Family Service Agency of Santa Barbara v. Ames

CourtCalifornia Court of Appeals
Writing for the CourtLILLIE; WHITE, P. J., and FOURT
Citation166 Cal.App.2d 344,333 P.2d 142
Decision Date18 December 1958
PartiesFAMILY SERVICE AGENCY OF SANTA BARBARA, Plaintiff and Respondent, v. Joseph J. AMES and Lucille G. Ames, One Doe, Two Doe, and Three Doe, Defendants and Appellants. Civ. 22915.

Page 142

333 P.2d 142
166 Cal.App.2d 344
FAMILY SERVICE AGENCY OF SANTA BARBARA, Plaintiff and Respondent,
v.
Joseph J. AMES and Lucille G. Ames, One Doe, Two Doe, and Three Doe, Defendants and Appellants.
Civ. 22915.
District Court of Appeal, Second District, Division 1, California.
Dec. 18, 1958.

Page 143

[166 Cal.App.2d 346] Lynch & Reilly, Santa Barbara, for appellants.

Price, Postel & Parma, Santa Barbara, Robert M. Jones, San Francisco, for respondent.

LILLIE, Justice.

This is an appeal by defendants from a summary judgment in a quiet title action involving a parcel of property in the city of Santa Barbara.

The complaint contained two causes of action, the first in the usual form of quiet title and the second in damages for trespass. Defendants' answer denied the material allegations of the complaint, and as affirmative defenses asserted ownership in the land by a 1947 deed from one Melendez and ownership by adverse possession since 1929 through themselves and their predecessors in interest. Plaintiff thereafter filed a motion for summary judgment based on affidavits of certain of its officers and other individuals including city and county officials and employees. A counteraffidavit was filed by one of the defendants, and following a hearing the court granted the motion, and on August 5, 1957, signed an 'Order on Motion for Summary Judgment' which included findings of fact, conclusions of law and an adjudication that title be quieted in plaintiff as against defendants, making no reference to the matter of damages. Present counsel for defendants had become attorneys of record only two days prior to the order. On September 3, 1957, without vacating its previous order, the court signed new findings of fact and conclusions of law covering the issues in the first cause of action and, by stipulation of the parties, the amount of damages. A formal judgment was signed and entered on September 3, 1957. Defendants appeal from that judgment and the judgment or 'order' of August 5.

At the outset, it should be noted that in summary judgment proceedings the court is without authority to make findings of fact (Weichman v. Vetri, 100 Cal.App.2d 177, 180, [166 Cal.App.2d 347] 223 P.2d 288) and in connection with the attempted appeal from the 'order' of August 5, 1957, no appeal lies from an order granting summary judgment (Cullen v. Spremo, 142 Cal.App.2d 225, 232, 298 P.2d 579). However, we shall construe the August 5 'Order' as a judgment which was superseded by the judgment of September 3, and dismiss the attempted appeal from the former.

Appellants contend that the affidavits in support of the motion for summary judgment were insufficient as a matter of law to defeat their claims to ownership either by record title or by adverse possession. It is further contended that the motion was noticed upon the 'papers, pleadings, files, records and proceedings in the action,' contrary to settled rules in such proceedings which limit the court's consideration to affidavits only. An additional point relating to the findings on damages has been abandoned by stipulation.

A motion for summary judgment is provided by section 437c, Code of Civil Procedure, the pertinent portion of which then read as follows: 'The 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 * * * set forth with particularity, and each affidavit shall show affirmatively that affiant, if sworn, * * * can testify competently thereto.' The general principles to be observed in such proceedings are stated in Eagle Oil and Refining Co. v. Prentice, 19 Cal.2d 553, at page 555, 122 P.2d 264, at page 265: 'The issue to be determined by the trial court in consideration of a motion thereunder is whether or not defendant has presented any facts which give rise to a triable issue or defense, and not to pass upon or determine the issue itself, that is, the true facts in the case.' Stated otherwise, 'issue finding rather than issue determination is the pivot

Page 144

upon which the summary judgment law turns' (Walsh v. Walsh, 18 Cal.2d 439, 441, 116 P.2d 62, 64). In Eagle Oil and Refining Co. v. Prentice, 19 Cal.2d 553, at page 556, 122 P.2d 264, at page 265, the court further declared: '(t)he 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.' 'For these reasons,' the court continues, 'the affidavits of the moving party * * * should be strictly construed and those of his opponent liberally construed.' Furthermore, the propriety of granting or denying a motion for summary judgment is determined by the [166 Cal.App.2d 348] sufficiency of the affidavits on file (Coyne v. Krempels, 36 Cal.2d 257, 261, 223 P.2d 244). While the pleadings serve to define the issues, it is the showing made by the affidavits that is determinative since the court is thereby able to pierce the allegations of the pleadings to ascertain whether a genuine cause of action exists or a real defense has been interposed. Cone v. Union Oil Co., 129 Cal.App.2d 558, 562, 277 P.2d 464. Finally, if any doubt exists whether summary judgment be granted, it should be resolved against the moving party (Whaley v. Fowler, 152 Cal.App.2d 379, 381, 313 P.2d 97; Travelers Indemnity Co. v. McIntosh, 112...

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41 practice notes
  • Business Title Corp. v. Division of Labor Law Enforcement
    • United States
    • California Court of Appeals
    • October 14, 1975
    ...Meyer Page 8 Koulish Co. v. Cannon, 213 Cal.App.2d 419, 432, 28 Cal.Rptr. 757 [1963]; Family Service Agency of Santa Barbara v. Ames, 166 Cal.App.2d 344, 346, 333 P.2d 142 [1958]; Weichman v. Vetri, 100 Cal.App.2d 177, 180, 223 P.2d 288 In the instant case, the interpleaded defendants filed......
  • Loma Portal Civic Club v. American Airlines, Inc.
    • United States
    • California Court of Appeals
    • March 4, 1964
    ...P.2d 725; de Echeguren v. de Echeguren, 210 Cal.App.2d 141, 151-152, 26 Cal.Rptr. 562; Family Service Agency of Santa Barbara v. Ames, 166 Cal.App.2d 344, 348, 333 P.2d 142.) Page 264 The nuisance and trespass allegations of the complaint, that the defendants are engaged in flying jet aircr......
  • Michelman v. Frye
    • United States
    • California Court of Appeals
    • December 14, 1965
    ...133.) Reference may be made to the pleadings for the purpose of defining the issues (Family Service Agency of Santa Barbara v. Ames, 166 Cal.App.2d 344, 348, 333 P.2d 142), but it may not be made for the purpose of remedying a failure to state facts in an affidavit. (Coyne v. Krempels, 36 C......
  • Walsh v. Glendale Fed. Sav. & Loan Assn.
    • United States
    • California Court of Appeals
    • November 7, 1969
    ...University of So. Cal. v. Weiss, 208 Cal.App.2d 759, 766, 25 Cal.Rptr. 475 (1962); Family Service Agency of Santa Barbara v. Ames, 166 Cal.App.2d 344, 348, 333 P.2d 142 (1958). Page 809 This legal question is: could respondent lawfully assess late-charge interest upon the entire unpaid prin......
  • Request a trial to view additional results
41 cases
  • Business Title Corp. v. Division of Labor Law Enforcement
    • United States
    • California Court of Appeals
    • October 14, 1975
    ...Meyer Page 8 Koulish Co. v. Cannon, 213 Cal.App.2d 419, 432, 28 Cal.Rptr. 757 [1963]; Family Service Agency of Santa Barbara v. Ames, 166 Cal.App.2d 344, 346, 333 P.2d 142 [1958]; Weichman v. Vetri, 100 Cal.App.2d 177, 180, 223 P.2d 288 In the instant case, the interpleaded defendants filed......
  • Loma Portal Civic Club v. American Airlines, Inc.
    • United States
    • California Court of Appeals
    • March 4, 1964
    ...P.2d 725; de Echeguren v. de Echeguren, 210 Cal.App.2d 141, 151-152, 26 Cal.Rptr. 562; Family Service Agency of Santa Barbara v. Ames, 166 Cal.App.2d 344, 348, 333 P.2d 142.) Page 264 The nuisance and trespass allegations of the complaint, that the defendants are engaged in flying jet aircr......
  • Michelman v. Frye
    • United States
    • California Court of Appeals
    • December 14, 1965
    ...133.) Reference may be made to the pleadings for the purpose of defining the issues (Family Service Agency of Santa Barbara v. Ames, 166 Cal.App.2d 344, 348, 333 P.2d 142), but it may not be made for the purpose of remedying a failure to state facts in an affidavit. (Coyne v. Krempels, 36 C......
  • Walsh v. Glendale Fed. Sav. & Loan Assn.
    • United States
    • California Court of Appeals
    • November 7, 1969
    ...University of So. Cal. v. Weiss, 208 Cal.App.2d 759, 766, 25 Cal.Rptr. 475 (1962); Family Service Agency of Santa Barbara v. Ames, 166 Cal.App.2d 344, 348, 333 P.2d 142 (1958). Page 809 This legal question is: could respondent lawfully assess late-charge interest upon the entire unpaid prin......
  • Request a trial to view additional results

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