Poochigian v. Layne

• Decision Date: 22 October 1953
• Citation: 120 Cal.App.2d 757,261 P.2d 738
• Court: California Court of Appeals Court of Appeals
• Parties: POOCHIGIAN v. LAYNE et al. Civ. 19550.

Page 738

261 P.2d 738

120 Cal.App.2d 757

POOCHIGIAN v. LAYNE et al.

Civ. 19550.

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

Oct. 22, 1953.

Hearing Denied Dec. 17, 1953.

Morris Lavine and Albert E. Isenberg, Los Angeles, for appellant.

Horton & Horton, Joseph K. Horton and Russell A. Barker, Los Angeles, for respondents.

DRAPEAU, Justice.

Plaintiff brought the instant action for specific performance of a lease of real property, or in the alternative for $100,000 damages.

The lease was executed October 18, 1949 for a term of one year commencing October 15, 1949, and ending October 14, 1950. It provided for a monthly rental of $600 for the premises which were unimproved, and for the construction of a building thereon by lessee. It gave to plaintiff the exclusive right to purchase the leased premises by depositing $90,000 cash in any bank in Whittier, California, on or before October 14, 1950. And in the event he failed to exercise such option, plaintiff agreed to 'surrender the possession of the premises and any building that may have been constructed thereupon to Lessors.'

By his complaint, plaintiff alleged the terms of the lease, the commencement of construction of the contemplated building for which he expended $50,000 and obligated himself for an additional $140,000. Also, the tender of the purchase price of $90,000 prior to October 14, 1950, and the refusal of defendants to accept it. That when he made such tender, defendants advised him to delay making payment until he could obtain funds at a lower rate of interest. He further alleged demand upon defendants for performance; his offer to compensate them for loss occasioned by his delay; refusal of both demand and offer by defendants. He also alleged performance of all conditions 'of said agreement on his part, and has always been * * * and is now ready and willing to * * * fully perform and carry out its terms and conditions.'

The answer admitted the commencement of construction of the building on the leased premises prior to December 18, 1949, but on information and belief denied that plaintiff had expended $50,000 or obligated himself to expend any further sums. It also denied tender or offer by plaintiff to pay the purchase price and alleged plaintiff consistently refused and failed to make such tender or offer.

As an affirmative defense, defendants alleged the nonpayment by plaintiff of rentals provided in the lease; filing of mechanics' liens for $92,000 because of indebtedness incurred by plaintiff in constructing the building, and his failure to pay or settle the same; failure of plaintiff to tender the purchase price and his refusal to surrender possession of the leased premises on October 15, 1950; and that therefore defendants were forced to file a suit in unlawful detainer to recover possession of said property. That at the trial in that action, all claims here asserted by plaintiff were litigated and judgment was rendered on January 29, 1951, in favor of defendants.

Thereafter, defendants moved for a summary judgment under section 437c of the Code of Civil Procedure, 'on the ground that the within action has no merit.'

From the judgment of dismissal following the granting of the motion, plaintiff appeals.

Appellant urges that the trial court erred in granting the motion for summary judgment where a triable issue of fact was presented.

Section 437c, Code of Civil Procedure, so far as material here, reads as follows:

'In superior courts * * * when an answer is filed in an action * * * for specific performance of a contract in writing for the sale or purchase of property * * * if it is claimed that * * * the action has no merit, on motion (of defendant) after notice of the time and place thereof in writing served on the other side at least ten days before such motion, supported by affidavit of any person or persons having knowledge of the facts * * * the complaint may be dismissed and judgment may be entered, in the discretion of the court unless the other party, by affidavit or affidavits shall show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue of fact.'

It is now settled law that the validity of a judgment entered pursuant to said code section 'is to be determined by the sufficiency of the affidavits considered upon the hearing of the motion.' McComsey v. Leaf, 36 Cal.App.2d 132, 133, 97 P.2d 242, 243.

And, as said in Walsh v. Walsh, 18 Cal.2d 439, 441, 116 P.2d 62, 64: 'In passing upon a motion for summary judgment, the primary duty of the trial court is to decide whether there is an issue of fact to be tried. If it finds one, it is then powerless to proceed further, but must allow such issue to be tried by a jury unless a jury trial is waived. By an unbroken line of decision in this state since the date of the original enactment of section 437c, the principle has become well established that issue finding rather than issue determination is the pivot upon which the summary judgment law turns. Security-First National Bank v. Cryer, 39 Cal.App.2d 757, 104 P.2d 66; McComsey v. Leaf, 36 Cal.App.2d 132, 97 P.2d 242; Kelly v. Liddicoat, 35 Cal.App.2d 559, 96 P.2d 186; Shea v. Leonis, 29 Cal.App.2d 184, 84 P.2d 277; Bank of America v. Casady, 15 Cal.App.2d 163, 59 P.2d 444.'

The motion herein which was heard on June 4, 1952, was supported by affidavit of defendant Lester Layne, to wit:

That on October 18, 1949, defendant lessors were owners in fee of the property in question, and entered into a lease with plaintiff which contained an option to purchase the premises for $90,000, to be deposited in escrow in cash on or before October 14, 1950, in any bank in Whittier, California; that at no time on or before October 14, 1950, or at any other time, was the purchase price tendered or offered to defendants or deposited in escrow.

That in the unlawful detainer action brought by defendants against plaintiff for possession of the leased premises, plaintiff testified on January 12, 1951, in the presence of affiant that the $90,000 in payment of the purchase price was never at any time tendered to affiant; that at no time prior to the 14th day of October, 1950, or at any other time, did defendants refuse to accept any tender of the $90,000 or refuse to receive said money; that no such tender has ever been made; and that defendants have been ready, able and willing at all times on and prior to October 14, 1950, to convey the premises to plaintiff as in the contract provided.

Affiant also averred that defendants never advised plaintiff against making payment of the purchase price or to delay making it until he could obtain funds at a lower rate of interest; but that at all times they besought plaintiff to carry out the terms of the contract. That at the trial of the unlawful detainer action, plaintiff testified under oath in the presence of affiant, that his failure to procure the loan 'was due to the fact that the loan offered was onerous', and that he 'could not have complied with the terms thereof'; that he did not have the money with which to pay the purchase price, and never did tender the same to defendants. In this connection, it is averred that plaintiff testified in said action that in addition to the $90,000 purchase price, he would have to pay about $90,000 for unpaid bills and as well $5,000 in commissions. As a result, the loan of $150,000 was about $35,000 short of providing enough money to clear the property.

Defendant Layne further avers that plaintiff incurred indebtedness for labor and material used in constructing the building on the leased premises for which mechanics' liens were filed in an amount of $92,280.74 which defendants had to settle in order to protect their property. In addition, plaintiff failed to pay the monthly rental amounting in the aggregate to $3,000, and also collected $1,465 upon leases prior to October 14, 1950, no part of which has been repaid to defendants.

Mr. Merton G. Wray also supported the motion by affidavit to the effect that he never advised plaintiff not to pay the purchase price or to delay making such payment until funds could be obtained at a lower rate of interest, but that he...