Daniels v. Daniels

VALLÉE,

J.

Appeal by plaintiff from an order dismissing a second amended complaint against defendants Donald and Genevieve Daniels, from an order dismissing the second count thereof against defendant Orrin Daniels, and from an order denying her motion under section 473 of the Code of Civil Procedure to vacate such orders.

On July 28, 1954, plaintiff, a 4-year-old child, through her guardian ad litem, commenced the action to determine her paternity and for damages for an alleged conspiracy to deny her her legitimate rights. The complaint is in two counts and is not verified. The first count is against defendants Orrin Daniels, Donald Daniels, Genevieve Daniels, and Joan Daniels, plaintiff’s mother, alleging that Orrin Daniels is plaintiff’s father and that Donald and Genevieve Daniels are her grandparents, and praying the court to declare that Orrin and Joan Daniels are her father and mother. The second count is against defendants Orrin Daniels, Donald Daniels, and Genevieve Daniels on the theory that plaintiff is entitled to damages because the three defendants, by common agreement and design, prevented Orrin Daniels from marrying

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plaintiff’s mother until plaintiff was about 18 months of age; prevented Orrin Daniels from acknowledging plaintiff as his child; and deprived plaintiff of the right to be born the legitimate daughter of Orrin Daniels. On September 2, 1954, demurrers to both counts were sustained, and plaintiff was granted 20 days in which to amend.

On September 22, 1954, an amended complaint was filed; it also was unverified. It was practically identical with the original complaint. On October 13, 1954, a demurrer of defendant Orrin Daniels to the first count was overruled and he was granted 20 days within.which to answer; his demurrer to the second count was sustained, and plaintiff was granted 10 days in which to amend. A general demurrer of defendants Donald and Genevieve Daniels to the entire amended complaint was sustained, and plaintiff was granted 10 days in which to amend. On Friday, October 15, notices of the rulings were given.

On October 28, 1954, plaintiff filed a second amended complaint, also unverified, which filing was after the time fixed by the court. The second amended complaint was also framed in two counts. The only changes were that in the first count for a declaration of paternity it named Orrin and Joan Daniels as the only defendants, and in the second count it designated plaintiff’s mother, defendant Joan Daniels, as one of the alleged conspirators and attempted to expand allegations of slander and bribery. On November' 15, 1954, defendant Orrin Daniels moved to dismiss the second count and defendants Donald and Genevieve Daniels moved to dismiss the entire second amended complaint on the ground it was not timely filed.