Murphy v. Kelly

Decision Date16 November 1955
CourtCalifornia Court of Appeals Court of Appeals
PartiesMichael MURPHY and Mary H. S. Murphy, Plaintiffs and Respondents, v. O. A. KELLY, Betty Lee Morales, and Helen Clark, individually, and O. A. Kelly, Betty Lee Morales and Helen Clark, as Trustees for Eden Foundation, Ltd., and Eden Foundation, Ltd., a co-partnership, composed of O. A. Kelly, Betty Lee Morales and Helen Clark, Defendants and Appellants. Civ. 21091.

Willedd Andrews, Los Angeles, for appellants.

Michael Lavelle, Los Angeles, for respondents.

FOX, Justice.

Defendants appeal from a summary judgment in an action for the recovery of possession of personal property.

Plaintiffs, who are husband and wife, filed a 'Complaint in Replevin,' naming as defendants O. A. Kelly, Betty Lee Morales and Helen Clark individually and as trustees for Eden Foundation, Ltd. Eden was also named as a defendant and described as a copartnership composed of the individual defendants. The Complaint alleged that plaintiffs were the owners, and entitled to the possession, of certain personal property, each item of which is recited by its description and individual value; that defendants took tortious possession of that property; that they have refused to accede to a demand to surrender possession to plaintiffs; and that they have continued to retain possession of the property, damaging plaintiffs in the sum of $10 per day. Plaintiffs prayed judgment for possession of the property, or for its aggregate value of $5,777.50 in case delivery could not be effected, and for damages for its detention.

An answer was filed by all the named defendants, admitting that plaintiffs were entitled to possession of several designated items of personal property but denying every other material allegation in the complaint. By way of affirmative defense, defendants alleged that on June 28, 1954, defendant Eden Foundation, Ltd. (hereinafter called Eden) owned real property on which was located a residence unlawfully occupied by plaintiffs; that on that date, Eden served on plaintiffs a notice to pay rent of $100 per week within three days or quit the premises; that plaintiffs paid no rental from June 28 to August 15, 1954, and owed Eden the sum of $600 for this period; that Eden is holding all of plaintiffs' personal property not exempt from execution; that upon a demand made by Michael Lavelle, plaintiff's attorney, Eden offered to restore possession of the personal property listed in defendants' answer, but Mr. Lavelle demanded return of all or none of said property of plaintiffs in the possession of Eden; and that any damage suffered by plaintiffs has been caused by their refusal to accept possession of the personal property offered them and not by any conduct of Eden or its agents. In another affirmative defense, it is alleged that Eden is the owner of a judgment for the sum of $101 against plaintiffs obtained in the Small Claims Court of Malibu Judicial District. No copy of the judgment was appended to the answer.

Thereafter, plaintiffs moved for a summary judgment on the ground that defendants had no meritorious defense. In support thereof affidavits were filed by plaintiff Michael Murphy and his attorney, Lavelle. So far as is here germane, Murphy's affidavit recites that on June 3, 1953, he and his wife took possession of a parcel of real property improved with a six-room dwelling (hereinafter referred to as the Topanga property) as vendees under a contract of sale with the owners thereof, S. H. and Marguerite Barton; that plaintiffs had complied with all terms of the contract except payment of the balance of the purchase price, which was to be paid when the Bartons delivered to them a grant deed; and that the Bartons had refused without right to deliver such deed. The affidavit then alleges that defendants subsequently informed plaintiffs they were negotiating with the Bartons for the sale of the property, at which time plaintiffs disclosed their contract with the Bartons, whereupon defendants stated that in their opinion said agreement gave plaintiffs no right or interest in the Topanga property. The affidavit further states that on June 28, 1954, defendants informed plaintiffs they had purchased the Topanga property from the Bartons and served upon them the Notice to Ray Rent or Quit previously described; that plaintiffs replied they would not relinquish possession because of their prior rights and would not recognize defendants as their landlord; that plaintiffs and their children occupied the house until August 1, 1954, when they were forced to vacate because of certain described acts of harassment and intimidation by defendants. Murphy then avers that during their occupancy of the Topanga house, plaintiffs furnished it with the personal property described in their complaint, of which they are the sole owners; that on August 1, 1954, plaintiffs attempted to remove this personal property when defendants compelled them to vacate by the use of force and threats to do bodily harm to affiant, but defendants would not permit its removal, stating they had a landlord's lien thereon and that they had secured a judgment for $100 in the Malibu Small Claims Court.

The Lavelle affidavit identifies affiant as attorney for plaintiffs in the within action as well as in the Malibu action and avers that an appeal has been taken from the judgment in the latter action and a cash bond in the sum of $125 filed to stay execution. The affidavit recites that after written demand for return of the personal property was made, defendant Betty Lee Morales and affiant had a telephone conversation; that this occurred after the defendants were notified of the filing of the stay bond; that in the course of the conversation, affiant advised Mrs. Morales that plaintiffs' property was being wrongfully withheld; that Mrs. Morales asserted that defendants claimed a lien on the property because plaintiffs were indebted to them for rentals and because of the $100 judgment received in the Small Claims Court; and that defendants were willing to release such portion of the personal property as was exempt from execution if plaintiffs would file their claim of exemption. Lavelle avers that he has checked with the clerk of the Malibu Small Claims Court and the constable and has been informed that while an execution has issued upon the aforementioned judgment, no levy thereunder has been made. In opposition to plaintiffs' motion, two affidavits executed by defendant Betty Lee Morales, a trustee and chairman of the board of directors of Eden, were filed. In substance, affiant declared that plaintiffs did not perform all the terms and conditions of the contract of sale of the Topanga property entered into with the Bartons and that the escrow set up to consummate the transaction was cancelled because of their default; that thereafter plaintiffs' offer to purchase said property for cash was rejected by the Bartons; that plaintiffs assured affiant several times between March 7 and June 28, 1954, that they would vacate the house in which they were residing within about a two weeks' period; that Mrs. Barton executed to Eden a deed dated June 25, 1954, vesting title to the Topanga property in Eden; that after receiving their notice to pay rent or quit plaintiffs failed to pay rent and that Eden obtained a judgment for $100 in the Malibu Small Claims Court for rent arrears. After denying the acts of harassment charged in Murphy's affidavit and after describing certain violent acts allegedly committed by plaintiffs, affiant states that Eden has 'offered in their answer, to deliver all personal property referred to in plaintiffs' complaint exempt from execution * * *' In her second counteraffidavit, Mrs. Morales avers that she informed Mr. Lavelle that Eden was filing five additional complaints for weekly rent, each praying for the sum of $100; that she informed Lavelle that Eden was willing to release any personal property exempt from execution and would release all the property if a bond in the sum of $600 were posted; that Lavelle refused to accept anything less than all the property detained without posting any bond. She further states that Eden did not levy an execution on the small claims judgment because plaintiffs have appealed therefrom and the matter is pending.

Upon this showing, the court entered summary judgment in plaintiffs' favor. The judgment decreed that plaintiffs were entitled to regain possession of the property in question, together with damages in the sum of $1,640 for its detention, and costs. Pursuant to the requirement of section 667 of the Code of Civil Procedure, an alternative judgment was also rendered awarding plaintiffs the sum of $5,777.50, the alleged value of the property, in the event redelivery of the property could not be had.

Defendants' brief scarcely comports with the requirements of rule 15(a), Rules on Appeal, 36 Cal.2d 1, 15. Except for the topical index and the table of authorities in its preface, the body of the brief contains no headings or captions under which are separately presented a statement of the case and a concise statement of the propositions of law involved. While such inadequate compliance with the rules is not to be condoned, we will nonetheless proceed to consider the single problem here involved, namely, whether or not the trial court abused its discretion in granting the summary judgment. Best v. Burch, 132 Cal.App.2d 859, 283 P.2d 262; Kelly v. Liddicoat, 35 Cal.App.2d 559, 560, 96 P.2d 186; Bank of America, etc. v. Oil Well S. Co., 12 Cal.App.2d 265, 270, 55 P.2d 885.

Defendants contend that their answer and the Morales affidavits presented triable issues of fact and that it was therefore error to grant the motion for summary judgment.

The propriety of granting or denying a motion for summary judgment under section 437c of the Code of Civil Procedure is determined by the sufficiency...

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