Brewer v. Home Owners Auto Finance Co.

• Decision Date: 07 August 1970
• Citation: 10 Cal.App.3d 337,89 Cal.Rptr. 231
• Court: California Court of Appeals Court of Appeals
• Parties: Delamer J. BREWER and Alice M. Brewer, Plaintiffs and Respondents, v. HOME OWNERS AUTO FINANCE COMPANY, Defendant and Appellant. Civ. 35473.

Page 231

89 Cal.Rptr. 231

10 Cal.App.3d 337

Delamer J. BREWER and Alice M. Brewer, Plaintiffs and Respondents, v. HOME OWNERS AUTO FINANCE COMPANY, Defendant and Appellant.

Civ. 35473.

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

Aug. 7, 1970.

Richard L. Riemer, Santa Ana, for appellant.

Ingram, Baker & Uhler, Inc., by Rodney Alan Baker, Covina, for respondents.

ROTH, Presiding Justice.

Home Owners Auto Finance Company appeals from a summary judgment. Respondent's complaint for declaratory judgment and quiet title alleges that on May 18, 1965, respondents entered into a conditional sales contract (Security Agreement) with Louis Motor Sales for the purchase of a used 1964 Cadillac for the total purchase price of $4992.96, to be paid by respondents to Louis Motor Sales on May 25, 1965, seven days later. It is admitted the 'Security Agreement' entered into by respondents and by Louis Motor Sales was the type of conditional sales contract covered by the Rees-Levering Automobile Sales Finance Act (Civil Code, sections 2981--2984.3) and that it was in strict compliance with those civil code sections.

On May 18, 1965, the very day the Security Agreement was executed, it was assigned in writing by Louis Motor Sales to appellant. ¹ Two days later, on May 20, respondents and appellant amended the Security Agreement to provide for five-year financing and for a new balance of $8038.63. Concurrently with the execution of the amended Security Agreement, although not mentioned therein, appellant asked for and received from respondents a trust deed to a parcel of improved real property owned by respondents as further security for payment of the contract price on the automobile.

In 1967, respondents defaulted on the payments. The car was repossessed by appellant and sold for $2210.00, leaving a deficiency of $2,196.16.

Respondents brought this action to declare the trust deed void. Respondents' only declaration in support of its motion for summary judgment recites in pertinent part:

'That on or about May 18, 1965, Declarant and ALICE M. BREWER executed an agreement in writing entitled 'Security Agreement (Purchase Money): Motor Vehicle', an exact copy of which is attached hereto and made a part of this Declaration as Exhibit 'A'.

'That on or about May 20, 1965, Declarant and ALICE M. BREWER entered into an agreement in writing with HOME OWNERS AUTO FINANCE CO., an exact copy of which is attached hereto and made a part of this Declaration as Exhibit 'B'.

'That subsequently, Declarant and ALICE M. BREWER did, in response to demand of HOME OWNERS AUTO FINANCE COMPANY, execute a deed of trust dated May 20, 1965, to secure a conditional sales contract dated May 18, 1965, for a total contract balance of $8,038.63, which deed of trust was subsequently recorded with the Office of the Los Angeles County Recorder as Document No. 3926 in Book T4396 at page 64, an exact copy of which public record is attached to and made a part of this Declaration as Exhibit 'C'.'

Appellant filed no affidavit in opposition and denied none of the averments of respondents' affidavit.

The trial court granted the summary judgment holding 'that the transaction between buyer and seller-assignee, is one which philosophically and logically falls directly into the caldron of vicissitudes sought to be remedied by CC 2984.2, and must fall in a motion for summary judgment * * *.'

Civil Code, section 2984.2 provides 'No agreement in connection with a conditional sale of a motor vehicle for the inclusion of title to or a lien upon any personal or real property, other than the motor vehicle which is the subject matter of the conditional sale, * * * as security for payment of the contract balance, shall be enforceable. No agreement between a buyer and seller in connection with a sale of a motor vehicle which provides for the inclusion of title to or a lien upon any personal or real property, other than the motor vehicle which is the subject matter of the sale * * * as security for payment of the contract balance, shall be enforceable. This section shall not apply to any agreement which meets the requirements of section 2982.5 and otherwise complies with this chapter.' ²

Appellant contends that summary judgment was improperly granted because there was a triable issue of fact. The first paragraph of the trial court's memorandum decision states: 'The present matter is made difficult for the reason that the amended declaration of plaintiff failed to state whether or not he discussed the matter of the assignment with the auto salesman at the time of the first transaction * * * Leaving the possibility of a perfectly separate and distinct transaction on the part of defendant corporation without knowledge of the first transaction.' (Emphasis added.)

The law is clear that summary judgment is proper only if there be no triable issue of fact.

Summary judgment procedure may be used as a 'substitute for the open trial * * *,' (Stationers Corp. v. Dun & Bradstreet, Inc., 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 398 P.2d 785) but such a judgment may be granted only if facts set forth in the declarations (or affidavits) of the moving party (R. D. Reeder Lathing Co. v. Allen, 66 Cal.2d 373--377, 57 Cal.Rptr. 841, 425 P.2d 785) those of which the court may take judicial notice and those which are stipulated (Ahmanson Bank & Trust Co. v. Tepper, 269 Cal.App.2d 333, 342, 74 Cal.Rptr. 774; Martin v. General Finance Co., 239 Cal.App.2d 438, 442, 48 Cal.Rptr. 773; Goldstein v. Hoffman, 213 Cal.App.2d 803, 814, 29 Cal.Rptr. 334; Thomson v. Honer, 179 Cal.App.2d 197, 203, 3 Cal.Rptr. 791) are sufficient to sustain a judgment when the declarations of the opposing party do not show facts sufficient to raise a triable issue of fact. In addition although a moving party...