Majority
This is an appeal by plaintiff from a summary judgment entered in favor of defendants.
The defendants are Hugh John Snow and Ann Marie Mercer, coexeeutors of the Estate of Jessie Elder Hill, and Charles
Ellen died on November 16, 1939; her surviving husband, Dr. John G. Hill, acted as the executor of her estate. John subsequently married Jessie Elder Hill.
On August 27, 1941, the residue of Ellen’s estate was distributed to John as testamentary trustee. The decree of distribution shows that John was the life beneficiary, together with certain specified charities, of the income of the trust. The decree of distribution further shows that the successor life beneficiaries and the remaindermen under the trust were Gladys Hill Adams (daughter of Ellen and John) and her issue together with certain specified charities. One of the assets distributed to John as trustee was lot 84 of tract 8060, hereinafter referred to as parcel A. The trust accountings in the estate of Ellen Hill show that parcel A was appraised at the death of Ellen at $18,000 and was carried on the trust records at that value. Those accountings also show that John continued to act as trustee of the testamentary trust until his death on November 19, 1954.
In 1945, John listed parcel A for sale. He subsequently offered to sell parcel A to M. Lucas Lehman and Edith Lehman at a price of $31,000 through an exchange of five parcels of real property designated as parcels B-l through B-5. The equity in parcels B-l through B-5 was computed at approximately $11,000. The Lehmans were to pay in addition approximately $20,000 in cash to arrive at the total price of $31,000. This arrangement was agreeable with the exception of the payment of certain expenses and commissions which are not here relevant.
It appears that under the terms of the trust, John, as trustee, was not authorized to enter into any exchange agreement since the trust provided that the entire sale price of parcel A was to be applied against the trust deed note on certain Long Beach property. The balance due on the trust deed note at the time of the sale of parcel A was in excess of the $31,000 sale price.
In order to work out this problem, John arranged to dispose of parcel A by a transaction whereby Jessie, who at that time was John’s wife, would purchase parcels B-l through B-5
1 This trust has been involved in other litigations, e.g. Estate of Hill, 54 Cal.2d 39 [ 4 Cal.Rptr. 1 , 351 P.2d 33 ], and Estate of Hill, 149 Cal.App.2d 779 [ 309 P.2d 39 ].
The Fifth Account Current and Report of John, filed on January 21, 1946, reported the sale of parcel A to the Lehmans. A notice of hearing of a petition for settlement of the Fifth Account Current was filed on January 28, 1946. The affidavit of service of the notice filed at the same time showed service upon Gladys Hill Adams, Oakhill, Central Avenue, Rye, New York. (Gladys was the mother of plaintiff herein.)
On February 11, 1946, an order settling the Fifth Account therein was issued by the Superior Court, thereby approving the sale of parcel A to the Lehmans for the sum of $31,000.
Gladys Hill Adams, plaintiff’s mother, applied for an order of the court to perpetuate the testimony of John, Jessie and M. Louis Lehman, and on July 22, 1946, a petition for removal of testamentary trustee was filed in the estate of Ellen in behalf of Gladys Hill Adams, plaintiff’s mother. As a ground for removal, the details of the transaction whereby parcel A was sold by the trustee to the Lehmans was set forth. These allegations made by Gladys in the 1947 petition were substantially identical with the allegations made in the complaint of the ease at bar. An affidavit of mailing notice of the petition for removal of the testamentary trustee was filed on July 25, 1947, and showed that the notice of the hearing was sent to Clarellen Adams, 95 Central Avenue, Rye, New York.[4] The affidavit also showed that a notice of the hearing was served on Harold Adams, plaintiff’s father, at the same address. On January 8, 1948, a stipulation was filed whereby Gladys Hill
2 In addition to a cash payment of §11,540, Jessie assumed trust deed obligations on said parcels in the amount of $34,387.81.
3 The Fifth Account Current of John, as trustee, reported the sale of Parcel A to the Lehmans for the sum of $31,000 cash, of which $21,000 was applied on the trust deed note against the Long Beach property. The additional §10,000 was held for a subsequent payment on the trust deed note.
4 Plaintiff admits that in 1947 she was known as Clarellen Adams and admits receiving the notices but contends that at the time she was a minor child, 15 years old, and had no understanding of the transactions or the meaning of the notices.
During the period from the dismissal of the petition in 1948 to the filing of the creditor’s claim in 1959, the following relevant events occurred: (1) plaintiff reached her majority on May 23, 1953; (2) the trustee, John, died on November 19, 1954; (3) C. Walter Hall was appointed successor trustee under Ellen’s will on November 24, 1954; and (4) Jessie Hill died on August 6, 1958.
Plaintiff filed a creditor’s claim on July 20, 1959, in the Estate of Jessie Hill which contained substantially the same allegations as those contained in the petition to remove trustee filed in 1947, except that the claim is made against Jessie’s estate rather than John. Plaintiff was served a notice of rejection of creditor’s claim on July 28, 1959. The present action was commenced on October 23, 1959, after the rejection of the creditor’s claim.
Upon the presentment of the above facts in the form of a declaration executed by defendant Snow, the trial court granted defendants’ motion for summary judgment.
‘ ‘ The purpose to be served by the summary judgment procedure is to expedite litigation by avoiding needless trials.
While it is not a substitute for a regular trial and does not authorize the trial of any bona fide issues of fact which the affidavits may reveal, it permits the court to pierce the allegations of the pleadings to ascertain whether a genuine cause of action in fact exists or whether the defense interposed is sham or feigned. (Cone v. Union Oil Co., 129 Cal. App.2d 558 , 562 [ 277 P.2d 464 ] ; Kelly v. Liddicoat, 35 Cal. App.2d 559 , 561 [ 96 P.2d 186 ].)” (Barry v. Rodgers, 141 Cal.App.2d 340 , 342 [ 296 P.2d 898 ].)
In order to decide whether summary judgment was proper in the instant case, we must determine two issues: first, does the declaration[5] in support of the moving parties, i.e., the defendants, state facts sufficient to sustain a judgment in their favor; and second, does the declaration of plaintiff in opposition to the motion show such facts as may be deemed sufficient to present a triable issue of fact. (Code Civ. Proe., § 437c; Desny v. Wilder, 46 Cal.2d 715 , 725-726 [ 299 P.2d 257 ] ; Aero Properties, Inc. v. Gottlieb, 206 Cal.App.2d 711 [ 24 Cal.Rptr. 277 ].)
5 The declaration is equivalent to an affidavit under Code of Civil Procedure section 2015.5.
6 E.g., paragraph II of the declaration filed on behalf of plaintiff:: ‘ ‘ As to paragraph VIII of defendant’s affidavit, your affiant has no information or belief upon which to base a denial and therefore denies all and sundry the allegations of such paragraph for lack of information ór" belief, and further alleges that he is informed and believes and therefore alleges that $33,500.00 was an inadequate price for the property referred’ to in such paragraph. ’ ’
Although not set out cogently in either the pleadings, the declarations or the briefs, plaintiff’s theory of recovery is apparently based on a claim of fraud. Plaintiff contends that $31,000 was an inadequate price for parcel A; that John as trustee concealed from plaintiff the details of the exchange transaction with the Lehmans; and that by virtue of the transaction, allegedly unauthorized, and the concealment, Jessie (John’s wife) was able to purchase parcels B-l through B-5 at a price substantially less than their true value. Facts which show the presence of at least two affirmative defenses are set forth in defendant Snow’s declaration. The declaration filed on behalf of plaintiff does not set forth facts which negate these defenses—thus there is no triable issue of fact presented.
“If it appears from an examination of the affidavits that no triable issue of fact exists, and that the affidavits in support of the motion state facts which, if proved, would support a judgment in favor of the moving party, then summary judgment is proper. (Coyne v. Krempels, 36 Cal.2d 257 , 261 [ 223 P.2d 244 ].) It is thus apparent that the propriety of granting or denying the motion depends upon the sufficiency of the affidavits that have been filed. [Citations.] ” (Barry v. Rodgers, 141 Cal.App.2d 340 , 342 [ 296 P.2d 878 ].)
Snow’s affidavit shows that the sale transaction in question was reported to the probate court in 1946 as a part of the Fifth Account of the trustee. This Fifth Account was approved by the court in the 1946 order. It is a general rule that “ [o]nee a decree of the probate court settling an account of a trustee becomes final, it is conclusive, in the absence of extrinsic fraud, on all parties interested in the estate. ' (Prob. Code, §1123; [Citations.])’’ (Estate of Charters, 46 Cal.2d 227 , 234 [ 293 P.2d 778 ].) The declaration of plaintiff’s attorney does not show any facts whatsoever that would indicate the presence of extrinsic fraud. Even assuming that John did fraudulently conceal the details of the transactions, this still would not constitute extrinsic fraud. “ ‘Extrinsic fraud,’ ” says the court in McLaughlin v. Security First Nat. Bank, 20 Cal.App.2d 602 , 605 [ 67 P.2d 726 ], “is best defined both negatively and affirmatively, Negatively, it may be said not to be fraud which goes
Furthermore, defendant’s declaration sets forth with detailed chronology all the events leading up to this suit. This detailed factual presentment demonstrates that all statutes of limitations which are possibly applicable have expired, thereby manifesting a bar to the instant action. It must be remembered that a period of 14 years had elapsed since the alleged fraud to the filing of the present action. This filing was made more than 6 years after plaintiff had reached her majority in 1953. Plaintiff attempts to overcome the defense of the statute of limitations by arguing that she had no knowledge of the fraud and she lacked comprehension of those parts of the transaction of which she did have knowledge. These conclusions on her part are not sufficient to overcome the bar of the statute of limitations.
“ [T]he courts have read into the statute [Code Civ. Proc., § 338, subd. 4] a duty to exercise diligence to discover the facts. The rule is that the plaintiff must plead and prove the facts showing: (a) Lack of knowledge, (b) Lack of means of obtaining knowledge (in the exercise of reasonable diligence the facts could not have been discovered at an earlier date), (e) How and when he did actually discover the fraud or mistake. Under this rule constructive or presumed notice or knowledge are equivalent to knowledge. So, when the plaintiff has notice or information of circumstances to put a reasonable person on inquiry, or has the opportunity to obtain knowledge from sources open to his investigation (such as public records or corporation books), the statute commences to run. Many cases, both old and new, strictly apply these requirements to bar actions brought after lapse of the 3-year period. [Citations.] ” (1 Witkin, California Procedure, Actions, § 143, pp. 652-653.)
The declaration filed on behalf of plaintiff did not show
In Teitelbaum v. Borders, 206 Cal.App.2d 634 , 639 [ 23 Cal.Rptr. 868 ], this court, quoting from Bainbridge v. Stoner, 16 Cal.2d 423 , 430 [ 106 P.2d 423 ], stated: “Under ordinary circumstances, a plaintiff may not invoke the aid of a court of equity for relief against fraud after the expiration of the period of limitation for such an action unless he affirmatively pleads that he did not discover the facts constituting the fraud until within three years prior to the date he filed his complaint. (§ 338, Code Civ. Proe.) The word discovery as used in the statute is not synonymous with knowledge. And the court must determine, as a matter of law, when, under the facts pleaded,, there was a discovery by the plaintiff, in the legal sense of tfiat term. Consequently, an averment of lack of knowledge wifhin the statutory period is not sufficient; a plaintiff must also .show that he had no means of knowledge or notice which followed by inquiry would have shown the circumstances upon -which the cause of action is founded. Moreover, he must also show when and how the facts concerning the fraud became known to him. [Citations.] ” (Emphasis added.)
In Woodring v. Basso, 195 Cal.App.2d 459 [ 15 Cal.Rptr. 805 ], an action to set aside a decree of distribution and to impose a trust upon the proceeds for fraud and mistake was brought after the expiration of the statute of limitations. In sustaining a demurrer without leave to amend, the court pointed out (pp. 466-467) : “As was said in Davis v. Hibernia Sav. etc. Soc., 21 Cal.App. 444 , 448 [ 132 P. 462 ] :
“ ‘One important observation is that the right of plaintiff to invoke the aid of equity for fraud after three years have expired is an exception to the general statute on the subject and plaintiff must bring himself clearly within the terms of the exception if he desires to claim the benefit of it.
“ ‘Again, discovery and knowledge are not convertible terms and whether there has been a discovery within the contemplation of the statute is a question of law to be determined by the court from the facts pleaded. It is not, therefore, sufficient for the plaintiff to aver that he was ignorant of the facts at the time of their occurrence and was not informed of them until within the three years. He must show that the
acts of fraud were committed under circumstances that he would not be presumed to have knowledge of them, it being the rule that if he has “notice or information of circumstances which would put him on inquiry which if followed would lead to knowledge, or that the facts were presumptively within his knowledge, he will be deemed to have had actual knowledge of the facts.” ’ ”
A mere allegation of concealment, therefore, is not sufficient to state a cause of action in a complaint where the time limit of the applicable statute of limitations has expired. (Jackson v. Master Holding Corp., 16 Cal.2d 824 [ 108 P.2d 673 ]; Lady Washington C. Co. v. Wood, 113 Cal. 482 [ 45 P. 809 ] ; Mock v. Santa Monica Hospital, 187 Cal.App.2d 57 [ 9 Cal.Rptr. 555 ]); a fortiori, such allegation is not sufficient in a declaration in opposition to the motion for summary judgment to overcome the defense of the statute of limitations. The declaration must set forth facts with particularity. (Code Civ. Proc., § 437c.)
Such a conclusion is not only inadequate in the case at bench, but is contra to the undisputed facts. Certain events recited in defendant's affidavit, and admitted by plaintiff’s attorney, manifest a knowledge in plaintiff of all the facts which are the subject of this litigation. (See Johnston v. Johnson, 127 Cal.App.2d 464 , 471 [ 274 P.2d 1 ].) In 1947, plaintiff’s mother brought an action with respect to the very transaction with which we are now concerned showing full knowledge at that time—12 years prior to the filing of the complaint—of all the facts. Plaintiff at the time was 15 years of age and was living with her mother and father and had continued to live with her mother until the filing of the instant action. Plaintiff came into her majority in 1953, more than six years before the filing of the complaint. Finally, as pointed out supra, plaintiff had actual notice of all relevant hearings including the action brought by her mother which involved the same transaction and alleged concealment as is here sub judice.
It is apparent from plaintiff’s brief that she is under the misapprehension that in a summary judgment proceeding she may rely on allegations in her complaint to cure the deficiencies of the declaration filed by her attorney. The fallacy of this position is demonstrated in Coyne v. Krempels, supra, 36 Cal.2d 257 , 262-263; Cone v. Union Oil Co., 129 Cal.App.2d 558 , 562-563 [ 277 P.2d 464 ] ; and Aero Properties, Inc. v. Gottlieb, supra, 206 Cal.App.2d 711 , 715.
The judgment is affirmed.
Ashburn, J., and Herndon, J., concurred.
Cases cited
- Cone v. Union Oil Co. 129 Cal. App.2d 558 at 562, at 562-563 p. 289, p. 294
- Kelly v. Liddicoat 35 Cal. App.2d 559 at 561 p. 289, p. 290
- Barry v. Rodgers 141 Cal.App.2d 340 at 342 p. 289, p. 291
- Desny v. Wilder 46 Cal.2d 715 at 725-726 p. 289
- Aero Properties, Inc. v. Gottlieb 206 Cal.App.2d 711 at 715 p. 289, p. 294
- Kimber v. Jones 122 Cal.App.2d 914 at 919 p. 290
- Chilson v. P. G. Industries 174 Cal.App.2d 613 at 615 p. 290
- Maltby v. Shook 131 Cal. App.2d 349 at 353 p. 290
- Coyne v. Krempels 36 Cal.2d 257 at 261, at 262-263 p. 290, p. 291, p. 294
- Schessler v. Keck 138 Cal.App.2d 663 at 668-669 p. 291
- Security-First National Bank v. Yeakel 46 Cal.2d 227 at 234 p. 291
- McLaughlin v. Security-First National Bank 20 Cal.App.2d 602 at 605 p. 291
- Teitelbaum v. Borders 206 Cal.App.2d 634 at 639 p. 293
- Bainbridge v. Stoner 16 Cal.2d 423 at 430 p. 293
- Woodring v. Basso 195 Cal.App.2d 459 p. 293
- Davis v. Hibernia Savings & Loan Society 21 Cal.App. 444 at 448 p. 293
- Jackson v. Master Holding Corp. 16 Cal.2d 824 p. 294
- Lady Washington Consolidated Co. v. Wood 113 Cal. 482 p. 294
- Mock v. Santa Monica Hospital 187 Cal.App.2d 57 p. 294
- Johnston v. Johnson 127 Cal.App.2d 464 at 471 p. 294