Fidelity Investors, Inc. v. Better Bathrooms, Inc.

• Citation: 146 Cal.App.2d Supp. 896,304 P.2d 283
• Parties: 146 Cal.App.2d Supp. 896 FIDELITY INVESTORS, Inc., etc., Plaintiff and Respondent, v. BETTER BATHROOMS, Inc., etc., et al., Defendants, David Waters, Bernard Bechthold and C. E. Vandervort, Defendants and Appellants. C. A. 9099. Appellate Department, Superior Court, Los Angeles County, California
• Decision Date: 20 November 1956
• Court: United States Superior Court (California)

Page 283

304 P.2d 283

146 Cal.App.2d Supp. 896

FIDELITY INVESTORS, Inc., etc., Plaintiff and Respondent, v. BETTER BATHROOMS, Inc., etc., et al., Defendants, David Waters, Bernard Bechthold and C. E. Vandervort, Defendants and Appellants.

C. A. 9099.

Appellate Department, Superior Court, Los Angeles County, California.

Nov. 20, 1956.

Tanner, Odell & Taft, Los Angeles, for appellant Waters.

Behymer & Hoffman, Los Angeles, for appellants Bechthold and Vandervort.

Rose & Rose, Los Angeles, for respondent.

BISHOP, Presiding Judge.

A summary judgment was entered against the three individual defendants in this action and they have appealed. The plaintiff, as the assignee of the Delta Shower Door, Inc. (alleged to be a California corporation), seeks to recover the balance claimed to be due that corporation from the defendants because of shower doors and bathroom equipment delivered and installed as ordered by the defendants. We are reversing the judgment because the affidavit, upon which plaintiff's motion for a summary judgment depends, fails to measure up to the requirements of the summary judgment section, section 437c, Code of Civil Procedure, at several vital points.

In the cases dealing with summary judgments, we repeatedly run across a statement like this one in Kimber v. Jones, 1954, 122 Cal.App.2d 914, 919, 265 P.2d 922, 925: 'It must be borne in mind that in a summary judgment proceeding, which is a drastic procedure to be used sparingly and with circumspection in order to fully preserve the rights of litigants, the affidavits of the moving party must be strictly construed. United States Fidelity & Guaranty Co. v. Sullivan, 93 Cal.App.2d 559, 561, 209 P.2d 429; Travelers Indemnity Co. v. McIntosh, 112 Cal.App.2d 177, 182, 245 P.2d 1065.' The first of the two cases cited in the passage just quoted, refers to still other cases and makes this quotation from Eagle Oil & Ref. Co. v. Prentice, 1942, 19 Cal.2d 553, 556, 122 P.2d 264, 265: "The procedure is drastic and should be used with caution * * *." [93 Cal.App.2d 559, 209 P.2d 431.] This conclusion is not only supported by authority, but follows from the strict requirements of section 437c itself. We note there: 'The facts stated in each affidavit shall be within the personal knowledge of the affiant, shall be set forth with particularity, and each affidavit shall show affirmatively that the affiant, if sworn as a witness, can testify competently thereto.'

The complaint, in this case, alleges that the defendants became indebted to the Delta Shower Door Co., Inc., upon a book account, which has been assigned to the plaintiff. These allegations are denied in the answers filed by the individual defendants. Looking at the affidavit presented in support of plaintiff's motion, we find no mention whatever made of a book account against anybody. We do find the affiant stating that the Delta Shower Door, Inc., 'delivered and installed shower doors and bathroom equipment and tub enclosures for the defendant Better Bathrooms, Inc. on the following orders.' [then appear nine references of which the first is typical:] 'John Farrow, at 612, Beverly Drive, Beverly Hills, Calif., purchase order no. 4640, Inventory no. 684 in the amount of $144.20 on May 3, 1954.' With respect to the assignment the affidavit declares: 'That on November 10, 1955, the Delta Shower Door, Inc....