Callahan v. Chatsworth Park, Inc.

• Decision Date: 13 June 1962
• Citation: 204 Cal.App.2d 597,22 Cal.Rptr. 606
• Parties: Calvin E. CALLAHAN, doing business under the fictitious firm name of Cecco Company, Plaintiff and Appellant, v. CHATSWORTH PARK, INC., a California corporation, Defendant and Respondent. Civ. 25783.
• Court: California Court of Appeals Court of Appeals

Page 606

22 Cal.Rptr. 606

204 Cal.App.2d 597

Calvin E. CALLAHAN, doing business under the fictitious firm name of Cecco Company, Plaintiff and Appellant, v. CHATSWORTH PARK, INC., a California corporation, Defendant and Respondent.

Civ. 25783.

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

June 13, 1962.

Rehearing Denied July 9, 1962.

Pregerson & Costley, by William M. Costley, Van Nuys, for appellant.

Robert G. Leff, Beverly Hills, for respondent.

ASHBURN, Justice.

Plaintiff appeals from a summary judgment rendered against him in an action for foreclosure of a mechanic's lien. The matter arose upon motion made by defendant (before answering) to strike the complaint and dismiss the action as sham and frivolous, invoking the authority of § 435, Code of Civil Procedure ¹ (enacted in 1955); also Lincoln v. Didak, 162 Cal.App.2d 625, 631, 328 P.2d 498. The court elected to treat the motion as one for summary judgment, thus following the procedure outlined by the Supreme Court in Pianka v. State of California, 46 Cal.2d 208, 211-212, 293 P.2d 458.

The complaint was in two counts, the first of which sought recovery for labor and material furnished to the job on the basis of reasonable value of $19,413.11; the second count rested upon a written agreement of March 31, 1960, specifying a price of $14,000, but the pleader alleged $21,738.11 to be due and owing; appellant's opening brief says that the last mentioned amount included $2,325 damages for breach of contract. This second count was ultimately dimissed.

Section 437c, Code of Civil Procedure, which governs summary judgments, specifies that the motion shall be 'supported by affidavit of any person or persons having knowledge of the facts,' also that, '[t]he affidavit or affidavits in support of the motion must contain facts sufficient to entitle plaintiff or defendant to a judgment in the action, and the facts stated therein shall be within the personal knowledge of the affiant, and shall be set forth with particularity, and each affidavit shall show affirmatively that affiant, if sworn as a witness, can testify competently thereto.' Again: 'The facts stated in each affidavit shall be within the personal knowledge of the affiant, shall be set forth with particularity, and each affidavit shall show affirmatively that the affiant, if sworn as a witness, can testify competently thereto.'

The instant notice of motion was accompanied by a declaration (the equivalent of an affidavit under § 2015.5, Code Civ.Proc.) of Arnold Lesin, dated January 24, 1961, who stated that 'I am' president of Chatsworth Park, Inc., the defendant corporation; also that he 'engaged plaintiff Calvin E. Callahan under a written agreement on March 31, 1960,' obviously referring to the agreement alleged in the second count of the complaint and attached thereto as Exhibit A. It may be assumed that these allegations are the equivalent of an averment of personal knowledge and competence to testify thereto, but subsequent allegations of the Lesin declaration clearly do not measure up to the statutory standard. It consists in the main of enumeration of credits and offsets to which defendant claimed to be entitled, and not mentioned in the notice of mechanic's lien (which notice is not in the complaint or elsewhere in the record),--all leading up to the conclusion 'that the claim of the plaintiff is sham and frivolous, without merit, and that the lien claim and action is filed purely for harassment.'

In numerous instances the declaration asserts that claims were made against defendant by creditors of plaintiff for work or labor on the job and that a compromise payment or a payment in full was made by defendant, giving rise to a credit upon or offset against plaintiff's claim. But it is not averred that declarant Lesin had any personal knowledge of the respective claims or their merits or their disposition. Nor is it alleged that plaintiff was given notice of the claims or that he had knowledge thereof or that he sanctioned in any way the payments made by defendant except in two instances,--the claim of Kirby-Erwood Co., which was paid by joint check to Kirby-Erwood Co. and Cecco (plaintiff's fictitious name); also payment of an aggregate of $608.20 to certain laborers.

Claims of Bob Farrell for $552.50, White's Water Truck for $535.30, R. H. Hening for $1,775.50, are said by Lesin to have been paid by defendant or settled, with releases and assignments of claim taken by defendant. Whether this was done to the knowledge or with the consent of plaintiff is not shown or when, if at all, before the filing of the Lesin declaration plaintiff was advised of these facts. What were the merits of these claims or how ascertained is not stated. Defendant claims a credit of $2,864 asserted to be due to R. H. Flickinger Co. for rental of equipment to plaintiff; but nothing is said about the merits of the claim or any investigation of same, merely that defendant was served as a defendant in a mechanic's lien foreclosure and plaintiff 'was not available for service in that action and defendant was required to pay said claim and obtained a release and assignment of it'; also that defendant was required to pay attorney fees in the sum of $170 in connection with that suit. Was the claim meritorious, wholly or in part? If so, how did defendant determine that fact? Was the attorney fee fixed by the court or was it a compromise amount? Who handled this transaction and had personal knowledge of the facts pertaining to it? To none of these questions does the Lesin declaration give an answer.

Credit is claimed by defendant for an amount of $936 asserted by Willard W. Shepherd as plaintiff in a foreclosure action which is still pending; also, for a claim of Bohannan Bros., Inc. which has not been sued upon or paid. Who knows about the merits of these claims? Lesin? We are not told.

Lesin further avers that, '[f]urther, by agreement on July 14, 1960, defendant paid Construction Company, as a sub-contractor, the sum of $2,102.73 in settlement of other claims.' With whom was this agreement made and by whom was it handled for defendant? What personal knowledge of it does Lesin have?

The above claims of credit or offset made in the Lesin declaration aggregate $14,202.55. He says in paragraph 14, without showing personal knowledge or descending to constituent facts, that '[a]s a result of the demands to complete the work and the failure of plaintiff to do so and the subsequent release, defendant engaged other contractors to complete the work and paid one Lester McCoy the total sum of $6,801.18 and paid one O. M. Jack the sum of $639.42 on December 1st. The total lien claims against the property on the work done by Callahan was $13,246.63. The work to complete, which is only partial, as stated above, is $7,481.60, a total of $20,727.23, apart from the Shepherd claim, which is $936.00. We have another bill of O. M. Jack for $962.88, and all of this is more than the causes of action set forth in the complaint.'

Here we pause to call attention to the case-made rules that the affidavits of the moving party are to be strictly construed, that generalities and conclusions will not suffice in a moving party's declaration. On the other hand, the affidavits presented in opposition to the motion are to be liberally construed and need not consist entirely of evidentiary facts. Moreover, that opposing affidavit is to be accepted as true. Eagle Oil & Refining Co. v. Prentice, 19 Cal.2d 553, 556, 122 P.2d 264, 265: 'Because the procedure is summary and presented on affidavits without the benefit of cross-examination, a trial by jury and opportunity to observe the demeanor of witnesses in giving their testimony, the affidavits filed on behalf of the defendant should be liberally construed to the end that he will not be summarily deprived of the full hearing available at a trial of the action and the rights incident thereto.

'The procedure is drastic and should be used with caution in order that it may not become a substitute for existing methods in the determination of issues of fact. [Citation.]

'For these reasons it may further be said that the affidavits of the moving party, the plaintiff in this case, should be strictly construed and those of his opponent liberally construed. [Citations.] And in this connection it may be further observed that the better rule is that the facts alleged in the affidavits of the party against whom the motion is made must be accepted as true, and that such affidavits to be sufficient need not necessarily be composed wholly of strictly evidentiary facts. [Citation.]' To the same effect see, McHugh v. Howard, 165 Cal.App.2d 169, 174, 331 P.2d 674; Chilson v. P. G. Industries, 174 Cal.App.2d 613, 615, 344 P.2d 868.

The declaration filed by plaintiff Callahan in opposition to the motion says: 'That I performed work and improvements on the real property involved in this lawsuit for a total amount of $26,738.11. This work is shown by invoice number 8003 attached in the amount of $5,000.00 and by invoice number 8102, which consists of three pages, in the amount of $21,738.11.' He concedes that defendant should be credited with $1,000 paid to him and mentioned in paragraph 4 of Lesin's declaration, $3,256.75 paid to Kirby-Erwood Co., $608.20 paid to the laborers above mentioned, and certain other sums totaling $5,727.30, paid as alleged in paragraph 7 of Lesin's declaration, but he says that defendant should not be credited the full amount of those claims as 'the sub-contractors continue to have a claim against the plaintiff for any difference between the sum paid and the amount claimed'; then follows an enumeration of items representing such differences which total $3,927.48. Plaintiff then says: 'Summarized the total sums to which defendant should be credited as set forth above is $8,792.93. This would leave a balance of $17,945.18 due owing and unpaid. It should be...