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On March 23, 1965, respondent gave notice of her intention to move for reconsideration of the denial of her previous motion to consolidate which had been denied on January 6, 1965. The order included the statement "It is stipulated that there is a counterclaim arising from a small claims action for $150 by defendant against plaintiff." The order set the trial date for March 29, 1965. On January 22, 1965, a pretrial conference order was filed and signed. Respective counsel each certified to the necessary conditions precedent. Pretrial conference was held on January 12, 1965. It was heard and denied on January 6, 1965. The motion to continue for this purpose was granted.
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On December 16 respondent moved to continue the pretrial conference to permit a motion for consolidation. Respondent's counsel had refused to sign because he intended to move to consolidate the action at bench with the companion case.
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On December 10, 1964, a Certificate of Readiness was filed, signed only by counsel for appellant. The small claims action was not set out in the answer to the amended complaint by way of affirmative defense or counterclaim, nor was it the subject of a cross-complaint.ĭepositions of both parties were taken during the months of October and November 1963. The fourth affirmative defense avers that respondent could obtain a refund from the state if she filed an amended tax return and the fifth elaborated on a written agreement between respondent and her husband to file a joint return. Appellant answered the amended complaint and pleaded five affirmative defenses, the first three of which embody the substance of the four pleaded to the original complaint. On October 11, 1963, with leave of the court, respondent filed a first amended complaint in the action at bench adding a fourth cause of action alleging that by reason of false and fraudulent statements of appellant, respondent paid excessive federal and California income taxes. One cause of action in the companion case alleges a conspiracy with reference to the filing of respondent's income tax returns for the tax year 1961. Hehr and appellant alleging fraud and conspiracy to deprive her of her community property (herein called "companion case"). On August 2, 1963, respondent filed a separate action in superior court against her ex-husband, Elmer T. The claim for $150 was not pleaded in the answer as an affirmative defense nor was it set up by way of counterclaim in the answer, or asserted by way of cross-complaint.
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The answer, in addition, pleaded four affirmative defenses. On August 1, 1963, appellant answered respondent's complaint, denying generally and specifically its allegations. Respondent, making the averments required and in accordance with Code of Civil Procedure, section 117r, filed an affidavit with the small claims court together with a copy of her superior court complaint and caused appellant's small claims action against her to be transferred to the superior court. The gist of all counts in the superior court complaint is that appellant improperly prepared and filed respondent's 1961 federal income tax return as a joint return with respondent's ex-husband instead of separately for respondent, thereby causing respondent to pay taxes for which she was not responsible. On July 8, 1963, after the small claims action had been on file, respondent complained against appellant in superior court alleging malpractice and fraud in three counts. Hehr, respondent and plaintiff in the superior court action at bench, claimed $150 for professional services rendered prior to July 8, 1963. Swendseid, an accountant, defendant in the action at bench, as plaintiff in a small claims action against defendant Dolores Y. Martin for Plaintiff and Respondent.Īppellant Russell T. Simon & Leanse, Spray Gould & Bowers, Scott Simon and Henry E.