Cornelison v. Kornbluth

• Decision Date: 01 December 1975
• Citation: 15 Cal.3d 590,542 P.2d 981,125 Cal.Rptr. 557
• Court: California Supreme Court
• Parties: , 542 P.2d 981 Mary Pauline CORNELISON, Plaintiff and Appellant, v. O. John KORNBLUTH, Defendant and Respondent. L.A. 30393.

Page 557

125 Cal.Rptr. 557

15 Cal.3d 590, 542 P.2d 981

Mary Pauline CORNELISON, Plaintiff and Appellant, v. O. John KORNBLUTH, Defendant and Respondent.

L.A. 30393.

Supreme Court of California,

In Bank.

Dec. 1, 1975.

William J. Ferrin, Sherman Oaks, for plaintiff and appellant.

Levinson, Marcus & Bratter, Harvey Jay Migdal and Lawrence R. Lieberman, Beverly Hills, for defendant and respondent.

Larwill, Wolfe & Blackstock and John Joseph Hall, Los Angeles, as amici curiae for defendant and respondent.

SULLIVAN, Justice.

In this action for damages for the breach of covenants contained in a deed of trust and for damages for waste, brought by the beneficiary against the trustors and their successors in interest, plaintiff Mary Cornelison appeals from a summary judgment entered in favor of defendant John Kornbluth and against plaintiff. As will appear, we have concluded that upon the record presented, the summary judgment was properly granted and should be affirmed.

On July 15, 1964, plaintiff sold a single-family dwelling in Van Nuys, California, to Maurice and Leona Chanon, taking back a promissory note in the sum of $18,800 secured by a first deed of trust on the property. The deed of trust, recorded on August 21, 1964, contained the following covenants: that the Chanons would pay the real property taxes and assessments against the property; that they would care for and maintain the property; and that if they re sold the property, the entire unpaid balance would become immediately due and payable.

On December 10, 1964, the Chanons conveyed the property to defendant by grant deed. On September 6, 1968, defendant sold the property to Richard Larkins. In January 1969 the county health department condemned the house as unfit for human habitation. The Chanons being in default on the promissory note, plaintiff caused the property to be sold at a trustee's sale. Plaintiff purchased the property at the sale for the sum of $21,921.42, that being an amount equal to the balance due on the note plus foreclosure costs.

Plaintiff then brought the instant action for damages, her amended complaint (hereafter 'complaint') filed March 24, 1970, setting forth two causes of action, one for breach of contract and one for damages for waste. The first cause of action alleged in substance that defendant 'agreed in writing to be bound by and to perform all of the covenants contained in the Note and Deed of Trust theretofore executed by defendants Maurice L. Chanon and Leona Chanon'; and that defendants breached these covenants (a) by selling the property to Larkins, (b) by failing to pay property taxes, (c) by failing to make payments on the note, and (d) by failing to properly care for and maintain the premises.

The second cause of action, after incorporating by reference the material allegations of the first cause of action, alleged in substance that defendant owed a duty to properly and adequately care for the property and that defendant negligently failed to fulfill this duty, thereby causing plaintiff to be damaged in specified particulars and amounts by reason of the loss of improvements to the real property as well as by reason of the loss of its use. On the first cause of action plaintiff prayed for damages in the sum of $18,169.66, and on the second cause of action for damages in the sum of $20,000 plus the reasonable rental of the property, and in addition for $45,000 punitive damages.

Defendant's answer admitted that he purchased the property from the Chanons and sold it to Larkins, but denied all other allegations for lack of information or belief. Defendant then moved for summary judgment. His declaration in support of the motion states in substance that he purchased the subject real property from the Chanons, that at the time of the purchase he knew it was encumbered by the deed of trust in favor of plaintiff as beneficiary, that he never assumed either orally or in writing the indebtedness secured by the deed of trust, and that no such assumption was contained in the deed conveying the property to him. The declaration attaches and incorporates by reference a copy of the grant deed which confirms the last statement.

Defendant also filed in support of the motion the declaration of one of his attorneys stating in substance that plaintiff regained possession of the subject property by purchasing it for $21,921.42 at the foreclosure sale conducted on June 4, 1969, said purchase having been effected 'by a full credit bid resulting in the full satisfaction of the remaining indebtedness secured by the deed of trust . . ..' The declaration attaches and incorporates by reference a copy of the 'trustees deed upon sale' which confirmed the statements of the declaration. Plaintiff filed no counteraffidavits. The court granted defendant's motion ¹ and entered judgment accordingly. This appeal followed.

Plaintiff contends that the court erred in granting summary judgment because the 'complaint is regular on its face and raises issues of fact.' The argument in support of this contention boils down to this: The complaint alleges covenants contained in a recorded deed of trust to pay taxes and to keep the property in repair which covenants run with the land, a consequent duty on defendant to perform said covenants, and a breach of this duty. Defendant's answer placed all these material allegations in issue and defendant's declaration in support of the motion 'contains no facts contrary to the allegations set forth in the complaint' and 'do not refute the essential allegations.'

It is clear to us that plaintiff gravely misunderstands the purpose and function of summary judgment procedure. The same contention now made by plaintiff was rejected by this court 25 years ago in a unanimous opinion by Chief Justice Traynor in the leading case of Coyne v. Krempels (1950) 36 Cal.2d 257, 262, 223 P.2d 244, 247. We there said: 'In effect, it is contended that a motion for summary judgment cannot be granted unless the pleadings of the party opposing the motion are insufficient to state a cause of action or defense, for under defendant's contention a sufficient pleading raises a triable issue of fact requiring the denial of the motion.

'So construed, section 437c would be meaningless. 'It is not the purpose of the procedure under section 437c to test the sufficiency of the pleadings.' (Eagle Oil & Ref. Co. v. Prentice, 19 Cal.2d 553, 560 (122 P.2d 264).) . . . The procedure for the entry of a summary judgment provides a method by which, if the pleadings are not defective, the court may determine whether the triable issues apparently raised by them Are real or merely the product of adept pleading.' (Italics added.)

Since Coyne v. Krempels, supra, we have had occasion to set forth the rules on summary judgments many times and we would hope that they are now well understood by the profession. (See, e.g., Corwin v. Los Angeles Newspaper Service Bureau, Inc. (1971) 4 Cal.3d 842, 851--852, 94 Cal.Rptr. 785, 484 P.2d 953; Joslin v. Marin Mun. Water Dist. (1967) 67 Cal.2d 132, 146--148, 60 Cal.Rptr. 377, 429 P.2d 889.) For present purposes, we need be concerned only with the following rule: 'Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue.' (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 452, 398 P.2d 785, 788.)

Applying the foregoing rule we are satisfied that defendant's declaration is sufficient to support a summary judgment on the first cause of action for breach of contract. As previously stated, the basic theory of this cause of action is that defendant had a duty to comply with the covenants contained in the deed of trust given plaintiff by the Chanons since the document was recorded and its covenants ran with the land. Plaintiff's legal premise is completely erroneous. Upon the transfer of real property covered by a mortgage or deed of trust as security for an indebtedness, the property remains subject to the secured indebtedness but the grantee is not personally liable for the indebtedness or to perform any of the obligations of the mortgage or trust deed unless his agreement to pay the indebtedness, or some note or memorandum thereof, is in writing and subscribed by him or his agent or his assumption of the indebtedness is specifically provided for in the conveyance. (Civ.Code, § 1624, subd. 7; Snidow v. Hill (1948) 87 Cal.App.2d 803, 806--807, 197 P.2d 801.) Defendant's declaration states positively that he never assumed either orally or in writing the indebtedness secured by the Chanon deed of trust and that no such assumption was contained in the deed by which the Chanons conveyed the property to him. An examination of a copy of the deed attached to the declaration confirms this. Plaintiff filed no counterdeclaration denying these allegations and as a consequence raised no triable issue of fact. Contrary to plaintiff's contention, a triable issue of fact cannot be raised by the allegations of her complaint. (Coyne v. Krempels, supra, 36 Cal.2d 257, 262, 223 P.2d 244.) Accordingly, summary judgment on the first cause of action was properly granted.

We now proceed to determine whether defendant's declarations are sufficient to support the summary judgment on the second stated cause of section for waste. On this issue we may outline the positions of the parties as follows: Defendant contends that since, as set forth in his attorney's declaration, plaintiff purchased the property for a full credit bid an action for waste is thereby precluded both by reason of the antideficiency legislation (Code Civ.Proc., §§ 580b, 580d; Schumacher v. Gaines (1971) 18 Cal.App.3d 994, 96 Cal.Rptr. 223) and by reason of the extinguishment of the security interest...