Administrative Management Services, Inc. v. Fidelity & Deposit Co.

Opinion

ASHBY, J.

This is an action to recover money on a receiver’s bond. (See Code Civ. Proc., § 567.) Plaintiff Administrative Management Services, Inc., appeals from an order of dismissal entered following the

[534]

trial court’s sustaining, without leave to amend, defendant’s demurrer to the first amended

complaint. In

ruling on the demurrer, the trial court took judicial notice of the files in two related actions, In re Marriage of Zamot, Los Angeles Superior Court No. D723179, and Administrative Management Services, Inc. v. Zamot, Los Angeles Superior Court No. C16795. (See

Bill Loeper Ford

v.

Hites,

47 Cal.App.3d 828, 830 fn. 1 [121 Cal.Rptr. 131].)

From the pleadings and the files judicially noticed, the facts may be stated as follows: Adeline and Joseph Zamot had a community property interest in the Mirada Hills Convalescent and Rehabilitation Hospital. During their marriage dissolution proceeding in No. D723179, the court, on June 8, 1971, appointed William Cartwright as receiver and administrator to take possession of the hospital upon his taking of the oath and posting a bond in the amount of $75,000. Defendant Fidelity and Deposit Company of Maryland provided the bond, the condition of which was that Cartwright “shall faithfully execute the duties of the trust according to law . . . .”

During the receivership, on November 19, 1971, plaintiff Administrative Management Services, Inc., filed an action, No. C16795, against “Zamot, Inc., a California Corporation, dba Mirada Hills Convalescent And Rehabilitation Hospital; William J. Cartwright, as Receiver for Mirada Hills Convalescent And Rehabilitation Hospital under Zamot V. Zamot, Los Angeles Superior Court No. D 723 179.”

1

On May 30, 1972, Joseph Zamot, having bought out his wife’s interest in the hospital, ousted Cartwright from possession of the hospital. On July 31, 1972, Cartwright filed a notice of motion for termination of receivership, approval of his final accounting and award of attorney’s fees and costs. Zamot filed objections thereto. The court in No. D723179 appointed a commissioner to hold a hearing thereon, which was held on March 14 and March 16, 1973.