Michelman v. Frye

CourtCalifornia Court of Appeals
Writing for the CourtLILLIE; WOOD, P. J., and FOURT
Citation48 Cal.Rptr. 142,238 Cal.App.2d 698
PartiesCarlyle MICHELMAN, as Trustee of Theodore J. Frye, Bankrupt, Plaintiff and Appellant, v. Jacqueline F. FRYE, Defendant and Respondent. Civ. 29367.
Decision Date14 December 1965

Page 142

48 Cal.Rptr. 142
238 Cal.App.2d 698
Carlyle MICHELMAN, as Trustee of Theodore J. Frye, Bankrupt, Plaintiff and Appellant,
v.
Jacqueline F. FRYE, Defendant and Respondent.
Civ. 29367.
District Court of Appeal, Second District, Division 1, California.
Dec. 14, 1965.

Page 143

[238 Cal.App.2d 699] Gendel, Raskoff, Shapiro & Quittner, G. Merle Bergman and Arnold Quittner, Los Angeles, for appellant.

Myron W. Curzon, Los Angeles, for respondent.

LILLIE, Justice.

A declaratory relief action was filed by the Trustee in Bankruptcy of Theodore J. Frye, alleging the invalidity of a declaration of homestead made by Mrs. Frye on the ground that she was not physically occupying the premises and her declaration fails to state that she was residing thereon. Each party filed a motion for summary judgment; in addition, plaintiff filed motion for judgment on the pleadings. The court denied plaintiff's motions, and granted defendant's motion for summary judgment; plaintiff appeals from the judgment entered on the order, claiming the trial [238 Cal.App.2d 700] court's error in granting defendant's motion to be the sole issue.

The following facts were presented by defendant's affidavit in support of her motion. She married Frye in 1953; they have two children. In 1961 the Fryes, as joint tenants, acquired real property at 6218 Each Sixth Street, Long Beach, which they occupied acquired real property at 6218 East a. m. on August 9, 1963, in the Kitchen of their home, Frye grabbed her by the throat, seized a butcher knife and several times said, 'I'll kill you! I'll kill you'; as she screamed he let her go and 'hollered,' 'get out of my sight.' She called the children from upstairs and they ran out the front door to the home of a neighbor, taking with them only the clothing they were wearing. Prior thereto, 'on dozens of occasions,' Frye had, without provacation, whipped the children with a riding crop. She left the home on August 9 fearing for her life and the safety and lives of the children; she had no intention of abandoning her home and only wanted temporary safety from her husband. She went to the home of a niece and immediately consulted a lawyer who filed suit for divorce for her three days later (August 12). She borrowed $100 from her mother and moved into a furnished apartment near her attorney's office; she did not then return to her home because of fear of her husband and because the premises were isolated and, unable to drive a car, she could not conveniently consult with her lawyer. She left most of her clothing and furnishings and all of the furniture at the family home; she at no time changed her voting address. At the time she left her home the property was subject of an escrow to be exchanged for certain apartment buildings; her husband continued to remain on and occupy the premises. However, when it became apparent that the escrow would not close she made demand on Frye to move out so she and the children could resume their residence in the family home. While Frye was living therein, and at a time when she was still residing in the furnished apartment before returning to her home, and on January 30, 1964, she filed a declaration of homestead on the family home. Seven days later (February 6, 1964), Frye not having responded to her demand to move out, she filed an order to show cause to remove him. On March 12, 1964, the court ordered Frye to move out of the premises to permit her to move back in; Frye did so and she promptly returned to the family home with the children. At all times from July 1961, and continuously thereafter, she [238 Cal.App.2d 701] considered the family residence to be her home and intended to continue residing therein until

Page 144

the escrow closed and the exchange of properties was made, and left it on August 9 only because she feared for her life and the lives of the children; when the escrow failed to close, she moved into the home as soon as she could have Frye removed. Thereafter, on June 9, 1964, Frye became a bankrupt. The interlocutory decree of divorce was entered on July 10, 1964, wherein she was granted a divorce and the court, among other things, declared her home address to be '6218 East Sixth Street, Long Beach.' On September 19, 1964, Frye's Trustee in Bankruptcy filed the within action.

In opposition, Joel Mithers, attorney for plaintiff trustee, filed his declaration wherein he alleged that the 'details of the domestic difficulties' between the Fryes referred to in defendant's affidavit 'are obviously outside of the personal knowledge of the Trustee and accordingly must be denied by the Trustee on the grounds of lack of information'; he then argued the matters set forth in defendant's affidavit. No facts were set forth in the opposing declaration.

In granting defendant's motion, the trial court upheld the validity of the homestead under section 1263, Civil Code; and declared that defendant's husband physically occupied the premises and defendant temporarily left them but with no intention not to return, and that defendant and her husband always were domiciled there, and temporary absence does not lose the homestead right. (Minute Order, December 7, 1964.)

Appellant contends herein that defendant's failure to state in her homestead declaration that she resides on the premises renders the declaration a nullity; and that in any event, residence involves a question of fact which cannot be resolved on motion for summary judgment.

While intent in the establishment of residence is primarily one of fact, it appears that the opposing declaration failed to raise a triable issue; the 'denial' therein was not sufficient to controvert the facts set up by defendant's affidavit, thus, the allegations in the supporting affidavit are deemed uncontroverted. The opposing declaration contained solely a 'denial' on 'the grounds of lack of information' and is wholly insufficient. It contains neither affirmative statements of fact as contemplated by section 437c, Code of Civil Procedure, nor a proper denial made by affiant (on behalf of plaintiff in his representative capacity) 'upon his [238 Cal.App.2d 702] information and belief' as required by section 437c (emphasis added). Further, no showing therein was made of affiant's inability to secure information concerning the details alleged by defendant, nor was any explanation given concerning the reason Frye did not execute an affidavit or Frye's deposition had not been taken. (Gardenswartz v. Equitable etc. Soc., 23 Cal.App.2d Supp. 745, 750, 68 P.2d 322; Southern Pacific Co. v. Fish, 166 Cal.App.2d 353, 366, 333 P.2d 133.) Reference may be made to the pleadings for the purpose of defining the issues (Family Service Agency of Santa Barbara v. Ames, 166 Cal.App.2d 344, 348, 333 P.2d 142), but it may not be made for the purpose of remedying a failure to state facts in an affidavit. (Coyne v. Krempels, 36...

To continue reading

Request your trial
17 practice notes
  • Perkins v. Allstate Ins. Co., No. CV 98-9629 AHM.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • 17 Junio 1999
    ...the Court rejects Allstate's contention that the reasoning in Turner v. Kelley, 411 F.Supp. 1331 (D.Kan.1976), Michelman v. Frye, 238 Cal.App.2d 698, 48 Cal.Rptr. 142 (1965) and Cohen v. U.S., 297 F.2d 760 (9th Cir.1962) should be applied to this case. Although FBS Mortg. Corp. v. State Far......
  • Shaw v. Regents of University of California, No. 3
    • United States
    • California Court of Appeals
    • 2 Octubre 1997
    ...(National Exhibition Co. v. City and County of San Francisco (1972) 24 Cal.App.3d 1, 11, 100 Cal.Rptr. 757; Michelman v. Frye (1965) 238 Cal.App.2d 698, 702, 48 Cal.Rptr. The written patent agreement, signed by Shaw, contains all the essential elements of a contract: "(1) parties capable of......
  • Larsen v. Johannes
    • United States
    • California Court of Appeals
    • 11 Mayo 1970
    ...cause of action exists (Craig v. Earl (1961) 194 Cal.App.2d 652, 655, 15 Cal.Rptr. 207, and cases cited; Michelman v. Frye (1965) 238 Cal.App.2d 698, 48 Cal.Rptr. 142) as well as to determine the admissions pertinent to the motion for summary judgment (cf. Jack v. Wood (1968) 258 Cal.App.2d......
  • Exchequer Acceptance Corp. v. Alexander
    • United States
    • California Court of Appeals
    • 24 Marzo 1969
    ...judgment was appropriate and was properly granted, and judgment in Exchequer's favor was entered accordingly. (Michelman v. Frye, 238 Cal.App.2d 698, 48 Cal.Rptr. The judgment is affirmed. WOOD, P.J., and THOMPSON, J., concur. --------------- 1 'Dated August 14, 1964 Escrow No. 12,192 'The ......
  • Request a trial to view additional results
17 cases
  • Perkins v. Allstate Ins. Co., No. CV 98-9629 AHM.
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. Central District of California
    • 17 Junio 1999
    ...the Court rejects Allstate's contention that the reasoning in Turner v. Kelley, 411 F.Supp. 1331 (D.Kan.1976), Michelman v. Frye, 238 Cal.App.2d 698, 48 Cal.Rptr. 142 (1965) and Cohen v. U.S., 297 F.2d 760 (9th Cir.1962) should be applied to this case. Although FBS Mortg. Corp. v. State Far......
  • Shaw v. Regents of University of California, No. 3
    • United States
    • California Court of Appeals
    • 2 Octubre 1997
    ...(National Exhibition Co. v. City and County of San Francisco (1972) 24 Cal.App.3d 1, 11, 100 Cal.Rptr. 757; Michelman v. Frye (1965) 238 Cal.App.2d 698, 702, 48 Cal.Rptr. The written patent agreement, signed by Shaw, contains all the essential elements of a contract: "(1) parties capable of......
  • Larsen v. Johannes
    • United States
    • California Court of Appeals
    • 11 Mayo 1970
    ...cause of action exists (Craig v. Earl (1961) 194 Cal.App.2d 652, 655, 15 Cal.Rptr. 207, and cases cited; Michelman v. Frye (1965) 238 Cal.App.2d 698, 48 Cal.Rptr. 142) as well as to determine the admissions pertinent to the motion for summary judgment (cf. Jack v. Wood (1968) 258 Cal.App.2d......
  • Exchequer Acceptance Corp. v. Alexander
    • United States
    • California Court of Appeals
    • 24 Marzo 1969
    ...judgment was appropriate and was properly granted, and judgment in Exchequer's favor was entered accordingly. (Michelman v. Frye, 238 Cal.App.2d 698, 48 Cal.Rptr. The judgment is affirmed. WOOD, P.J., and THOMPSON, J., concur. --------------- 1 'Dated August 14, 1964 Escrow No. 12,192 'The ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT