Baldwin v. Daniels

VAN DYKE, P. J. Plaintiff below appeals from a judgment rendered after the entry of an order sustaining a demurrer to her amended complaint without leave to further amend. By her first complaint appellant alleged that respondent Jennie Daniels was the widow of Shull H. Daniels, deceased, and that appellant brought the action as an heir of said decedent in behalf of herself and all other heirs; that “through extrinsic fraud” respondent and her codefendants caused to be entered a court decree adjudging Jennie Daniels to be the sole owner of real and personal property; “that the court decree and judgment mentioned . . . was and is void ab iwitio and altogether null. That it was and is the result of collusion, extra judicial and in violation of a trust and confidence.” To this pleading a general demurrer was filed and the points and authorities appearing in the record here and filed in the court below in support of the demurrer specifically pointed out the obvious defects in the pleading. Respondents’ counsel quoted the following from Scafidi v. Western Loan & Bldg. Co., 72 Cal.App.2d 550, 553 [165 P.2d 260]:

“. . . ‘It is essential that the facts and circumstances which constitute the fraud should be set out clearly, concisely, and with sufficient particularity to apprise the opposite party of what he is called on to answer, and to enable the court to determine whether, on the facts pleaded, there is any foundation, prima facie at least, for the charge of fraud. ’ ”

There was included in said points and authorities also the following from Meyer v. Selggio, 80 Cal.App.2d 161, 164 [181 P.2d 690]:

“Allegations of fraud in general terms are merely allegations of conclusions of law, and present no issuable facts.”

After service of the demurrer, appellant elected to amend as of course prior to the hearing of the demurrer. Her amended complaint repeated her first pleading in that it merely alleged fraud as a conclusion without any attempt to plead the facts constituting the claimed fraud. Honorable Daniel R. Shoemaker, Judge of the Superior Court in and for the City and County of San Francisco, had been named as a party defendant in the first pleading, but the pleading contained no allegations concerning him. In the amended complaint, however, it was alleged: ‘ ‘ That no act of the Honorable Daniel R. Shoemaker, Judge of the Superior Court, defendant and conspirator herein, was or is a judicial act but that each and every act of the said Honorable Daniel R. [562]