House v. Lala

• Decision Date: 27 April 1960
• Citation: 180 Cal.App.2d 412,4 Cal.Rptr. 366
• Court: California Court of Appeals Court of Appeals
• Parties: Louis H. HOUSE and Grace C. House, Plaintiffs and Respondents, v. Jerome J. LALA, Rose Lala, Fidelity Bank et al., Defendants, Jerome J. Lala and Rose Lala, Defendants and Appellants. Civ. 24390.

Page 366

4 Cal.Rptr. 366

180 Cal.App.2d 412

Louis H. HOUSE and Grace C. House, Plaintiffs and Respondents, v. Jerome J. LALA, Rose Lala, Fidelity Bank et al., Defendants Jerome J. Lala and Rose Lala, Defendants and Appellants.

Civ. 24390.

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

April 27, 1960.

Barry Sullivan, Los Angeles, for appellants.

Hal L. Coskey, Los Angeles, for respondents.

RICHARDS, Justice pro tem.

Defendants Jerome J. Lala and Rose Lala appeal from a summary judgment in favor of the plaintiffs in an action for the specific performance of a real estate sales agreement wherein the plaintiffs are the buyers and the said defendants are the sellers.

The complaint is in the usual form for specific performance. The appealing defendants denied all of the material allegations of the complaint, and, as an affirmative defense, alleged a subsequent written agreement terminating the plaintiffs' rights as purchasers.

Plaintiffs thereafter moved for a summary judgment based upon the affidavits of plaintiff Louis H House and his attorney. Counter-affidavits were filed by the defendant Jerome J. Lala and his attorney. The motion for summary judgment in favor of plaintiffs was granted and judgment followed.

Motion for summary judgment is provided for in Code of Civil Procedure, section 437c. Where the motion is made by the plaintiff, the section provides that the supporting affidavit or affidavits, 'must contain facts sufficient to entitle plaintiff * * * to a judgment in the action, and the facts stated therein shall be within the personal knowledge of the affiant, and shall be set forth with particularity, and each affidavit shall show affirmatively that affiant, if sworn as a witness, can testify competently thereto'.

'The procedure is drastic and should be used with caution in order that it may not become a substitute for existing methods in the determination of issues of fact.' Eagle Oil & Refining Co. v. Prentice, 19 Cal.2d 553, 556, 122 P.2d 264, 265. Any doubt in granting a summary judgment should be exercised against the moving party. Family Service Agency of Santa Barbara v. Ames, 166 Cal.App.2d 344, 348, 333 P.2d 142; Whaley v. Fowler, 152 Cal.App.2d 379, 381, 313 P.2d 97; Travelers Ind. Co. v. McIntosh, 112 Cal.App.2d 177, 182, 245 P.2d 1065.

In order to prevail, the plaintiff's affidavits must state facts establishing every element necessary to sustain a judgment in his favor. Family Service Agency of Santa Barbara v. Ames, supra, 166 Cal.App.2d at page 348, 333 P.2d 142; Murphy v. Kelly, 137 Cal.App.2d 21, 31, 289 P.2d 565; Kimber v. Jones, 122 Cal.App.2d 914, 919, 265 P.2d 922. To satisfy the statutory requirement of 'particularity', the movant's affidavits must state all the requisite evidentiary facts and not merely the ultimate facts. Southern Pacific Co. v. Fish, 166 Cal.App.2d 353, 362, 333 P.2d 133; Murphy v. Kelly, 137 Cal.App.2d 21, 30-31, 289 P.2d 565. Moreover, neither conclusions of law nor conclusions of fact are sufficient to satisfy the statutory requirement. Gardenswartz v. Equitable etc., Soc., 23 Cal.App.Supp.2d 745, 754, 68 P.2d 322.

Affidavits filed on behalf of the moving parties are to be strictly construed and those of his adversary are to be liberally construed. McHugh v. Howard, 165 Cal.App.2d 169, 174, 331 P.2d 674; Travelers Ind. Co. v. McIntosh, supra, 112 Cal.App.2d at page 182, 245 P.2d 1065. Not only must it appear that the averments in the affidavit are 'within the personal knowledge of the affiant' (Code Civ.Proc. § 437c), thus not hearsay (Gardenswartz v. Equitable etc. Soc., supra, 23 Cal.App.Supp.2d at page 750, 68 P.2d 322), but, equally important, it must affirmatively appear from the affidavit that affiant 'can testify competently thereto' (Code Civ.Proc. § 437c). See Southern Pacific Co. v. Fish, supra, 166 Cal.App.2d at page 362, 333 P.2d 133.

Whereas the court may accept as true the evidentiary facts averred by an affiant competent to testify in the absence of counter-affidavits (Southern Pacific Co. v. Fish, supra, 166 Cal.App.2d at page 360, 333 P.2d 133; Cone v. Union Oil, 129 Cal.App.2d 558, 562, 277 P.2d 464), nevertheless, the absence of counter-affidavits does not relieve a moving party plaintiff from the burden of establishing the evidentiary facts of every element necessary to entitle him to the judgment. Southern Pacific Co. v. Fish, supra, 166 Cal.App.2d at page 366, 333 P.2d 133; Gardenswartz v. Equitable, etc. Soc., supra, 23 Cal.App.Supp.2d at page 751, 68 P.2d 322. Finally, as it has been repeatedly held, a motion for a summary judgment is not a trial on the merits, its sole purpose is to determine from the affidavits whether there is an issue of fact to be tried. Walsh v. Walsh, 18 Cal.2d 439, 441, 116 P.2d 62; Eagle Oil & Ref. Co. v. Prentice, supra, 19 Cal.2d at page 555, 122 P.2d 264; Whaley v. Fowler, supra, 152 Cal.App.2d at page 381, 313 P.2d 97.

We now turn to the affidavits of the moving party, having in mind that the motion sought a summary judgment in an action for specific performance of a purported written agreement to buy and sell real property wherein the moving parties were the buyers.

The affidavit of Louis H. House, one of the plaintiffs, avers that on February 27, 1955, he and his wife 'entered into an agreement in writing' with the defendants Lala for the sale of certain premises described in 'Paragraph III of the Complaint,' and that a copy of the agreement is attached to the complaint as 'Exhibit A' and made a part of his affidavit by reference. The exhibit referred to is a standard form of broker's receipt acknowledging deposit of fifty dollars 'to apply on the purchase price of $10,800.00' for a lot described as: 'In the county of Los Angeles, State of California, also known as 10226 Regent Street', subject to certain taxes and other matters. The document goes on to provide for a 'purchase price trust deed for $6800.00 approx'; a 'Second Trust Deed of $1500.00' and that '[b]uyer will deposit an additional $2450.00 and his necessary instruments in escrow' with a named bank 'within ___ days'. The receipt contains other matters not necessary to set forth.

The affidavit then alleges that on or about March 1, 1955 an escrow was opened at a certain bank; that a copy of the escrow instructions was attached to the complaint and is incorporated in his affidavit by reference. An examination of said exhibit attached to the complaint in the Clerk's Transcript fails to reveal that either of the proposed buyers, the plaintiffs herein, signed said instruction, and we have looked in vain for any statement in the affidavits filed in support of the motion that either of the plaintiffs signed the escrow instructions. To create an escrow requires the agreement of the grantor and the grantee to all of the terms of the instructions, and the acceptance by a third party of the position of a depositary (Security-First Nat. Bank v. Clark, 8 Cal.App.2d 709, 712, 48 P.2d 167), and '[i]t is equally well established in this state that before a proposed escrow may have any validity there must be a binding contract in existence between the parties to...