Phillips Aviation Co. v. Superior Court for Los AngelesCounty

• Decision Date: 31 October 1966
• Citation: 246 Cal.App.2d 46,54 Cal.Rptr. 415
• Court: California Court of Appeals Court of Appeals
• Parties: PHILLIPS AVIATION CO., Petitioner, v. SUPERIOR COURT FOR LOS ANGELES COUNTY, Respondent; DESIGNATRONICS, INC. and Perfect Gear & Instrument Corp., Real Parties in Interest. DESIGNATRONICS INC. and Perfect Gear & Instrument Corp., Petitioners, v. SUPERIOR COURT FOR LOS ANGELES COUNTY, Respondent; PHILLIPS AVIATION CO. Real Party in Interest. Civ. 30995, 31019.

Page 415

54 Cal.Rptr. 415

246 Cal.App.2d 46

PHILLIPS AVIATION CO., Petitioner, v. SUPERIOR COURT FOR LOS ANGELES COUNTY, Respondent;

DESIGNATRONICS, INC. and Perfect Gear & Instrument Corp., Real Parties in Interest.

DESIGNATRONICS INC. and Perfect Gear & Instrument Corp., Petitioners, v. SUPERIOR COURT FOR LOS ANGELES COUNTY, Respondent;

PHILLIPS AVIATION CO. Real Party in Interest.

Civ. 30995, 31019.

District Court of Appeal, Second District,

Division 1, California.

Oct. 31, 1966.

Greenwald, Landrum & Baim, Los Angeles, for plaintiff and petitioner.

No appearance for respondent.

MacMahon, Nelson & Tilson, Los Angeles, for defendants and real parties in interest.

McCOY, Justice pro tem. ^*

On July 19, 1966 petitioner, Phillips Aviation Co., herein referred to as Phillips, filed an action in respondent court against Perfect Gear & Instruent Corp., herein referred to as Perfect Gear, Designatronics, Inc., and others to recover possession of certain personal property and for other relief.

By its petition in 2d Civ. No. 30995, Phillips seeks a review of the order of the respondent court of September 2, 1966 granting the motion of defendant Designatronics under section 473, Code of Civil Procedure for relief from its default and denying Phillips' motion for an order for its protection under section 521, Code of Civil Procedure, all in relation to Phillips' claim and delivery proceedings.

By their petition in 2d Civ. No. 31019, defendants Designatronics, Inc. and Perfect Gear and Instrument Corp. seek a review of the order of the respondent court of September 2, 1966 denying their motion under section 437c, Code of Civil Procedure, for a summary judgment.

By its first cause of action Phillips seeks to recover from defendants Perfect Gear and Designatronics possession of a certain machine described as a 'gear hobber.' Phillips alleges that it is the owner of the machine which has been in possession of defendants since November 4, 1965, and that ever since December 1965 defendants have refused to deliver possession of the machine to plaintiff notwithstanding its demand therefor. Phillips alleges that Perfect Gear is the agent of Designatronics, and that when the complaint was filed the machine was being held at the place of business of Perfect Gear at Northridge, California.

On July 19, 1966 James A. Phillips, president of plaintiff corporation, executed a declaration on behalf of plaintiff pursuant to sections 509 and 510, Code of Civil Procedure, claiming delivery of the machine to plaintiff. By proper endorsement thereon plaintiff required the Marshal of the County of Los Angeles to take the property from defendants which was located at the place of business of Perfect Gear. Upon receipt of this declaration and notice, together with a proper undertaking, the marshal, as required by section 512, Code of Civil Procedure, approved the undertaking. On July 20 the marshal served on the vice-president and general manager of Perfect Gear a copy of the summons and complaint, together with a copy of the Phillips declaration, the endorsement thereon, and the undertaking for claim and delivery, and took the machine into his possession. Defendants did not require the return of the machine or give the marshal an undertaking as permitted by section 514, Code of Civil Procedure, and on July 26 the marshal delivered possession of the machine to Phillips, and filed his return on the claim and delivery as required by section 520.

Defendants Perfect Gear and Designatronics filed their answer to the complaint on August 4. On August 18 these defendants noticed a motion for a summary judgment dismissing the complaint against them, and gave notice that in the event their motion for a summary judgment was denied, defendant Designatronics would move the court for an order permitting it to deposit a redelivery bond with the marshal and thus regain possession of the machine. On August 26 the court denied the motion for a summary judgment and granted the motion for leave to file a redelivery bond and regain possession of the machine. Phillips thereupon noticed its motion for reconsideration of the decision granting relief to defendants and a motion for an order pursuant to section 521, Code of Civil Procedure protecting it in its possession of the machine. On September 2 the court on reconsideration reaffirmed its earlier ruling on defendants' motion for relief and denied Phillips' motion for an order under section 521.

The Motion for Summary Judgment

There is no point in repeating here the well-known rules governing a trial court in determining a motion for summary judgment under section 437c, Code of Civil Procedure.

The primary issue in this case is the validity of Phillips' claim that it is the owner and entitled to the possession of the machine. This claim is based on a written agreement between Phillips and the defendant Trans American Machinery & Equipment Corp. dated November 4, 1965, a copy of which is attached to the complaint. By that agreement Trans American agreed 'to deliver' the gear hobber to Phillips. 'In exchange,' Trans American was to receive a certain lathe described in the agreement. Trans American agreed to pay for the freight on the gear hobber to Los Angeles. It is not disputed that the lathe was delivered to Trans American.

On their motion for summary judgment defendants contended that title to the gear hobber had not passed to Phillips because there had been no delivery within the meaning of section 2401, subdivision (2) of the Commercial Code; that title had revested in Trans American within the meaning of subdivision (4) of that section because Phillips had refused to accept delivery; that Trans American was therefore free to resell the gear hobber to the defendant Designatronics, which was a good faith purchaser for value within the meaning of section 2403, subdivision (1) of the Commercal Code. Defendants filed in support of the motion the affidavit of a vice-president of Designatronics, and the declaration of the owner of the trucking company which had transported the gear hobber to Los Angeles, and the declaration of the warehouseman with whom the gear hobber was stored during part of the time involved.

The motion was opposed on the ground that the, phillips verified complaint and the declaration of its president filed in opposition to the motion established several triable issues of fact. Among other things it contended that its ownership and right of possession was not the only issue before the court, that its interest in the gear hobber was not based entirely on its agreement of November 4, 1965 with Trans American, that title had passed to it, and that Trans American was not a good faith purchaser.

In denying the motion for summry judgment the trial court necessarily determined that the verified complaint and Phillips' declaration established that there were one or more triable issues of fact. We have examined the record which was before the trial court and are satisfied that the denial of the motion was proper.

The Claim and Delivery Proceedings

So far as pertinent here section 512, Code of Civil Procedure provides that upon receipt of a plaintiff's affidavit and notice for claim and delivery with the necessary undertaking, the officer 'must forthwith take the property described in the affidavit, if it be in the possession of the defendant or his agent, and retain it in his cusotdy. * * * He must, without delay, serve on the defendant a copy of the affidavit, notice, and undertaking, by delivering the same to him personally, if he can be found, or to his agent from whose possession the property is taken; * * *' In our opinion the record before the trial court was sufficient to show that there was substantial compliance with this section and that the trial court abused its discretion in granting the motion of Designatronics.

The declaration of James Phillips, president of the plaintiff corporation, for claim and delivery, alleges that the gear hobber 'is in the possession of and wrongfully detained by the defendants at the Perfect Gear & Instrument Corp., at 18141 Napa, Northridge,' and that the alleged cause for such detention is the claim of the defendants Perfect Gear and Designatronics that they bought the property. The notice directed the marshal to take the property 'from the within named defendants, located at defendant Perfect Gear and Instrument Corp., at 18141 Napa, Northridge, California.' The return of the marshal shows that when he took possession of the property he served the declaration, notice and undertaing 'By delivering a copy thereof to defendant personally,' and 'By delivering a copy thereof to defendant(s) agent Mr. Davis from whom possession of the property was taken, personally.' The failure of the marshal in his return to identify Mr. Davis as the vice-president and general manager of Perfect Gear is cured by the declaration of Mr. Davis filed in support of the motion of Designatronics for relief from its default.

It is apparent from the record that service of the affidavit and notice on Mr. Davis as agent for the defendant Designatronics was sufficient service of those documents. Section 512 required service on defendant Designatronics only if it could be found by the marshal. According to Mr. Davis' declaration Designatronics is a New York corporation which, to his knowledge 'has not qualified to do business in California, has not designated an agent for service of process in this state, and does not in fact do business in California.' This being so, service of the documents on Designatronics' agent from whose possession the property was taken is all that is required by section 512.

We are also satisfied that Perfect Gear, from whose possession the property was taken, was the agent of Designatronics within the meaning of section 512.

In his...