Burke Concrete Accessories, Inc. v. Superior Court

• Citation: 87 Cal.Rptr. 619,8 Cal.App.3d 773
• Court: California Court of Appeals
• Decision Date: 15 June 1970
• Parties: BURKE CONCRETE ACCESSORIES, INC., a corporation, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent; Whiteley TOLSON, and Rathbone, King & Seeley, a Partnership, Real Parties in Interest. Civ. 28191.

Page 619

87 Cal.Rptr. 619

8 Cal.App.3d 773

BURKE CONCRETE ACCESSORIES, INC., a corporation, Petitioner, v. SUPERIOR COURT of the State of California, IN AND FOR the CITY AND COUNTY OF SAN FRANCISCO, Respondent;

Whiteley TOLSON, and Rathbone, King & Seeley, a Partnership, Real Parties in Interest.

Civ. 28191.

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

June 15, 1970.

Bancroft, Avery & McAlister, Luther J. Avery, Edmond G. Thiede, Sandra J. Shapiro, San Francisco, for petitioner.

Paul H. Cyril, Bronson, Bronson & McKinnon, San Francisco, for real parties in interest.

TAYLOR, Associate Justice.

Petitioner, plaintiff in an action to obtain indemnity from its insurers, asks for a writ of mandate to set aside an order of respondent court denying its motion for a partial summary judgment. Real party insurers, defendants in the action, contend in their opposition to plaintiff's petition that their own motion for partial summary judgment should have been granted. The trial court denied both motions without opinion. ¹

On the motions before the trial court, The facts were stipulated to between the parties, and the trial judge was left with the sole legal question as to whether or not defendant insurers were obligated, under the terms of the policy, to recompense insured plaintiff, a 'snap plugs' manufacturer, for expenses plaintiff incurred to two construction firms for the removal of some of its own defective products from some concrete walls. ²

Where it appears by agreement or otherwise that there is no material issue of fact to be tried and that the sole question remaining before the trial court is one of law as to whether the claim of the moving party is tenable on the undisputed facts, it is the duty of the trial court on a motion for a summary judgment to hear and determine the issue of law (Wilson v. Wilson, 54 Cal.2d 264, 269, 5 Cal.Rptr. 317, 352 P.2d 725; cf. Jones-Hamilton Co. v. Franchise Tax Bd., 268 Cal.App.2d 343, 347, 73 Cal.Rptr. 896; Exchequer Acceptance Corp. v. Alexander, 271 Cal.App.2d 1, 13, 76 Cal.Rptr. 328; Doyle v. Hibernia Bank, 156 Cal.App.2d 16, 20, 319 P.2d 412; Bank of America, etc. v. Casady, 15 Cal.App.2d 163, 168, 59 P.2d 444). Thus, in this case, the denial of both motions by the trial judge constituted an abuse of the court's discretion and mandamus has been held to be the proper remedy (Kaiser Foundation Hospitals v. Superior Court, 254 Cal.App.2d 327, 331--332, 62 Cal.Rptr. 330; Bank of America, etc. v. Superior Court, 4 Cal.App.3d 435, 442, 84 Cal.Rptr. 421).

Let a peremptory writ of mandamus issue directing respondent court to set aside its order of...