Haskell v. Carli

• Decision Date: 29 September 1987
• Citation: 240 Cal.Rptr. 439,195 Cal. App. 3d 124
• Court: California Court of Appeals
• Parties: Paul HASKELL et al., Plaintiffs and Respondents, v. George A. CARLI et al., Defendants and Appellants. D004422.

Page 439

240 Cal.Rptr. 439

195 Cal.App.3d 124

Paul HASKELL et al., Plaintiffs and Respondents, v.George A. CARLI et al., Defendants and Appellants.

D004422.

Court of Appeal, Fourth District, Division 1, California.

Sept. 29, 1987.

Kartvedt & Smith, Maynard O. Kartvedt, El Cajon, and Michael Rogers, for defendants and appellants.

Sutherland & Gerber and Neil Gerber, El Centro, for plaintiffs and respondents.

BENKE, Associate Justice.

The Carlis appeal the granting of a motion for summary adjudication of issues and the summary judgment which was premised on those issues.

By written agreement dated November 21, 1969, Emanuel Barrell and James S. House, who had been friends for years, entered into an agreement which they designated a "Land Lease Purchase" of Barrell's 115 acres in Seeley, California.

The written agreement is set forth on a preprinted Wolcott form to which the parties made substantial changes.Designating Barrell as "seller and lessor" and using "buyer and lessee" to designate House, they added the term "purchase" wherever the term "land lease" appears and struck out a preprinted paragraph setting forth standard obligations of a lessee.

The agreement was made for a "term" of 11 years commencing on June 1, 1970, and "ending" on January 1, 1981, "at the total rent or sum of $69,575.00" payable in installments as follows:

"Two payments each year, each payment to be $3,162.50.The payments are to be made on June 1 and January 1 of each year, and are to begin June 1, 1970."

A second page of the agreement contains the following language:

"After eleven years Emanuel Barrell agrees to give JAMES S. HOUSE the 115 acres, more or less, Tr. 61 and part of Tr. 62, free and clear."

Neither House nor Barrell lived the 11-year period contemplated by their agreement.House died April 14, 1973.When his estate was probated, his interest in the land lease-purchase agreement was distributed to plaintiffsThelma Haskell and Paul Haskell.Thelma is the sister of James House.In 1977, Emanuel Barrell conveyed his interest in the subject property to his nephew, defendantGeorge A. Carli.Emanuel Barrell died April 15, 1980.

Nowhere in the written agreement is there a provision directing what would occur if, as actually happened, House died before the 11-year period set out in the agreement.

On July 10, 1981, the Haskells filed an action against the Carlis for specific performance and damages.The complaint asked the Carlis be compelled to execute and deliver a conveyance of the property pursuant to the November 19, 1969, agreement.The Carlis filed a cross-complaint for ejectment, damages and for quiet title.

The Haskells brought a motion for summary adjudication of issues which was heard September 20, 1983, the thrust of which was to ask the lower court designate the agreement a land sale which was fully assignable by House.The Carlis opposed the motion, urging the agreement was intended to be personal to House, and, when he died, the agreement died with him.

The record here does not reflect either party filed a separate statement of disputed facts for use at the adjudication hearing.(Code Civ.Proc., § 437c.)However, the Carlis sought to introduce various items of evidence, including a will signed by Barrell on December 31, 1969, approximately one month after the execution of the agreement.In the will, Barrell states:

"FIFTH I have leased my ranch in Imperial County, California, consisting of 115 acres located immediately south of Sunbeam Lake, to JAMES HOUSE.JAMES HOUSE is to pay Fifty-Five Dollars ($55.00) per acre per year as rental for said land, payable semi-annually in advance, one-half thereof on January 1st and one-half thereof on July 1st of each year.If JAMES HOUSE faithfully makes said payments during the ensuing eleven (11) years from date hereof, to wit: until December 31, 1980, then JAMES HOUSE shall own said ranch outright, and I hereby give, devise and bequeath said ranch to said JAMES HOUSE subject to his making the payments to me or my estate.In the event JAMES HOUSE dies before the eleven-year period has elapsed or fails to pay the rental on said property, then this gift shall lapse and the property shall become part of my estate to be divided between the two Fornaseros and Poindexter."

In addition to the will, the Carlis sought to introduce: (a) an "affidavit of residence" signed by James House and notarized in 1970 wherein House states he is "presently leasing" Barrell's land, (b) the deposition testimony of plaintiffThelma Haskell setting forth the fluctuations in lease payments and describing how Barrell and House prepared a handwritten document which House himself then transferred onto the Wolcott form and (c) deposition testimony of a judge, who notarized the grant deeds from Barrell to George Carli in 1977, which infers Barrell was not at all proficient in the English language.

Following argument, the matter was taken under submission.The court thereafter issued an order granting the adjudication issues, finding there were no triable issues of material fact with respect to the following:

"(1) That on or about November 21, 1969, James S. House and Emanuel Barrell entered into a lease-purchase agreement dated November 19, 1969 and which was recorded in the official records of the Recorder of Imperial County on November 28, 1969 at book 1,286, pages 375-376.

"(2) That on or about December 5, 1975, plaintiffsPaul Haskell and Thelma Haskell succeeded to the interest of James House in said land lease-purchase agreement, pursuant to the order settling first and final account and report of Executrix allowing extraordinary compensation and of final distribution in the estate of James Samuel House, case $ 9089, in the Imperial County Superior Court.

"(3) That all of the payments required under the land lease-purchase agreement have been made.

"(4) That the land lease-purchase agreement was a lease-purchase agreement under which the buyer-lessee or his successor would make the required payments and then have an enforceable right to compel a conveyance of the property."

The Haskells's motion for summary judgment was granted by chambers order on August 7, 1985.In making its ruling, the court relied upon the findings made on the ruling on the adjudication of issues.Judgment was entered for the Haskells on February 13, 1986, compelling the Carlis to convey the disputed property to them.The Carlis's cross-complaint was dismissed.

The Carlis's appeal from the judgment on the grounds the ruling on adjudication issues (1) and (4) was incorrect and summary judgment which was based upon that ruling was improper.¹

A

Initially, we are compelled to note that at the adjudication issue hearing of September 20, 1983, no objection was raised to the Carlis's use of House's affidavit of residence, the deposition testimony of Thelma Haskell or the deposition testimony of the judge.It is well settled by statute and case authority that the failure to object, even to otherwise inadmissible evidence, waives the defect.(Evid.Code, § 353, subd. (a);Estate of Silverstein(1984)159 Cal.App.3d 221, 225, 205 Cal.Rptr. 294;People v. Harris(1978)85 Cal.App.3d 954, 957, 149 Cal.Rptr. 860;People v. Nugent(1971)18 Cal.App.3d 911, 917, 96 Cal.Rptr. 209;Waller v. Waller(1970)3 Cal.App.3d 456, 464, 83 Cal.Rptr. 533;3 Witkin, Cal.Evidence (3d ed. 1986), § 2012, pp. 1971-1972.)

Although the use and admissibility of the 1969 will were contested by the Haskells, their objections were not based upon the ground argued on appeal, i.e., that it constituted improper parol evidence.The objections were that (1) it constituted improper evidence of uncommunicated intent under Houghton v. Kerr Glass Mfg. Corp.(1968)261 Cal.App.2d 530, 68 Cal.Rptr. 43, (2) the will could not be used to alter the sale since there was consideration paid by House (Estate of Howe(1948)31 Cal.2d 395, 189 P.2d 5) and (3) there was a lack of a foundational declaration from George Carli, who presented the will at his deposition.The failure to raise the specific objection based upon parol evidence waives such argument for purposes of appeal.(Evid.Code, § 353, subd. (a).)Even if the objections raised below could be set within a parol evidence analysis, the record contains no ruling on any of the objections.²Failure of counsel to secure such a ruling waives the objection.(Fibreboard Paper Products Corp. v. East Bay Union of Machinists(1964)227 Cal.App.2d 675, 698, 39 Cal.Rptr. 64;Witkin, Cal.Evidence, supra, § 2030, pp. 1992-1993.)

Although the waiver rules did not apply to summary judgment proceedings prior to the 1980amendment of Code of Civil Procedure, section 437c(seeDugar v. Happy Tiger Records, Inc.(1974)41 Cal.App.3d 811, 817, 116[195 Cal.App.3d 130] Cal.Rptr. 412), section 437c, subdivision (b), now provides "[e]videntiary objections not made either in writing or orally at the hearing shall be deemed waived."Section 437c, subdivision (c), further sets forth that the trial court must consider all evidence unless an objection has been raised and sustained:

"In determining whether the papers show that there is no triable issue as to any material fact the court shall consider all of the evidence set forth in the papers, except that to which objections have been made and sustained."³

It is true the adjudication of issues procedure is specifically set forth in Code of Civil Procedure, subdivision (f) of section 437c, while the evidentiary rules governing summary judgment are contained in subdivisions (c) and (b).There is no case which addresses the question whether the evidentiary provisions of subdivisions (b) and (c) apply to motions for summary adjudication of issues under subdivision (f).However, the legislative history of Code of Civil Procedure section 437c compels us to conclude motions for summary adjudication are governed by the language of subdivisions (b) and (c).

B

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