42 Cal.App.3d 769, 43048, Sherman v. Mertz Enterprises

Docket Nº:43048
Citation:42 Cal.App.3d 769, 117 Cal.Rptr. 188
Opinion Judge:[10] Hanson
Party Name:Sherman v. Mertz Enterprises
Attorney:[7] Anton Dumhart for Plaintiffs and Appellants. [8] Ruffo, Ferrari & McNeil, Thomas P. O'Donnell, Frank Heller and Richard S. Weiner for Defendants and Respondents.
Case Date:October 16, 1974
Court:California Court of Appeals

Page 769

42 Cal.App.3d 769

117 Cal.Rptr. 188

Robert SHERMAN, doing business as Howard's Trailer Sales, et al., Plaintiffs and Appellants,


MERTZ ENTERPRISES, a California corporation, doing business as San Rafael Mobile Home Estates, et al., Defendants and Respondents.

Civ. 43048.

California Court of Appeal, Second District, First Division

Oct. 16, 1974.

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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Anton Dumhart, West Minster, for plaintiffs and appellants.

Ruffo, Ferrari & McNeil, and Thomas P. O'Donnell, San Jose, for defendant and respondent Mertz Enterprises.

Frank Heller and Richard S. Weiner, Los Angeles, for defendants and respondents Moore's Mobile Home Mart, Les Spurlock and Sunrise County Mobile Homes.

HANSON, Associate Justice.


Plaintiff Robert Sherman, doing business as Howard's Trailer Sales and Bob's Trailer Sales, along with one Doug Jobson (hereinafter referred to as plaintiffs) sought an injunction and damages for unfair competition and restraint of trade against Mertz Enterprises, doing business as San Rafael Mobile Home Estates, Moore's Mobile Home Mart (hereinafter sometimes referred to as defendants), and other mobile home sales companies.

Plaintiffs filed their complaint in the Los Angeles superior court on February 21, 1973, and the application for order to show cause and preliminary injunction came on for hearing and was denied on March 6, 1973.

On March 22, 1973, defendants filed a demurrer to the complaint with supporting points and authorities, along with a motion to strike or, in the alternative, a motion for summary judgment. After consolidating all the defendants' motions, the court below, on April 6, 1973, granted their motions for summary judgment and sustained the demurrers without leave to amend.

Plaintiffs appeal from the granting of the motions for summary judgment and the demurrers.

Page 773


Defendant and respondent Mertz Enterprises is the owner and developer of a mobile home park. On or about January 15, 1973, it entered into a written agreement with co-defendants Moore's Mobile Home Mart (Moore's), Sunrise County Mobile Homes (Sunrise) and S.W. Mobile Homes Sales (S. W. Mobile), who are all retail dealers of mobile homes. The purpose of the agreement was to provide a location at which Sunrise, Moore's and S.W. Mobile could conduct their sales activities and provide lot accommodations for their customers.

In accordance with the agreement, Mertz Enterprises then notified plaintiffs and other mobile home dealers that the San Rafael Mobile Home Estates park was leased full as of January 25, 1973.

On or about January 25, 1973, Moore's, by letter, advised other various mobile home dealers that although they had completely rented San Rafael Mobile Home Estates, they would be willing to provide spaces for customers of other mobile home dealers for a set-up fee of approximately $2500 if plaintiffs and others desired to place a mobile home on defendant's park.

The mobile home dealer defendants state that the set-up fee was necessary because they had received more than 40 complaints, out of 195 mobile homes in the park, which had been submitted to the Contractors License Board, and that in the future to insure high service standards, a set-up charge would be made to service and guarantee a coach for one year.


Plaintiffs contend that defendants have conspired to restrain trade and commerce with the malicious and oppressive intent to deprive plaintiffs and prospective mobile home purchasers of the right to free and unrestricted competition for the general mobile home sales business.

Plaintiffs' first legal contention is that the contracts and arrangements entered into between the defendants have been declared unlawful per se. This contention is based on plaintiffs' interpretation of the Cartwright Act (Bus. & Prof.Code, § 16700 et seq., which is patterned on the Sherman Anti-Trust Act).

Plaintiffs' second legal contention is that the motions for summary judgment should have been denied on plaintiffs' general allegations that defendants conspired together for the purpose of restraining competition, even in

Page 774

the absence of a finding that the agreement constituted a 'per se illegal tying arrangement.'


A summarization of the rules governing summary judgment procedure (Code Civ.Proc., § 437c) was set out in the case of Corwin v. Los Angeles Newspaper Service Bureau, Inc., 4 Cal.3d 842, 94 Cal.Rptr. 785, where the court stated at pages 851--852, 94 Cal.Rptr. at page 790, 484 P.2d at page 958: '. . . 'The matter to be determined by the trial court in considering such a motion is whether the defendant (or plaintiff) has presented any facts which give rise to a triable issue. The court may not pass upon the issue itself. Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue. The aim of the procedure is to discover, through the media of affidavits, whether the parties possess evidence requiring the weighing procedures of a trial. In examining the sufficiency of affidavits filed in connection with the motion, the affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion. Such summary procedure is drastic and should be used with caution so that it does not become a substitute for the open trial method of determining facts.' (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 452, 788; see Joslin v. Marin Mun. Water Dist. (1967) 67...

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