Baron v. Mare

• Decision Date: 17 April 1975
• Citation: 120 Cal.Rptr. 675,47 Cal.App.3d 304
• Court: California Court of Appeals Court of Appeals
• Parties: Hal BARON, Plaintiff and Respondent, v. Raymond R. SARLOT, erroneously sued herein as Ray Sarlot, and Rasco Mare,Inc., a California corporation, erroneously sued herein as Roscomare, Inc.,Defendants and Appellants. * Civ. 44021.

Page 675

120 Cal.Rptr. 675

47 Cal.App.3d 304

Hal BARON, Plaintiff and Respondent, v. Raymond R. SARLOT, erroneously sued herein as Ray Sarlot, and Rasco Mare,Inc., a California corporation, erroneously sued herein as Roscomare, Inc.,Defendants and Appellants. ^*

Civ. 44021.

Court of Appeal, Second District, Division 2, California.

April 17, 1975.

Yanover & Kreshek and Lawrence J. Yanover, Beverly Hills, for defendant and appellant Rasco Mare, Inc.

No appearance for plaintiff and respondent.

BEACH, Associate Justice.

NATURE OF CASE:

Appellant Rasco Mare (sued as Rascomare) appeals from a summary judgment granted in favor of respondent and against appellant in an action brought on a written contract for attorneys' fees. Ray Sarlot, one of the named defendants in the action, is not a party to this appeal.

BACKGROUND:

Appellant employed respondent, an attorney, to represent it with reference to a zoning matter being considered by the City of Los Angeles. The written agreement is on a letterhead form of respondent and in part pertinent hereto reads as follows:

'Dated: Feb. 5, 1973

'Re: Zoning at 2385 Roscomare

'Dear Sir:

'You are hereby retained as attorney to represent the undersigned in connection with the above-reference matter.

'I agree to pay attorney an advance retainer of $3500.00 to be deducted from a fee computed as follows: Total fee of $10,000 with $3500 down and balance of $6500 Contingent on zoning to RD1.5. . . . (Emphasis added.)

'If legal proceedings are instituted for collection of aforesaid fees, client shall pay costs and an additional reasonable attorney's fee. All fees shall be paid within 30 days of presentation, and Are not contingent upon the outcome of this matter.' (Emphasis added.)

This was the wording of the contract on February 5, 1973. However, on February 27 during a hearing of this matter, respondent changed the wording on the form by striking the designation 'RD1.5' and inserting therein 'RD2' and defendant Sarlot on behalf of appellant initialled the change. ¹ After the hearing the property was zoned RD2 and thereupon respondent billed appellant for the $6,500. Appellant did not pay and respondent sued. Respondent's complaint alleged the execution of the written contract between respondent and appellant, and the non-payment of the $6,500. The answer of respondent did not deny the execution of the written contract as amended and did not deny that the $6,500 was not paid, but denied that the $6,500 was due. By way of affirmative defense, appellant alleged that the contract was amended under circumstances which appellant alleged were coercive, oppressive and wrongful, and that it received no consideration for making of the amendment to the contract and also alleged a complete failure of consideration. Respondent moved for and obtained a summary judgment.

APPELLANT'S CONTENTIONS:

Appellant contends:

1. The declaration of respondent in support of his motion for summary judgment is defective in form and is insufficient in content to support a summary judgment.

2. There is a triable issue of a material fact presented by the pleadings as well as by the declarations filed in connection with the motion for summary judgment.

DISCUSSION:

We agree with appellant and we reverse the judgment.

1. The formalities of the declaration.

The purpose and reason for the summary judgment statute are to protect the rights of the plaintiff from the harassing delays that ordinarily accompany evasive, spurious and meritless defenses (Buffalo Arms, Inc. v. Remler Co., 179 Cal.App.2d 700, 4 Cal.Rptr. 103), and to expedite litigation by avoiding needless trials (Cone v. Union Oil Co., 129 Cal.App.2d 558, 277 P.2d 464).

In attempting to achieve the purpose of the statute, formalities required by other parts of the law cannot be ignored. The formalities required of an affidavit or declaration are lacking in respondent's declaration. (Code Civ.Proc. § 2015.5.) It should not have been considered by the trial court. The declaration is undated and it does not indicate where it was executed. ² Additionally, respondent in his declaration under penalty of perjury declares only that all of the facts stated are within his personal knowledge. This does not suffice. The respondent does not comply with the statute and declare that the facts set forth in his declaration are true.

2. Sufficiency of the declaration:

Plaintiff possibly may again move for summary judgment with an amended declaration formally sufficient. Therefore, we deem it appropriate to consider the substantive matters set forth in the present declarations of respondent and appellant. ³ The declaration is substantively insufficient to support the grant of a summary judgment. At the time of the motion the procedure therefor was set forth in former Code of Civil Procedure section 437c. There is no need to here repeat the interpretive language of the authorities and many cases explaining the tests to use in examining the declarations in support of and in opposition to the motion. (See for a general discussion 4 Witkin, Cal.Procedure (2nd ed.) § 173, p. 2825, et seq., and especially § 180, p. 2834 et seq. and § 188, p. 2837; Eagle Oil & Ref. Co. v. Prentice, 19 Cal.2d 553, 122 P.2d 264; Coyne v. Krempels, 36 Cal.2d 257, 223 P.2d 244. See also comprehensive gathering of cases in Vol. 14A, West's Anno.Calif.Codes, Code of Civ.Proc. § 437c, p. 441 et seq. arranged for location of cases dealing with particular aspects.) It will suffice here to recall that upon motion for summary judgment a good test question is: 'Do the declarations ⁴ of the parties, together with reasonable inferences therefrom, resolve all the material factual disputes that seemed to be present under the pleadings?'

Here the declarations on behalf of the parties (ignoring mere conclusions and expressions of their subjective states of minds) established these facts: A written (although somewhat ambiguous) contract was executed by the parties on February 5, 1973. Later the contract was amended to provide for payment of $6,500 'contingent on zoning RD2' instead of 'contingent on zoning RD1.5.' Appellant's agent (Sarlot) did not truly agree to the change but signed the change 'to avoid a scene' in public. The Planning Commission was going to recommend the RD2 zone and so informed appellant prior to the appearance of the attorney and prior to the modification of the contract. The respondent (attorney) was late to the hearing and presumably, therefore, did not provide or render all services originally agreed to be rendered by him.

Ordinarily such case indicates little existence of any valid defenses, and a proper case for granting summary judgment. Initially, this appears to be simply a case of appellant unnecessarily agreeing to a modification of a contract simply because he was urged by the other party. The reason given by appellant for its agreeing to the change of the contract (i.e., to avoid a fuss or scene at the public meeting) does not raise what is ordinarily regarded as a sufficient and satisfactory defense. Unwise contracts are not necessarily illegal or without consideration. Foolishness is not ordinarily a justification for relief by a court. However, in our view this is not a case of two ordinary individuals entering into an agreement or bargain governed by principles applicable to horse traders. The parties here are an attorney and his client. The contract is for the providing of services by the lawyer. Appellant's declaration shows facts which, when applied to the case of a lawyer making a fee contract with his client, demonstrate the existence of serious fact questions, which should be clearly resolved before a court grants recovery. Moreover, the contract even as amended was still ambiguous. In one sentence payment was contingent on certain zoning. In another sentence payment was not contingent.

Appellant's affirmative defense supported by its declaration, which we liberally construe, charges that respondent did nothing by way of accomplishing the particular change of zoning for which he was originally hired, and that respondent persuaded appellant to agree to pay him an additional $6,500 without consideration. The Planning Commission had already indicated it would recommend an RD2 zone change. This was not the result of any effort on the part of the attorney, respondent. The agreeing to change the condition upon which appellant would pay $6,500 to respondent, from that of obtaining an RD1.5 zoning (which would in effect require additional work by respondent) to the obtaining of zoning at RD2, which was an accomplished fact and for which respondent exerted no effort and appellant received nothing further, was an agreement without consideration. Respondent's declaration in opposition to these asserted facts is not sufficient to eliminate them as triable fact questions. Respondent stated:

'3. Under the terms of the contract, Defendant, RAY SARLOT, retained my legal services for a total fee of $10,000.00. Defendant was to pay $3,500.00 down and the balance, $6,500.00, to be contingent on the rezoning of Defendant's property to RD1.5

'4. When, in my professional opinion, it became apparent that the City Council and the residents of the area would enforce a rollback of the property to RD3, I suggested to the Defendant that it would be in his best interest to have me use my professional knowledge and skill toward trying to zone the property to RD2. Defendant accepted my advice, and accordingly did initial this modification in the contract. If said rollback had been successful, Defendant would have been able to construct only 43 dwelling units which Defendant claimed was economically unfeasible. Under the zone change which Plaintiff obtained for Defendant, he can now develop his property with 66 dwelling units.

'5. Through my efforts and skill in persuading the City Council to permit the Defendant to develop his property in a manner economically feasible and...