What is the test for a declaratory relief of Count Five in a personal injury action?

The count fails because, first, the trial judge found such relief not 'necessary or proper at this time.' Section 1061 of the Code of Civil Procedure, providing for declaratory relief, empowers the court to deny relief 'in any case where its declaration or determination is not necessary or proper at the time under all the circumstances.' Such denial 'is within the trial court's discretion and the court's discretion[171 Cal.App.2d 8] * * * will not be disturbed on appeal unless it be clearly shown that the discretion was abused.' Herrmann v. Fireman's Fund Ins. Co., 1954, 127 Cal.App.2d 560, 565-566, 274 P.2d 501, 505. Appellant makes no showing whatever as to any abuse of discretion.

Second, the failure of appellant to show that respondent controverted the stated claim amply supports the trial judge's conclusion that no 'particular dispute' is alleged. Confirmation of this position lies in the very citation of appellant: 2 Witkin California Procedure (1954) 449, p. 1431, which quotes Maguire v. Hibernia Sav. & Loan Soc., 1944, 23 Cal.2d 719, 146 P.2d 673, 151 A.L.R. 1062, to the effect that the complaint must allege an actual controversy.

Count Five attempts an impossible declaration of rights against an individual, not a party to the action, who is described as having made claims to some of the involved property because of a subsequent marriage to respondent. In addition to the defects already set out as to the previous declaratory relief of Count Four, the instant one suffers from the fatal flaw of seeking relief against one not served with process. People v. Broad, 1932, 216 Cal. 1, 12 P.2d 941.