Opinion
For Opinion on Hearing, see 36 Cal.Rptr. 488, 388 P.2d 720.
Dinkelspiel & Dinkelspiel, Redwood City, for appellant.
Stanley Mosk, Atty. Gen., of California, John Carl Porter, Deputy Atty. Gen., San Francisco, for respondent.
SULLIVAN, Justice.
Defendant Evelyn Kirchner, administratrix of the estate of Ellinor Green Vance, appeals from a judgment on the pleadings entered against her and in favor of the Plaintiff's complaint filed April 19, 1961, alleges in substance: That on January 15, 1953, Mrs. Schaeche was duly adjudged mentally ill and committed to Agnews State Hospital where ever since said date she has been, and now is, a patient; that Ellinor Vance was Mrs. Schaeche's daughter and as such responsible for her care and maintenance at the above hospital; that pursuant to section 6651 of the Welfare and Institutions Code, the Director of Mental Hygiene determined the rate for the care and maintenance of Mrs. Schaeche and said charges were made continuously for every month said incompetent was a patient; that for the period August 25, 1956, through August 24, 1960, there became due and owing the plaintiff department for the care and maintenance of said incompetent the sum of $7,554.22, no part of which has been paid; that the daughter died on August 25, 1960, and the defendant is the duly appointed, qualified and acting administratrix of her estate; that on November 3, 1960, the plaintiff filed in the daughter's estate, its creditor's claim for $7,554.22 for the care and maintenance for the above period of time, which claim was rejected by the defendant administratrix on January 25, 1961; and that the above amount of $7,554.22 is due, owing and unpaid.
Defendant's answer directly controverts only two paragraphs of the complaint: that alleging the daughter's legal responsibility for the care and attention furnished the mother at Agnews State Hospital and the final paragraph alleging the outstanding indebtedness from the dauther's administratrix, defendant herein. In the answer, therefore, defendant denies that the decedent was legally responsible for such care and maintenance and denies that she, as administratrix, is indebted to the plaintiff in any amount. Defendant by failure to deny them admits the remaining allegations of the complaint. However the answer also sets forth two further and separate defenses in substance as follows: That on October 9, 1956, Ellinor Vance was appointed and qualified as the guardian of the estate of Auguste Schaeche, an incompetent person; that on October 23, 1956, on petition of the plaintiff department filed in such guardianship proceeding, the court made its order giving the department an equitable lien on the estate of the incompetent for $6,425 for accrued charges for care, maintenance and medical attention for the period ending September 30, 1958, and for such other sums as may become due in the future; that after the death of Ellinor Vance on August 25, 1960, and on January 16, 1961, the defendant Evelyn Kirchner was appointed guardian of the estate of Auguste Schaeche; that said defendant as such guardian thereafter sold certain real property of the guardianship estate for the net amount of $10,903.35, which amount is on deposit at a local title company; that defendant as guardian of the estate of said incompetent requested of the plaintiff department an itemized statement of the amount due for the care and maintenance of the incompetent so that such amount could be presented to the court and paid, but that the plaintiff refused and continues to refuse to render such statement; that because of such refusal 'plaintiff should be estopped' from asserting its claim against the estate of Plaintiff moved for judgment on the pleadings on the ground that there was no defense to its action. Defendant filed a similar motion on the ground that the complaint failed to state facts sufficient to constitute a cause of action against the defendant. The court below granted plaintiff's motion and denied defendant's motion. This appeal followed.
It should be noted therefore that the defendant admits the allegations that the Director of Mental Hygiene determined the rate and made continuous monthly charges for the care and maintenance of the incompetent, that for the period involved a total of $7,554.22 became due and owing to the department, and that no part of said sum was paid.
It should be noted that after January 16, 1961, Evelyn Kirchner defendant herein was not only administratrix of the estate of the daughter (Ellinor Vance) but also guardian of the estate of the mother (Auguste Schaeche).
'The plaintiff, by his motion for judgment on the pleadings, may recover judgment without the introduction of any evidence if his complaint states facts sufficient to constitute a cause of action, and if the answer * * * neither raises any material issue nor states a defense--that is, where the answer expressly or substantially admits or does not sufficiently deny all the material allegations of the complaint, and sets up no new matter sufficient to bar or defeat the action.' (39 Cal.Jur.2d, Pleading, § 307, pp. 420-421; see Adjustment Corp. v. Hollywood Hardware etc. Co. (1939), 35 Cal.App.2d 566, 569-570, 96 P.2d 161). On such a motion the allegations of the answer must be taken as true and the plaintiff admits, for the purpose of the motion, the untruth of his own allegations, so far as they have been controverted by the answer. (Osborne v. Abels (1939), 30 Cal.App.2d 729, 731, 87 P.2d 404).
The material allegations of the complaint before us not controverted by the defendant establish that the incompetent Auguste Schaeche was a patient at Agnews State Hospital and that charges for her care and maintenance, at rates determined according to statute, are owing and unpaid to the department in the total amount of $7,554.22. Briefly summarized, the answer simply denies that the daughter of the incompetent was legally responsible for such indebtedness and further denies the allegation (conclusionary in form) that such amount is due, owing and unpaid from the daughter's administratrix. The answer in addition asserts that the daughter was an adult and that the mother's own guardianship estate had adequate funds to pay the indebtedness, which funds were themselves secured to plaintiff by an equitable lien. Thus the answer raises no factual issues requiring a trial but merely the legal claim of the defendant that the decedent daughter was not liable for the above charges. Plaintiff's motion for a judgment on the pleadings was therefore an appropriate remedy to determine the basic controversy. (See Bank of America Nat. Trust & Savings Ass'n v. Hirsch Merc. Co. (1944), 64 Cal.App.2d 175, 176, 181, 148 P.2d 110).
Defendant contends here that (1) the estate of an adult child is not liable to the Department of Mental Hygiene for the care and maintenance of an incompetent mother in a state institution where the mother has adequate funds of her own to pay the charges therefor; and (2) the department was required to proceed against the mother's property on which it had an equitable lien. Neither contention has merit.
Section 6650 of the Welfare and Institutions Code, in effect during the four-year period here involved, provides in relevant part: 'The husband, wife, father, mother, or children of a mentally ill person or inebriate, the estates of such persons, and the guardian and administrator of the estate of such mentally ill person or inebriate, shall cause him to be properly and suitably cared for and maintained, * * *. The husband, wife, father, mother, or children of a mentally ill person or inebriate, and the administrators of their estates, and the estate of such mentally ill person or inebriate, shall be liable for his care, support, and maintenance in a state institution of which he is an inmate. The liability of such persons and estates shall be a joint and several liability, * * *.' (Emphasis added.) The above statute imposes on the persons therein named an unconditional liability for the support and maintenance of a mentally ill relative in a state institution. (Dept. of Mental Hygiene v. McGilvery (1958), 50 Cal.2d 742, 749-751, 329 P.2d 689; Dept. of Mental Hygiene v. Rosse (1960), 187 Cal.App.2d 283, 286, 9 Cal.Rptr. 589; Dept. of Mental Hygiene v. Shane (1956), 142 Cal.App.2d Supp. 881, 883, 299 P.2d 747.) It is clear that it imposes such liability on a daughter of a mentally ill person and on such daughter's estate.
Unless otherwise indicated, all code references hereafter are to the Welfare and Institutions Code.
It has recently been held in Dept. of Mental Hygiene v. Hawley (1963), 59 A.C. 259, 28 Cal.Rptr. 718, 378 P.2d 998, that the liability imposed by section 6650 does not extend to the costs of support and maintenance of a person charged with crime who at the time of trial has been determined to be insane and, trial being postponed, is detained in a state institution pending his recovery.
Defendant argues that Ellinor Vance, being an adult daughter, had no 'primary duty' to support her mother, Mrs. Schaeche, and that if any liability is to be imposed on the daughter or the daughter's estate 'it must be shown that not only the mother had no funds but that the daughter had the ability to pay.'
The liability created by section 6650 is unconditionally imposed and not dependent on ability to pay. (Dept. of Mental Hygiene v. McGilvery, supra, 50 Cal.2d 742, 749-751, 329 P.2d 689; Dept. of Mental Hygiene v. Mannina (1959), 168 Cal.App.2d 215, 217, 335 P.2d 694, 337 P.2d 219.) Nor is it made dependent upon the existence of a 'primary duty' to furnish support. The above statute makes no mention of such expression. It clearly imposes liability, as defendant concedes, on the estate of the mentally ill person. It also expressly provides that the liability of the persons and estates named in the statute 'shall be a joint and several liability.' The law is settled that where an obligation is joint and several, any or all of the persons obligated may be compelled to pay the indebtedness. A person thus liable may be sued alone without joining any others also liable. In the case at bench, therefore, it was permissible for the Department of Mental Hygiene to enforce the statutory liability against the daughter of the mentally ill person without proceeding against the mentally ill person herself. (Moreing v. Weber (1906), 3 Cal.App.2d 14, 21-22, 84 P. 220; McClintick v. Frame (1929), 98 Cal.App. 338, 343, 276 P. 1033; Code Civ.Proc. § 383.)
Defendant relies on Guardianship of Thrasher (1951), 105 Cal.App.2d 768, 234 P.2d 230, and Department of Mental Hygiene v. Black (1961), 198 Cal.App.2d 627, 18 Cal.Rptr. 78. She claims that these cases establish that, where a person has a 'primary obligation' to support an incompetent, such person becomes liable under section 6650 regardless of the ability of the estate of the incompetent to pay. However, defendant argues, since an adult daughter has no such primary duty to support an incompetent mother who has an adequate estate, no liability arises under the statute. As we have pointed out, such a conclusion is untenable in the light of the clear provisions of the statute and the decisions interpreting it. Nor are the above two cases cited by defendant in conflict with what we have said. In Thrasher, supra, the court in effect held that it was error for the probate court to permit a husband who was guardian of his incompetent wife to reimburse himself from the wife's estate for amounts paid by him to the Department of Mental Hygiene for support and maintenance of the wife at a state hospital. The department had objected to the settlement of the accounts on the ground that the wife's support was the personal liability of the husband. On appeal the department contended that such liability rested on two separate bases: (a) the fact that the husband was primarily responsible for the support of his wife; and (b) the fact that he had a statutory liability under section 6650 for her support in a state hospital for the mentally ill. The court gave recognition to both obligations Nor is either of the above cases authority for the proposition urged by defendant that the estate of the mentally ill person must first be exhausted before liability under section 6650 can be imposed upon any of the other persons named in the statute. As we have already pointed out, the liability of the persons and estates named in the statute is unconditional and absolute (Dept. of Mental Hygiene v. McGilvery, supra, 50 Cal.2d 742, 329 P.2d 689) and 'a joint and several liability' (§ 6650). It is therefore unimportant that the estate of the mentally ill person can be resorted to and unnecessary that such action first be taken. The contention here made by defendant that the assets of the incompetent must be first exhausted was flatly rejected, as noted above, in Department of Mental Hygiene v. Black, supra, 198 Cal.App.2d 627, 632, 18 Cal.Rptr. 78.
We observe that such was not always the law. After the 1940 amendment of section 6650 (Stats.1941, ch. 916, § 1, p. 2503) that portion of the statute pertinent here read substantially as it now reads except that it then provided: 'The liability of such persons and estates shall be a joint and several liability except that where the insane person or inebriate has an estate such estate shall be exhausted before liability passes to the relatives.' (Emphasis added.) The 1943 amendment to the statute (Stats.1943, ch. 1052, § 1, p. 2991) omitted the above italicized language. As was stated in People v. Valentine (1946), 28 Cal.2d 121, 142, 169 P.2d 1, 14: 'It is ordinarily to be presumed that the Legislature by deleting an express provision of a statute intended a substantial change in the law. [Citation.] It has been repeatedly declared that where changes have been introduced by amendment it is not to be assumed that they were without design and, further, that by substantially amending a statute the Legislature demonstrates an intent to change the preexisting law.'
Defendant's final claim, made without analysis or citation of authority, that the instant judgment constitutes the taking of her property without due process and a denial of the equal protection of the laws need not detain us. Such claims were raised and set at rest in Department of Mental Hygiene v. McGilvery, supra, 50 Cal.2d 742, 754-761, 329 P.2d 689.
We turn to the defendant's second contention on appeal. She argues: The plaintiff petitioned for and secured in the guardianship proceedings of Mrs. Schaeche an equitable lien on the estate of the incompetent for accrued charges in the sum of $6,425 and also for future charges. Since this lien is still in effect, the plaintiff Department of Mental Hygiene must proceed against such security in accordance with the 'one form of action' rule prescribed by section 726 of the Code of Civil Procedure and therefore is precluded from proceeding against another liable on the obligation, To support her position, the defendant is content to assert that the equitable lien here involved is the same security as a mortgage citing Estate of Moore (1955), 135 Cal.App.2d 122, 131, 286 P.2d 939, 944, in which the court quoted from Childs etc. Co. v. Shelburne Realty Co., (1943), 23 Cal.2d 263, 268, 143 P.2d 697: 'a mortgagee also has a security interest in the nature of an equitable lien.' We are not favored with any further analysis of the legal equation which defendant thus proposes. Nor does defendant cite us to any authority holding that an equitable lien of the kind presented here falls within the pertinent statute.
Plaintiff claims that the instant equitable lien resembles more a judgment lien than a mortgage, since both the equitable lien and the judgment lien are nonconsensual and are designed to expand the creditor's remedies rather than to contract them as does section 726 of the Code of Civil Procedure. Plaintiff also points out: Code of Civil Procedure section 726 does not encompass all liens but by its terms prescribes the 'one form of action' rule for the recovery of a debt or enforcement of a right 'secured by mortgage upon real or personal property.' (Emphasis added.) It later encompassed trust deeds as a result of the decision in Bank of Italy etc. Ass'n v. Bentley (1933), 217 Cal. 644, 20 P.2d 940. It has been held not to apply to a vendor's lien (Jones v. Evans (1907), 6 Cal.App. 88, 91 P. 532), to a judgment lien (Lisenbee v. Lisenbee (1919), 42 Cal.App. 567, 183 P. 862) or to a mechanic's lien (Martin v. Becker (1915), 169 Cal. 301, 146 P. 665), the creditor not being required in any of such instances to first exhaust his security. We think plaintiff's analysis of the nature of the equitable lien before us, made in the light of the above precedents, is sound. Neither of the parties has referred us to, nor has our own research disclosed, any case holding that such lien falls within the purview of the statute. In view of the above authorities, we are of the opinion that it does not.
However, even if we assume, arguendo, that the instant lien falls within the statute in question, we fail to see how this would give support to the position defendant takes. It is well settled that section 726 of the Code of Civil Procedure is for the protection of the mortgagor and that the liability of persons independently obligated to pay the same debt may be enforced without first resorting to the mortgage security. (Loeb v. Christie (1936), 6 Cal.2d 416, 418, 57 P.2d 1303 and cases there cited; Stephenson v. Lawn (1957) 155 Cal.App.2d 669, 671, 318 P.2d 132.) Appel v. Hubbard (1957), 155 Cal.App.2d 639, 318 P.2d 164 cited by defendant is not in conflict with the foregoing rule. The only person coming within the protective provisions of the statute is the mortgagor or, as the Stephenson case uses the term, the principal debtor, which corresponds here to the owner of the liened property, the incompetent Auguste Schaeche. The instant action is not against Mrs. Schaeche.
The judgment is affirmed.
BRAY, P.J., and MOLINARI, J., concur.