Artucovich v. Arizmendiz

• Decision Date: 20 November 1967
• Citation: 256 Cal.App.2d 130,63 Cal.Rptr. 810
• Court: California Court of Appeals Court of Appeals
• Parties: Juan ARTUCOVICH, Plaintiff and Appellant, v. Michael ARIZMENDIZ and Cecilia Arizmendiz, Defendants and Respondents. Civ. 31482.

Page 810

63 Cal.Rptr. 810

256 Cal.App.2d 130

Juan ARTUCOVICH, Plaintiff and Appellant, v. Michael ARIZMENDIZ and Cecilia Arizmendiz, Defendants and Respondents.

Civ. 31482.

Court of Appeal, Second District, Division 4, California.

Nov. 20, 1967.

Hall, Moore & Olson and Joseph E. Hall, Los Angeles, for plaintiff and appellant.

Clausen, Gilliland & Fernandes and Charles E. Finney, Placerville, for defendants and respondents.

BISHOP, Associate Justice. ^*

We are interpreting plaintiff's Notice of Appeal as effecting an appeal from the Summary Judgment filed and entered November 23, 1965, after the trial court had made an order granting defendant Michael Arizmendiz' motion for such a judgment. The notice of appeal, addressed to defendant 'Michael Arizmendiz, et al., and to Clausen & Gilliland, his attorneys,' bids them take notice that he 'hereby intends to appeal from Order of Summary Judgment * * *.' Had he appealed from the order And from the judgment, we would doubtless dismiss the appeal from the order on the authority of Integral Land Corporation v. Anderson (1944) 62 Cal.App.2d 770, 145 P.2d 364; Chilson v. P.G. Industries (1959) 174 Cal.App.2d 613, 616, 344 P.2d 868, 870; Sinks v. Merrill (1963) 222 Cal.App.2d 200, 205, 35 Cal.Rptr. 113, 116; and Saunders v. New Capital for Small Businesses Inc. (1964) 231 Cal.App.2d 324, 326, 41 Cal.Rptr. 703, 705. But, although technically, the order is not appealable in those cases where the appeal is only from the order but where there is a judgment to which it may be applied, that course is followed and the appeal is honored as one taken from the judgment (in obedience to Rule 1 of Rules on Appeal, admonishing that 'A notice of appeal shall be liberally construed in favor of its sufficiency.' (Helfer v. Hubert (1962) 208 Cal.App.2d 22, 24--25, 24 Cal.Rptr. 900, 901.)

Turning now, not to but toward, the merits of the appeal, we note that the present action is one by Juan Artucovich to recover damages in the sum of $20,000.00 because of injuries arising out of a collision between the vehicle in which the plaintiff was an occupant and one owned by defendant Michael Arizmendiz which was being driven negligently under conditions that imposed liability for the accident on him. In his answer, Michael, as we shall identify the defendant-appellant, admitted that at the time of the accident his vehicle was being operated by Cecilia Arizmendiz (to be referred to as Cecilia). By way of a second and separate defense, Michael alleged that Cecilia had brought an action, naming our present plaintiff as a defendant, to recover damages for the injuries she had sustained in the collision upon which this suit was brought. Further, with respect to Cecilia's suit, Michael alleged in his answer that our plaintiff, there a defendant, neither counterclaimed nor filed a cross-complaint, but obtained a dismissal of the action, with prejudice, 'in exchange for a valuable consideration moving from' our plaintiff to Cecilia.

We interrupt our progress to our discussion of the merits of this appeal to state that the pleading, just reviewed, alleged the two facts that ultimately stand between the plaintiff and success: (1) his failure to avail himself of the opportunity his position as defendant in the action brought by Cecilia, gave him to present his cause of action against her; and (2) the dismissal of that action, with prejudice, for a consideration to its plaintiff. We call attention to these two facts now to emphasize the futility of the two declarations about to be considered, the one offered in support of the motion for a summary judgment, the other in opposition.

On our way again to the heart of this appeal, we have the motion of Michael for a summary judgment. This motion was to be based on the declaration of Cecilia 'and upon the pleadings and papers on file herein and upon the records of this court * * *' Cecilia's declaration approaches but falls short of establishing one of the two facts that we find important. She refers to the collision in which she was driving her husband's car (without identifying him as the defendant in this case) and our plaintiff was driving the other. She tells us that five days later her attorney 'instituted legal action' against our plaintiff. She makes no mention of plaintiff's failure to counterclaim, and with respect to the dismissal, avers 'I received a settlement in the amount of $500.00 which was paid to me on behalf of' our plaintiff and then 'Because of this payment my attorney was instructed to discontinue and dismiss the lawsuit which was instituted on my behalf against Mr. Artucovich' (our plaintiff). Was the lawsuit dismissed or discontinued? The declaration leaves us uninformed.

The declaration in opposition to the motion to dismiss is that of the attorney for plaintiff-appellant. His brief on appeal is based almost exclusively on the 'facts' it contains. As a declaration offered in opposition to a motion for a summary judgment, it utterly fails to comply with the requirement of section 437c, Code of Civil Procedure: 'The facts stated in each affidavit shall be within the personal knowledge of the affiant, * * * and each affidavit shall show forth affirmatively that the affiant, if sworn as a witness, can testify competently thereto.' The declaration consists in statements allegedly told the declarant by our plaintiff-appellant respecting the settlement made by his insurance company, without his consent or consultation. No mention, again, about his failure to counterclaim and no pertinent fact known to the declarant.

We would quickly reverse the summary judgment, and thereby do the defendant an injustice, but for the saving circumstances that the facts needed...