de Echeguren v. de Echeguren

Citation26 Cal.Rptr. 562,210 Cal.App.2d 141
CourtCalifornia Court of Appeals
Decision Date26 November 1962
PartiesAlejandro de ECHEGUREN, Plaintiff and Appellant, v. Mercedes de ECHEGUREN, also known as Mercedes de Echeguren Miller, et al., Defendants and Respondents. Civ. 20145.

James Martin MacInnis, San Francisco, for appellant.

Sullivan, Roche, Johnson & Farraher, Vincent J. Mullins, San Francisco, for respondents.

SULLIVAN, Justice.

Plaintiff appeals from a judgment in favor of the defendants Mercedes de Echeguren Miller and Paul Albert Miller entered upon an order granting defendants' motion for summary judgment. 1 For Convenience we will refer to the defendants by their first names.

Plaintiff's first amended complaint sets forth two separately stated causes of action. In the first, the complaint alleges that plaintiff and Mercedes were married in Spain in 1952, at all times thereafter have been husband and wife and have two children born issue of such marriage; that Mercedes, without provocation, cause or plaintiff's consent separated from plaintiff at the request and procurement of Paul; and that Mercedes and Paul conspired with each other to obtain a dissolution of the marriage between plaintiff and Mercedes so that they might have a civil ceremony performed declaring Mercedes and Paul 'to be purported husband and wife.'

In furtherance of this conspiracy, so it is alleged, and with each defendant acting jointly with and as the agent of the other, Paul invited Mercedes to become his wife and she accepted the invitation; in 1955 Mercedes separated from the plaintiff and purported to take certain steps to declare herself a resident of Nevada, being assisted therein by Paul; that Mercedes never intended to become a permanent or bona fide resident of Nevada, except insofar as by remaining physically there for the requisite period of time 'she hoped to cast a color of legitimacy upon her purported Nevada residence'; that it was the intention of the defendants to intermarry and live permanently thereafter not as residents of Nevada but as residents of California; that on January 31, 1956, she obtained a decree of divorce in Nevada; that thereafter Mercedes remained in Nevada and Paul joined her there, the parties planning to intermarry after the passage of such a period of time that might make it appear that Mercedes 'had * * * truly become a resident' of Nevada; that on August 13, 1956, the defendants 'purported to marry each other' by a civil ceremony in New York; that at the end of August or beginning of September 1956, the defendants returned to San Francisco with the minor children of plaintiff and Mercedes. The complaint contains the general allegation that plaintiff and defendants are bona fide residents of San Francisco and 'have occupied such status continuously, and without interruption, prior to and during the calendar years 1955 through 1959.' The first cause of action concludes with allegations to the effect that the Nevada decree of divorce obtained by Mercedes was invalid since the Nevada court 'did not obtain jurisdiction over the marital res of plaintiff and defendant MERCEDES * * * nor over the person of plaintiff, * * *.'

The second cause of action after incorporating by reference all of the allegations of the first, sets forth certain allegations pertaining to the custody of the two children of plaintiff and Mercedes, which need not be here detailed.

The prayer of the first amended complaint is that the above-mentioned Nevada decree of divorce be declared void, that the 'purported inter-marriage' between Mercedes and Paul be declared void, and that the court make such orders pertaining to the custody of the children as may be reasonable.

Defendants' demurrer to the first amended complaint was overruled. They filed an answer admitting the first marriage of Mercedes to plaintiff, its termination by divorce, the subsequent marriage of Mercedes and Paul, the fact that there were two children of Mercedes' marriage to plaintiff, and denying all other allegations of the first amended complaint.

Shortly thereafter, the defendants filed a motion for summary judgment supported only by the declaration of Vincent J. Mullins, one of defendants' counsel below and on this appeal. Mr. Mullins' declaration states that he is the attorney for the defendants and 'is familiar with all of the facts and circumstances of said cause of action'; that in respect to the second cause of action plaintiff does not desire the custody of the children, is unable to provide for them and has failed, refused and neglected to contribute to their support; and that 'nevertheless, defendants hereby stipulate that plaintiff's prayer in this regard be granted and that this Court make and enter its order awarding the legal custody of said children jointly to plaintiff and defendant MERCEDES MILLER, with physical custody in defendant MERCEDES MILLER with full visitation rights in plaintiff.'

The declaration thereupon continues: 'As to the remaining count of said complaint, your affiant declares that said cause of action is a sham and frivolous one. Said count asks this Court to declare that the defendant MERCEDES MILLER improperly secured a divorce from plaintiff and that she thereafter improperly married defendant PAUL MILLER. Said alleged cause of action is not a proper subject for declaratory relief. It is brought solely for vindictive purposes and can accomplish no practical results for any party hereto, save and except the inflicting of harm upon the two minor children of plaintiff and defendant MERCEDES MILLER.' The foregoing are the only statements made relevant to the first cause of action.

No affidavit in opposition to the motion was filed by or on behalf of the plaintiff. The court below made a written 'Order Granting Motion for Summary Judgment' in which it first awarded custody of the children according to, but without express reference to, the defendants' stipulation set forth above. The order then provided: 'THIS COURT FURTHER FINDS the granting of declaratory relief herein, as prayed for in the first count of plaintiff's complaint, is not necessary or proper at this time under all the circumstances herein, and this Court therefore grants the said motion.' 2 Judgment was rendered accordingly. It is apparent that, insofar as the second count is concerned, the declaration of defendants' counsel was treated by the trial court as a stipulation for awarding custody of children. The parties agree that these custody matters are not involved in the present appeal. To simplify matters, therefore, our discussion will be directed to the other aspects of the summary judgment. As we shall point out, a resolution of these problems will determine all matters embraced by the judgment, including the custody matters.

Section 437c of the Code of Civil Procedure sets forth the procedure to be followed in obtaining a summary judgment. So far as relevant here, it prescribes the following requirements for the affidavit of the moving party: 'The affidavit * * * in support of the motion must contain facts sufficient to entitle * * * 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.' (Emphasis added.)

In Snider v. Snider (1962) 200 A.C.A. 753, 19 Cal.Rptr. 709, this court summarized the principles of law defining the nature and purpose of summary judgment procedure and the rules governing the affidavits required therefor. We there said: 'At the outset we recognize the admonition of the Supreme Court in Eagle Oil & Ref[ining] Co. v. Prentice, 19 Cal.2d 553, 556, 122 P.2d 264, 265: '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. See Walsh v. Walsh, supra (18 Cal.2d 439, 116 P.2d 62).

"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.' (See also McComsey v Leaf, 36 Cal.App.2d 132, 97 P.2d 242; Nini v. Culberg, 183 Cal.App.2d 657, 661, 7 Cal.Rptr. 146.) If, after an examination of the affidavits, doubt exists as to whether summary judgment should be granted, such doubt should be resolved against the moving party. (Whaley v. Fowler, 152 Cal.App.2d 379, 381, 313 P.2d 97; House v. Lala, 180 Cal.App.2d 412, 415, 4 Cal.Rptr. 366; Travelers Indemnity Co. v. McIntosh, 112 Cal.App.2d 177, 182, 245 P.2d 1065.) But, on the other hand, as we stated in Burke v. Hibernia Bank, 186 Cal.App.2d at page 744, 9 Cal.Rptr. at page 893: 'a summary judgment will stand if the supporting affidavits state facts sufficient to sustain a judgment and the counter affidavits do not proffer competent and sufficient evidence to present a triable issue of fact. Coyne v. Krempels, 1950, 36 Cal.2d 257, 261, 223 P.2d 244; Code Civ.Proc. § 437c.'

'We first consider the affidavits of the moving party. They 'must contain facts sufficient to entitle * * * defendant to a judgment in the action * * *.' (Code Civ.Proc. § 437c.) To prevail, therefore, such affidavits 'must state facts establishing every element necessary to sustain a judgment in his favor.' (House v. Lala, supra, 180 Cal.App.2d 412, 416, 4 Cal.Rptr. 366, 368.) Such facts 'shall be set forth with particularity' (Code Civ.Proc. § 437c) and shall be within the personal knowledge of the affiant, the affidavit to show that the affiant, if sworn as a witness, can testify competently thereto. As the court stated in House v. Lala, supra, '[t]o satisfy the statutory requirement of 'particularity,' the movant's affidavits must state all the requisite evidentiary facts and not merely the...

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