Newport v. City of Los Angeles
| Decision Date | 29 August 1960 |
| Citation | 7 Cal.Rptr. 497,184 Cal.App.2d 229 |
| Parties | F. P. NEWPORT, Plaintiff and Appellant, v. CITY OF LOS ANGELES, a municipal corporation, Defendant and Respondent. Civ. 24536. |
| Court | California Court of Appeals Court of Appeals |
Morris Lavine, Los Angeles, for appellant.
Roger Arnebergh, City Atty., Arthur W. Nordstrom, Asst. City Atty., Walter C. Foster, Depurty City Atty., Los Angeles, for respondent.
This was an action brought by plaintiff, F. P. Newport, to quiet title to certain real property which the defendant City had acquired from plaintiff in 1925 by condemnation and by grant deed, which deed was duly accepted by the City Council. Defendant moved ot dismiss plaintiff's complaint under section 437c of the Code of Civil Procedure, which motion the trial court granted and thereupon entered judgment for the City. Plaintiff has appealed.
The real property in question is located in the Los Angeles Harbor area and was originally acquired by plaintiff in 1914. The City acquired title to the property in 1925. The property was condemned and conveyed by the order of condemnation to the City for the stated purpose of utilizing the property for railroad and harbor facilities. It also appears from the plaintiff's affidavit in opposition to the motion, the truthfulness of which must be assumed for purposes of this appeal, that the property has never been used for railroad or harbor purposes except for a small fraction which was leased to the Santa Fe Railroad. Plaintiff's affidavit further states that the property has been leased by the City for the production of oil and gas and that the City is receiving royalties therefrom.
Plaintiff's complaint is framed solely as a conventional quiet title complaint alleging that plaintiff in now the owner of the real property in question, that the defendant claims and asserts an interest in the property, that the defendant has no right, title or interest whatever in the land, and that the plaintiff is out of possession and the defendant is in possession of the premises. The complaint further prays that defendant be required to set forth the nature of its claim and that the court adjudge that the plaintiff is the true owner or the premises and that the defendant has no right, title or interest therein. The defendant City answered denying the material allegations of the complaint and further alleging that the City is the owner in fee of the property described in the complaint by virtue of a final order of condemantion entered in 1925 in an eminent domain proceeding in which F. P. Newport was defendant, and also by virtue of a deed executed by the plaintiff in favor of the City recorded in the same year.
Notice of motion to dismiss the complaint and enter judgment in favor of the defendant was duly filed by the City and accompanied by the necessary affidavit. The affidavit in support of the City's motion was sworn to by a deputy city attorney. It recites that The affidavit of F. P. Newport in opposition to the motion admits the execution of the grant deed but states that the deed was executed solely because of the representations made by the City that the land described in the deed would be used and was required by the City only for railroad and harbor purposes and that the deed was simply to effectuate the decree of condemnation without further delay; that he received no consideration for the deed other than the amount awarded in the condemnation proceeding; that the relied upon the representations made by the City and did not intend to and did not convey title for any purpose other than that stated that the City had never used the property for the purposes originally represented but instead had leased the property for the production of oil and gas; and that all of the said property except a small fraction leased to the Santa Fe Railroad had been abandoned for the purposes for which it was condemned. Further, plaintiff requested leave to amend the complaint to set forth the foregoing facts.
After a hearing the court granted the motion and denied plaintiff's request to be allowed to amend his complaint. Judgment was entered accordingly, dismissing the complaint without leave to amend and adjudging that the plaintiff take nothing by his action.
Plaintiff's several assignments of error may be condensed to three basic issues: (1) Was the affidavit supporting the City's motion sufficient within the purview of section 437c of the Code of Civil Procedure; (2) Were there triable issues raised by the affidavits; and (3) Was the plaintiff estopped to deny the City's ownership of the property?
The initial problem arises from the form and content of the affidavit in support of the motion. Plaintiff argues that there is no express provision in section 437c for a motion to dismiss a complaint based upon requests for admissions and admissions made pursuant thereto. Section 437c reads in part: '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 set forth with particularity, and each affidavit shall show affirmatively that affiant, if sworn as a witness, can testify competently thereto.' It is apparent from the face of the challenged affidavit that the deputy city attorney affirmed only that he had examined the file and that the listed documents were on file in the action. He thereupon proceeded to incorporate the list of documents by reference. There is no showing that those documents were attached to the affidavit. Plaintiff points out that the affidavit in support of the motion must contain facts sufficient to entitle the defendant to a judgment in the action and that the facts stated are required to be within the personal knowledge of the affiant and must be facts to which he could competently testify if called as a witness. Plaintiff says that reference to some other document or other matter not included in the affidavit is insufficient; that it is incumbent upon the defendant to establish by factual affidavits something more than a mere reference to admissions or answers to interrogatories. It appears, however, that plaintiff's objection to the affidavit is not well taken and that it presented facts sufficient to warrant the application of the summary remedy provided by section 437c.
The purpose of the summary judgment procedure is to provide a method for the prompt disposition of actions where there is, in fact, no triable material issue. McHugh v. Howard, 165 Cal.App.2d 169, 331 P.2d 674; Coyne v. Krempels, 36 Cal.2d 257, 223 P.2d 244. The court's duty is limited to the determination of whether or not factual issues are presented by the affidavits and it is no part of the court's duty to make any factual determination. Southern Pac. Co. v. Fish, 166 Cal.App.2d 353, 333 P.2d 133. The procedure authorized by section 437c is, of course, a drastic one requiring caution in its application and may not be used as a substitute for the traditional methods of determining factual issues (Dudum v. City of San Mateo, 167 Cal.App.2d 593, 334 P.2d 968; Whaley v. Fowler, 152 Cal.App.2d 379, 313 P.2d 97) and, as pointed out by plaintiff, the supporting affidavits of the moving party are to be construed strictly and those of the opponent, liberally; for purposes of a motion for summary judgment those facts alleged in the opposition affidavit must be accepted as true. Beck v. Reinholtz, 138 Cal.App.2d 719, 292 P.2d 906; Gillespie v. Hagan, 94 Cal.App.2d 566, 211 P.2d 9.
In viewing the sufficiency of the affidavit filed in support of the City's motion, we must not only look to the face of the affidavit but, in this particular instance, must also examine the documents in the file which it incorporates, for it has long been established in this State that an affidavit may incorporate by reference other papers on file in the same action. Ligare v. California South R. R. Co., 76 Cal. 610, 612, 18 P. 777; Wilson v. Berryman, 5 Cal. 44; Hall v. Superior Court, 69 Cal. 79, 10 P. 257; Woodward v. Brown, 119 Cal. 283, 51 P. 2, 542; Ex parte Howitz, 2 Cal.App. 752, 84 P. 229, and Westover v. Bridgford, 25 Cal.App. 548, 144 P. 313. In these documents we find the key to the legal question posed.
In the interrogatories proposed by the City pursuant to section 2030 of the Code of Civil Procedure, the following four questions were propounded:
(1) 'State the right, title, or interest you own in the real property described in paragraph III of your Complaint on file in the above entitled action.'
(2) 'State the date on which you acquired the right, title, or interest you have described in answer to Interrogatory No. 1.'
(3) 'State how or from whom you have acquired the right, title, or interest you have described in answer to Interrogatory No. 1.' and
(4)
The...
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