Haldane v. Bogy

California Court of Appeal Oct 9, 1962 No. Civ. 26077Published

Before: Herndon

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Holding. The court held that the trial court properly sustained the respondent's demurrers and dismissed the action because the complaint failed to state a cause of action and the only potential claim, alienation of affections, is abolished in California.

Issues

Whether the trial court properly sustained demurrers to a complaint consisting of abusive epithets and conclusions.
Whether a cause of action for alienation of affections is maintainable under California law.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“The only cause of action which appellant’s complaint even remotely approaches is one for alienation of affections, and actions on that ground have been abolished in California by section 43.5, Civil Code.”

“Respondent’s general and special demurrers having been properly sustained, and appellant having chosen not to amend within the time allowed, the order of dismissal made under section 581, subdivision 3, Code of Civil Procedure, was likewise proper.”

HERNDON, J.

This is an appeal purportedly taken from a judgment of dismissal entered in favor of respondent in a companion ease to

Haldane

Bogy, ante,

page 298 [25 Cal.Rptr. 389], passed upon this day by this court. Again the record fails to disclose the entry of a judgment; hence, we shall consider the appeal as having been taken from the order granting respondent’s motion to dismiss the action

[303]

following appellant’s failure to amend his complaint within the time allowed.

Appellant’s complaint filed

in propria persona

is captioned

“Complaint—Damages

(Intentionally Inflicting Severe Emotional Distress and Bodily Harm Resulting From It) ” and, as in

Haldane

Bogy, ante,

is a conglomerate of abusive epithets and conclusions stating no cause of action. Attached thereto as Exhibit A is a photo copy of appellant’s wife’s first amended complaint for divorce. Although appellant alleges that this document is a sham and “had been months in secret preparation” and was filed “for the malicious, sadistic satisfaction of the three named defendants,” it appears from the record in said divorce action of which the trial court properly took judicial notice,

(Taliaferro

Taliaferro,

178 Cal.App.2d 140, 141 [2 Cal.Rptr. 716]), that his wife’s

original

complaint for divorce had set forth the simple statement of a charge of cruelty as permitted by section 426b of the Code of Civil Procedure and that the particularized amendment had been filed only after appellant had demurred to the original complaint on the ground of uncertainty.

Haldane v. Bogy

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HERNDON, J.

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