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Cassidy v. Gaiser5/3/2005
declaratory relief action. They assert the litigation privilege does not provide immunity from this action. Although there was no cause of action labeled declaratory relief, plaintiffs contend the allegations of the complaint as to the differing views of the validity of the disclaimer and the prayer for relief asking for a determination that the disclaimer is invalid and legally ineffective are sufficient to state a cause of action for declaratory relief. Plaintiffs raised this point in their motion to vacate the judgment. Sharon has ignored the contention both in opposition to the motion to vacate and on appeal.
Assuming, without deciding, that plaintiffs sufficiently pled a cause of action for declaratory relief, we find the trial court did not err in granting Sharon's motion for summary judgment. "Generally, an action in declaratory relief will not lie to determine an issue which can be determined in the underlying tort action." (California Ins. Guarantee Assn. v. Superior Court (1991) 231 Cal.App.3d 1617, 1623.) The validity of the disclaimer is relevant only as it relates to the proper ownership and possession of the West El Campo property. These issues are fully engaged in the other causes of action, in particular the wrongful eviction cause of action. "Because they were, declaratory relief was unnecessary and superfluous. [Citations.] `The declaratory relief statute should not be used for the purpose of anticipating and determining an issue which can be determined in the main action. The object of the statute is to afford a new form of relief where needed and not to furnish a litigant with a second cause of action for the determination of identical issues.' [Citations.]" (Hood v. Superior Court (1995) 33 Cal.App.4th 319, 324.)
The trial court did not err in granting Sharon summary judgment.
II.
Plaintiffs contend the trial court erred in denying their motion for leave to amend the complaint to add a cause of action for wrongful death. They assert the statute of limitations did not bar the wrongful death action because equitable tolling should apply. They offer two bases for application of equitable tolling: their attempt to litigate this issue in the probate proceedings and Timothy's active steps to conceal the facts of Harry's death.
Sharon contends this issue is not properly before the court because plaintiffs failed to appeal from the order denying leave to amend. An order denying leave to amend is not an appealable order and appeal may be taken only from the final judgment. (Randall v. Beber (1950) 101 Cal.App.2d 179, 181.) Plaintiffs appealed from the final judgment, so the ruling on the motion for leave to amend is properly before this court.
On February 11, 2002, plaintiffs filed a motion for leave to amend their complaint to add seven new causes of action. On appeal, they address their contention only to the wrongful death cause of action. They proposed to assert a claim against Timothy, James, and Sharon for the wrongful death of Harry on January 19, 2000. They claimed the new causes of action arose out of the same facts that formed the basis for the original complaint or were implicated by affirmative defenses raised by Timothy in his answer. The trial court denied the motion, finding the wrongful death claim was barred by the one-year statute of limitations of Code of Civil Procedure section 340.3. As plaintiffs did not raise equitable tolling in this motion, they have not shown any error by the trial court in this ruling.
Almost one year later, in January 2003, plaintiffs renewed their motion for leave to amend the complaint, claiming new or different facts, circumstances, and law under Code of Civil Procedu
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