Baker v. Littman

VALLÉE, J. Appeal by cross-complainant Alfred Littman, referred to as Alfred or Littman, from a judgment of dismissal entered on an order sustaining cross-defendant [830]Baker’s demurrer to the second amended cross-complaint without leave to amend. The demurrer was general and special. A special demurrer had previously been sustained to the original cross-complaint and judgment of dismissal entered. On appeal the judgment was affirmed as to Counts I and III and reversed as to Counts II and IY with directions to permit an amendment thereof. (Baker v. Littmam, 138 Cal.App.2d 510 [292 P.2d 595].)

After the reversal Littman filed a first amended cross-complaint to which a demurrer was sustained with leave to amend. He then filed the second amended cross-complaint, to which Baker’s demurrer was sustained without leave to amend. The question is: Does any count of the second amended cross-complaint state facts sufficient to constitute a cause of action ?

The facts alleged in the original cross-complaint and the comments of the court with respect thereto are stated in the opinion on the former appeal authored by Mr. Justice Fox: “The material allegations of Alfred Liftman’s cross-complaint, previously set out in detail, may be epitomized as follows: Alfred and his brothers and sisters are beneficiaries of the Horn trust estate. Respondent represented to him that he was the attorney for all his brothers and sisters with authority to file an action for them against the life tenant and trustees of the Horn trust. Relying on this representation, Alfred authorized respondent to add his name as plaintiff in the suit respondent prepared. Subsequently discovering that respondent was not attorney for all his brothers and sisters, Alfred ordered him not to sue in his behalf and respondent never instituted any legal proceeding for the trust estate. Further, Alfred alleged respondent knew he would never be obliged to pay for any legal services respondent might render. . . . His second and fourth counts sound in deceit. The second count alleges that as the result of respondent’s conduct he was damaged in the sum of $3,500 which he was compelled to expend in protecting his equity in the trust estate. The fourth count alleges that respondent’s conduct caused a diminution of the value of Liftman’s share of the trust estate in an amount as yet unascertained. . . .

“It is of course true that a fraudulent representation which is not the cause of damage is not actionable. (Maynes v. Angeles Mesa Land Co., 10 Cal.2d 587, 590 [76 P.2d 109] ; Tsang v. Kan, 78 Cal.App.2d 275, 281 [177 P.2d 630]; 12 Cal.Jur., § 69, p. 813.) ‘It is fundamental, of course, that no