Dreyfuss v. Burton

CourtCalifornia Court of Appeals
Writing for the CourtHERNDON; ROTH, P.J., and FLEMING
Citation246 Cal.App.2d 629,54 Cal.Rptr. 843
PartiesEvelyn H. DREYFUSS, Plaintiff and Respondent, v. Martin L. BURTON et al., Defendants and Appellants. Civ. 30085.
Decision Date23 November 1966

Page 843

54 Cal.Rptr. 843
246 Cal.App.2d 629
Evelyn H. DREYFUSS, Plaintiff and Respondent,
v.
Martin L. BURTON et al., Defendants and Appellants.
Civ. 30085.
Court of Appeal, Second District, Division 2, California.
Nov. 23, 1966.

Page 844

[246 Cal.App.2d 631] Harry B. Seelig and Sidney E. Baskin, Los Angeles, for defendants and appellants.

Richards, Watson & Hemmerling and Leo G. Ebben Los Angeles, for plaintiff and respondent.

HERNDON, Justice.

Defendants appeal from the judgment entered against them following the granting of respondent's motion to strike appellants' answer and for summary judgment. As initially pleaded, respondent's cause of action was one seeking to collect upon a promissory note of which she alleged that she was a holder in due course. By their answer appellants alleged that respondent was neither a holder in due course nor an assignee for value of the note but merely a sham party created by the true owner of the note in an effort to avoid defenses and the assertion of a counterclaim or setoff existing against him. Therefore, appellants sought to assert their defenses and their counterclaim or setoff against respondent.

'Numerous decisions have discussed the law of summary judgments, and the rules relating thereto are well settled. The matter to be determined by the trial court in considering such a motion is whether the defendant (or the plaintiff) has presented any facts which give rise to a triable issue. The court may not pass upon the issue itself. 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. The aim of the procedure is to discover, through the media of affidavits, whether the parties possess evidence requiring the weighing procedures of a trial. In examining the sufficiency of affidavits filed in connection with the motion, the affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of [246 Cal.App.2d 632] granting the motion should be resolved in favor of the party opposing the motion. Such summary procedure is drastic and should be used with caution so that it does not become a substitute for the open trial method of determining facts. (Citations.) Thus, the trial court was justified in granting the motion here only if the declarations filed in support of it, strictly construed, contain facts sufficient to entitle the defendants to judgment, and those of the plaintiffs, liberally construed, show that there was no issue of fact to be tried.' (Stationers Corp. v. Dun & Bradstreet, Inc., 62 Cal.2d 412, 417, 42 Cal.Rptr. 449, 452, 398 P.2d 785, 788.)

Applying these rules to the instant proceeding the facts hereinafter recited have been established by appropriate construction of the affidavits of the parties in support of, and in opposition to, the respondent's motion.

In May or June of 1964, one Lawrence Herman and an associate leased three hotels from the corporate appellants together with the furniture, furnishings, fixtures and linens therein. These leases and agreements were signed by Herman and his associate in the name of a corporation then in the process of formation.

Among other items of property covered by the lease were linens of a value of $16,500. Some time in July or August of 1964 Herman wrongfully sold these linens to a third party, but this fact was not discovered by appellants until the hotels and their equipment were returned to them in January of 1965. In the same transaction wherein the hotels were leased appellants borrowed $25,000 from Herman and executed

Page 845

a promissory note in that amount. At Herman's direction his then attorney, Milton Miller, was named as the payee of this note as trustee for him. The note provided for repayment at the rate of $5,000 per month commencing September 1, 1964, and, although it did not so provide on its face, it was agreed that these payments actually were to be effected by reducing by $5,000 the monthly rental payments due appellants on the same dates. This agreement was adhered to until November 1, 1964, and therefore the amount remaining due after the November 1, 1964 deduction from the rentals was $10,000. Thereafter, however, the relationships between the parties apparently deteriorated rapidly.

On November 2, 1964, Herman's attorney, the named trustee-payee of the note, transferred it to Herman himself and on November 3, 1964, Herman transferred it to the Commonwealth Bank. The bank notified appellants in writing [246 Cal.App.2d 633] that it had 'discounted' the note and requested that further payments thereunder be made directly to it. Appellants advised the bank of the true agreement of the parties concerning the rental deductions and when Herman and his alter ego corporation defaulted on the December 1, 1964 rental payments, appellants refused to make the scheduled payment on the note. Thereafter, on December 28, 1964, the bank transferred the note to the respondent, who is Herman's sister and the wife of one of his attorneys, Gilbert Dreyfuss.

During November of 1964, appellants had filed some six law suits against Herman's dummy corporation. During this period Herman's attorney, Gilbert Dreyfuss, who, as indicated, is the husband of Herman's sister, the present respondent, informed appellants that on his advice 'the entire matter would be relegated to the bankruptcy courts' which, in fact, occurred in November 1964.

On January 6, 1965, the several parties to these hotel lease-agreements attempted to settle their mutual differences by executing two 'Mutual Releases'.

These agreements provided that appellants would repay the note on a reduced and modified schedule and that in consideration thereof Herman and his corporation would return the hotels and their equipment to appellants as soon as they could regain them from the receiver then in possession. Except for these mutual future promises, and certain others not related to this proceeding, the parties to these agreements released each other of any and all claims and expressly waived their rights under section 1542 of the Civil Code relating to unknown claims.

It does not appear that appellants knew that the note in issue purportedly had been transferred to Herman's sister at the time these agreements were entered into, although concededly they had been notified of the earlier assignment to Commonwealth Bank. However, in addition to...

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6 practice notes
  • Petersen v. City of Vallejo
    • United States
    • California Court of Appeals
    • March 4, 1968
    ...684; Eagle Oil & Ref. Co. v. Prentice (1942) 19 Cal.2d 553, 555--556, [259 Cal.App.2d 776] 122 P.2d 264; and Dreyfuss v. Burton (1966) 246 Cal.App.2d 629, 631--632, 54 Cal.Rptr. Tested by the above rules there is no evidence to contradict the unequivocal statements filed on behalf of the Ci......
  • Walsh v. Glendale Fed. Sav. & Loan Assn.
    • United States
    • California Court of Appeals
    • November 7, 1969
    ...liberally construed. Pettis v. General Tel. Co., 66 Cal.2d 503, 505, 58 Cal.Rptr. 316, 426 P.2d 884 (1967); Dreyfuss v. Burton, 246 Cal.App.2d 629, 631, 54 Cal.Rptr. 843 (1966). If the affidavits so construed present a triable issue of fact, summary judgment may not be granted. Fugate v. Co......
  • Hooks v. Southern Cal. Permanente Medical Group
    • United States
    • California Court of Appeals
    • June 25, 1980
    ...(Koret of Cal., Inc. v. City etc. of San Francisco, supra, 2 Cal.App.3d at p. 89, 81 Cal.Rptr. 698; see Dreyfuss v. Burton (1966) 246 Cal.App.2d 629, 632, 54 Cal.Rptr. 843.) Because the summary procedure is drastic, the papers filed on behalf of the moving party are strictly construed and t......
  • People v. Rath Packing Co.
    • United States
    • California Court of Appeals
    • December 10, 1974
    ...417, 42 Cal.Rptr. 449, 398 P.2d 785; Eagle Oil & Ref. Co. v. Prentice, Supra, 19 Cal.2d 553, 556, 122 P.2d 264; Dreyfuss v. Burton, 246 Cal.App.2d 629, 631--632, 54 Cal.Rptr. 843.) California courts, in utilizing the rule of liberal construction, have not required resisting parties to limit......
  • Request a trial to view additional results
6 cases
  • Petersen v. City of Vallejo
    • United States
    • California Court of Appeals
    • March 4, 1968
    ...684; Eagle Oil & Ref. Co. v. Prentice (1942) 19 Cal.2d 553, 555--556, [259 Cal.App.2d 776] 122 P.2d 264; and Dreyfuss v. Burton (1966) 246 Cal.App.2d 629, 631--632, 54 Cal.Rptr. Tested by the above rules there is no evidence to contradict the unequivocal statements filed on behalf of the Ci......
  • Walsh v. Glendale Fed. Sav. & Loan Assn.
    • United States
    • California Court of Appeals
    • November 7, 1969
    ...liberally construed. Pettis v. General Tel. Co., 66 Cal.2d 503, 505, 58 Cal.Rptr. 316, 426 P.2d 884 (1967); Dreyfuss v. Burton, 246 Cal.App.2d 629, 631, 54 Cal.Rptr. 843 (1966). If the affidavits so construed present a triable issue of fact, summary judgment may not be granted. Fugate v. Co......
  • Hooks v. Southern Cal. Permanente Medical Group
    • United States
    • California Court of Appeals
    • June 25, 1980
    ...(Koret of Cal., Inc. v. City etc. of San Francisco, supra, 2 Cal.App.3d at p. 89, 81 Cal.Rptr. 698; see Dreyfuss v. Burton (1966) 246 Cal.App.2d 629, 632, 54 Cal.Rptr. 843.) Because the summary procedure is drastic, the papers filed on behalf of the moving party are strictly construed and t......
  • People v. Rath Packing Co.
    • United States
    • California Court of Appeals
    • December 10, 1974
    ...417, 42 Cal.Rptr. 449, 398 P.2d 785; Eagle Oil & Ref. Co. v. Prentice, Supra, 19 Cal.2d 553, 556, 122 P.2d 264; Dreyfuss v. Burton, 246 Cal.App.2d 629, 631--632, 54 Cal.Rptr. 843.) California courts, in utilizing the rule of liberal construction, have not required resisting parties to limit......
  • Request a trial to view additional results

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