Colvig v. KSFO

• Decision Date: 28 January 1964
• Citation: 224 Cal.App.2d 357,36 Cal.Rptr. 701
• Parties: , 140 U.S.P.Q. 680 Pamela COLVIG, Plaintiff and Appellant, v. KSFO, Gene Autry, Bert West, William Shaw, Defendants and Respondents. Civ. 21160.
• Court: California Court of Appeals Court of Appeals

Page 701

36 Cal.Rptr. 701

224 Cal.App.2d 357, 140 U.S.P.Q. 680

Pamela COLVIG, Plaintiff and Appellant, v. KSFO, Gene Autry, Bert West, William Shaw, Defendants and Respondents.

Civ. 21160.

District Court of Appeal, First District, Division 1, California.

Jan. 28, 1964.

Jerome Berg, San Francisco, for appellant.

Harris Zimmerman, Gardner & Zimmerman, Laurence P. Corbett, St. Sure, Moore & Corbett, Oakland, for respondents.

MOLINARI, Justice.

This is an appeal by plaintiff, Pamela Colvig, from a summary judgment in favor of defendants. ¹

Question Presented

Was the trial court justified in granting a motion for summary judgment?

Statement of the Case

The first cause of action of plaintiff's complaint alleges that plaintiff developed an original format for a disc jockey radio or television program based upon traffic reports and traffic safety information; that as part of this original idea listeners are encouraged to report traffic problems to the disc jockey; that membership cards are given out to listeners in order to promote the program and that plaintiff created the original name for the program, 'Commute Club.'

It is further alleged that the above format and name were licensed by plaintiff to Robert Colvig and that he introduced them on his program over the air in June of 1957; that plaintiff retains and still owns the format, ideas, the program, and its names; that the name 'Commute Club' has acquired a secondary meaning through its association and used and has come to be known to the listeners in the San Francisco region as an idea originated by plaintiff.

It was alleged that on February 1, 1960, Robert Colvig was dismissed from employment by defendant KSFO; that said defendants were advised by plaintiff at that time of her ownership of the above format but that notwithstanding the cessation of any authority to use plaintiff's ideas, defendants have continued to broadcast the program using plaintiff's format without any compensation to plaintiff.

As a result of the above, plaintiff alleged damage in the sum of $100,000 and prayed that defendants be enjoined from further use of plaintiff's idea; tht defendants be ordered to account to plaintiff for the profits received by them as a result of the appropriation of plaintiff's property; and that plaintiff be declared the sole owner of the above-mentioned ideas, name and format.

Plaintiff's second cause of action incorporates the allegations of the first and alleges: that on February 4, 1960, plaintiff cancelled, terminated and rescinded defendants' rights in said format and name; that on March 3, 1960, plaintiff offered the use of the same to defendants for the sum of $100 per week; that said offer was orally accepted by defendants who continued to use the format and name created by plaintiff; that plaintiff has demanded said payment but defendants have failed and refused to pay plaintiff; and that defendants are indebted to plaintiff in the sum of $100 per week from February 4, 1960.

The above complaint was amended to include two exhibits. One was a sample of the Colvig Commute Club format and the other, a sample of the KSFO Commute Club format. Defendants' demurrer to the amended complaint was overruled. Defendants then filed their answer wherein they admitted that they were continuing to broadcast a "Commute Club" program, but otherwise generally denied the material allegations of the complaint. By way of affirmative defenses defendants alleged that the format and names in question were created by defendants or on behalf of defendants; that defendants are sole owners of the said format and names; that plaintiff has not complied with section 426, subdivision 3 of the Code of Civil Procedure; ² and that plaintiff is not entitled to recover because her rights were lost and destroyed by a purported license in gross to Robert Colvig.

Thereafter, on April 13, 1962, defendants moved for a summary judgment. The motion stated that it was based on the affidavit of defendant William D. Shaw, general manager of defendant KSFO, the depositions of Pamela Colvig, Robert L. Colvig, interrogatories propounded to plaintiff and 'three envelopes' used 'in connection with said Answers To Interrogatories.' A document entitled 'Declaration of Pamela Colvig,' signed and declared on her behalf by her attorney, and purporting to be a counteraffidavit was filed in the proceedings. At the hearing of the motion, on May 7, 1962, an objection to the sufficiency of the 'declaration' of Pamela Colvig was interposed by defendants. Defendants' counsel did, however, in his argument on the motion, and for the purposes of the motion, 'concede' all of the allegations of said declaration submitted by plaintiff and 'all of the allegations of the complaint.' The motion was submitted to the court below after some argument to court and colloquy between court and counsel. The motion for summary judgment was thereafter granted and it was ordered that the complaint be dismissed against each of the defendants.

We are unable to ascertain from the transcript of the oral proceedings before the court at the time the motion was heard exactly what documents were submitted to and considered by the court in connection with the motion, nor have respective counsel been able to give us any elucidation in this regard. The order for summary judgment, made and filed on May 28, 1962, does, however, recite that the trial court considered the pleadings in the action, the aforesaid affidavit of William D. Shaw, the aforesaid declaration of Pamela Colvig, the deposition of Pamela Colvig, taken April 20, 1961, the deposition of Robert L. Colvig, taken April 20, 1961, interrogatories propounded by defendants to Pamela Colvig, and her answers thereto, including certain exhibits opened by one Harry E. Nemoff on November 11, 1961, in connection with said answers. However, at the time this appeal cane on before us for oral argument, on October 30, 1963, the record before us consisted only of the said affidavit of William D. Shaw, and said declaration of Pamela Colvig. ³ Leave to augment the record before us to include any depositions, interrogatories and exhibits which were considered by the trial court on the motion for summary judgment was granted, but none were filed or presented within the time designated. ⁴ The cause was thereupon submitted. Accordingly, the only documents purporting to constitute affidavits in support of and in opposition to the motion for summary judgment for our consideration are, respectively, those of William D. Shaw and Pamela Colvig.

The Motion for Summary Judgment

In Saporta v. Barbagelata, 220 A.C.A. 469, 33 Cal.Rptr. 661, we recently had occasion to reiterate certain well-established principles applicable to summary judgments, as follows: 'The purpose of the summary judgment procedure is to discover, through the media of affidavits, whether the parties possess evidence which demands the analysis of trial. (Burke v. Hibernia Bank, 186 Cal.App.2d 739, 744, 9 Cal.Rptr. 890; Kramer v. Barnes, [212 Cal.App.2d 440, 445, 27 Cal.Rptr. 895;] Code Civ.Proc. § 437c.) The object of the proceeding is to discover proof. (2 Witkin, Cal.Procedure, pp. 1711-1715.) The affidavits of the moving party are strictly construed and those of his opponent liberally construed. (Eagle Oil & Ref. Co. v. Prentice, 19 Cal.2d 553, 556, 122 P.2d 264; Snider v. Snider, 200 Cal.App.2d 741, 748, 19 Cal.Rptr. 709.) A summary judgment will stand if the supporting affidavits state facts sufficient to sustain a judgment and the counteraffidavits do no proffer competent and sufficient evidence to present a triable issue of fact. (Burke v. Hibernia Bank, supra, 186 Cal.App.2d pp. 743-744, 9 Cal.Rptr. p. 893; Snider v. Snider, supra, 200 Cal.App.2d p. 748, 19 Cal.Rptr. p. 713.) In making this determination the respective affidavits are tested by certain applicable rules. The affidavit of the moving party must satisfy three requirements: (1) It must contain facts sufficient to entitled the moving party to a judgment, i. e., facts establishing every element necessary to sustain a judgment in his favor; (2) such facts must be set forth with particularity, i. e all requisite evidentiary facts must be stated, and not the ultimate facts or conclusions of law; and (3) the affiant must show that if sworn as a witness he can testify competently to the evidentiary facts contained in the affidavit. (Snider v. Snider, supra, 200 Cal.App.2d p. 748, 19 Cal.Rptr. p. 713; House v. Lala, 180 Cal.App.2d 412, 416, 4 Cal.Rptr. 399; Kramer v. Barnes, supra, [212 Cal.App.2d] p. 443, 27 Cal.Rptr. p. 898.) These requirements are applicable even though no counteraffidavit is filed, and also where the counteraffidavit is insufficient. (Kramer v. Barnes, supra, [212 Cal.App.2d] p. 443, 27 Cal.Rptr. p. 898; Goldstein v. Hoffman, [213 Cal.App.2d 803, 811, 29 Cal.Rptr. 334.]) The counteraffidavit in opposition to the motion for summary judgment, on the other hand, must met the following requirements: (1) It must set forth facts with particularity; and (2) it must set forth facts within the personal knowledge of the affiant, to which, as the affidavit shall show affirmatively, the affiant can testify competently if called as a witness. (Snider v. Snider, supra, 200 Cal.App.2d p. 750, 19 Cal.Rptr. p. 715; Code Civ.Proc. § 437c.) In the light of the rule of liberal construction applicable to affidavits in opposition to the motion for summary judgment, our Supreme Court has held that the facts alleged in the affidavits of the party against whom the motion is made must be accepted as true, and with regard to the requirement that the facts must be set forth 'with particularity,' has stated 'that such affidavits to be sufficient need not necessarily be composed wholly of strictly evidentiary facts.' (Eagle Oil & Ref. Co. v. Prentice, supra, 19 Cal.2d, p. 556, 122 P.2d p. 265; see Buffalo Arms, Inc. v. Remler Co., 179 Cal.App.2d 700, 703, 4...