Buffalo Arms, Inc. v. Remler Co.

Decision Date13 April 1960
Docket NumberNo. 18517,18517
Citation4 Cal.Rptr. 103,179 Cal.App.2d 700
PartiesBUFFALO ARMS, INC., a corporation, transacting business under the firm name and style of Wales-Strippit Company, Plaintiff, Cross-Defendant and Respondent, v. REMLER COMPANY, a corporation, Defendant, Cross-Complainant and Appellant.
CourtCalifornia Court of Appeals Court of Appeals

Cooley, Crowley, Gaither, Godward, Castro & Huddleson, San Francisco, for appellant.

Mueller & McLeod, San Francisco, for respondent.

DUNIWAY, Justice.

Defendant appeals from a summary judgment. It asserts that its affidavits show certain triable issues of fact, and that therefore the court should not have granted the judgment. We find that the court correctly determined that there was no triable issue of fact, but hold that the judgment should be modified in one respect.

Code of Civil Procedure, section 437c, requires that in the affidavit(s) on motion for summary judgment 'the facts * * * shall be set forth with particularity * * *.' This section has been on the books since 1933, although its availability in various types of actions has been widened in the intervening years. It 'provides a method by which * * * the court may determine whether the triable issues apparently raised by * * * [the pleadings] are real or merely the product of adept pleading. The question therefore is * * * whether * * * [defendant] can show that the answer is not an attempt 'to use formal pleadings as means to delay the recovery of just demands.'' Coyne v. Krempels, 36 Cal.2d 257, 262, 223 P.2d 244, 247. It has been said that the statute was 'designed to protect the rights of the plaintiff * * * from the harassing delays that ordinarily accompany evasive, spurious, and meritless defenses. It likewise promotes and protects the administration of justice * * *.' Bank of America National Trust & Savings Ass'n v. Oil Well Supply Co., 12 Cal.App.2d 265, 270, 55 P.2d 885, 888. 'The obvious purpose * * * is to expedite litigation by avoiding needless trials.' Cone v. Union Oil Co., 129 Cal.App.2d 558, 562, 277 P.2d 464, 467.

Of course this does not mean that a motion for a summary judgment is a substitute for a trial. Its purpose is to discover whether there is anything to try--'issue finding,' not 'issue determination.' Walsh v. Walsh, 18 Cal.2d 439, 441, 116 P.2d 62. It anticipated by 25 years the discovery sections recently added to the Code of Civil Procedure, sections 2016-2035. Their addition to our law should make the summary judgment procedure more useful than it has been heretofore. When discovery, properly used, makes it 'perfectly plain that there is no substantial issue to be tried' (Walsh v. Walsh, supra, 18 Cal.2d at page 442, 116 P.2d at page 62), section 473c, Code of Civil Procedure, is available for prompt disposition of the case. In the present case, the plaintiff properly relies in part on defendant's sworn answers to plaintiff's requests for admissions, under Code of Civil Procedure, section 2033.

Because summary judgment procedure is not a substitute for a trial, our Supreme Court has held that it is drastic and to be used with caution, that the facts stated in the affidavits opposing the motion must be accepted as true, that such affidavits must be liberally construed and need not necessarily be composed wholly of strictly evidentiary facts, and that those of the moving party must be strictly construed. Walsh v. Walsh, supra, 18 Cal.2d 439, 441-442, 116 P.2d 62; Eagle Oil & Refining Co. v. Prentice, 19 Cal.2d 553, 555-556, 122 P.2d 264; Hardy v. Hardy, 23 Cal.2d 244, 143 P.2d 701; Arnold v. Hibernia Savings & Loan Soc., 23 Cal.2d 741, 146 P.2d 684; Gardner v. Johnathan Club, 35 Cal.2d 343, 347, 217 P.2d 961; Coyne v. Krempels, supra, 36 Cal.2d 257, 260-261, 263-264, 223 P.2d 244; California Lettuce Growers v. Union Sugar Co., 45 Cal.2d 474, 483, 289 P.2d 785, 49 A.L.R.2d 496; Desny v. Wilde, 46 Cal.2d 715, 725-726, 299 P.2d 257. These rules, heavily relied upon by defendant here, do not require us either to disregard facts stated in the plaintiff's affidavits that are not contradicted, or to read into the defendant's affidavit facts that are not stated therein. Our task is to determine, from the affidavits, whether there is a real factual issue to be tried. Estate of Kelly, 178 Cal.App.2d 24, 2 Cal.Rptr. 634. Defendant's affidavit is not a model of what an affidavit under Code of Civil Procedure, section 437c, should be. It seems to have been drawn more with an eye to the foregoing rules than for the purpose of making an accurate and factual disclosure of a triable issue.

We recite the facts as shown by the affidavits of the parties and the written answers of defendant to plaintiff's request for admissions, which defendant incorporates by reference in its affidavit.

Under date of March 7, 1957, defendant sent to plaintiff a letter reading as follows:

'Confirming our phone conversation of today, March 7, 1957, please accept this letter as authorization to ship equipment and tooling as per attached schedule, Items 1 thru 23, inclusive, on a thirty (30) day trial basis, to the Remler Company, 2101 Bryant St., San Francisco.

'It is agreed that if at the end of the thirty (30) day trial period the Remler Company decides against the purchase of this equipment, it will be returned to the Wales-Strippit Corporation South Gate, California, at no charge to the Remler Company.'

Attached were two typewritten pages, listing the equipment and tooling by catalogue numbers, quantities and brief descriptions. Defendant sent no other writing to plaintiff thereafter until July 22, 1957.

Plaintiff, which does business under the name of Wales-Strippit Corporation, avers that it shipped the equipment and tooling to defendant from March 8 to April 10. Defendant avers that some of the goods were received on 'March 8, 1957 that thereafter for a period of more than 30 days, namely, to April 10, 1957, other components were received.' It is thus undisputed that all components shipped were received by April 10.

Defendant then says 'that the total content of all of said shipments did not provide said Defendant with all of the equipment and tooling set forth on' the schedule attached to its letter of March 7. It also says that on April 1, which was before shipments were completed, its representatives told plaintiff's representative that 'certain parts' of the equipment had not been received, and that plaintiff then said that if defendant decided to buy, the proper equipment would be forwarded. The affidavit adopts the answers to requests for admissions, and from the latter it appears that only the following items were not received:

                Invoice No.  Item       Description         Price
                   06294      26         Punch Tip        $ 23.40
                    ""        51            Die             23.92
                    ""        56            Die             23.92
                    ""        57            Die             23.92
                   06146       8   P. & Str. Guide Assy.    14.04
                    ""        10         " " " " "          14.04
                                                          -------
                Total Price                               $123.24
                

This is out of a total price of $10,778.73. The schedule called for 36 punch tips of the type of item 26; for 36 dies of the types of items 51, 56, and 57, and for 36 assemblies of the types of items 8 and 10. Nowhere does defendant allege that the lack of these items in any way affected the utility of the equipment to defendant.

Defendant also avers that 'some of the tooling and equipment that was received was in a used or damaged condition when received.' This allegation would be bad even in a pleading. Nowhere is there a specification as to which items, or any statement that these facts in any way affected the utility of the equipment to defendant. Defendant's statement, for all that appears, could refer to two dies out of 71, priced at $6.24 each, or a total of $12.48. Defendant does not say that it ever objected on these grounds, or gave plaintiff any notice of the defects. So far as appears nothing else was ever said about these matters by defendant, except for the April 1 conversation.

To endeavor to erect these minor discrepancies into triable issues of fact requiring reversal of the judgment, as defendant does, is to make a mockery of the summary judgment procedure. It is a maxim as old as our jurisprudence that 'the law disregards trifles.' Civil Code, § 3533.

Plaintiff's affidavit states 'That all of the equipment and tooling described in the foregoing invoices was received by the defendant on or about the 10th day of April, 1957, was assembled in the place of business of said defendant and was used by said defendant and remained in the possession of said defendant and no complaint or objection was made thereto,' until July 22, 1957.

Defendant says 'that the assembly and installation of such equipment as was received in Defendant's plant was made by or on behalf of the Plaintiff herein and not by or on behalf of the Defendant.' Defendant 'denies' that it 'accepted' the invoices that were issued by plaintiff when shipments were made, but does not state that it rejected them, or that it ever communicated such lack of acceptance or any rejection to plaintiff. Plaintiff's affidavit alleges, as to each shipment made, that 'the property described therein [in the invoice] was shipped to the defendant and received by said defendant, and said defendant never objected to the description of the material described therein nor the prices or terms thereof.' Nowhere is this denied; what has been heretofore set forth cannot be tortured into such denial.

The other material parts of defendant's affidavit are: 'that at no time did Remler decide to purchase said equipment and at no time was the proper equipment as specified forwarded to Remler. There was never at any time any writing or conversation in which it was agreed that...

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