Jack v. Wood

• Decision Date: 05 February 1968
• Court: California Court of Appeals Court of Appeals
• Parties: Irene JACK, Plaintiff and Appellant, v. Kenneth W. WOOD et al., Defendants and Respondents. Civ. 8383.

Page 856

65 Cal.Rptr. 856

258 Cal.App.2d 639

Irene JACK, Plaintiff and Appellant, v. Kenneth W. WOOD et al., Defendants and Respondents.

Civ. 8383.

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

Feb. 5, 1968.

Rehearing Denied March 6, 1968.

Hearing Denied April 4, 1968.

[258 Cal.App.2d 642] Robert H. Green, Santa Ana, for plaintiff and appellant.

Rutan & Tucker, by Howard F. Harrison and Stephen C. Drummy, Santa Ana, for defendants and respondents.

OPINION

GABBERT, Associate Justice pro tem. ^*

This is an action by a business invitee against a building maintenance operator to recover for personal injuries suffered as the result of a fall. Plaintiff appeals from a summary judgment in favor of defendant. In this opinion we sustain plaintiff's contention that a triable issue of fact has been raised in the declarations in opposition to the motion.

By her complaint plaintiff seeks to recover damages from Wood for personal injuries suffered as a result of a fall. Her cause of action grows out of the fact that defendant Wood, doing business as K. W. Building Maintenance, performed janitorial services in a building owned by a Dr. Polentz, the tenant therein being a Dr. Leon.

Prior to the filing of her complaint the plaintiff and the two doctors negotiated a settlement through insurance adjusters and plaintiff's attorney. Releases were executed by plaintiff, her husband and the two doctors. ¹

Following execution of the releases plaintiff filed an action against Wood based on his claimed negligence in maintenance operations in the building which, she asserts, proximately caused her injury. Defendant answered the complaint, raised several affirmative defenses among which was the asserted release and discharge of the tort liability in question, based upon the releases executed in favor of the doctors.

Thereafter defendant made a motion for summary judgment. This was originally denied without prejudice, but was later renewed. The defendant prior to the second hearing of the motion for summary judgment requested that plaintiff admit the genuineness and due execution of the releases, pursuant to Code of Civil Procedure, section 2033. The renewed motion for summary judgment was supported by reference to this request for admissions, to which plaintiff failed to timely respond, and the declaration of defendant. ²

In opposition to the motion for summary judgment plaintiff filed a declaration. ³

Plaintiff filed points and authorities to the effect that her intent in the execution of the releases was a question of fact which could not be reached by the summary judgment procedure, and that the question of Wood's status as an independent contractor or employee still presented a triable issue of fact as his self-serving declaration was not determinative of that question.

At the hearing the court had before it a declaration of plaintiff's attorney, in opposition to the renewed motion for summary judgment referring to plaintiff's execution of a 'Release of all Claims' ⁴ to each of the doctors.

The failure to answer the request for admissions is deemed an admission of the matters contained in such request. (See Code of Civil Procedure, § 2033, subdiv. (a); Bank of America Nat. Trust & Savings Ass'n v. Baker, 238 Cal.App.2d 778, 779, 48 Cal.Rptr. 165.) A summary judgment may be based on such admissions and requests for admissions, and on the moving party's affidavit. (Bennett v. Hibernia Bank, 186 Cal.App.2d 748, 753, 9 Cal.Rptr. 896; Buffalo Arms, Inc. v. Remler Co., 179 Cal.App.2d 700, 702--703, 4 Cal.Rptr. 103.)

The foundation of defendants' motion thus was that plaintiff was bound by the legal effect of the words employed in the releases and that upon her admission of genuineness, no further triable issue of fact remained. Points and authorities were submitted by defendants.

In ruling on the motion, the court, apparently referring to plaintiff's counsel's declaration, stated in effect that the only objection noted was that the releases were executed on grounds of mistake of fact known to the other parties and on the grounds of misrepresentation and lack of consideration. The court held that these were conclusions and did not comply with the provisions of Code of Civil Procedure, § 437c, in that they were not made by a party having knowledge of the facts, and did not set forth facts showing a good and substantial defense or that a good cause of action existed upon the merits.

Counsel for plaintiff requested a continuance within which to file an affidavit which would meet the requirements mentioned by the court. The request was denied and the motion for summary judgment was granted. Judgment was entered for defendant and the complaint was ordered dismissed. This appeal was then taken by plaintiff.

Section 437c, Code of Civil Procedure, provides:

'The affidavit or affidavits in support of the motion must contain facts sufficient to entitle plaintiff for defendant to a judgment in the action * * * and shall be set forth with particularity, * * *.'

In this case the affidavits filed by both parties are indefinite at best and do not set forth the facts With particularity which entitled defendant to a judgment as the language of the section requires. The word 'particularity' in a pleading or affidavit means the detailed statement of particulars. (Black's Law Dictionary; Yoo Thun Lim v. Crespin, 100 Ariz. 80, 411 P.2d 809, 810.) The word 'particulars' has been held to be synonymous with 'details.' (See 26A C.J.S., p. 874, note 94.) 'In applying this requirement the test is generally whether the affidavit states evidentiary facts on the one hand, or ultimate facts or conclusions on the other. The courts have been more liberal with the responding party in this regard.' (C.E.B. Practice Handbook No. 8, California Civil Procedure Before Trial, p. 865.) The affidavits should contain evidentiary facts stated precisely, specifically and definitely.

Legal conclusions are especially objectionable when they are contained in the moving party's affidavits. (Gardenswartz v. Equitable, etc., Soc., 23 Cal.App.2d Supp. 745, 753--754, 68 P.2d 322; Low v. Woodward Oil Co., Ltd., 133 Cal.App.2d 116, 121, 283 P.2d 720; Weichman v. Vetri, 100 Cal.App.2d 177, 179, 223 P.2d 288; Fidelity Inv., Inc. v. Better Bathrooms, Inc., 146 Cal.App.2d Supp. 896, 304 P.2d 283.) The cases are replete with statements that a summary judgment proceeding is a drastic procedure to be used sparingly and with circumspection in order to fully preserve the rights of litigants, and that affidavits of the moving party are to be strictly construed. (Eagle Oil & Ref. Co. v. Prentice, 19 Cal.2d 553, 555--556, 122 P.2d 264; Kimber v. Jones, 122 Cal.App.2d 914, 919, 265 P.2d 922; Travelers Indemnity Co. v. McIntosh, 112 Cal.App.2d 177, 182, 245 P.2d 1065; United States Fidelity & Guar. Co. v. Sullivan, 93 Cal.App.2d 559, 561, 209 P.2d 429.)

'The purpose to be served by the summary judgment procedure is to expedite litigation by avoiding needless trials. While it is not a substitute for a regular trial and does not authorize the trial of any bona fide issues of fact which the affidavits may reveal, it permits the court to pierce the allegations of the pleadings to ascertain whether a genuine cause of action in fact exists or whether the defense interposed is sham or feigned.' (Barry v. Rodgers, 141 Cal.App.2d 340, 342, 296 P.2d 898, 900; Cone v. Union Oil Co., 129 Cal.App.2d 558, 562, 277 P.2d 464; Kelly v. Liddicoat, 35 Cal.App.2d 559, 561, 96 P.2d 186.) If it appears from an examination of the affidavits that no triable issue of fact exists, and that the affidavits in support of the motion state facts which, if proved, would support a judgment in favor of the moving party, then summary judgment is proper. (Coyne v. Krempels, 36 Cal.2d 257, 261, 223 P.2d 244.) It is thus apparent that the propriety of granting or denying the motion depends upon the sufficiency of the affidavits that have been filed. (Low v. Woodward Oil Co., Ltd., supra, 133 Cal.App.2d 116, 121, 283 P.2d 720; Kimber v. Jones, supra, 122 Cal.App.2d 914, 918, 265 P.2d 922.)

In reviewing a summary judgment the important first step, before any defects in the counter-affidavit need be examined, either as to form or substance, is to determine the sufficiency of the supporting affidavits. (O'Connell v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 230 Cal.App.2d 633, 637, 41 Cal.Rptr. 257; Continental Constr. Co. v. Thos. F. Scollan Co., 228 Cal.App.2d 385, 388, 39 Cal.Rptr. 432; Colvig v. KSFO, 224 Cal.App.2d 357, 369, 36 Cal.Rptr. 701; Johnson v. Banducci, 212 Cal.App.2d 254, 261, 27 Cal.Rptr. 764; Southern Pacific Co. v. Fish, 166 Cal.App.2d 353, 364, 333 P.2d 133.) The rule is stated in Borges v. Home Insurance Co., 239 Cal.App.2d 275, 276, 48 Cal.Rptr. 540, 541:

'* * * despite the insufficiency of the affidavits filed in opposition to a motion for summary judgment, the moving party must show by his own motion that no triable issue of fact exists.'

Where the supporting affidavit does not state facts sufficient to support the summary judgment for defendant, the appellate court need not proceed to determine whether the declaration of plaintiff, presented as a counter-affidavit, proffers competent and sufficient evidence to present a triable issue of fact. (Oliver v. Swiss Club Tell, 222 Cal.App.2d 528, 35 Cal.Rptr. 324; Saporta v. Barbagelata, 220 Cal.App.2d 463, 468, 33 Cal.Rptr. 661.) And the supporting affidavit, to be sufficient, must comply with statutory requirements even though no counter-affidavit is filed, and also where the counter-affidavit is insufficient. (Indiana Plumbing Supply Co. v. Bank of America Nat. Trust & Sav. Assn., 255 Cal.App.2d --- ⁵, 63 CAL.Rptr. 658; de Echeguren v. de Echeguren, 210 Cal.App.2d 141, 147, 26 Cal.Rptr. 562; Pappas v. Union Bond & Trust Co., 186 Cal.App.2d 699, 702, 9 Cal.Rptr. 218; Kelliher v. Kelliher, 101 Cal.App.2d 226, 232, 225 P.2d 554; cf...