George Ball Pacific, Inc. v. Coldwell Banker & Co.

• Decision Date: 25 March 1981
• Court: California Court of Appeals Court of Appeals
• Parties: GEORGE BALL PACIFIC, INC., Plaintiff and Appellant, v. COLDWELL BANKER & CO. et al., Defendants and Respondents. Civ. 45493.

Page 597

172 Cal.Rptr. 597

117 Cal.App.3d 248

GEORGE BALL PACIFIC, INC., Plaintiff and Appellant, v. COLDWELL BANKER & CO. et al., Defendants and Respondents.

Civ. 45493.

Court of Appeal, First District, Division 2, California.

March 25, 1981.

J. A. London and Brian J. O'Grady Law Offices of J. A. London, Mountain View, Theodore C. Carlstrom, Carlstrom, Heyler & Mitchell, Palo Alto, for plaintiff and appellant.

Charles Theodore Mathews and Edward L. Briggs, Los Angeles, for defendants and respondents.

TAYLOR, Presiding Justice.

This is an appeal by the lessee, George Ball Pacific, Inc. (Ball), from a summary judgment ¹ in favor of Coldwell Banker & Co. (Coldwell Banker) and its salesperson, Fraser, Ball's agents in the negotiations with the original lessor (Overmyer). ² For the reasons set forth below, we have concluded that there was a disputed question of fact as to whether Coldwell Banker misrepresented to Ball that Overmyer had a sufficient interest in the property to enter into a 10-year lease; accordingly, the summary judgment must be reversed.

" ' "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 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. " ' Corwin v. Los Angeles Newspaper Service Bureau, Inc. (1971) 4 Cal.3d 842, 851-852 (94 Cal.Rptr. 785, 484 P.2d 953), quoting from Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417 (42 Cal.Rptr. 449, 398 P.2d 785).

" ' "In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the admissible evidence set forth in the papers and all inferences reasonably deducible from such evidence, except summary judgment shall not be granted by the court based on inferences reasonably deducible from such evidence, if contradicted by other inferences or evidence, which raise a triable issue as to any material fact. " (Italics added.) (Code Civ.Proc., § 437c.)

" ' "The remedy is designed to terminate an action promptly where the purported cause of action or defense is sham or otherwise wholly unfounded. But it is futile to seek the order where any basis for a cause of action or defense can be shown. In other words, the moving party should not confuse an opponent's weak case with no case at all. The (appellate) court, construing the moving party's affidavits strictly ... and the counteraffidavits liberally ..., will reverse the summary judgment if any kind of case is shown," (4 Witkin, Cal. Procedure (2d ed. 1971) Proceedings Without Trial, § 199, p. 2844.)' (Bowden v. Robinson (1977) 67 Cal.App.3d 705, p. 719 (136 Cal.Rptr. 871).)" (Fosgate v. Gonzales, 107 Cal.App.3d 951, 954-955, 166 Cal.Rptr. 233.)

First, we turn to the parties' procedural contentions pertaining to Ball's motion for reconsideration, as the resolution of this issue determines whether the affidavits and declarations filed pursuant to that motion are properly part of the record on appeal. As Coldwell Banker correctly points out, former Code of Civil Procedure section 1008, at the time here pertinent, ³ provided no statutory authority permitting a non-moving party action to file a motion for reconsideration. However, Coldwell Banker failed to note that prior to the enactment of the 1978 version of Code of Civil Procedure section 1008, case law recognized certain exceptions permitting a non-moving party to file a motion for reconsideration, including an obviously procedural interim order (Travelers Ins. Co. v. Superior Court, 65 Cal.App.3d 751, at pages 759-760, 135 Cal.Rptr. 579); (Harth v. Ten Eyck, 16 Cal.2d 829, 832, 108 P.2d 675; Harth v. Ten Eyck, 12 Cal.2d 709, 710, 87 P.2d 693; Carver v. Platt, 179 Cal.App.2d 140, 142, 3 Cal.Rptr. 687; see also The Power of The Trial Judge to Change A Prior Ruling on a Motion, 45 State Bar Journal (1970) 483, at p. 489, and fn. 13 at p. 491). As the court's minute order granting the summary judgment was clearly such an interim order, ⁴ we can only conclude that Ball's motion to reconsider was properly made and considered by the trial court. ⁵ Accordingly, we conclude that, contrary to Coldwell Banker's contention, the 1978 version of Code of Civil Procedure section 1008, in part, broadened the existing case law to permit any party affected by the proceeding to file a motion for reconsideration.

Applying the above quoted rules pertaining to summary judgments to the affidavits and counteraffidavits on the motion for summary judgment and the motion for reconsideration, the following appears:

In 1972, Ball needed a larger warehouse for its horticultural operations in the San Francisco Peninsula area. Ball's president, D. Messick, directed Ethel Peterson, Ball's then assistant secretary and treasurer, to engage a broker. In May 1972, Ms. Peterson met with defendant Fraser, a salesperson for Coldwell Banker, and informed him of Ball's requirements. Fraser submitted several lease proposals to Ms. Peterson and took her to see several potential sites, including the "Overmyer Building" at 111 Uranium Road in Sunnyvale. The building was known by this name and bore a sign with that name.

Fraser also discussed the lease of the "Overmyer Building" with Messick. Fraser took Messick to see the building and also submitted several items of advertising and sales literature from Overmyer. Ultimately, Messick asked Fraser to negotiate a lease with Overmyer on behalf of Ball. Fraser talked to H. J. Jacobs, an Overmyer employee, who referred to the building as "our building."

As a result, about March 28, 1973, Ball entered into a lease with Overmyer, who was designated as lessor at its New York address. The lease was for 20,000 square feet of warehouse space for a 10-year term at the cost of $1,800 a month, and was signed by the vice-president and secretary of Overmyer. The lease and its attached documents bore a heading of "Overmyer Distribution Services, Inc., Space for Industry." The same designations and parties were used in a construction addendum to the lease executed on July 23, 1973. Coldwell Banker received the first three months rent as compensation for its services.

In late 1973, Overmyer filed for bankruptcy in New York. Ball was served with a notice by the sheriff to pay the rent directly to Uranium Road Investments (Uranium Road), a California limited partnership, the true owner of the building, pursuant to its sale and leaseback arrangement with Overmyer. By threatening eviction, Uranium Road forced Ball to renegotiate the lease for a monthly rental of $2,100, or a total of $49,650, the general damages sought by Ball in the instant action.

Prior to the fall of 1973, Messick and Peterson believed that Overmyer owned the building bearing its name; neither had knowledge of the sale and leaseback operation between Overmyer and Uranium Road.

Fraser indicated that while he, in fact, believed that Overmyer owned the building, he never told or represented to Ball or anyone that Overmyer owned the building. Fraser also averred that Ball had proceeded to negotiate independently for the lease and construction addendum, and that Ball's attorneys reviewed the lease and failed to ascertain the true owner. On the basis of this declaration, the court below concluded that there was no misrepresentation, as Fraser and Coldwell Banker did not know that Overmyer did not, in fact, own the building, and gave notice of its intent to grant the motion for summary judgment. ⁶

Prior to the entry of the final judgment on July 28, 1978, Ball filed its motion for reconsideration. The new facts added came from the verified deposition of Belmonte, Overmyer's general manager. Belmonte indicated that it was common knowledge in the brokerage community (which included Coldwell Banker through whom Overmyer had negotiated leases in the past) that Overmyer's business mode was to engage in sale and leaseback operations and that Overmyer did not own the property leased to Ball. Coldwell Banker did not deny or controvert Belmonte's deposition, but filed Fraser's supplemental declaration. Fraser declared that prior to negotiating the lease with Ball, he had checked the then current tax assessor's roll to assure himself that Overmyer, in fact, owned the property.

Ball then provided the court with a copy of the then current tax assessor's roll. Overmyer's name appeared as the mailing address, but Overmyer was not listed on the roll as the owner of the property. Thereafter, Fraser filed a supplemental declaration recanting his above mentioned statement as follows: "(I)n the subject lease transaction, ... I did...