Southern Pacific Co. v. Catucci

California Court of Appeal Nov 6, 1941 No. Civ. 11878Published

Before: Sturtevant

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Holding. The court held that the plaintiff's action to enforce a contingent claim against an estate was premature as an action at law and failed to state a cause of action in equity because it lacked necessary factual allegations regarding the estate's condition or potential waste of assets.

Issues

Whether an action to enforce a rejected contingent claim against an estate before the claim has matured is premature under the Probate Code.
Whether a complaint seeking to establish the status of a rejected contingent claim sounds in equity when it lacks factual allegations regarding the estate's condition or potential dissipation of assets.

Disposition. affirmed

Quotations verified verbatim against the opinion

“It can hardly be questioned that as an action at law to enforce the plaintiff’s claim the bringing of such action was premature.”

“The sole question to be determined is, “Does said action sound in equity?” We think it is clear that it does not.”

“In short, there is no allegation that any fund exists of which a court of equity may take jurisdiction.”

STURTEVANT, J.

In action involving a claim against the estate of the decedent Joseph Catucci the trial court sustained a demurrer to the plaintiff’s complaint. Later the trial court caused a judgment to be entered in favor of the defendant. Prom that judgment the plaintiff has appealed.

The plaintiff’s complaint alleged the corporate capacity of the plaintiff; that the plaintiff and the decedent entered into a construction contract on October 14, 1939; that the decedent employed John Camara; that on the 25th day of October, 1939, Catucci and Camara suffered injuries from which they died; that the last will and testament of Catucci was admitted to probate and Bella Catucci, the wife of the decedent, was appointed executrix and as such she is now acting; that she published notice to creditors on November 9, 1939, and the time to present claims would expire six months thereafter; that on the 25th day of April, 1940, the plaintiff presented its claim which was rejected on the 6th day of May, 1940; that Bella Catucci and others have commenced an action, No. 159,850, claiming $151,572.28 as damages for the death of Joseph Catucci; that Susie Camara has commenced an action, No. 159,831, in which she seeks to recover damages, $50,450.22, for the death of John Camara;

[598]

that the above mentioned construction contract, among others, contained the following provisions:

“ ‘(21) LIABILITY: CONTRACTOR expressly agrees to indemnify and save RAILROAD harmless from and against any and all claims, loss, damage, injury and liability howsoever same may be caused, resulting directly or indirectly from work covered by this agreement.

“ ‘ (26) ATTORNEYS’ FEES: In case RAILROAD shall bring suit to compel performance of or to recover for breach of any covenant, agreement or condition herein written, CONTRACTOR shall and will pay to RAILROAD reasonable attorney fees in addition to the amount of judgment and costs. ’

“That plaintiff has no remedy at law in the premises; that unless plaintiff’s said claim have the status of an approved claim in said probate proceedings, plaintiff’s rights under said contract will be prejudiced and the enjoyment of such rights will be hindered; that plaintiff does not know at this time the amount of the claim it may have against said estate nor has it any means of ascertaining such amount, and that said claim is a contingent claim within the meaning of Section 707 of the Probate Code of the State of California.” Then followed the prayer:

Southern Pacific Co. v. Catucci

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STURTEVANT, J.

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