Watson

I concur in the affirmance of the judgment of dismissal and the reversal of the order which vacated and set aside the dismissal. I disagree with the conclusion that the question is jurisdictional. I believe that the entertainment of a suit for declaratory relief is a matter within the discretion of the court (Code Civ. Proc., § 1061), 1 and that it was no abuse of discretion to refuse to entertain a suit for declaratory relief under the circumstances alleged in the complaint. The trial court properly so ruled in upholding the demurrer. The plaintiff has not attempted to amend his original cause of action, but merely attempted to buttress it by the addition of a new second cause of action for deceit. Since the court had properly refused to entertain the declaratory relief action, and judgment had been entered on that ruling, there was no warrant for reopening the proceedings for a new cause of action, and the court erred in doing so.

With all due respect to the learned writer of the opinion in Bachis v. State Farm Mutual Auto. Ins. Co. (1968) 265 Cal.App.2d 722 [ 71 Cal.Rptr. 486 ], I do not believe a superseded opinion and dictum in Brix v. Peoples Mut. Life Ins. Co. (1935) 2…

Vincent C. Sansone, defendant below, appeals from an order of the superior court, made pursuant to Code of Civil Procedure section 473, setting aside a judgment of dismissal. Plaintiff Frederick E. Watson has cross-appealed from the judgment of dismissal.

The appeals arise out of an action for declaratory relief commenced in San Francisco by plaintiff Watson under the provisions of Code of Civil Procedure sections 1060-1062a, on April 14, 1967. As relevant here the complaint alleges the following.

Plaintiff Watson is an attorney at law, practicing in San Francisco. Defendant Sansone is a physician and surgeon practicing in Eureka, California. A personal injury client of plaintiff, living in Eureka, had been treated or examined by Dr. Sansone. Plaintiff wrote the doctor requesting *3 him “to send a written report concerning the medical status and future prognosis” of his client. A few days later plaintiff received a registered package from Dr. Sansone, together with a bill for $514. Considering the bill excessive plaintiff returned, without opening, the package, and sent a letter of protest to the doctor. Thereafter Dr. Sansone’s attorney in Eureka wrote to plaintiff…

Vincent C. Sansone, defendant below, appeals from an order of the superior court, made pursuant to Code of Civil Procedure section 473, setting aside a judgment of dismissal. Plaintiff Frederick E. Watson has cross-appealed from the judgment of dismissal.

The appeals arise out of an action for declaratory relief commenced in San Francisco by plaintiff Watson under the provisions of Code of Civil Procedure sections 1060-1062a, on April 14, 1967. As relevant here the complaint alleges the following.

Plaintiff Watson is an attorney at law, practicing in San Francisco. Defendant Sansone is a physician and surgeon practicing in Eureka, California. A personal injury client of plaintiff, living in Eureka, had been treated or examined by Dr. Sansone. Plaintiff wrote the doctor requesting him "to send a written report concerning the medical status and future prognosis" of his client. A few days later plaintiff received a registered package from Dr. Sansone, together with a bill for $514. Considering the bill excessive plaintiff returned, without opening, the package, and sent a letter of protest to the doctor. Thereafter Dr. Sansone's attorney in Eureka wrote to…