Klein v. Benaron

[608]

BISHOP, J. pro tem.

*

On this appeal by the plaintiff from an order discharging an attachment, our crucial question is: does the complaint state a cause of action which brings into effect those provisions of section 537, Code of Civil Procedure, that declare that a plaintiff may have the property of the defendant attached “in an action upon a contract, express or implied, for the direct payment of money . . Plainly, there was no express contract, either written or oral, and none implied in fact, as when a motorist requests a gas station attendant to “fill her up.” We have concluded, however, that the defendant, contrary to his own desire, has by virtue of the law, impliedly contracted to pay the plaintiff a little more than $50,000, and the attachment was proper and should not have been discharged.

The first case cited in respondent’s brief, one referred to six times thereafter, is

DeMirjian

v.

Ideal Heating Corp.

(1949) 91 Cal.App.2d 905 [206 P.2d 20]. This court once before had this case cited to it and observed in

Arcturus Mfg. Corp.

v.

Rork

(1961) 198 Cal.App.2d 208, 213-214 [17 Cal.Rptr. 758, 762] : “The cases relied upon by appellants are not helpful on the question of whether or not an attachment will lie on the basis of the complaint filed in this case. Thus, in

DeMirjian

v.

Ideal Heating Corp.,

91 Cal.App.2d 905 [206 P.2d 20], the landlord sued to recover damages from his tenants for injuries to the leased premises allegedly caused by defendant’s negligence. The complaint pleaded the cause as a breach of a provision in the lease obligating the lessee to employ due care in its use of the premises. The court held that the gist of the action was to recover damages caused by defendant’s negligence and that the action was ex delicto, hence attachment was improper. In that case clearly there was no action ex contractu based upon a promise implied by law.”