Martens v. Winder

• Decision Date: 13 April 1961
• Docket Number: No. 18650,18650
• Citation: 12 Cal.Rptr. 413,191 Cal.App.2d 143
• Parties: Beatrice MARTENS, Plaintiff and Appellant, v. Rulura T. WINDER and Marguerite Upson, Guardian of the Estate of Rulura T. Winder, Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

Page 413

12 Cal.Rptr. 413

191 Cal.App.2d 143

Beatrice MARTENS, Plaintiff and Appellant, v. Rulura T. WINDER and Marguerite Upson, Guardian of the Estate of Rulura T. Winder, Defendants and Respondents.

No. 18650.

District Court of Appeal, First District, Division 1, California.

April 13, 1961.

Beatrice Martens, in pro. per.

Breed, Robinson & Stewart, Oakland, for respondents.

BRAY, Presiding Justice.

Plaintiff appeals from summary judgment granted defendants.

Plaintiff seeks specific performance of and declaration of rights under a compromise agreement which she and all other heirs of A. H. Winder, intestate, executed January 26, 1951, providing for the settlement of their respective claims and for distribution of the assets of the estate. She joined as defendants Rulura T. Winder, widow of the decedent, Marguerite Upson, guardian of Rulura's estate, Central Bank, and G. L. Otey. Defendants Rulura T. Winder and Marguerite Upson as guardian of the person and estate of Rulura T. Winder moved for and were granted summary judgment.

Defendants' claim that the complaint is without merit is based primarily upon the claim that all of the issues raised by it have been adjudicated adversely to plaintiff in two judgments or decrees of the Alameda Superior Court, (1) the summary judgment in action No. 285416, Beatrice Martens, plaintiff, v. Rulura T. Winder and Marguerite Upson, guardian of the estate of Rulura T. Winder, deceased, and Marguerite Upson, guardian of the estate of Rulura T. Winder, an incompetent person, and (2) the decree of settlement and distribution in the estate of A. H. Winder, deceased, probate No. 102709, Alameda County.

Concerning the judgment in the prior civil action, the moving affidavit declares as follows: Plaintiff herein was plaintiff and defendants Rulura T. Winder and Marguerite Upson, guardian of the estate of Rulura T. Winder, were defendants in action No. 285416. The complaint therein was filed October 11, 1957. On December 13, 1957, the trial court granted a summary judgment in favor of the defendants and against plaintiff in said action. On the same day plaintiff modified a proposed amended complaint therein and filed it as a new complaint in the instant action, No. 286765 in the court below, and at the same time recorded a lis pendens in the latter action in the office of the County Recorder, Alameda County. The lis pendens filed in actions No. 285416 and No. 286765 are substantially identical. The complaint filed in No. 286765 is substantially identical to the complaint in No. 285416, except for the addition of Central Bank and G. L. Otey as defendants in the instant action, No. 286765. None of these statements is denied or even mentioned in plaintiff's counter affidavit. Other statements in the moving affidavit pertain to the probate decree and its asserted res judicata effect.

Does the moving affidavit, as thus summarized, support a summary judgment?

The purpose and function of the summary judgment statute (Code Civ.Proc. § 437c) and the basic rules governing its use were stated by this court in Buffalo Arms, Inc. v. Remler Co., 179 Cal.App.2d 700, 702-703, 4 Cal.Rptr. 103.

Section 437c, Code of Civil Procedure, sets forth the procedure for obtaining a summary judgment and the requirements of the affidavits in support of, and in opposition to the motion.

'The validity of a summary judgment pursuant to section 437c is to be determined by the sufficiency of the affidavits considered upon the hearing of the motion. [Citations.]' Low v. Woodward Oil Co., Ltd., 133 Cal.App.2d 116, 121, 283 P.2d 720, 723. In that case the court in holding that the conclusions of the affiant concerning the contents of certain documents not attached to the affidavit were insufficient, stated that the crucial requirements of section 437c were not met because of the affidavit's failure to meet the requirements that 'the facts stated therein shall be within the personal knowledge of the affiant, and shall be set forth with particularity, and * * * shall show affirmatively that affiant, if sworn as a witness, can testify competently thereto.' Code Civ.Proc. § 437c.

First, we will consider the effect of the recitals in the affidavit concerning that judgment. The statement that the complaint in that action is 'substantially identical' (emphasis added) except for the inclusion of two additional defendants, with the one in this action, is obviously a bald conclusion. Moreover, the affiant's definition of 'substantially' may be considerably different from the actual fact. In Low, supra, the court said, concerning deeds as to the contents of which the affiant set forth his conclusions, 'The material portions of that affidavit refer to various documents, none of which are attached to the affidavit, from which the affiant deduces that title to the disputed property is vested in defendant. This statement of the legal effect of those documents is, of course, a mere conclusion of law as to the very matter here in issue and would be incompetent as evidence. * * * [W]here the affidavit of a movant depends upon written documents, his affidavit is insufficient unless there is attached thereto the original documents, or a verified or certified copy of such instruments. [Citations.]' 133 Cal.App.2d at page 121, 283 P.2d at page 723. Defendant in Low claimed that there was a prior judgment which was res judicata as to the pending action. However, the court held that although a copy of it was attached to an affidavit on a prior motion for summary judgment, it was not attached to any affidavit in the present motion, and therefore was not before the court and could not be considered. As do defendants in our case, the defendant in Low urged that the trial court could have taken judicial notice of the prior judgment. The court there said (133 Cal.App.2d at page 122, 283 P.2d at page 724): 'Defendant also suggests that the trial court could take judicial notice of the judgment in Case No. 573851, which defendant urged in bar of plaintiff's action in its answer, upon the motion for summary judgment. Whether or not it is proper for the court to take judicial notice of the record in another case between other parties upon motion for summary judgment is an intricate question which we need not here pass upon. For it is clear that the doctrine of judicial notice played no part in the determination of this matter. From defendant's notice of motion, it is clear that he was predicating his case entirely on such purported facts as were contained in the Marinoff affidavit. The court in its judgment unequivocally manifested that its decision was based solely upon the contents of the affidavits submitted in support of the motion then before it, which is the proper foundation for an adjudication under section 437c. Coyne v. Krempels, supra, 36 Cal.2d , at page 261, 223 P.2d 244; Kimber v. Jones, supra, 122 Cal.App.2d , at page 918, 265 P.2d 922; McComsey v. Leaf, supra, 36 Cal.App.2d , at page 133, 97 P.2d 242. Defendant does not profess in its brief, nor does the record before us disclose, that the contents of the file in the prior case was examined by the trial court, nor was it brought to the court's attention in any competent manner by the Marinoff affidavit. As has been shown, that affidavit departed entirely from any legitimate compliance with section 437c, being replete with hearsay, conclusions, and personal opinion and bringing no essential evidentiary facts before the court. The court having plainly relied upon the affidavits before it in reaching its decision, and defendant's affidavit being palpably inadequate to support the judgment in its favor, that judgment cannot stand.'

In our case, it is clear that the trial court did not take judicial notice of the judgment in action No. 285416. In the first place, while defendants' notice of motion for summary judgment alleged that one of the grounds was that all of the issues in the complaint had been decided adversely to plaintiff in the probate decree, it did not mention action No. 285416 or the judgment therein. In its statement as to what the motion would be based on, the notice referred to the 'files and proceedings' in the probate proceeding, but did not mention action No. 285416. The minutes of the court on February 5, 1958, the day upon which the motion was argued, show seven exhibits as having been...