Helfer v. Hubert

• Citation: 208 Cal.App.2d 22,24 Cal.Rptr. 900
• Court: California Court of Appeals Court of Appeals
• Decision Date: 28 September 1962
• Parties: Robert S. HELFER and Lois L. Helfer, Plaintiffs and Appellants, v. Derrick P. HUBERT and Ruth M. Hubert, Defendants and Respondents. Civ. 25904.

Page 900

24 Cal.Rptr. 900

208 Cal.App.2d 22

Robert S. HELFER and Lois L. Helfer, Plaintiffs and Appellants, v. Derrick P. HUBERT and Ruth M. Hubert, Defendants and Respondents.

Civ. 25904.

District Court of Appeal, Second District, Division 3, California.

Sept. 28, 1962.

Fain & Lavine and Harry M. Fain, Beverly Hills, for appellants.

Stephen B. McNally, Van Nuys, for respondents.

FILES, Justice.

Plaintiffs are appealing from a summary judgment which was granted on the ground that the action is barred by the statute of limitations. The notice of appeal states that plaintiffs appeal from the minute order granting the motion for summary judgment. Since the minute order is not appealable (Chilson v. P. G. Industries, 174 Cal.App.2d 613, 616, 344 P.2d 868), we will apply the rule that 'A notice of appeal shall be liberally construed in favor of its sufficiency' (Cal.Rules of Court, Rule 1) and construe the notice to be what plaintiffs should have made it, namely, an appeal from the judgment.

The action is for fraud, and was commenced more than three years after the cause arose. The question is whether the court properly determined that the 'discovery, by the aggrieved party, of the facts constituting the fraud' occurred more than three years prior to the action.

The general principles which control this appeal are well settled. Code of Civil Procedure, section 437c, provides that a defendant's motion for summary judgment must be supported by affidavits containing facts sufficient to entitle defendant to judgment. Upon such a showing the complaint may be dismissed unless the plaintiff, by affidavit, shall show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue of fact. The affidavits of the party opposing the motion must be accepted as true, and if they do raise an issue as to a material fact, the motion must be denied. The affidavits are to be construed with all intendments in favor of the party opposing the motion. (Desny v. Wilder, 46 Cal.2d 715, 725, 299 P.2d 257.)

Where the affidavits of the moving party are on their face sufficient, and the opposing party fails to come forward with counteraffidavits to show that his case has merit, the motion should be granted. (Craig v. Earl, 194 Cal.App.2d 652, 15 Cal.Rptr. 207; Newport v. City of Los Angeles 184 Cal.App.2d 229, 7 Cal.Rptr. 497; Nini v. Culberg, 183 Cal.App.2d 657, 7 Cal.Rptr. 146; Estate of Kelly, 178 Cal.App.2d 24, 2 Cal.Rptr. 634; Kelly v. Liddicoat, 35 Cal.App.2d 559, 96 P.2d 186.)

It is not enough that the complaint alleges sufficient facts. The value of the motion for summary judgment is that it may be used, under the limitations set forth above, to distinguish between a case raising a genuine issue of fact and one supported only by adept pleading. (See Coyne v. Krempels, 36 Cal.2d 257, 262, 223 P.2d 244; Hicks v. Bridges, 152 Cal.App.2d 146, 148, 313 P.2d 15; Atchison v. McGee, 141 Cal.App.2d 515, 296 P.2d 860; Schessler v. Keck, 138 Cal.App.2d 663, 668, 292 P.2d 314; Cone v. Union Oil Co., 129 Cal.App.2d 558, 562, 277 P.2d 464.)

An action for relief on the ground of fraud must be brought within three years, but the cause of action is 'not to be deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud.' (Code Civ.Proc., § 338, subd. 4.)

The rules governing the application of this statute are summarized in Hobart v. Hobart Estate Co., 26 Cal.2d 412, at 437, 159 P.2d 958, at 972, as follows:

'The provision tolling operation of the statute until discovery of the fraud has long been treated as an exception and, accordingly, this court has held that if an action is brought more than three years after commission of the fraud, plaintiff has the burden of pleading and proving that he did not make the discovery until within three years prior to the filing of his complaint. [Citations.] Further, although negligence by the person defrauded is not a defense to a promptly brought action based upon intentional misrepresentation [citation], the cases construing section 338, subdivision 4, supra, have held that plaintiff must affirmatively excuse his failure to discover the fraud within three years after it took place, by establishing facts showing that he was not negligent in failing to make the discovery sooner and that he had no actual or presumptive knowledge of facts sufficient to put him on inquiry. * * *

'It is not in every case, however, that a person is barred after three years by failure to pursue an available means of discovering possible fraud. The statute commences to run only after one has knowledge of facts sufficient to make a reasonably prudent person suspicious of fraud, thus putting him on inquiry. Section 19 of the Civil Code provides: 'Every person who has actual notice of circumstances sufficient to put a prudent man upon inquiry as to a particular fact, has constructive notice of the fact itself in all cases in which, by prosecuting such inquiry, he might have learned such fact.' (Italics added.)'

When the facts known to the plaintiff are susceptible to opposing inferences, the question of whether he has notice of 'circumstances sufficient to put a prudent man upon inquiry' is a question of fact. (Hobart v. Hobart Estate Co., supra, at p. 440, 159 P.2d at p. 973; Ramey v. General Petroleum Co., 173 Cal.App.2d 386, 400, 343 P.2d 787; Sime v. Malouf, 95 Cal.App.2d 82, 104, 212 P.2d 946, 213 P.2d 788.) On the other hand, when the knowledge had by or imputed to plaintiff is such as to compel the conclusion that a prudent man would have suspected the fraud, the court may determine as a matter of law that there has been 'discovery.' (Bainbridge v. Stoner, 16 Cal.2d 423, 430, 106 P.2d 423; Lady Washington C. Co. v. Wood, 113 Cal. 482, 486, 45 P. 809; Haley v. Santa Fe Imp. Co., 5 Cal.App.2d 415, 42 P.2d 1078.)

The cause of action on which plaintiffs rely here is set forth in their second amended complaint substantially as follows: that in March 1956 plaintiffs purchased a residence from defendants; that prior to the sale defendants falsely represented that the property had proper drainage for the disposition of surface water; that in fact, as defendants knew, the grading, facilities, landscaping and soil conditions, together with the grading and ditching of the adjacent property, created a condition inadequate to dispose of surface water; that the condition was such that plaintiffs, being inexpert, were unable to discover for themselves, and that they did not discover it until a heavy rainstorm on April 14, 1958, caused water to stand three or four feet deep on the property. The action was begun on September 21, 1960.

Defendants pleaded the statute of limitations and then made a motion for summary judgment. The motion was supported by an affidavit which incorporated a letter written by one of the plaintiffs, and certain rainfall tables prepared by the United States Weather Bureau. The genuineness of the documents had previously been conceded in response to defendants' request under Code of Civil Procedure, section 2033. We put aside at the outset the reinfall tables and the argument which is based upon them. The trial court was in no position to determine on this motion the quantity and rate of rainfall at plaintiffs' residence at any given time, or the effect which any particular quantity and rate of precipitation would have on this property.

The letter written by one of the plaintiffs to defendants on January 5, 1957, is of significance because it is direct evidence of the state of mind of the plaintiffs more than three years prior to the action. The text of the letter is as follows:

'I shall not try to recount all the misfortunes which have befallen me since buying your former residence because there is not enough time or paper. Nevertheless, I must mention a few: doorknobs which fell off, a soot filled water heater, a non-repairable faulty garbage disposal, cracking walls in the bedroom and master bath, a mysterious (still-unsolved) large pool of water under the south-west corner of the house, doors to the master bath which won't open and close because they do not fit properly at the top and sides, a rain spout over the garage which just fell from its own weight because it was hung insecurely, patio furniture which fell apart because of the rotting wood which was well covered by a recent painting.

'All of the above has given me two severe heart attacks since August, cost me over four months of work and nearly five thousand dollars in medical bills. BUT--NOT ENOUGH! This morning there is a leak in the den roof over the bookcase where there was an old mark from water. I questioned you about this when the house was purchased and you assured me that 'it was nothing' and had been attended to. I must assume that you...