Mansfield v. Kaiser

• Decision Date: 24 December 1959
• Citation: 176 Cal.App.2d 632,1 Cal.Rptr. 555
• Parties: Margaret MANSFIELD and Clara Holecheck, Plaintiffs and Respondents, v. Roy C. KAISER and Geraldine C. Kaiser, his wife, Defendants and Appellants. Civ. 24135.
• Court: California Court of Appeals Court of Appeals

Page 555

1 Cal.Rptr. 555

176 Cal.App.2d 632

Margaret MANSFIELD and Clara Holecheck, Plaintiffs and Respondents, v. Roy C. KAISER and Geraldine C. Kaiser, his wife, Defendants and Appellants.

Civ. 24135.

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

Dec. 24, 1959.

Roland T. Williams and Roy C. Kaiser, Los Angeles, for appellants.

Thomas A. Wood, Larwill & Wolfe, Los Angeles, for respondents.

FOX, Presiding Justice.

This is an appeal by defendants from a judgment in which they were enjoined from asserting any interest adverse to plaintiffs in certain real property in Kern County.

This is another chapter in litigation growing out of a contract entered into on August 20, 1948, by which J. W. Eddington (since deceased) agreed to sell, and Joseph Lees agreed to buy the land in question. ¹ In Kaiser v. Mansfield, reported in 160 Cal. App.2d 620, 325 P.2d 865, the court delineated the transactions and events on which the respective parties base their asserted rights.

On May 20, 1954, the Kaisers filed an action in the superior court of Kern County to quiet title to a portion of Section 29, Township 9 North, Range 12 West, S.B.B. & M., in Kern County. In that action Margaret Mansfield, plaintiff herein, filed an answer and cross-complaint; the other plaintiff herein, Clara Holecheck, filed a complaint in intervention. The final trial therein resulted in a judgment quieting the title of Mansfield and Holecheck to all of said section 29. In that judgment the Kaisers were ordered to execute and deliver to Mansfield and Holecheck all instruments necessary to fully vest in them title to said described property, and, in the event the Kaisers failed to execute said instruments, the clerk of the court was appointed as Commissioner to do so in the name and on behalf of the Kaisers. The judgment also provided that Mansfield deposit $2,831.52 with the clerk of the court for the use and benefit of the Kaisers. On appeal (160 Cal. App.2d 620, 325 P.2d 865), the judgment was modified by requiring Mansfield and Holecheck to deposit an additional $4,000 with the clerk for the use and benefit of the Kaisers. As so modified, the judgment was affirmed and has become final. (Hearing denied by the Supreme Court.) The above mentioned sums were deposited with the clerk for the use and benefit of the Kaisers. Upon the judgment becoming final, demand was made upon the Kaisers to execute and deliver to Mansfield and Holecheck an assignment of a certain agreement for sale of real property made and entered into on August 20, 1948, by and between J. W. Eddington, as seller, and Joseph Lees, as buyer, and which, assertedly, had been assigned to the Kaisers by mesne conveyances. This agreement provided for the sale of the real property here in dispute. The Kaisers failed and refused to execute and deliver to Mansfield and Holecheck an assignment of said agreement. Thereafter, the clerk of the superior court of Kern County, pursuant to the said quiet title judgment, made, executed and delivered to Mansfield and Holecheck a 'conveyance and assignment' of the aforesaid agreement for the sale of real property in the names and on behalf of the Kaisers.

In the meantime, Eddington died and his estate was probated in Los Angeles County. On August 1, 1958, the Kaisers filed a petition in the Eddington probate proceedings in which they requested an order directing conveyance of the real property herein in controversy to them as successors in interest of Joseph Lees, under and pursuant to the terms of the aforesaid agreement for the sale of real property, in which the decedent was the seller and Joseph Lees was the buyer. The petition was on the grounds that the Kaisers were the owners of said agreement. The agreement is the same one that had been assigned to Mansfield and Holecheck by the clerk as Commissioner undrer the aforesaid judgment. The probate court, in the Eddington Estate, made an order dismissing the petition of the Kaisers, without prejudice, however, to 'their instituting an independent action * * * against such persons as they may be advised with respect to title, ownership and right to conveyance' of such property. Because of the actions of the Kaisers in asserting a right to this real property adverse to the interests of Mansfield and Holecheck despite the aforesaid quiet title judgment, Mansfield and Holecheck brought this action for a permanent injunction against the Kaisers, who answered in due course and prayed that no injunction be granted.

Plaintiffs thereupon made a motion for a summary judgment. They set forth in an affidavit in support of their motion their title to said real property and the lack of any right of the Kaisers thereto. In support of their position, plaintiffs attached certified copies of all the documents to which we have referred. The affidavit states that irreparable injury will be done to plaintiffs unless defendants are enjoined and restrained from asserting any claim to the said property adverse to plaintiffs.

Defendant Roy C. Kaiser filed an affidavit in opposition to the motion for summary judgment. Defendants have summarized this affidavit in their brief. We have reproduced their summary in footnote 2. Plaintiffs did not file any counter-affidavit.

Upon the record thus presented the court granted a summary judgment, enjoining defendants from asserting any claim to the said real property adverse to plaintiffs and from proceeding with their petition in the Eddington Estate. It is from this judgment that defendants have appealed.

'Summary judgment for plaintiff is proper only if the affidavits in support of his motion state facts that if proved would be sufficient to sustain judgment in his favor, and defendant does not 'by affidavit or affidavits * * * show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue of fact.' Code Civ.Proc. § 437c.' Coyne v. Krempels, 36 Cal.2d 257, 261, 223 P.2d 244, 246; Desny v. Wilder, 46 Cal.2d 715, 725-726, 299 P.2d 257.

The defendants make no suggestion in their brief that the facts stated in the affidavit on behalf of plaintiffs are insufficient to sustain a judgment in their favor. The question then is: Does the affidavit on behalf of defendants present any facts which give rise to a triable issue? While defendants state in their brief that the affidavit of Roy C. Kaiser 'raised many issues of fact and set forth triable issues of fact which were a good and meritorious defense to the plaintiff's action,' they fail to point out a single such fact. Also, defendants state certain established principles in applying the summary judgment statute and cite a number of cases in that field, from some of which they quote, but they totally fail to show the application of these principles and authorities to the instant case.

Our examination of the Kaiser affidavit, together with the certified documents which are a part of the affidavit on behalf of plaintiffs, leads us to the conclusion that Kaiser's affidavit does not present any triable issue of fact. It does not put in issue the authenticity of the...