Family Service Agency of Santa Barbara v. Ames

• Decision Date: 18 December 1958
• Citation: 166 Cal.App.2d 344,333 P.2d 142
• Parties: 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.
• Court: California Court of Appeals Court of Appeals

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.

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, 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 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 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 Cal.App.2d 177, 182, 245 P.2d 1065).

Appellants' answer set up an affirmative defense claiming ownership by deed and by adverse possession since 1929. Because the chief basis for this appeal concerns the insufficiency of respondent's affidavits to establish the lack of any triable issue as to adverse possession, we first consider the merits of that claim. If it is tenable, the motion should have been denied.

A claimant to title by adverse possession must establish five elements in connection with his occupancy: He must have been in (1) actual and (2) open and notorious possession of the premises, (3) under color of title or claim, (4) continuously and without interruption for five years and (5) must have paid all taxes assessed. West v. Evans, 29 Cal.2d 414, 417, 175 P.2d 219. For the purposes of this appeal, respondent concedes that appellants have satisfied the first four elements but claims a lack of compliance with the tax requirement. Proof thereof, then, is manifestly essential, since before plaintiff can prevail on summary judgment, its affidavits must state facts covering every element necessary to sustain a judgment in its favor (Murphy v. Kelly, 137 Cal.App.2d 21, 31, 289 P.2d 565).

The affidavit of William Moore, the city assessor, alleged that taxes were assessed on the disputed parcel to plaintiff (under its original corporate name) from 1939 to 1957, with certain immaterial exceptions, and at no time during that period was the property assessed to defendants. Contrary to the provisions of sections 1855, 1920 and 1926, Code of Civil Procedure, no copies of the tax records in question, certified or otherwise, were attached, nor did the affidavit allege any excuse or explanation for their nonproduction. The affidavit of A. M. Fanning, city tax collector, declared that all taxes against the parcel in suit between 1939 and 1957 were assessed to and paid by the plaintiff; that no overpayment was made during that period nor was payment made twice during any fiscal year. Again, no copies of the official records were attached to the affidavit, nor was any excuse or explanation for their nonproduction set forth. Jessie Loch, a deputy county tax collector, and Guy P. Sawyer, county assessor, also executed affidavits to the same general effect, as the matter involved records of their offices, but no copies of such records were attached and there was no explanation or excuse for their absence.

In opposition to the motion, a counteraffidavit of one of the appellants alleged that defendants and their predecessors in title had been in open, actual and notorious possession 'in fee against the whole world' without interruption since 1939 and during that period had paid all taxes of every kind levied and assessed. Photostatic copies of tax receipts were attached to the counteraffidavit which further alleged that affiant had been informed 'many times' by the office of the city tax collector that she was paying taxes on the lot in issue even though the lot number for assessment purposes had been changed at various times; that she believed lot 13, so numbered on the attached tax receipts, was the lot in issue and that it was so numbered at one time. In reply to the foregoing averments, respondent filed an affidavit executed by an employee of the city assessor's office to the effect that the lot in question had never been misnumbered.

Appellants contend that the affidavits of Moore, Fanning, Loch and Sawyer were all incompetent to establish the facts alleged. They rely on Low v. Woodward Oil Co., Ltd., 133 Cal.App.2d 116, 283 P.2d 720, where similar allegations were characterized as mere conclusions of law...