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Pyle v. Henry

California Court of Appeals, Fifth District
Mar 27, 2008
No. F053280 (Cal. Ct. App. Mar. 27, 2008)

Opinion


EDWIN L. PYLE, Plaintiff and Appellant, v. JERRY E. HENRY, Defendant and Respondent. F053280 California Court of Appeal, Fifth District March 27, 2008

NOT TO BE PUBLISHED

APPEAL from a judgment of the Superior Court No. 07CECG00045 of Fresno County. Adolofo M. Corona, Judge.

Edwin L. Pyle, in pro. per., for Defendant and Appellant.

McCormick, Barstow, Sheppard, Wayte & Carruth, Lawrence E. Wayte and Nicholas C. Miller, for Defendant and Respondent.

OPINION

Ardaiz, P.J.

The superior court dismissed this civil action after sustaining respondent Jerry E. Henry’s demurrer to appellant Edwin L. Pyle’s first amended complaint without leave to amend. The superior court ruled that appellant’s first amended complaint failed to state facts sufficient to constitute a cause of action in that the pleading (1) was barred by the doctrine of res judicata, (2) was barred by the statute of limitations, and (3) failed to show that appellant was the real party in interest.

Appellant contends the trial court erred. As we shall explain, we agree with appellant. We will direct the superior court to reverse the judgment of dismissal and to overrule the demurrer.

FACTS

Appellant’s pleading is entitled “First Amended Complaint for Breach of Contract and for Damages for Fraud and Deceit.” It alleges as follows.

Appellant Pyle held a power of attorney to act on behalf of his mother, Anna Catherine Hiebert. Hiebert had a nephew named Myron T. Jackson, “a life long bachelor.” Jackson died on October 31, 2001. Jackson’s 1991 will left his entire estate to Hiebert and named Adele Pyle (appellant Edwin L. Pyle’s wife) as executrix. In September of 2001Charles Collier (Hiebert’s brother) and Charles Pyle (Hiebert’s other son and appellant’s brother) took a copy of Jackson’s 1991 will “to the offices of Randal Rosa’, the attorney that authored the 1991 will.” Attorney Rosa “tells them of possible existence of another will authored in 1996.” Charles Collier and Charles Pyle “looked extensively for 2-3 days and were unable to find an original of that 1996 will.” The “copy of the 1996 will” left Jackson’s entire estate to Collier (not Hiebert) and named Charles Pyle (not appellant’s wife Adele Pyle) as executor.

In November of 2001 “the copy of [Jackson’s] 1996 will” was admitted to probate. In February of 2002 Hiebert filed a Petition for Revocation of Purported Will (“PRPW”) in the San Joaquin County Superior Court. In March of 2002 “Plaintiff [appellant Edwin Pyle] did retain defendant [respondent Jerry E. Henry] … to represent plaintiff’s mother [Hiebert]” in that matter. Henry was an “attorney advertizing [sic] himself to be versed in probate law .…” Because of instances of alleged mismanagement of the Jackson estate by Charles Pyle, respondent Henry’s office also filed in June of 2002 a “Petition for the Removal of Personal Representative and Suspension of Powers” (“PRPRSP”) to attempt to remove Charles Pyle as executor of the Jackson estate.

In July of 2002 Henry made “an out of court agreement not to pursue allegations against Charles E. Pyle.” Henry made this agreement with “opposing counsel” in the San Joaquin County litigation. Henry made an “out of court stipulation with opposing counsel, to drop the PRPRSP … and not pursue [the] earlier filed Petition for Revocation of Probate of Purported Will.” Henry “intentionally concealed” the agreement from appellant. Appellant did not learn of the agreement until opposing counsel alluded to it in a January 5, 2004 San Joaquin County Superior Court hearing. Meanwhile, in January of 2003 appellant handed to Henry “a $10,000 check to cover future expenses to defendant with instructions to take this probate contest to trial.” Henry intended to “not honor this agreement and to abide by the earlier agreement with opposing counsel.” Henry accepted the check “under false pretenses” in that he “knew that his intentions were to settle irregardless of the fact that he took funds to take contest to trial.” Henry “intentionally concealed” from plaintiff his agreement with opposing counsel “with the intention of deceiving plaintiff.” If appellant had been aware of Henry’s concealment, “termination of defendant’s representation of HIEBERT by plaintiff would have been instantaneous.” “Henry at all times was aware of plaintiff’s financial involvement and that Plaintiff was in fact hiring defendant to represent his mother.”

THE COURT ERRED IN SUSTAINING THE DEMURRER

“The party against whom a complaint or cross-complaint has been filed may object, by demurrer or answer …, to the pleading on any one or more of the following grounds: [¶] … [¶] (e) The pleading does not state facts sufficient to constitute a cause of action.” (Code Civ. Proc., § 430.10.) “The familiar terms ‘general demurrer’ and ‘special demurrer’ do not appear in the statutes. The name ‘general demurrer’ is, however, universally applied to a demurrer raising the fundamental ground: ‘The pleading does not state facts sufficient to constitute a cause of action.’ (C.C.P. 430.10(e).)” (5 Witkin, Cal. Procedure (4th ed. 1997), Pleading, § 9(3); see also Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007), §7:37 (Rev. #1 2007).)

“On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, the standard of review is well settled. We give the complaint a reasonable interpretation, reading it as a whole and its parts in their context. [Citation.] Further, we treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law. [Citations.] When a demurrer is sustained, we determine whether the complaint states facts sufficient to constitute a cause of action. [Citation.] And when it is sustained without leave to amend, we decide whether there is a reasonable possibility that the defect can be cured by amendment: if it can be, the trial court has abused its discretion and we reverse. [Citation.]” (City of Dinuba v. County of Tulare (2007) 41 Cal.4th 859, 865; in accord, see also Reynolds v. Bement (2005) 36 Cal.4th 1075, 1083, Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126, Aubrey v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967, and Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) Our review of the sufficiency of the complaint is de novo. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415; Zelig v. County of Los Angeles, supra, 27 Cal.4th at 1126.) “We also consider matters that may be judicially noticed.” (Reynolds v. Bement, supra, 36 Cal.4th at p. 1083; Zelig v. County of Los Angeles, supra, 27 Cal.4th at p. 1126; Serrano v. Priest (1971) 5 Cal.3d 584, 591.) The burden of demonstrating a reasonable possibility that the defect can be cured by amendment “is squarely on the plaintiff.” (Blank v. Kirwan, supra, 39 Cal.3d at p. 318; Zelig v. County of Los Angeles, supra, 27 Cal.4th at p. 1126.)

Because a reviewing court will “assume the truth of all well-pleaded factual allegations of the complaint” (Kearney v. Salomon Smith Barney, Inc. (2006) 39 Cal.4th 95, 101), “the question of plaintiff’s ability to prove these allegations, or the possible difficulty in making such proof does not concern the reviewing court. [Citations.]” (Alcorn v. Anbro Engineering, Inc. (1970) 2 Cal.3d 493, 496.) “It is not the ordinary function of a demurrer to test the truth of the plaintiff’s allegations or the accuracy with which he describes the defendant’s conduct. A demurrer tests only the legal sufficiency of the pleading. [Citation.]” (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 213.) Thus “[w]hether the plaintiff will be able to prove the pleaded facts is irrelevant to ruling upon the demurrer.” (Stevens v. Superior Court (1986) 180 Cal.App.3d 605, 610.)

“‘The elements of fraud, which give rise to the tort action for deceit, are (a) misrepresentation (false representation, concealment, or nondisclosure); (b) knowledge of falsity (or ‘scienter’); (c) intent to defraud, i.e., to induce reliance; (d) justifiable reliance; and (e) resulting damage.’ [Citation.]” (Lazar v. Superior Court (1996) 12 Cal.4th 631, 638; in accord, see also Small v. Fritz Companies, Inc. (2003) 30 Cal.4th 167, 173.) Because damage is an element of the tort of fraud, “[i]t is the rule that fraud without damage is not actionable.…” (Agnew v. Parks (1959) 172 Cal.App.2d 756, 769.)

Respondent makes no contention that any of the required elements of a fraud cause of action are missing. Rather, he contends (1) documents judicially noticed by the superior court (including the dismissal of a prior action by Pyle against Henry) show that the present action is barred by the doctrine of res judicata, (2) appellant’s first amended complaint shows on its face that it is barred by the statute of limitations, and (3) only a client can state a cause of action for fraud against an attorney. We find none of these arguments to be persuasive.

Res Judicata

“If all of the facts necessary to show that an action is barred by res judicata are within the complaint or subject to judicial notice, a trial court may properly sustain a general demurrer. [Citation.] In ruling on a demurrer based on res judicata, a court may take judicial notice of the official acts or records of any court in this state.” (Frommhagen v. Board of Supervisors (1987) 197 Cal.App.3d 1292, 1299.) Appellant’s prior civil action against Henry (Fresno County Superior Court case No. 05CECG03523) was dismissed, but “[u]nlike the federal rule and that of several states, in California the rule is that the finality required to invoke the preclusive bar of res judicata is not achieved until an appeal from the trial court judgment has been exhausted or the time to appeal has expired.” (Franklin & Franklin v. 7-Eleven Owners for Fair Franchising (2000) 85 Cal.App.4th 1168, 1174; see also Wood v. Herson (1974) 39 Cal.App.3d 737, 747, Agarwal v. Johnson (1979) 25 Cal.3d 932, 954, fn. 11, and 7 Witkin, Cal. Procedure (4th ed. 1997), Judgment, §307.) The superior court had before it no official record of any final judgment in case No. 05CECG03523. The appeal of that superior court judgment was pending in this court when the superior court dismissed the present action on June 26, 2007.

Respondent then argues that even if the lack of finality of the 05CECG03523 action precluded application of the doctrine of res judicata, any error in sustaining respondent’s demurrer was harmless because respondent could have demurred on the ground that “[t]here is another action pending between the same parties on the same cause of action.” (Code Civ. Proc., § 430.10, subd. (c).) Again we are not persuaded. Aside from the fact that respondent never raised this contention in the superior court and thus never gave appellant the opportunity to address it there, even a successful demurrer under subdivision (c) of the demurrer statute does not result in a dismissal of the case. When a demurrer based only upon subdivision (c) is meritorious, “‘the demurrer should not be sustained without leave to amend and the action should not be dismissed.’ [Citation.]” (Branson v. Sun-Diamond Growers (1994) 24 Cal.App.4th 327, fn. 2 at pp. 335-336; see also 5 Witkin, Cal. Proc. (4th ed. 1997), Pleading, §924, and Code Civ. Proc., § 597.) “The present action will normally be stayed pending disposition of the earlier lawsuit.” (Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2007), § 7:77 (Rev. #1 2007.)

Statute of Limitations

As for the statute of limitations, “[a] general demurrer based on the statute of limitations is only permissible where the dates alleged in the complaint show that the action is barred by the statute of limitations.” (Roman v. County of Los Angeles (2000) 85 Cal.App.4th 316, 324; in accord, see also Anderson v. McNally (1957) 150 Cal.App.2d 778, 783-784, and 5 Witkin, Cal. Proc. (4th ed. 1997), Pleading, § 915.) Code of Civil Procedure, section 338 states: “Within three years: [¶] … [¶] (d) An action for relief on the ground of fraud or mistake. The cause of action in that case is not to be deemed to have accrued until the discovery, by the aggrieved party or his or her agent, of the facts constituting the fraud or mistake.” Respondent does not dispute that appellant filed the present action on January 5, 2007. Nor does respondent dispute that appellant’s first amended complaint alleges appellant did not learn of the alleged secret agreement between Henry and opposing counsel until “January 5th, 2004 in dept. 34 of the Superior Court of the State of California, County of San Joaquin.” Nor does respondent dispute that January 5, 2007 falls within three years of January 5, 2004. Rather, respondent calls our attention to a transcript of an August 2003 San Joaquin County Superior Court hearing and argues that the contents of the transcript show appellant knew or should have known at that time of the alleged secret agreement between Henry and opposing counsel. What appellant actually did know, and when, are evidentiary matters and do not come into play in an evaluation of the sufficiency of pleading. “There is statutory and traditional procedure for testing the sufficiency of a complaint on demurrer. It does not encompass the consideration by the court of evidentiary matters ….” (Tyree v. Epstein (1950) 99 Cal.App.2d 361, 364.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed [citations].” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905.)

Real Party In Interest

“Only a real party in interest has standing to prosecute an action, except as otherwise provided by statute. [Citation.] A party who is not the real party in interest lacks standing to sue. [Citation.] ‘A real party in interest ordinarily is defined as the person possessing the right sued upon by reason of the substantive law. [Citation.] A complaint filed by someone other than the real party in interest is subject to a general demurrer on the ground that it fails to state a cause of action. [Citation.] The purpose of this section is to protect a defendant from harassment by other claimants on the same demand. [Citation.]” (Redevelopment Agency of San Diego v. San Diego Gas & Electric Co. (2003) 111 Cal.App.4th 912, 920, 921; in accord, see also 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 862, and 4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 105.) Appellant Pyle alleges that he, not his mother, gave Henry $10,000 to litigate the will contest, and that Henry took the money even though Henry had already agreed with opposing counsel to settle the matter. The first amended complaint alleges “Plaintiff made it perfectly clear to defendant that plaintiff, not his mother, was paying the bills .…” Although appellant’s first amended complaint alleges that appellant had “Power of Attorney for Anna Catherine Hiebert (hereinafter Hiebert), his mother,” it does not allege that appellant hired Henry with Hiebert’s money, or that Hiebert was the person who lost $10,000. We agree with respondent’s assertion that “[a] power of attorney is a device available to a person to empower another to act on his or her behalf.” (In re Marriage of Caballero (1994) 27 Cal.App.4th 1139, 1151.) Whether appellant had the power to give $10,000 of Hiebert’s money to Henry to hire Henry to represent Hiebert is not, however, the issue. The first amended complaint alleges it was appellant Pyle who suffered that loss. The pleading alleges that it was Pyle who was defrauded.

DISPOSITION

The judgment of dismissal is reversed. Costs to appellant.

WE CONCUR: Harris, J., Levy, J.


Summaries of

Pyle v. Henry

California Court of Appeals, Fifth District
Mar 27, 2008
No. F053280 (Cal. Ct. App. Mar. 27, 2008)
Case details for

Pyle v. Henry

Case Details

Full title:EDWIN L. PYLE, Plaintiff and Appellant, v. JERRY E. HENRY, Defendant and…

Court:California Court of Appeals, Fifth District

Date published: Mar 27, 2008

Citations

No. F053280 (Cal. Ct. App. Mar. 27, 2008)