Hicks v. Bridges

• Decision Date: 27 June 1957
• Citation: 313 P.2d 15,152 Cal.App.2d 146
• Parties: Nancy Bridges HICKS, Plaintiff-Appellant, v. Harry R. BRIDGES and San Francisco Bank, or successor, Defendants. Frances FOSTER and George R. Andersen, Plaintiffs in Intervention, and Respondents, v. Nancy Bridges HICKS, et al., Defendants in Intervention and Appellant. Civ. 17300.
• Court: California Court of Appeals Court of Appeals

Page 15

313 P.2d 15

152 Cal.App.2d 146

Nancy Bridges HICKS, Plaintiff-Appellant, v. Harry R. BRIDGES and San Francisco Bank, or successor, Defendants.

Frances FOSTER and George R. Andersen, Plaintiffs in Intervention, and Respondents, v. Nancy Bridges HICKS, et al., Defendants in Intervention and Appellant.

Civ. 17300.

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

June 27, 1957.

Farr, Twohig & Weingarten, Ernest W. Schmidt, Seaside, for appellant.

Gladstein, Andersen, Leonard & Sibbett, George R. Andersen, San Francisco, for respondents.

KAUFMAN, Presiding Justice.

This is an appeal by the plaintiff and defendant in intervention, Nancy Bridges Hicks, from a summary judgment in favor of respondents and plaintiffs in intervention, Frances Foster and George R. Andersen. The plaintiff was divorced from Harry R. Bridges on January 20, 1955. She and Harry R. Bridges are the owners as joint tenants in fee simple of certain real property in the City of San Francisco. Plaintiff filed a complaint requesting the partition and sale of this property. Defendant Harry R. Bridges filed an answer alleging a debt of $7,843.36 owed to Frances Foster and George R. Andersen. Frances Foster and George R. Andersen filed a complaint in intervention alleging that Nancy Bridges Hicks and Harry R. Bridges became indebted in the sum of $7,843.36 which was addanced by plaintiffs in intervention as a down payment on the purchase of the property involved, and that this debt was recognized in the property settlement agreement executed by the defendants in intervention on November 12, 1954. Nancy Bridges Hicks denied that she was indebted to the plaintiffs in intervention or that any sum at all was ever advanced or owed. The trial court granted the respondents' motion for summary judgment.

Such a motion is addressed to the sound discretion of the trial court and in the absence of a clear showing of abuse thereof, the exercise of that discretion will not be disturbed on appeal. Therefore, the issue on appeal is whether the trial court abused its discretion in granting the motion. A motion for a summary judgment raises the issue of whether any triable issues of fact exist. Desny v. Wilder, 46 Cal.2d 715, at page 725, 299 P.2d 257. Under Code of Civil Procedure, § 437c, the motion must be supported by affidavit of any person or persons having knowledge of the facts. If the affidavit of the other party does not show facts which present a triable issue of fact, the judgment may be entered. The sufficiency of the allegations of a complaint do not determine the motion for a summary judgment. Coyne v. Krempels, 36 Cal.2d 257, 223 P.2d 244. As said by the court in affirming a summary judgment in Cone v. Union Oil Co., 129 Cal.App.2d 558, at page 563, 277 P.2d 464, at page 467: '* * * it must be determined from the affidavits whether there exists a genuine issue as to any material fact. Often there is no genuine issue of fact, although such an issue is raised by the formal pleadings.' One question to be determined here then, is whether the appellant's affidavit establishes a triable issue of fact. An affidavit does not raise such an issue unless it sets forth facts showing that the party has a good and substantial defense or that a good cause of...