*1 obligation incorporated If the support in a divorce part integrated agreement, decree was not of an it always (Civ. terminated on remarriage. 139.) Thus, death or Code, § there necessity was no ap- the 1951 amendment unless it plied to support provisions integrated agreements.
In my obligation opinion, however, present in the case did not terminate on death or remarriage, parties for the provided.” “otherwise True, they specifically did not men- tion death or remarriage, any contingency, other but providing that payments should until continue the “first day July, they agreed 1956” payments that the not to were any terminate for reason By before that specifying date. date, they necessarily precluded any other. I would judgment. affirm the Gibson, J.,C. and Spence, J., concurred. petition appellant rehearing for a
application augment record were denied October 1957. Gibson, J., Traynor, C. J., J., and Spence, were opinion petition that the granted. should be F. In Sept. No. 19375. Bank.
[S. 1957.] CARNEY, FLORENCE E. Administratrix, etc., Plain tiff and Appellant, ANNA De al., SIMMONDS et fendants Appellants.
Eugene Heller, Ehrman, White & Mc- S. Clifford Appellant. for Plaintiff Auliffe *4 & Tobin W. Tobin for Defendants
Jacobsen and Harold Appellants. and
CARTER, J. plaintiff action J. In this case commenced an partition property for of real which she entitled one the against Defendants’ demurrer was overruled defendants. complaint. was plaintiff filed an amended No demurrer
and complaint; answered, it defendants filed to the amended was things other that it not state a cause claiming among did for it on for trial defendants moved action. When came ground that “judgment pleadings” on the on the the a in that it complaint failed to state a cause action amended assigning the entire estate to purported to attack a decree allege ground of extrinsic fraud but failed to a widow on the or different result would such fraud show that a argued then the court for fraud. It was and reached but the alleged, prove she she if able what stated that defendants’ it; but is not the had a cause of action “this” granted.” Then “judgment pleadings is motion for on the complaint amending about the amended followed a discussion the motion without leave granted the court said it and “judgment for on an order amend. The court made and filed and for defendants. pleadings” to amend the without leave gave on order. Plaintiff judgment It that also entered a vacating trial and for order of motion “for a new notice pleadings and for an setting judgment” on the aside and complaint. allowing proposed file amended order her to a granted court plaintiff’s made order in which it motion its gave plaintiff for trial, a new vacated appeal granting leave from order to amend. Defendants plaintiff cross-appeals a vacating judgment; new trial and judgment. Treating from the the motion order one for proper procedure trial, it must considered as a new be the reasons hereinafter stated. “A provide new trial is a
The statutes on new trial that: in the after re-examination of an issue of fact same court a (Code by jury, or trial and decision court referee.” Civ. upon Proc., 656.) “An of law arises a demurrer issue § (Code part complaint answer, or or to some thereof.” Proc., 589.) “An of fact Civ. issue arises- § allegation con- Upon “1. a material answer; and, troverted Upon matters in answer, except
“2. new an issue of (Code joined Proc., is thereon.” 590.) law Civ. A new § “issues” may granted trial be on the grounds, among occurring others, at the trial, errors law that the verdict law against irregularity proceed decision (Code Proc., 657.) ings. Civ. § in a held, group first of cases, pursuant
It has been 590 and as to various judgments, to sections classes of not the proper motion for a new trial was procedure; grant a trial court should not motion for a new (1) Judgment dismissal after trial: demurrer sustained: Chalfant, 128 v. Cal. P. Jones 852] Confar *5 Cal.App.2d ; 8 101 P.2d Whelan, Richardson v. [46 991] Carpenters Joiners, Cal.App.2d & 129 United etc. 249 [276 of Court, v. 19 ; Cal.App.2d Holmes Justice’s 362, P.2d 636] (2) Judgment generally: of dismissal P.2d 366 820]. [65 Superior Court, 212 v. City Pasadena Cal. 309 P. [298 of Judgment pleadings: Abbey (3) on the Land etc. Co. 968]. County Mateo, 1068, 167 434 San Cal. P. v. Ann.Cas. [139 of 408], Hotel Park 804, Central, 52 L.R.A.N.S. Inc. v. 1915C Security-First Bank, Cal.App.2d 15 Nat. 293 P.2d [59 Wheatcraft, Cal.App.2d 115 Budrow v. 517 ; P.2d [252 606] agreed Judgment on statement of (4) ultimate facts: 637]. City ; 102 50 Gregory, Cal. P. Pasa Gregory v. [36 364] of Court, ; Kaye 212 314 Superior Cal. P. v. dena [298 968] Cal.App. Quist Court, ; 33 269 P. Superior v. v. [164 912] ; Superior 748 P. Monteverde v. Sandman, 154 Cal. [99 204] ; McCormick, P. Pahlka Cal.App. 252 v. Court, 60 [212 690] ; P.2d v. Cal.App.2d 763 Gillmore American 123 [267 390]
89
(5)
judg
Co.,
882],
65
63
Default
Ins.
P.
Cal.
Central
[2
505];
Cal.App.
8
241
P.
Lackmann,
v.
ments: McRae
[96
v.
937];
355
P.2d
Reeves, 34
Crackel
Reeves
Cal.2d
v.
[209
Rehfuss,
Cal.App.
;
P.
v.
600
Crackel, 17
[121
295] Rehfuss
Waldecker, 178
;
P.
Waldecker v.
Cal.
86
169 Cal.
1020]
[145
122, 65
Foley, 120
33
; Foley v.
Cal.
P.
P.
566
[52
[174
36]
Meeks,
Savings
Loan
v.
66 Cal.
;
&
Soc.
Am.St.Rep. 147]
; Estate
Heldt,
In
98
553
;
Cal.
P.
371
P.
re
[33
549]
[5
624]
;
McGahie,
v.
37 Cal.
P.
Dean, 149
487
Connell
Cal.
13]
[87
of
App. 439,
Hall,
42
439
Hall
Cal.2d
;
442
v.
P.
[173
1115]
for
generally that a motion
249],
It
been said
has
P.2d
[267
of
is tried.
where no issue
fact
proper
new trial
is
362, 366
Cal.App.2d
Court, supra, 19
(Holmes v. Justice’s
334; Reeves
Chalfant, supra, 128 Cal.
; Jones v.
P.2d 820]
[65
Court,
Superior
355; Rinaldo v.
supra, 34
Reeves,
v.
Cal.2d
Foley, supra, 120
Foley v.
;
585
P.2d
Cal.App.2d
15
868]
[59
Bank,
Security-First Nat.
Central, Inc. v.
33; Hotel Park
Cal.
supra,
McCormick,
123
Cal.App.2d 293; Pahlka v.
supra, 15
786, 790
Torchiana,
Cal.App.
19
763;
v.
Cal.App.2d
Clark
435;
42
Stockton
Hall, supra,
Hall
Cal.2d
;
v.
P.
[127
831]
; Estate
Cal.App. 373
P.
Walters, 18
Iron
v.
[123
240]
Works
633].)
P.
139
Richards,
Cal. 72 [72
contrary,
group
cases,
second
in a
it has been
On the
proper in
new trial
following
motion for a
held that a
(class
pleadings
Judgment
group
3 of
on
1
situations:
Assn.,
B. & L.
40
above) (see Allen v.
Mut.
Cal.
California
;
Bates,
29)
46
Moore v.
or in
App.2d
Cal.
374
851]
[104
sustaining
objec
judgment,
kind
of an
effect
same
any
evidence for
introduction
one reason or
tion to the
including
the failure
state
cause
another
(Moore
defendant.
followed
v.
action
Duvergey,
29;
v.
146
Bates, supra, 46 Cal.
Green
Cal. 379
Superior Court,
statement his *6 434, 436 Court, Cal.App. P. Superior ; 76 tion v. [244 932] Warren, Cal.App.2d 232]; 44 903 P.2d Conv v. Castillo [113 ; Pare, Toulouse Scott, 137 239 P. v. 103 erse v. Cal. [70 13] Braley Empire Co., Water ; v. 130 Cal. 251 P. Cal. 146] [37 75]). Judgment on a App. directed verdict 532 P.2d [20 Cal.App.2d 56]). Werner, 554 P.2d And (Steele 28 v. [83 proper has indicated al a trial as a new motion 90 (See of
though the issue tried
fact.
Horstman
was not one
City
Krumgold,
v.
55 Cal.App.2d
721];
296
Pasa
[130
of
Superior
v.
212
309
Bice v.
Court,
dena
Cal.
P.
[298
968]
supra,
Stevens,
Cal.App.2d 342.)
clarify
To
the law we deem it necessary to
re-examine
subject.
law on this
The basic reason underlying the decisions
in
of judgments
the five
in
classes
the first group
men
above
holding
proper
tioned
a new trial not
appears to be that a
for a
trial
motion
new
should
be entertained where the
only
tried
one of
distinguished
issue
is
law as
from
of
one
of
fact or one
law
fact.
This
might
reason
seem
justified on the basis of sections 656 and 590 of
of
the Code
quoted
Procedure,
supra,
Civil
but
those sections must be
conjunction
and construed in
read
with the basic section on
trial,
motions for
new
section 657 of the Code of Civil Pro
provides
cedure.
It
“any”
may
decision
be
or
vacated
trial, indicating
modified on motion for newa
that the decision
necessarily
question
need not
be based
of
on a
fact. The new
may
on “all”
“part
trial
be
or
of the issues”
point
further
ing
no
distinction
fact
(the issues).
between
and law
grounds for the
trial
may
new
motion
either
be
insufficiency
of fact
issues
such as
of the evidence or issues
“irregularity
of
proceedings
law such
in the
of
court,
jury
party,”
or adverse
of
“misconduct
the jury,”
“against
law,”
decision
“error
law occurring
at the
trial,”
grounds clearly
and others. These
indicate that issues
may
of
be
law
reexamined on a motion for a new trial.
Moreover it should be observed that
there may be a
proper
“trial”
and hence a situation
for a new
motion
trial
only
(See
where
issues
law are determined.
Berri
Court,
Superior
Cal.2d
As a
orderly procedure
matter of
there is no less
why
reason
trial court should
second chance
reexamine its
judgment where issues of
involved
fact are
than where issues
of law or law and fact are decided.
We
there
conclude
proper procedure
motion for
any
fore that a
a new trial is
judgments
mentioned in
group
the classes
the first
above cited whether
or
cases
is based
law
both, except possibly
judgments
fact or
case
default
agreement
judgments by
may
or confession where there
moving
question
right
party
any
of the
be the
to make
judgment.
support
to the
objection
The cases cited
4 in
group
in classes
3 and
the first
judgments
of cases
statements
disapproved as well as the
are
those cases
*7
an
to a
where there has
trial
case
a new
which limit
group
the
reached in
second
results
tried; the
issue of fact
in some of
cases
suggestions
There are
approved.
are
cases
after a demurrer is sustained
entered
judgment is
that where
appears to be no
but there
proper,
not be
trial should
a new
the first
situation and the others
that
difference between
group
of cases above cited.
judgment
the first
four classes
For illus
all
of law.
is one
determined
The issue
a
on
between
no difference
tration,
there is
they
demurrer;
sustaining of a
pleadings
one after
and
(Dragna White, 45
pleadings.
judgments on
are both
Mining
Beverage v.
Placer
Canton
Cal.2d
428]
that
hold, therefore,
We
Co.,
Defendants assert is insufficient because plaintiff’s attack is collateral and extrinsic fraud must be allegations pleaded;5 plaintiff’s that that no notice given was belief when they were on information and should have been appear direct; request that it does not that the for notice was prior application filed to set estate aside to defendant allegation that there is no widow; special that notice under sections and 1202 of the given Probate Code was not proceeding that court in the failed to finding amake as to giving special notice; that allegation there is no that appraisal of the estate was incorrect; no showing of a (refusal different result would have followed to set aside the except fraud) estate guilty 5 " procurement In the absence fraud superior an order of the pursuant assigning provisions court an preceding estate to the section, final, when it becomes is a conclusive determination jurisdiction (except of the court assumption when based on the erroneous death), collaterally (Prob. Code, cannot be 645.1.) attacked.” § *9 July, before waiting October, 1952, to by from 1951 laches probate plaintiff knew of the commencing her action because proceedings. clear, entirely not we is
While the amended
as
accepting
deciding defendants’ claims
that,
but not
believe
liberally construed
implicit
contentions,
law
in their
to the
Bank,
(Bennett
plaintiff’s favor as
be
v. Hibernia
it should
it
a
of action.
20])
states
cause
546
Cal.2d
[305
complaint and facts
quotation from the
From the
directly
by
plain
alleged
it
that
alleged
is
either
inference
application
setting aside the
knowledge
had
for
tiff
no
given
although
notice thereof
she knew
and was not
estate
proceedings
pending;
request
her
for
probate
were
that
the
application
special
given
hearing
before the
on the
notice was
widow;
the
to
that McMinn was
to set aside
estate
defendant
special
representing
given
court
to the
he had
fraudulent
give
purpose
for the
in his failure to
notice
en
notice and
by
from the
hancing
that would be received
estate
the amount
carry
misrepresented
to
out that fraud
widow and
defendant
plaintiff
result
did
court;
to
that as a
value of the estate
the
and,
$2,500,
the estate exceeded
proceedings
contest
it
not have
different,
is,
would
been
the result would have
from the amended
paragraph
com
set aside. While
allegation
with an
based
quoted
plaint heretofore
commences
necessarily follow that
it does hot
and belief
on information
reasonably
based; may
inter
it
be
paragraph
so
whole
leaving
clause,
first
the balance as
only to the
preted
apply
knowledge.
appears therefore that a
It
allegations
direct
a
point to fraudulent exclusion
would
construction
reasonable
application to set aside
hearing on the
from the
Dyson,
the estate. considering a for court was case where 1230], the A.L.R. probate pro given in no notice was reasons fraudulent who was not men of decedent ceeding granddaughter ato fraud, extrinsic held there was The court the will. tioned upon 324) case rests extrinsic “Respondent’s stating (p. : committed conduct alleged to have been Schaffer fraud of Adeline probate proceedings in the estate Potter ing the notify relationship to the deceased and disclosing her without complaint alleged proceedings. ing respondent probate petition time filed his that at the Schaffer grand will, respondent was the he knew Potter residing Angeles, Potter; that she Los daughter of Mrs. was California; and that bis failure to her disclose existence was purpose respondent for the her defrauding out of share of . estate. . . presents . . The case, therefore, situation where ac- cording findings of the trial court an executor, who practically beneficiary estate, sole kept an in ignorance heir of the death of her ancestor ‘with fraudu- design gain lent intent for himself a share of said ’ rightfully lawfully belonged estate which to such heir. . . . may is well equity
“It settled that afford relief from probate proceedings orders and decrees in for extrinsic fraud. *10 (Caldwell Taylor, 471, v. 218 Cal. 475 88 A.L.R. [23 appellant any But practiced insists that by fraud theory prin was intrinsic. Schaffer The of this contention is, cipally, that fraud to be practiced directly extrinsic be must upon the in such an . action. . .
“In the early case of Sohler, Sohler v. 135 Cal. 282, Am.St.Rep. 98], P. extrinsic fraud was said to [67 give legal ‘in the consist failure to notice to the adversary, prevention the of him or his attending witnesses from the trial, and the like.’ In Caldwell Taylor, supra, v. where the subject entire exhaustively was considered, the court said: requirement ‘The main to establish extrinsic fraud is that the party prevented unsuccessful was by adversary pre his from senting of all his case to examples the One of the court. given party is that of a prevented who is appearing from court.’ . . .
“However, it fraud prac- is difficult to see how could be upon present ticed directly rights more one entitled to his to a by keeping ignorance proceed- court than him in ings. It is true that in most cases extrinsic the fraud something person has directly defendant said to the whose rights amounting representations to were involved that it was necessary person any part pro- for such to take the ceedings. In cases, other to acts have been held amount to representations. allowing such But the rule the maintenance anof action in equity for extrinsic fraud should not limited be strictly so require representations as to as a basis evidence of directly made to the one defrauded.
“In this ease notice of hearing petitions the Schaffer’s required was upon to be served the heirs the testator either personally by or proponent mail. .. . as Schaffer the will in the duly first and qualified instance as the appointed executor thereof after it was admitted probate, to charged was deceased to heirs of the good faith the utmost with proceed duty that notice of his to see It was the court. to be heirs of Mrs. whom he knew given to those
ings was case of considered same situation was Potter. There Cal.App.2d 309 Woods, 17
Zaremba 976]. stating presented petition also of a will the executor that his claimed, here, It as it is left no heirs. the deceased not extrinsic fraud. amounted to intrinsic but representation allegation constituted extrinsic held that But the court ‘ however, demarcation, There a clear fraud, saying: line probate petition for the made between statement heirs, giving limit the of notices will which would were no such testimony in court the effect that there proceeding the heirs had been notified of heirs, after will, provided by sections probate of the the different ’ of the Probate Code. whether Schaffer, motive of been the may “Whatever found he agreement which court it was induced his acts son, hy reason, some other made with Mrs. Potter 's concerning respondent and suppressing all information *11 only of the de to he the son Purinton representing Thomas directly against practiced the re to fraud ceased, amounts judgment foundation for a They abundant spondent. furnish property a trustee for the which holding him to have heen respondent but which he distributed to have been should wrongfully (See Charters, Estate 46 Cal.2d received.” of Craney Low, v. 46 757 P.2d ; Cal.2d P.2d 227 [298 [293 778] supra, 540; Bank, Hibernia 47 Cal.2d Van 860]; v. Bennett 1].) Jones, 705, P.2d It should v. 46 Cal.2d 706 Strien [229 equitable attack plaintiff’s on order that set be observed than is a direct rather a collateral one. ting the estate aside Bank, supra, (Bennett 540, 558.) Cal.2d Hibernia 47 v. may upon ground an attack be made of
And, “Such appears it that there was a fraud where extrinsic willful willfully required or that false affi give the service failure attack has also were filed. . . . A direct been davits service equity in where there independent an action has allowed degree diligence required a to exercise the been failure personal with service [citations], in connection where by law fraud, negligence, were result of recitals service false person and where failure to name a [citation], or mistake party a was the result mistake These as cases [citation]. general principles accord with followed recent
are holding may of this court extrinsic mistake decisions 96 ground judgment by independent
be a for of a an vacation equity action in adversary where has no there fair trial. (Olivera Grace, 19 564, v. Cal.2d 578 P.2d 140 [122 ; Slaughter, 22 A.L.R. Hallett v. Cal.2d 1328] [140 3].) allegations P.2d bring are sufficient to the case principles. within these Hibernia knew of Curtin’s member ship, leaving successors, his death Mary’s and of address. Also, complaint seen, we have sufficient to show or, Hibernia either knew the exercise of reasonable dili gence, Mary could have discovered that was Curtin’s succes (Emphasis sor.” added; Bennett Bank, supra, v. Hibernia 540.) 47 Cal.2d urged
The other
matters
prob
defendants involve
lems of
clarification of the
might
amended
have
special
been raised on
demurrer but
judgment
here we
a
have
pleadings
on the
which
judgment
is the same as a
after sus
taining
general
(Beverage
demurrer.
v. Canton Placer
Mining Co., supra,
“The CouRT: are able to allegations alleged you Complaint, have a cause of *12 action, but I don’t think this is it.. pleadings
“The motion for on granted. is you, : Thank Your [defendants’ counsel] “Mr. TobiN Honor. [plaintiff’s
“Mr. Clifford : Is that with leave counsel] amend, to Honor? Your I you don’t see how can amend.
“The Court: can, I think we Your Honor. “Mr. Clifford: ‘ ‘ you propose : How do to amend ? The Court propose I to amend, by Your Honor, show- “Mr. Clifford: ing if Your apparently impressed that Honor was by the other that case, another result would be achieved had the Francisco, decree been made San and I can show, Your that—as a matter Honor, the other fact, case was com- pletely proof demonstrative of the that we have this case that a of action has stated; cause that was this extrinsic fraud. ‘‘ you may : I think have another cause of action Court entirely. I’d like to say, Honor, Your in that connec- “Mr. Tobin:
tion— granted, The motion is then, without leave “Mr. Clifford: to amend? Right.
“The Court: you.” “Mr. Tobin: Thank request clearcut a more for amendment could While assuming made, necessary, one was we think it have been clearly possibility is a (Lemoge sufficient and there reasonable County Mateo, 46 San Cal.2d 659 Electric v. P.2d [297 638]) going to claimed failure that matters to state a by have been cause of action could cured amendment. The Beverage Mining Co., statement in v. Canton Placer 43 Cal.2d pertinent: 694], “The facts stated in the [278 pleadings plaintiffs may good indicate that cause defectively imperfectly pleaded. action but it has been Defendants did not call to attention claimed these defects by duly either demurrer or noticed motion for judgment although they long pleadings, had known the condition pleadings preceding the trial. Under such conditions granted surprise should not have trial court motion, pleadings which attacked the for the first at time the time of trial, giving plaintiffs first without an opportunity to elect they whether would stand on pleadings their or amend them. give Defendants’ plaintiffs failure to notice [Citation.] pleadings
their prior intention attack the to the trial also plaintiffs go excuses the failure of to the trial armed with formal amendments to offer to the court in the event that the pleadings unexpectedly (MacIsaac are attacked. Pozzo, supra Cal.2d (161 449)].) . . . In addi justification tion is some there for the plaintiffs failure of formally move to amend. Defendants constantly took the position pleadings could not be amended to state a adopted cause of action. The trial court defendants’ view and *13 repeatedly complaint stated that the could not be so amended. plaintiffs this
Faced with attitude apparently were convinced, justified and assuming, were in that a formal offer to amend would futile.” Furthermore, the policy of section by analogy, be should, Civil Procedure6 of the Code of
472c applied. granting and a new trial vacating
The order judgment standing in the this leaves no is affirmed. Since is dismissed. case, appeal therefrom Spence, Traynor, J., J., Mc J., Shenk, J., Gibson, C. Comb, J., concurred. in Concurring Dissenting.—I concur
SCHAUER, J., opinion general in with the of Mr. and am accord judgment, plaintiff’s holds that first except as it Carter insofar Justice complaint present its form states cause action amended my In the most liberal view, extrinsic even con- fraud. relating appear which allegations to fraud struction of plaintiff’s amended not render those alle- first does action based gations sufficient to state a cause of on extrinsic fraud. complaint alleges, part, in material as amended
The first and believes and informed therefore “Plaintiff follows: McMinn on or about the 15th Marie Berdella alleges that said procured a fraudulently pur- decree October, day of estate of Thomas J. the whole Simmonds assigning portedly surviving the defendant Anna widow, Sim- to deceased, said defendant to obtain said decree in order monds; that fraudulently with intent to McMinn Marie Berdella greater obtain a interest and to Court said deceive represented described, to the Court hereinabove property real required by respects in all given had been Sec- that notice during time which said defend- Code Probate tion 1200 given had hot been to notice well knew ant alleged. request as hereinabove defend- her Said to pursuant fraudulently and with intent to deceive said further ant value of said estate did not exceed represented Court death; that defendant Anna of decedent’s the time $2,500 at decedent, possess not of said did other the widow Simmonds, $5,000 value; estate, and that entire in excess estate property described, hereinabove consisted including the real making that at the time of property; said fraudu- community sustaining any makes an order a demurrer without 6 "When court question such court its as whether not abused leave amend though open appeal making an such order is even no discretion made; provided, pleading however, request that this such amend any pending proceeding.” (Code apply to action or shall section Civ. 472c.) Proc., $ *14 lent representations, defendant well knew that said prop- real erty was community not property separate but property of decedent, possessed defendant Anna Simmonds property having a $7,500.” value excess of
The extrinsic
complained
fraud
alleged
of is the
failure
of the administratrix
notify plaintiff
McMinn to
pend
of the
ing proceeding to set aside the entire estate of the decedent
to
surviving
his
Any
widow.
representations
fraud
of
the administratrix as to the value and
prop
character of the
erty involved is intrinsic, and does
alleged
not affect the
denial
plaintiff
of
day
her
(See
court.
Stiebel v. Roberts
(1941),
The consideration general proposition states on and belief the information assigning estate surviving decree entire to the widow fraudulently procured. remaining clauses of that purport sentence to state the manner in which such fraud was representation by practiced, viz., defendant McMinn to required statutory the court that the notice had given, heen at a time McMinn knew that such when notice had in fact given. plaintiff positively not been If knew the facts which alleged fraud, then there would constituted he no need allege on information and belief that such fraud had been committed; conversely, alleges if on information and belief that fraud has been perpetrated, then it must follow succeeding allegations as to basis of the fraud are also made information and belief. While it is true that the paragraph mere fact that a of a commences with allegation an on information and belief necessarily does not require the paragraph conclusion that the entire based, so the sentence here under consideration an interpretation that applies the information and only belief basis to the first clause succeeding the sentence and not to the amplifying clauses proper. Certainly is neither reasonable nor pleader if the were perjury on trial for in her averments—and objec- the manifest requiring pleadings tive verified is the truthful definition real pain issues of fact on perjury—all quoted allegations would be only construed to be on information belief. questioned
It is that the acts attributed to the adminis- tratrix on the information and belief if basis, proven, would *15 the properly form could which extrinsic fraud
constitute complaint in its But plaintiff. to granting basis for relief fraud to extrinsic the issue of present fails to present form allege its fraud or not sufficient trier of fact. “[I]t upon the facts unless belief, upon information elements pleading.” are stated is founded which the belief 218, (1917), 174 Valley Water Cal. (Dowling Spring Co. v. Cal.App. Findley (1952), Garrett v. P. 894] No facts are stated 421].) 2d 166, 176-177 [3] [240 might properly be complaint a belief in the on which present required notice knew based that the administratrix it represented that time when she given had at the not been cases that “there must be given. had While it is true perpetrator must by knowledge the fraud its which the cases such charged belief, be on information . . . [still] positively allegations facts show there be which must knowledge must have been inference that such reasonable (Dowling person v. possessed by the accused of the fraud.” 221; Valley (1917), supra, 218, Water 174 Cal. Spring Co. added.) allegations to extrinsic fraud italics The relative suffi present their form without more cannot be considered charges (Mason allegations cient San-Val made. Co., (1934), 1 Cal.2d Oil & Water Ltd. 672 [2] [36 it foregoing From the discussion seems clear that the trial holding justified complaint did not court was here However, conceivably, plaintiff since, state a cause action. alleged constituting could facts a basis information rest, which conclusional fact of fraud could belief on allegations positive terms,1 of fraud in or could have stated the complaint granted. should leave to amend the have been appellants rehearing of defendants and for a petition was denied October 1957. trial, granting motion for new 1In court order of trial complaint. granted permission
plaintiff this In also file an amended allegations positively. fraud are stated amended