing an attorney and in procuring a decree. No part of it was her wish; neither was it her deed. While weak and ill, she was by fraud persuaded by respondent to consent to visit Nevada, to follow the directions of a Reno attorney designated by respondent who paid him, to remain there until a decree should be entered and then promptly to return to California. Respondent confesses these abominable facts. He is therefore without equity. With unclean hands he attempts to thwart the efforts of the person to whom he owes the highest duty but whom he has foully deceived to her detriment. By raising the equitable plea of estoppel he would silence her at the very threshold of the temple. Under the long- established principles of equity he cannot shield his own perfidious wrongs by use of a plea designed to silence only those who have knowingly invited and accepted the causes of their unhappiness. His own estoppel is estopped. The judgment which she would have annulled by the superior court is the fruitage of [81 Cal.App.2d 884] respondent's contempt for good morals and of his disdain for the law of the state which protects him. His citing respected authorities and his chanting fine phrases concerning appellant's procurement of the divorce do not conceal his guilt of sending his own ill wife away from her home and her child to Nevada to obtain a divorce by committing perjury and by imposing upon the courts of that state, knowing that she would return to him immediately to resume the marital status. If the plea of estoppel will permit such a practice it were better that the very foundations of our jurisprudence should crumble into dust and a new structure for the support of righteousness be builded.

Count One not Barred by Laches

[17] Respondent contends that the filing of this action, April 19, 1946, to annul the Nevada divorce decree of October 20, 1944, is barred by laches, citing Rudy v. Slotwinsky, 73 Cal.App. 459, 465 [238 P. 783]; Wattson v. Dillon, 6 Cal.2d 33, 42 [56 P.2d 220]. So to hold would be error. Upon appellant's return from Reno following the entry of such decree she acted, and was treated, as the lawful wife of respondent until December 25, 1945. As such wife she was his constant companion for over 14 months; sat at his board and occupied his bed. His sudden decision at the Christmas season to drive her from the home and to stand firmly upon the Nevada decree must have administered a shock, requiring some time for her to adjust her senses to the predicament in which the new turn of affairs had left her. Allowing one month for her to reconnoiter the field, she filed the action within less than three months, a part of which time was of necessity consumed by counsel in a study of the case and in the preparation of her pleadings. Such delay is not unreasonable in view of the circumstances alleged. In the Wattson case, supra, the action to vacate a final decree was begun seven months after its entry, while in the Rudy case the action to set aside the decree was begun a year after the first judgment. And in neither of them was any such equitable ground for relief alleged as that by appellant herein in addition to the lack of jurisdiction in the Nevada court and the fraud upon the courts of California.

[18] The doctrine of laches is not to be arbitrarily applied. Whether a delay is unreasonable must be adjudged by the circumstances which occasioned it, by the nature of the relief demanded and by a determination that the rights of the defendant or of others have not been prejudiced by the delay. [81 Cal.App.2d 885] (Swart v. Johnson, 48 Cal.App.2d 829, 834 [120 P.2d 699].) It would be unreasonable to say that any right of respondent suffered prejudice by reason of appellant's not having filed her action at an earlier date.

It follows that count one does state a valid cause of action; that by treating its conclusions as harmless surplusage the special demurrers count for nought; that by confession of respondent the Nevada decree is void, and that the third count states a valid cause of action. In view of the foregoing the demurrers to the first and third counts should have been overruled.

Count Two

As to the second count of the complaint appellant's position is not so favorable. By this cause appellant seeks to have annulled a contract of property settlement executed in this state. An attack upon that agreement is not to be aided by the invalidity of the divorce decree. Neither may it find support in count one except by such of the latter's allegations as were by adoption made a part of count two. Even though by the doctrine of judicial notice this court could determine that the nullity of the Nevada decree is to be read into count two, such fact would not necessarily so support the second count as to exempt it from the statutory rules of pleading by which it must be measured.

[19] Since a separate general demurrer was not lodged against count two, only the special demurrers thereto can be considered. (Lord v. Garland, 27 Cal.2d 840, 850 [168 P.2d 5].) Certain of its allegations are ambiguous, uncertain or unintelligible. [20] To plead that the sum of $1,000 accepted by her as her share of the community property "was less than the interest of plaintiff in said community estate," does not state the extent of plaintiff's interest or the extent of her title in and to the property which she claims was the community estate. (California Trust Co. v. Gustason, 15 Cal.2d 268, 273 [101 P.2d 74].) Not facts but only a conclusion is declared. In order to have alleged with certainty the detriment suffered by her in accepting $1,000 for her interest in the community estate it was necessary for her not only to describe the property and to allege its reasonable value but also to set out facts disclosing the extent of her community interest. (Burkett v. Griffith, 90 Cal. 532, 541 [27 P. 527, 25 Am.St.Rep. 151, 13 L.R.A. 707]; Hencken v. City of Morgan Hill, 21 Cal.App.2d [81 Cal.App.2d 886] 438, 442 [69 P.2d 462].) The allegations do not make it certain whether the property in question was acquired wholly with community funds or whether a definite portion of the purchase price had been paid by the defendant with his separate funds and a different proportion of the purchase price was paid with community funds. The allegation that $1,000 was less than plaintiff's interest is a mere conclusion; is only inferential and argumentative. Without the curing of such defect the special demurrer is fatal to the pleading. [21] A fact which constitutes an essential element of a cause of action cannot be left to an inference. (Los Angeles v. Signoret, 50 Cal. 298; Johnson v. Fletcher, 97 Cal.App. 153, 156 [274 P. 1001].)

[22] The allegations of paragraph IV of the second count "that plaintiff was without any opportunity by her to receive independent legal advice as to her rights against the defendant relating to the community property of the parties and to her support and maintenance by him," and "that said purported agreement was unfair and unjust to her ... and is against public policy and therefore void," are inferential and argumentative statements, conclusions and not direct averments of material facts. (Hauser v. Pacific Gas & Electric Co., 133 Cal.App. 222, 225 [23 P.2d 1068]; Osborn v. Hoyt, 181 Cal. 336, 339 [184 P. 854]; Baker v. Miller, 190 Cal. 263, 266 [212 P. 11].) No issue of fact is raised by such statements; no facts are alleged to show that the agreement was unfair. Instead of such declarations the pleading should contain averments showing the facts (1) whereby she was debarred from opportunity to obtain independent legal advice, (2) whereby the advice she received was not for her advantage, and (3) from which the injustice of the agreement could be derived. [23] The same vice obtains in the allegation that "plaintiff was also under the influence, control and dominance of defendant." Such language is a conclusion. To have made such charge effective appellant should have declared the facts that might show whether his dominance was due merely to the conjugal relationship or to her fear of denying his wishes or to her fear of losing custody of her child. [24] Also the allegations that "had she been so informed and represented, she would not have entered into and executed the said purported agreement nor have accepted the consideration and benefits to her therein expressed; ... said purported agreement ... is unfair and unjust to plaintiff" are mere conclusions.

While count two alleges that the agreement was prepared by counsel of respondent's selection "without any opportunity [81 Cal.App.2d 887] by her to receive independent legal advice," thereby implying that appellant was defrauded by respondent, yet there is no allegation that the advice given her was illegal or unwise. [25] While the pleading sounds primarily in undue influence, it makes no averment that her illness rendered her incapable of understanding the transaction. Since there is no allegation of either fraud, menace or duress, the only attempt to plead an equitable cause is to be found in the language that she was "physically sick and in a highly nervous and mentally distraught state which was well known to defendant; ... was also under the influence, control and dominance of defendant; that plaintiff was not, by reason of her said condition of health and by reason of said influence, control and dominance, able to exercise independent judgment." Such statements are not ultimate facts but conclusions only, and are not sufficient to constitute a cause of action. (Estate of Streeton, 183 Cal. 284, 289 [191 P. 16]; Munfrey v. Cleary, 75 Cal.App.2d 779 [171 P.2d 750]; Estate of Sheppard, 149 Cal. 219, 220 [85 P. 312].)

[26] The second count contains no allegation of an offer to restore the $1,000 paid appellant for her interest in the community estate. There is no allegation of fact to show that her share exceeds or is equal to $1,000. Her offer is not sufficient. There is no allegation by which it can be determined that if the agreement should be annulled she would in event of a valid divorce be entitled to any share of the community estate. The title to the property stands in respondent's name. On a trial it may develop that it is his separate estate. Since the action is for rescission and there is no explanation why she did not return or offer to return the $1,000 the special demurrer is fatal to count two. (Clanton v. Clanton, 52 Cal.App.2d 550, 554, 556 [126 P.2d 639]; Hite v. Mercantile Trust Co., 156 Cal. 765, 767 [106 P. 102].)

Appellant has cited many authorities (Davis v. Davis, 49 Cal.App.2d 239 [121 P.2d 523]; Estate of Boeson, 201 Cal. 36 [255 P. 800]; Gaines v. California Trust Co., 48 Cal.App.2d 709 [121 P.2d 28]; Norris v. Norris, 50 Cal.App.2d 726 [123 P.2d 847]; Auclair v. Auclair, 72 Cal.App.2d 791 [165 P.2d 527]; Andrew v. Andrew, 51 Cal.App.2d 451 [125 P.2d 47]; Streeter v. Streeter, 67 Cal.App.2d 138 [153 P.2d 441]) that would serve to support a complaint where reliance is placed upon undue influence and upon a violation of the confidential relationship. They do not avail her as support for conclusions instead of ultimate facts. [81 Cal.App.2d 888]

Appellant having declined further to amend her complaint to conform with the rules of pleading this court is without power to grant any relief as to the property settlement. [27] A litigant is entitled to prosecute his cause only by first pleading the nature of relief sought and the ultimate facts by which he deems himself to be entitled thereto under the law. If after the court's ruling that his allegations are ambiguous or uncertain, or unintelligible, he declines to amend and there is no error in the order, affirmance thereof is the only answer to his appeal.

The judgment is affirmed insofar as it relates to the second count. As to the first and third counts it is reversed with instructions to overrule the demurrers as to them.

McComb, J., and Wilson, J., concurred.

?FN *. Section 9460, Nevada Compiled Laws, provides: "Divorce from the bonds of matrimony may be obtained by complaint, under oath, to the district court of any county in which the cause therefor shall have accrued, or in which the defendant shall reside or be found, or in which the plaintiff shall reside, or in which the parties last cohabited, or if plaintiff shall have resided six weeks in the state before suit be brought, for the following causes, or any other cause provided by law: ...

Sixth. Extreme cruelty of either party."

Vilardo v. County of Sacramento, 54 Cal.App.2d 413
[Civ. No. 6682. Third Dist. Sept. 17, 1942.]

CRISPINO VILARDO, Appellant, v. COUNTY OF SACRAMENTO, Respondent.

COUNSEL

Busick & Busick, McAllister & Johnson and O. F. Meldon for Appellant.

Otis D. Babcock, District Attorney, and William A. Green, Assistant District Attorney, for Respondent.

OPINION

ADAMS, P. J.

This is an appeal from a judgment of the Superior Court of Sacramento County, sustaining a demurrer to the complaint without leave to amend, in an action to annul a judgment in another action between the same parties.

The complaint in the case before us, filed April 20, 1939, alleges that an action brought by Vilardo against the county of Sacramento, in the Superior Court of the State of California, in and for the County of Sacramento, was tried before Honorable Peter J. Shields, Judge of said superior court, and that on January 10, 1939, a judgment was entered therein in favor of the county adjudging that it was the owner of a public easement for road purposes over a strip of land therein described, and that plaintiff's claim that said defendant, county of Sacramento, had no estate, right, title, or interest therein was not true.

Said complaint further alleges that at the time of the trial of the aforesaid cause and the rendering of judgment therein "without any knowledge on the part of this plaintiff, said Honorable Peter J. Shields, Judge of said Court, presiding and acting as such upon said trial, was related by consanguinity within the third degree, computed according to the rules of law, to Charles W. Deterding, Jr., County Executive [54 Cal.App.2d 416] and Purchasing Agent of the County of Sacramento, an officer and/or agent of said defendant, County of Sacramento"; also, "that plaintiff in said action, nor the attorney for plaintiff, never signed and filed in said action, a stipulation in writing, waiving the disqualification mentioned in subdivision 3 of section 170 of the Code of Civil Procedure of the State of California"; that said Judge Shields, at all of said times, was disqualified to sit or act as such Judge in said action, and that plaintiff had no knowledge or information whatsoever prior to February 16, 1939, of the fact that said Judge "was related within the third degree by consanguinity, computed according to the rules of law, to an officer and/or agent of defendant"; that on a motion for a new trial the objection "hereby made to the power or right of said Peter J. Shields, to hear and determine said action," was submitted to the court, and thereafter, on February 17, 1939, said motion for a new trial was denied; and that the judgment in said action was and is void "because of the said disqualification of the said trial judge to sit or act in said action." Judgment vacating and holding void the judgment in the former action was prayed.

To said complaint defendant county of Sacramento filed a general demurrer together with a memorandum of points and authorities; plaintiff filed his points and authorities, the cause was argued, and thereafter the court made an order sustaining defendant's demurrer without leave to amend. Judgment for defendant followed and plaintiff has appealed.

Appellant here contends that the complaint states a cause of action and that, in any event, the trial court erred in sustaining defendant's demurrer without leave to amend. We shall consider the latter contention first.

[1a] The granting or denying of leave to amend rests in the discretion of the court; [2] and a plaintiff waives a charge of abuse of discretion in sustaining a demurrer without leave to amend when he fails to ask such leave. (O. A. Graybeal Co. v. Cook, 16 Cal.App.2d 231, 233 [60 P.2d 525]; Buckley v. Howe, 86 Cal. 596, 605 [25 P. 132]; Hogan v. Horsfall, 91 Cal.App. 37 [266 P. 1002]; Gertridge v. State Capital Co., 129 Cal.App. 86 [18 P.2d 375]; Allen v. Stellar, 106 Cal.App. 67, 73 [288 P. 855].)

No request for leave to amend was made by plaintiff in the instant case. In his points and authorities filed in the trial court he did state:

"The authorities cited by defendant, state a rule of pleading [54 Cal.App.2d 417] which is academic, and is not questioned by plaintiff; but these cases are not applicable to the complaint before the court.

"The rule, as established by these cases, is the well known rule that 'pleadings should allege facts and not mere conclusions of law.' If plaintiff's complaint does not conform to this rule, we have no objection to the court sustaining the demurrer and allowing plaintiff a reasonable time to amend, but we are satisfied that plaintiff's complaint does conform to this rule, and does allege 'facts' and not mere 'conclusions of law.'"

This was not, in our opinion, a request for leave to amend; and no amendment or amended complaint was tendered. [1b] Also, the ruling of a court either granting or refusing an amendment is subject to review only when it is apparent that there has been an abuse of discretion. (Wixon v. Devine, 91 Cal. 477 [27 P. 777]; Miner v. Rickey, 5 Cal.App. 451 [90 P. 718]; Hanna v. Hirschhorn, 112 Cal.App. 438 [296 P. 891]; McCully v. Gano, 116 Cal.App. 695 [3 P.2d 348]; College Nat. Bank. v. Morrison, 100 Cal.App. 403 [280 P. 218]; Reay v. Reay, 97 Cal.App. 264 [275 P. 533]; Elaterite etc. Co. v. Chamberlin, etc. Co., 97 Cal.App. 304 [275 P. 523]; Mays v. Wann, 96 Cal.App. 760 [274 P. 1020].)

[3] Assuming, in view of the recent decision of the Supreme Court in Wennerholm v. Stanford Univ. School of Medicine, 20 Cal.2d 713, 718 [128 P.2d 522), that the question of whether the trial court, in sustaining the demurrer to plaintiff's complaint, abused its discretion, is open on appeal, though no request was made for leave to amend, we are of the opinion that there was no abuse of discretion. The demurrer interposed was a general one, and challenged the sufficiency of the complaint to state a cause of action. Plaintiff is presumed to have stated his case as strongly as it can be stated. (Higgins v. Security Trust etc. Bank, 203 Cal. 398, 401 [264 P. 744]; Tehama County v. Pacific Gas & Elec. Co., 33 Cal.App.2d 465, 469 [91 P.2d 936]; Lamson Co., Inc. v. Jones, 134 Cal.App. 89, 91 [24 P.2d 845]; Goodfellow v. Barritt, 130 Cal.App. 548, 556 [30 P.2d 740].)

[4] The only allegation of any ground for disqualification of the trial judge is that, "Said Honorable Peter J. Shields, Judge of said Court, ... was related by consanguinity within the third degree, computed according to the rules of law, to Charles W. Deterding, Jr., County Executive and [54 Cal.App.2d 418] Purchasing Agent of the County of Sacramento, an officer and/or agent of said defendant, County of Sacramento."

Section 170 of the Code of Civil Procedure, at the time of the trial, provided that no judge shall sit or act as such in any proceedings:

"3. When he is related to either party, or to an officer of a corporation, which is a party, or to an attorney, counsel, or agent of either party, by consanguinity or affinity within the third degree computed according to the rules of law. ..."

Has plaintiff alleged that the trial judge was related within the said third degree either to "an officer of a corporation, which is a party," or to "an attorney, counsel or agent" of a party?

The complaint alleges that the county of Sacramento is "a political subdivision and body corporate of the State of California"; and it is contended that relationship to "an officer of a corporation, which is a party" is therefore sufficiently alleged.

We are of the opinion, however, that the county of Sacramento is not a "corporation" within the meaning of section 170, supra. In Estate of Miller, 5 Cal.2d 588, 597 [55 P.2d 491], the court held that a county is not a corporation at all, but a legal subdivision of the state, charged with governmental powers; and the well-settled principle of law is also enunciated there, that in the absence of express words to the contrary, neither the state nor its subdivisions are included within the general words of a statute. That a county is not included in the term "corporation" as used in section 170, supra, seems obvious from the fact that a superior judge, himself an officer of a county, is not for that reason disqualified to sit in a case in which such county is a party, though under the construction contended for by plaintiff, he would be disqualified if he were related in the prohibited degree to some other officer or to an agent of the county.

[5] Does the complaint then show disqualification of the Judge because of relationship to "an attorney, counsel or agent" of a party when it alleges relationship to "Charles W. Deterding, Jr., County Executive and Purchasing Agent of the County of Sacramento, an officer and/or agent of said defendant, County of Sacramento"? The foregoing allegation is not an allegation that Deterding is an agent of the county, but is merely a recital description of him.

[6] It is elementary that a pleading must allege facts and not conclusions; and, that conclusions of law are not admitted [54 Cal.App.2d 419] by demurrer, is well established. (Fox v. Monahan, 8 Cal.App. 707 [97 P. 765]; Buttner v. Kasser, 19 Cal.App. 755, 758 [127 P. 811]; Fisher v. Fisher, 23 Cal.App. 310, 313 [137 P. 1094]; Moran v. Bonynge, 157 Cal. 295 [107 P.2d 312].) [7] Also, Deterding is ambiguously described as an "officer and/or agent" of the county. There is no direct affirmative allegation that he is or was an "agent" of defendant county.

[8] Material facts must be alleged directly and not by way of recital. (Philbrook v. Randall, 195 Cal. 95, 103, 104 [231 P. 739]; Silvers v. Grossman, 183 Cal. 696, 700 [192 P. 534]; Hauser v. Pacific Gas & Elec. Co., 133 Cal.App. 222, 225 [23 P.2d 1068].) [9a] But aside from these defects in the pleadings, it is not alleged that in the capacity of "County Executive and Purchasing Agent", Charles W. Deterding, Jr., had anything to do with the matters involved in the prior action, or that he was in any way interested therein. It has been held that no disqualification exists where one related to a judge within the prohibited degree is involved in an action but has no interest in the success of either party. (14 Cal.Jur. 815.) It would seem to follow that no disqualification would exist where one so related to the judge is neither involved in the action nor interested therein.

The "County Executive" of Sacramento County, as provided in the charter (Stats. of 1933, p. 3095), is an "officer" of the county. The charter also provides for the appointment of certain other "officers", among them a "Purchasing Agent", who is paid no compensation as such, the position being combined with County Executive. (Stats. of 1933, p. 3101.) The duties of "Purchasing Agent" are defined by the charter (Stats. of 1933, pp. 3104-5) and have to do only with the purchase and sale of personal property for the county or its boards or commissions.

[10] The mere fact that an officer of a county may be designated also as a purchasing "agent", does not, in our opinion, bring him within the meaning of the word "agent" as used in the phrase "attorney, counsel, or agent" of a party in section 170, supra; [9b] nor does a mere allegation in a complaint that a judge is related to the "County Executive and Purchasing Agent ..., an officer and/or agent of said defendant" within a prohibited degree, state a valid ground of disqualification of such judge to sit in a case in which the county is a party, especially a case involving only the ownership of [54 Cal.App.2d 420] an easement for a public road with which the "Purchasing Agent" would have nothing to do, control over litigation of the county being in the hands of the board of supervisors. (§ 4041.22, Pol. Code.)

[11] Also, under the rule of noscitur a sociis the meaning of a word may be enlarged or restrained by reference to the object of the whole clause in which it is used. (25 R. C. L. 995.) [12a] Therefore the word "agent", as used in the foregoing phrase, should be construed in connection with the words "attorney" and "counsel" with which it is associated, and should be applied with the same limitations applicable to them. It could hardly be contended that the fact that a judge was related to an attorney who was counsel for the county in some one action, would disqualify such judge to sit in every other case to which the county might be a party when represented by entirely different counsel. Under subdivision 4 of section 170, a judge who has himself been an attorney or counsel for a party in proceedings involving different issues, is not disqualified if he has not been attorney or counsel in the action or proceeding before the court, nor given advice to any party upon the matter involved therein, nor been employed as attorney or counsel for any party within two years prior to the commencement of the action. (Also see Cleghorn v. Cleghorn, 66 Cal. 309 [5 P. 516]; Fortson Shingle Co. v. Skagland, 77 Wash. 8 [137 P. 304]; Harjo v. Chilcoat, 146 Okla. 62 [294 P. 119]; Reeve v. Jahn, 9 Cal.2d 244 [70 P.2d 610].) Likewise, the fact that one might be an agent for a county in regard to certain matters, would not disqualify a judge to whom he was related, from sitting in every case to which such county might be a party; and it is not alleged here that the "County Executive and Purchasing Agent" was agent of the county in connection with the matters involved in the former action.

[13] The principle upon which disqualification of judges is based is that no man ought to be a judge in his own cause, or in one in which he is so interested that his judgment might be influenced. [12b] It would be going to absurd lengths, and would place an unreasonable construction upon section 170, supra, to hold that the mere relationship of a judge in a prohibited degree to any one of the numerous attorneys, counsel or agents that might be employed by a county or a state, would disqualify him in every case to which the county or state might be a party. The phrase as used in subdivision 3 of the section should be limited to "an attorney, counsel or [54 Cal.App.2d 421] agent of a party to the action," in the action before the court, or there should be some showing that such attorney, counsel or agent was interested in the results of such action.

For the foregoing reasons the complaint failed to state a cause of action, and the judgment of the trial court is therefore affirmed.

Schottky, J. pro tem., and Thompson, J., concurred.

Metzenbaum v. Metzenbaum, 86 Cal.App.2d 750
[Civ. No. 16288. Second Dist., Div. Two. July 14, 1948.]

WALTER METZENBAUM et al., Appellants, v. MURRAY METZENBAUM, Respondent.

COUNSEL

Walter Metzenbaum, in pro. per., for Appellants.

Milton A. Krug for Respondent.

OPINION

WILSON, J.

This is an appeal from a judgment of dismissal following plaintiffs' failure to amend after a demurrer to their second amended complaint had been sustained.

Plaintiffs contend that the court erred in sustaining the demurrers to the original complaint, to the amended complaint [86 Cal.App.2d 752] and to the second amended complaint. [1] Insofar as the demurrers to the first two of these pleadings are concerned, plaintiffs by amending them after the demurrers had been sustained waived error, if any, in the rulings of the court. (Alhambra Transfer & Storage Co. v. Muse, 41 Cal.App.2d 92, 93 [106 P.2d 63]; Carter v. Canty, 28 Cal.App. 323 [152 P. 312]; Ganceart v. Henry, 98 Cal. 281, 282 [33 P. 92].) The sole question for determination, therefore, is whether there was any error in sustaining the demurrer to the second amended complaint.

The material allegations of that complaint are that plaintiff Fanchon Metzenbaum is the owner and entitled to possession of an oil and gas royalty described as 21/32 of one per cent royalty interest in certain real property; that the legal title to the royalty is in the defendant Murray Metzenbaum, who has received monthly payments of the proceeds; that in August, 1943, defendant orally contracted and agreed with plaintiff [which one of plaintiffs is not stated] that the income from the royalty would be paid monthly by the defendant to the plaintiff for the benefit of Fanchon Metzenbaum; that this procedure was followed until in April and May, 1944, when defendant "wrongfully" pledged the royalty and used the income therefrom to partially repay the pledge; that in February, 1945, defendant "wrongfully and without authority" sold 13/32 of one per cent of the royalty and in the same month pledged 9/32 of one per cent, using the income therefrom to the extent of $3,000 to liquidate the pledge.

[2] Defendant demurred generally and upon the ground that the complaint is uncertain, ambiguous and unintelligible. Plaintiffs declined to avail themselves of the leave to amend. They must, then, stand upon their pleading as against all grounds and if the complaint is objectionable upon any ground the judgment of dismissal must be affirmed. (California Trust Co. v. Cohn, 214 Cal. 619, 623 [7 P.2d 297]; Hendricks v. Osman, 72 Cal.App.2d 465, 466 [164 P.2d 545]; Veterans' Welfare Board v. Oakland, 74 Cal.App.2d 818, 822 [169 P.2d 1000].)

[3] Upon appeal from a judgment rendered after refusal to amend a complaint to which a demurrer has been sustained, it must be presumed that the pleader has stated his case as strongly as it can be stated in his favor and all ambiguities and uncertainties must be resolved against him. (Royal Insurance Co. v. Mazzei, 50 Cal.App.2d 549, 555 [123 P.2d 586]; [86 Cal.App.2d 753] Hauser v. Pacific Gas & Electric Co., 133 Cal.App. 222, 227 [23 P.2d 1068]; McIntyre v. Hauser, 131 Cal. 11, 12 [63 P. 69]; Higgins v. Security Trust & Savings Bank, 203 Cal. 398, 401 [264 P. 744].)

[4] A plaintiff is required to set forth in his complaint the essential facts of his case with reasonable precision and with sufficient clarity and particularity that the defendant may be apprised of the nature, source and extent of his cause of action. (Dunn v. Dufficy, 194 Cal. 383, 391 [228 P. 1029]; Rannard v. Lockheed Aircraft Corp., 26 Cal.2d 149, 156 [157 P.2d 1]; Goldstein v. Healy, 187 Cal. 206, 210 [201 P. 462]; Miller v. Pacific Constructors, Inc., 68 Cal.App.2d 529, 539 [157 P.2d 57].)

[5] It is alleged in the complaint that Fanchon Metzenbaum is the owner of the royalty interest, the legal title being in the defendant. No facts are alleged from which it can be ascertained (1) whether the royalty interest involved is an interest in real property or otherwise, (2) whether this is a voluntary or an involuntary trust, or (3) whether the trust was created orally or in writing. [6] The only two ways by which a trust in relation to real property can be created are by an instrument in writing or by operation of law. (Civ. Code, § 852; Sheehan v. Sullivan, 126 Cal. 189, 192 [58 P. 543]; Borton v. Joslin, 88 Cal.App. 515, 522 [263 P. 1033].) A trust created by operation of law is an involuntary trust (Civ. Code, § 2217) and an involuntary trustee is one who gains a thing by fraud, accident, mistake, undue influence, the violation of a trust or other wrongful act. (Civ. Code, § 2224.)

[7] With respect to the alleged contract between defendant Murray Metzenbaum and plaintiff whereby defendant was to pay the income from the royalty to plaintiff for the benefit of Fanchon Metzenbaum, the complaint does not state facts from which it can be ascertained with which of the plaintiffs defendant entered into the agreement. If it were with plaintiff Walter Metzenbaum, there are no allegations as to the authority of Walter Metzenbaum to enter into such a contract or in what capacity he acted, whether as attorney or agent for Fanchon Metzenbaum. If defendant, who had legal title to the royalty interest, was holding the income therefrom as trustee for the benefit of Fanchon Metzenbaum he could not without authority enter into a valid agreement to pay such income to Walter Metzenbaum or anyone other than Fanchon. [86 Cal.App.2d 754]

[8] Furthermore, it cannot be determined from the facts alleged in what manner the pledge of the royalty interest by the defendant was wrongful. An allegation that an act is wrongful and unlawful is a mere legal conclusion. (McRae v. Blakeley, 3 Cal.App. 171, 174 [84 P. 679].) [9] The words "duly," "wrongfully" and "unlawfully," when used in connection with issuable facts, while they do not vitiate a pleading, are surplusage, and had better be omitted. (Miles v. McDermott, 31 Cal. 271, 274; Jones v. Alameda, 85 Cal.App. 607, 613 [259 P. 976]; Burlingame v. Traeger, 101 Cal.App. 365, 369 [281 P. 1051].)

The judgment is affirmed.

Moore, P. J., and McComb, J., concurred.

Bernstein v. Piller, 98 Cal.App.2d 441
[Civ. No. 17607. Second Dist., Div. Two. July 13, 1950.]

FRITZI C. BERNSTEIN et al., Appellants, v. EMANUEL A. PILLER et al., Respondents.

COUNSEL

Jacob W. Silverman and Robert Licker for Appellants.

Samuel De Groot and Harold L. Newman for Respondents. [98 Cal.App.2d 442]

OPINION

McCOMB, J.

From judgments of dismissal entered after plaintiffs failed to amend their complaint within the time allowed upon the sustaining of demurrers to the complaint, plaintiffs appeal. The complaint in three counts sought an injunction, an accounting and damages for an alleged conspiracy and wrongful use of plaintiffs' secret lists and processes.

Facts: It was alleged in the complaint that defendant Piller had been a former partner of plaintiffs in the collection service business. The other defendants were former employees of plaintiffs. In January, 1948, defendant Piller sold his entire interest in the partnership to plaintiffs. In January, 1949, defendants formed a partnership for the purpose of conducting a general collection and collection service business. In addition to the foregoing facts plaintiff specifically alleged in each count of the complaint:

"XXIX

"That on or about said 1st day of January, 1949, and continuing to the present, all Defendants and in particular Defendants Emanuel A. Piller, Daniel D. Benedett, Carol E. Weber, Harry R. Tiegs, Mary Ellen Hill and Mercedes Correl Tapia maliciously and corruptly did pursue and do continue to pursue a course of unfair and vicious trade practices directed against Plaintiffs and unconscionably and wantonly did violate and do continue to violate the rights of Plaintiffs, as follows:

"1. That Defendants have utilized, and done business under the certain fictitious name and style, to wit, 'Credit Bureau National Company.'

"2. That Defendants have falsely and fraudulently represented to various customers and clientele of Plaintiffs and to others that Defendant Emanuel A. Piller had been forced and frozen out of said partnership previously existing between Plaintiffs and said Piller.

"3. That Defendants have endeavored to induce various employees of Plaintiffs to leave the employ of Plaintiffs and to enter the employ of Defendants.

"4. That Defendants have utilized and employed in their said business said secret process, formula, method and system of Plaintiffs.

"5. That Defendants have solicited customers and clientele obtained from said secret and confidential list of Plaintiffs' customers. [98 Cal.App.2d 443]

"6. That Defendants have attempted to induce and entire and have actually induced and enticed various of said Plaintiffs' customers and clientele to sever their business relationships with Plaintiffs and instead to patronize Defendants.

"7. That Defendants are still continuing and will continue to solicit and entice Plaintiffs' customers."

Defendants filed special demurrers to the complaint on the ground of uncertainty in "that it cannot be ascertained from the allegations contained in paragraph XXIX, subparagraph 3 thereof, how the defendants have endeavored to induce various employees of plaintiffs to leave the employ of plaintiffs and to enter the employ of defendants, and the names of ... That it cannot be ascertained from the allegations contained in paragraph XXIX, subparagraph 5 thereof, what customers the defendants have solicited.

"That it cannot be ascertained from the allegations contained in paragraph XXIX, subparagraph 6 thereof, what customers the defendants have attempted to induce and entice and have actually induced and enticed, to sever their business relationships with plaintiffs and instead to patronize the defendants."

These demurrers were sustained and plaintiffs were given leave to amend. Plaintiffs having failed to amend within the time allowed by the court, the present judgments were entered from which the appeal has been taken.

Question: Did the trial court properly sustain the special demurrers to the complaint?

This question must be answered in the affirmative and is governed by these rules:

[1] (1) On appeal from a judgment entered after the sustaining of a demurrer the order of the trial court if in general terms must be affirmed by an appellate court if the demurrer is well taken as to any of the grounds stated therein. (Haddad v. McDowell, 213 Cal. 690, 691 [3 P.2d 550]; Jensky v. State Bd. of Equalization, 67 Cal.App.2d 612, 614 [155 P.2d 87]; Metzenbaum v. Metzenbaum, 86 Cal.App.2d 750, 752 [195 P.2d 492].)

[2] (2) In pleading, the essential facts upon which a determination of the controversy depends should be stated with clearness and precision so that nothing is left to surmise. (Philbrook v. Randall, 195 Cal 95, 103 [231 P. 739].)

[3] (3) Mere recitals, references to or allegations of material facts which are left to surmise are subject to a special [98 Cal.App.2d 444] demurrer for uncertainty. (Corum v. Hartford Acc. & Ind. Co., 67 Cal.App.2d 891, 894 [155 P.2d 710].)

[4] Applying the foregoing rules to the facts of the instant case it is evident that the trial court's orders and judgments must be sustained. The orders sustaining the demurrers were general in their terms and therefore under rule (1) supra, if properly taken on any ground stated therein must be affirmed. Under rules (2) and (3) supra, the complaint was uncertain in paragraph XXIX, subdivisions 3, 5 and 6 because it does not give (a) the names of the employees of plaintiffs or any of them whom defendants endeavored to induce to leave plaintiffs' employ, (b) the names or any of them of the customers or clients defendants allegedly obtained from the secret and confidential list of plaintiffs' customers, and (c) the names of the customers or clients of plaintiffs whom defendants had attempted to induce or had actually induced to sever their business relationships with plaintiffs.

Affirmed.

Moore, P. J., and Wilson, J., concurred.

Corum v. Hartford Acc. & Ind. Co., 67 Cal.App.2d 891
[Civ. No. 12705. First Dist., Div. One. Feb. 9, 1945.]

AUGUSTA CORUM, Appellant, v. HARTFORD ACCIDENT AND INDEMNITY COMPANY (a Corporation), Respondent.

COUNSEL

Alfred J. Hennessy for Appellant.

Jesse H. Steinhart and John J. Goldberg for Respondent.

OPINION

WARD, J.

Plaintiff appeals from a judgment after order sustaining general and special demurrers to a second amended complaint without leave to amend. The complaint purports to set forth a cause of action upon a contract claimed to be within the code provisions that "A contract, made expressly for the benefit of a third person, may be enforced by him at any time before the parties thereto rescind it." (Civ. Code, § 1559.)

The unverified complaint, signed by the attorney for the plaintiff, avers that "on a date unknown to plaintiff but prior to the enactment of section 11580 of the Insurance Code of said State, the said defendant Hartford Accident and Indemnity Company did in the course of its said business of accident insurance, make, execute, deliver and issue in said State of California, to one E. G. Nielson, therein designated the insured, a certain written contract, constituting a policy of accident insurance, and in it made said contract expressly for the benefit of plaintiff as herein alleged, to wit: That in and by the terms of said contract and policy of accident insurance, the said defendant did expressly promise, and agree to and with said insured E. G. Nielson, that in the event the plaintiff Augusta Corum was thereafter injured and damaged in and about her person, in said State of California, by the said E. G. Nielson carelessly and negligently driving his automobile upon a public street or highway in the City of Oakland in said State of California, into collision with her, the said defendant would pay the said plaintiff all damages sustained by her as the result of any and all personal injuries inflicted upon her by said collision and by said negligence on the part of the said insured E. G. Nielson. That in said insurance policy it is expressly stated that the same is made for the benefit of plaintiff. ... That plaintiff had no knowledge or information of the existence of said accident insurance contract and policy, nor of its being expressly made for her said benefit as hereinbefore alleged, until within one [67 Cal.App.2d 893] year next prior to the commencement of the above entitled action." It is further alleged that subsequent to the execution of the contract of insurance Nielson, who is not made a party to this proceeding, "on a date well known to defendant" negligently drove his automobile into collision with plaintiff, etc., as a result of which she suffered injuries and incurred expenses, etc. It is further alleged "That on the day said accident occurred, there was written notice of the same and of the time and place thereof, given said defendant as said insurer, by said E. G. Nielson, the insured."

As grounds for the special demurrer it was averred "That the Second Amended Complaint is uncertain, in this, because of the failure of plaintiff to allege the date on which said automobile collision occurred, which is referred to in Paragraph III of plaintiff's Second Amended Complaint, it cannot be ascertained therefrom whether or not said accident occurred on such a date as to entitle plaintiff to make any claim under the terms and provisions of defendant's insurance policy which said Second Amended Complaint alleges was executed and issued by said defendant, nor can it be ascertained therefrom whether or not any claim against said defendant would be barred by the provisions of Section 337 of the Code of Civil Procedure of the State of California." After order sustaining the demurrer without leave to amend, upon the application of the attorney for plaintiff, judgment was entered in favor of defendant.

Appellant does not argue that she should be permitted to file a fourth complaint, but that the judgment should be reversed and the trial court directed to overrule the demurrer. Respondent, in addition to its argument in support of the demurrer, admits "that under normal circumstances a plaintiff must be afforded an opportunity to amend the complaint with respect to a point such as that made by the demurrer at bar," but calls attention to an affidavit which will be later referred to, set forth in the appendix to its brief. We are unable to agree with appellant that the superior court should be directed to overrule the special demurrer, and we cannot approve the position of the respondent that the judgment as entered should be affirmed.

[1] This court may take cognizance of its records and those of the Supreme Court. (Code Civ. Proc., § 1875.) Such records disclose that the appellant herein appealed from a judgment in the case of Augusta Corum v. E. G. Neilson, in which the appeal was dismissed and a petition for hearing [67 Cal.App.2d 894] by the Supreme Court denied, all in the year 1936. (Note the difference in the spelling of defendant's name.) The present complaint was filed in 1943. These facts, if known, may have prompted the action of the trial court in entering the order sustaining the demurrer without leave to amend. We refer to these records only insofar as they may indicate the necessity or otherwise of alleging the date of the accident, so that not only the defendant but the trial court may be apprised accurately of the facts in the event that an answer or a further demurrer should, as the present special demurrer does, make the point that the action is barred by the statute of limitations.

It may be admitted that the date of the insurance policy referred to in the complaint, if issued, is a matter peculiarly within the knowledge of the defendant. [2] Ordinarily, a demurrer for uncertainty does not lie where the facts alleged in the complaint show a superior knowledge of a particular fact on the part of the demurring party (Brea v. McGlashan, 3 Cal.App.2d 454 [39 P.2d 877]; Swasey v. de L'Etanche, 17 Cal.App.2d 713 [62 P.2d 753]; Goldstein v. Healy, 187 Cal. 206 [201 P. 462]; Schaake v. Eagle etc. Can Co., 135 Cal. 472 [63 P. 1025, 67 P. 759]) and it appears that the defendant is not injured as a result of a failure to allege particularly that which is alleged generally. [3] Less particularity is required where, from the nature of the allegations, the adverse party must possess full information of the subject. (Gerritt v. Fullerton U. H. School Dist., 24 Cal.App.2d 482 [75 P.2d 627].)

[4a] However, the failure to allege a date, which appears to be material, such as the date of an accident, known to plaintiff, and as to which it may be assumed plaintiff's knowledge is superior to that of defendant, is subject to special demurrer. (Baird v. Olsheski, 102 Cal.App. 452 [283 P. 321]; Johnson v. Nolan, 105 Cal.App. 293 [288 P. 78].) Under such circumstances a pleader may not rely upon the rule that statements of facts constituting the cause of action involving an essential and material allegation (Code Civ. Proc., § 463) shall be pleaded in ordinary and concise language (Code Civ. Proc., § 426) as dispensing with the necessity of alleging specifically the date of the occurrence of an event if material. (Williamson v. Joyce, 137 Cal. 151 [69 P. 980]; Baird v. Olsheski, supra.) [5] Mere recitals, references to or allegations of material facts, which may be left to surmise, are subject to special demurrer. (Vilardo v. [67 Cal.App.2d 895] County of Sacramento, 54 Cal.App.2d 413 [129 P.2d 165]; Philbrook v. Randall, 195 Cal. 95 [231 P. 739].)

[4b] The complaint alleges that the date of the accident was well known to defendant. Assuming this to be true, the court is entitled to know such date by allegation in the complaint in the event that resort should be had to a proceeding to abate the prosecution of this action (Code Civ. Proc., § 597) or for any other purpose, during the trial or prior thereto. Appellant seeks aid from certain language used in recent Supreme Court decisions some of which are listed in Bollinger v. National Fire Ins. Co., 25 Cal.2d 399 [154 P.2d 399] wherein it was said (p. 411): "It is established that the running of the statute of limitations may be suspended by causes not mentioned in the statute itself." In the Bollinger case it was held that defendant may lose the privilege to urge a defense unless it is pleaded plainly and promptly. It is important to defendant, should it wish to plead the statute of limitations, to assert promptly by demurrer or otherwise this legal defense, which can only be pleaded if plaintiff alleges plainly the date of the accident and other facts with reasonable particularity sufficient to acquaint the opponent of the nature, source and extent of the cause of action so that it in turn with precision may admit, deny, explain or plead special, legal or factual defenses.

There is another matter that requires attention. If this action is based on an ordinary automobile liability policy, the complaint would fail to state a cause of action because under the terms of such policies, which are based upon the statute of 1919, now embodied in sections 11580 and 11581 of the Insurance Code, the cause of action of the injured third person against the insurance carrier of the tort feasor does not arise until the third person secures a final judgment against the tort feasor. It appears that the unverified second amended complaint here involved is carefully drawn to avoid such limitation by alleging the existence of a most unusual type of policy whereby the insurance company is alleged to have contracted with Nielson that if Nielson injured Corum the company would pay Corum damages. Such a policy might have been written and we cannot determine on this appeal whether that has occurred. If this were all that were before us, we simply would reverse the judgment for the reasons heretofore set forth. But that is not all that is before us. The records of the District Court of Appeal for this district [67 Cal.App.2d 896] show the following: On September 7, 1934, there was filed in the Superior Court of Alameda County a complaint entitled Augusta Corum v. E. G. Neilson and another. (Note the defendant's name is spelled differently in the Alameda action than the person referred to in the complaint here involved.) That complaint alleges that on September 18, 1933, while Augusta Corum was walking in a pedestrian crosswalk at the intersection of 13th Street and Broadway, Oakland, she was injured by Neilson's automobile. The description of Corum's injuries in that complaint is almost identical with that of the injuries described in the present complaint. The records further show that the Alameda action proceeded to trial, Augusta Corum being represented by the same counsel as here appears for the person by the same name, and in due course judgment was entered for defendant Neilson. Corum appealed to the appellate court for this district, where the appeal was given the number 1 Civ. 10293. In due course, and on July 16, 1936, on motion of Neilson, the appeal as heretofore related was dismissed. The judgment in favor of Neilson thereupon became final.

[6] In addition to the above facts we find attached to the brief of respondent in the present action an affidavit of one of its counsel heretofore referred to. It is therein averred that on September 6, 1933, the insurance company did issue to E. G. Neilson a standard form of automobile insurance policy, covering a designated automobile for the ensuing year. It is averred that this is the only policy of insurance ever issued by the company to Neilson. It is further averred that the only claim ever made by Augusta Corum against either Neilson or the insurance company is a claim based on the accident of September 18, 1933. The complaint in the present case, signed only by the attorney and unverified, was filed December 16, 1943.

If the averments contained in the affidavit are true, it may be that the present complaint was drawn so as to get past a demurrer, and so as to get to trial on a purely fictitious and nonexistent cause of action. If so, it constitutes an abuse of judicial process. To take up the time of the courts with an action known by the attorney to be false and fictitious is clearly an abuse of judicial process. The courts involved are not impotent to protect themselves from such imposition. They possess inherent powers to prevent the administration of justice from being brought into disrepute by such tactics, [67 Cal.App.2d 897] and specifically may use the implied power "to properly and effectively function as a separate department in the scheme of our state government" (Brydonjack v. State Bar, 208 Cal. 439 [281 P. 1018, 66 A.L.R. 1507]) to supervise and discipline "the conduct of attorneys who are officers of the court." (Barton v. State Bar, 209 Cal. 677, 681 [289 P. 818].) These powers do not depend upon constitutional grant but arise from the inherent power "necessary to the orderly and efficient exercise of jurisdiction." (14 Am.Jur., pp. 370, 372, § 171.)

However, although courts possess inherent powers to protect themselves from such abuses, we have determined not to exercise such powers in the present case as the trial court is well equipped to handle the matter. Inherent powers are usually exercised and called into operation only where there is no statutory provision by which the same result can be reached. In the present case the respondent did not attempt to bring these matters to the attention of the trial court in any formal way. Respondent had a statutory method by which it could have raised this issue. Had it filed an answer setting up this defense it could have moved, under section 597 of the Code of Civil Procedure, for a trial of such defense separately from the trial of the other issues. It may still do so. If upon such a hearing it develops that there has been a deliberate intentional abuse of the judicial processes by counsel for appellant, the trial court possesses full and complete powers to punish such abuse by contempt proceedings or otherwise.

In that event there would be a complete and proper record upon which to act.

The judgment is reversed and the trial court directed to permit plaintiff to amend the complaint.

Peters, P. J., and Knight, J., concurred.