Johnson v. Drew

• Decision Date: 25 July 1963
• Citation: 218 Cal.App.2d 614,32 Cal.Rptr. 540
• Court: California Court of Appeals Court of Appeals
• Parties: Elizabeth B. JOHNSON, Plaintiff and Appellant, v. Olive C. DREW, Defendant and Respondent. Civ. 26950.

Page 540

32 Cal.Rptr. 540

218 Cal.App.2d 614

Elizabeth B. JOHNSON, Plaintiff and Appellant, v. Olive C. DREW, Defendant and Respondent.

Civ. 26950.

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

July 25, 1963.

Marvin Zinman, Los Angeles, for appellant.

O'Melveny & Myers, Everett B. Clary, and Louis T. LaTourrette, Los Angeles, for respondent.

ASHBURN, Justice.

Plaintiff Elizabeth B. Johnson appeals from a summary judgment entered against her in favor of defendant Olive C. Drew.

The action, brought by the assignee of the landlord's interest in leases of certain aircraft, sought recovery of unpaid rents and other charges accruing under the lease. Lessee was Seven Seas Airlines, Inc. Among the defendants are Urban L. Drew, Earl J. Drew, and their mother, said Olive C. Drew. Plaintiff seeks recovery from defendants other than Olive C. Drew of $54,603.29, upon counts first, second and third of the amended complaint, and $30,297.64 upon the fourth and fifth causes of action. The allegation as to Olive C. Drew is 'that on or about April 27, 1961, Defendant Urban L. Drew transferred to his mother, Defendant Olive C. Drew, certain real property in the County of Los Angeles; that such transfer was made without a fair consideration, and with the intent by said defendants to hinder, delay and defraud plaintiff in her just claim against Defendant Urban L. Drew.' And the prayer: '[T]hat as against Defendant Olive C. Drew, the Court set aside the fraudulent conveyance of property to said defendant and declare the obligations herein sued upon binding upon said defendant to the extent of such conveyance.' This allegation of fraud was denied by said defendant.

Mrs. Drew's motion for summary judgment was supported by her own declaration (Code Civ.Proc. § 2015.5), which virtually ignores the following provisions of § 437c, Code of Civil Procedure: 'The affidavit or affidavits in support of the motion must contain facts sufficient to entitle plaintiff or defendant 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 affidavit or affidavits in opposition to said motion shall be made by the plaintiff or defendant, or by any other person having knowledge of the facts, and together shall set forth facts showing that the party has a good and substantial defense to the plaintiff's action (or to a portion thereof) or that a good cause of action exists upon the merits. The facts stated in each affidavit shall be within the personal knowledge of the affiant, shall be set forth with particularity, and each affidavit shall show affirmatively that the affiant, if sworn as a witness, can testify competently thereto. * * *' Unless it affirmatively appears from other language in the declaration that declarant can testify competently to the facts alleged therein, the declaration is incompetent. (Schessler v. Keck, 138 Cal.App.2d 663, 669, 292 P.2d 314.)

Defendant sought to establish her claim of absence of fraud by reference to copies of various instruments without offering any excuse for failure to present originals or certified copies. Schessler v. Keck, supra, 138 Cal.App.2d 663, 669-670, 292 P.2d 314, 318: 'The affidavit of plaintiff concludes as follows: 'Affiant hereby incorporates herein the attached Affidavits of Nell Robinson, Sallie May Ferguson, Clyde O. Wood, M. D., and Ann Storms; that the facts stated herein are within the personal knowledge of affiant, and that affiant, if sworn as a witness, can testify competently thereto.' Counsel for respondent asserted on oral argument, and examination of the original superior court file which is before us confirms the fact, that the documents attached to said affidavit are not original affidavits of Robinson, Ferguson, Wood and Storms, or any of them, but are copies of purported affidavits. They are not competent and must be disregarded. Gardenswartz v. Equitable etc. Soc., 23 Cal.App.supp.2d 745, 751, 68 P.2d 322; Low v. Woodward Oil Co., Ltd., supra, 133 Cal.App.2d 116, 121, 122, 283 P.2d 720; Murphy v. Kelly, supra, 137 Cal.App.2d [21, 28]--, 289 P.2d 565.'

Mrs. Drew's declaration says that she, a real estate broker, purchased the property in question for her son Ubban who paid $48,500, less the amount of a real estate commission, or $47,422 net for it. 'Shortly after Urban L. Drew acquired the aforesaid property he came in need of funds and he requested declarant to sell the property for him for $48,500. In her capacity as a real estate salesman declarant made diligent efforts to sell said property at said price over a period of several months, including placing advertisements in the newspaper. Declarant was unable to make a sale and so ultimately, as a favor to her son, she agreed to purchase the aforesaid property from Urban L. Drew. On or about October 27, 1961, a Grant Deed from Urban L. Drew to declarant was recorded. A copy of said deed is attached hereto as Exhibit B. As payment for the property declarant agreed to pay Urban L. Drew the sum of $10,000 in cash, to give him a promissory note in the amount of $4,000, payable at the rate of $40 per month, and to take the property subject to the two trust deeds hereinabove described. The consideration thus paid to Urban L. Drew for said property was as follows:

                "Unpaid balance on first trust
                   deed                           $28,641.54
                 Unpaid balance on second trust
                   deed                             5,948.58
                 Cash                              10,000.00
                 Note                               4,000.00
                                                 ------------
                             Total               $ 48,590.12"
                

Respondent also said that in her opinion the fair market price of the property was no than $48,590.12; and '[f]rom the foregoing it will be observed that declarant paid to Urban L. Drew $1,168.12 more than Urban L. Drew paid for the property. Urban L. Drew did not make any substantial permanent improvements to the premises during the time that he owned them. Declarant handled the operation of the property for Urban L. Drew and personally knows all expenditures that he made.' Also: 'Declarant has further made payments at the rate of $40 per month on the $4,000 note she gave to Urban L. Drew, plus a balloon payment of $500. These payments have been made to a trust fund at Glendale Federal Savings and Loan Association to which Urban L. Drew transferred all his right in and to said note. Declarant and Urban L. Drew are the trustees of this fund, and the beneficiary is Urban's child. The present unpaid balance on said note is $3,375.16. There is attached hereto as Exhibit F a copy of a payment book reflecting the aforesaid payments on said note.' And: 'Declarant has fully paid the $10,000 in cash which she agreed to pay to Urban for the purchase of the aforesaid property. Urban was out of the country following declarant's purchase of the property, and she made a series of payments to or for Urban totaling $10,360.98. The sum of $360.98 represented the payment of funds declarant had been holding for Urban and were not connected with the real estate purchase. These payments were made by Money Transfer Order through the Security First National Bank, by purchase of stock and by wire. Receipts for these payments are attached hereto as Exhibit G. Declarant purchased the aforesaid property in good faith for a fair and reasonable consideration. Declarant denies that she at any time had any intent to hinder, delay or defraud plaintiff in the above entitled action, or any other person, from collecting any just claim against Urban L. Drew.' As above indicated, none of the exhibits was an original or an authenticated copy. No other affidavit was presented on behalf of Mrs. Drew and plaintiff filed but one.

In opposition to the motion plaintiff submitted a declaration of her attorney, Marvin Zinman, who said he had acted from time to time as attorney for International Airports, Inc., and its president, George E. Batchelor, 'and so acting declarant has become familiar with certain business transactions of said clients and the affairs of some of the persons and firms with whom it has dealt,' including Seven Seas Airlines and Urban L. Drew; that Seven Seas Airlines is a Luxembourg corporation domiciled in that country; that Urban L. Drew was president of that company at the time of its bankruptcy and at the time of assumption of its lease obligation; that that corporation became a bankrupt in Luxembourg on September 13, 1961, and then ceased all operations; the purported grant deed from Urban L. Drew to Olive C. Drew is dated September 15, 1961. Apparently...