Hayward Tamkin & Co. v. Carpenteria Inv. Co.

• Decision Date: 11 September 1968
• Citation: 265 Cal.App.2d 617,71 Cal.Rptr. 462
• Court: California Court of Appeals Court of Appeals
• Parties: HAYWARD TAMKIN & CO., Inc., a California corporation, Plaintiff and Appellant v. CARPENTERIA INVESTMENT COMPANY, a Limited Partnership, and A. G. Tutor, Defendants and Respondents. Civ. 31986.

Page 462

71 Cal.Rptr. 462

265 Cal.App.2d 617

HAYWARD TAMKIN & CO., Inc., a California corporation, Plaintiff and Appellant v. CARPENTERIA INVESTMENT COMPANY, a Limited Partnership, and A. G. Tutor, Defendants and Respondents.

Civ. 31986.

Court of Appeal, Second District, Division 4, California.

Sept. 11, 1968.

Harry Graham Balter and J. Howard Sturman, Los Angeles, for plaintiff and appellant.

David A. Matlin, Los Angeles, for defendants and respondents.

COLLINS, Associate Justice. ^*

This appeal concerns the propriety of a summary judgment granted on motion of defendants in an action to recover a loan broker's commission.

Plaintiff is Hayward Tamkin & Co., Inc., described as a mortgage banking corporation (whose corporate name prior to September 7, 1965, was Security Mortgage Investment Co. of California). Defendants are Carpenteria Investment Company, a limited partnership, comprised of A. G. Tutor, the only general partner, and seven limited partners.

The pleadings admit that, on September 2, 1965, plaintiff and Carpenteria entered into a written 'Loan Procurement Agreement,' so-called, the essential provisions of which were that Carpenteria employed plaintiff to obtain a real estate loan of $950,000 for permanent financing of a shopping center project for which plaintiff was to be paid a commission of $9,500. The agreement is a form imprinted on the stationery of plaintiff. The concluding paragraph of the agreement reads as follows: 'The parties hereto have read this Agreement and fully understand and accept the same. Any verbal or written promises or commitments, other than those stated in this Agreement, shall be null and void and shall have no bearing on this Agreement.' The agreement, by its terms, was to expire on October 4, 1965, but prior to that date the parties agreed in writing to an extension to October 25, 1965.

The complaint further alleges, and the answer denies, that on September 22, 1965, plaintiff, pursuant to the terms of said agreement, submitted to Ohio National Life Insurance Company (hereafter Ohio National) a loan proposal, in which the latter, shortly thereafter, expressed interest and requested Carpenteria to complete and sign its 'Commercial Investment Application' form for such a loan. Carpenteria did so on or about October 5, 1965, acting through its general partner, Tutor; that this application was still pending on October 25, 1965; that subsequent to the October 25, 1965, expiration of the Loan Procurement Agreement, as extended, Carpenteria and Tutor 'urged and encouraged plaintiff to continue its efforts to obtain a written loan commitment from Ohio National' with the result that on November 12, 1965, the latter issued its written commitment in accordance with the agreement and the loan application which Carpenteria had submitted.

On the basis of these asserted facts, plaintiff claims that it has earned the agreed commission of $9,500. Defendants deny any indebtedness to plaintiff.

Defendants' notice of motion for summary judgment filed October 13, 1966, was supported by an affidavit made by the general partner, Tutor. Defendants also relied on answers made by plaintiff's officers to interrogatories propounded by defendants.

Plaintiff's opposition to the motion was supported by a counter-affidavit of its assistant vice president, J. M. Gilpin.

Defendants' principal contention is that plaintiff could not possibly make out a case for recovery under the Loan Procurement Agreement for the reason that Ohio National's loan commitment dated November 12, 1965, contained terms at variance with the provisions of the Loan Procurement Agreement of the parties and were not acceptable to defendants. A secondary contention by defendants is that the basic employment agreement on which plaintiff sues was not extended beyond October 25, 1965, and its termination date was not otherwise waived by conduct, that therefore the loan commitment admittedly made by Ohio National on November 12, 1965, does not constitute performance as agreed. Of course this secondary contention would be moot in case the primary contention is meritorious.

In support of their principal contention, defendants assert that the Ohio National loan commitment of November 12, 1965, (as amended by letter dated December 8, 1965) ¹ introduced new conditions referred to as 'Loan Requirements,' specifically as follows:

1. The seven individually identified limited partners of the defendant partnership, along with Tutor, the general partners shall 'sign personally.' ²

2. There shall be assigned to Ohio National four specified long-term leases providing for individual minimum annual rentals aggregating not less than $140,000 a year.

3. There shall also be obtained and assigned separate leases for a restaurant, liquor store, and shoe store, respectively.

4. The initial disbursement on the loan shall be $800,000 upon completion of the project; disbursement of the remaining $150,000 shall be made upon Ohio National's approval of additional tenants committed to pay annual rents aggregating an additional $45,000.

Between December 8, 1965, and February 22, 1966, when defendants were advised by letter that Ohio National was terminating the loan negotiations, defendants made efforts to obtain leases for a restaurant, liquor store and shoe store, and with Mode O'Day, and also efforts were made to have Thrifty Drug Stores agree to an amendment of its lease to provide for a guaranteed minimal rental from the lease's commencement date. Plaintiff contends these activities constitute evidence of defendants' acceptance of the condition imposed by the December 8, 1965, amendment, and argues that it was not the conditions themselves but defendants' inability to fulfill them that was responsible for breakdown of negotiations for the Ohio National loan.

Plaintiff points out that defendant Tutor's affidavit in support of the motion alludes to, but does not incorporate, originals or certified copies of various documents (particularly the Thrifty Drug Stores lease which never contained a minimal guaranteed rental). On this basis, plaintiff's opening brief urges the applicability of the well-established and salutary rule which governs determination of a motion for summary judgment, to-wit, that affidavits of the movant are 'strictly construed' (citing 2 Witkin, Cal.Proc., Proceedings Without Trial, § 77, p. 1714), and the supporting principle that 'where the affidavit of a movant depends upon written documents, his affidavit is insufficient unless there is attached thereto the original documents, or a verified or certified copy of such instruments.' (Citing Callahan v. Chatsworth Park, Inc., 204 Cal.App.2d 597, 606, 22 Cal.Rptr. 606; Martens v. Winder, 191 Cal.App.2d 143, 147, 12 Cal.Rptr. 413.)

This argument overlooks a qualification of the 'strictly construed' rule applicable to a movant's affidavit which applies in a case where the movant is a defendant.

As the Supreme Court has recently stated in Joslin v. Marin Mun. Water Dist., 67 Cal.2d 132, at pages 148, 149, 60 Cal.Rptr. 377, at page 388, 429 P.2d 889, at page 899:

'The foregoing makes it clear that a moving defendant, unlike a moving plaintiff, need merely establish a defense to a claim theretofore asserted 'in the action.' His supporting affidavits are responsive in nature and are necessarily addressed to the complaint. It is within the contemplation of section 437c that the factual matters which he sets out in such affidavits are to take their significance upon a consideration of the complaint. In no way departing from the rule that such affidavits are to be strictly construed, it would nevertheless be placing form before substance if we were to require that a moving defendant's affidavits which assert facts establishing a defense when considered with the particular claim relied upon by plaintiff, must be deemed insufficient because they further fail to repeat therein those matters already asserted in the complaint. In such a case, the repetition of the substance of the complaint would be a useless act, the doing of which the law does not require. (Civ.Code, § 3532.)'

We must keep in mind that plaintiff sues on a written agreement, namely, the Loan Procurement Agreement of September 2, 1965, as amended by a written extension agreement dated October 4, 1965, which documents are attached to the complaint as Exhibits A and B, respectively.

Accordingly, under the rule enunciated in Joslin, supra, Tutor's affidavit is to be viewed against the background of plaintiff's complaint. So viewed it shows, and plaintiff's counter affidavit does not refute, that plaintiff has failed to show performance, or even readiness and ability to perform the terms of the Loan Procurement Agreement on which it sues, even if we accept, Arguendo, plaintiff's contention that the agreement's termination date was waived by conduct on the part of defendants (cf. Love v. Gulyas, 87 Cal.App.2d 608, 618, 197 P.2d 405).

As the court observed in People ex rel. Mosk etc. v. City of Santa Barbara, 192 Cal.App.2d 342, 349, 13 Cal.Rptr. 423, 426:

'Where the affidavits do not present any triable issue of fact, then the problem is resolved into a question of law and the trial court determines the issue of law.'

Here the trial court, acting in accordance with the authorization contained in Code of Civil Procedure, section 437c, ordered plaintiff's complaint stricken. ³ The trial court thus concluded that the facts presented showed the nonexistence of a cause of action as pleaded, with the result that no triable issue of fact remained in the case.

We are quite mindful of the warning that the summary judgment procedure must 'be used with caution in order that it may not become a substitute for existing methods in the determination of issues of fact.' The court's function in considering an application for summary judgment is limited to determining whether the opposing party 'has presented any facts...