Property Controllers, Inc. v. Shewfelt

CourtCalifornia Court of Appeals
Writing for the CourtROTH
Citation54 Cal.Rptr. 218,245 Cal.App.2d 755
Decision Date20 October 1966
PartiesPROPERTY CONTROLLERS, INC., a California corporation, Plaintiff and Appellant, v. Leonard R. SHEWFELT, Derrell H. Harline, Yolande L. Harline, Patrick R. McAtee, Mary Lou McAtee et al., Defendants and Respondents. Civ. 29922.

Page 218

54 Cal.Rptr. 218
245 Cal.App.2d 755
PROPERTY CONTROLLERS, INC., a California corporation, Plaintiff and Appellant,
v.
Leonard R. SHEWFELT, Derrell H. Harline, Yolande L. Harline, Patrick R. McAtee, Mary Lou McAtee et al., Defendants and Respondents.
Civ. 29922.
District Court of Appeal, Second District,
Division 2, California.
Oct. 20, 1966.

Page 219

[245 Cal.App.2d 757] Thatcher & Rouse, by Jerome Zamos, Palos Verdes Estates, for appellant.

Guy T. Graves, Los Angeles, for respondents.

ROTH, Presiding Justice.

This is an appeal from a summary judgment.

Appellant, Property Controllers, Inc., initiated this action for specific performance of a written lease, executed on October 8, 1962, between appellant and American Engineers and Contractors Corporation, its lessor. The lease provided for the construction of the premises demised in a shopping center to be built on land owned by American. The lease was never recorded. The shopping center was not built. Obviously, appellant at no time was in possession of the premises demised.

This action is not against lessor. It is against Leonard R. Shewfelt, Derrell H. Harline, Yolande L. Harline Patrick R. McAtee and Mary Lou McAtee, successors in interest to lessor, who on August 6, 1963, purchased that part of the land from lessor upon which the proposed building, of which the demised premises were a part, was to be constructed.

The complete basis upon which appellant predicates its action against respondents is set forth in its complaint as follows:

'* * * (A)t the time of the execution * * * of the deed * * * to * * * (respondents), * * * each of them had actual knowledge of the lease * * *. * * * (S)aid deed to * * * (respondents) was subject to the * * * lease * * * and subject to * * * rights * * * acquired by (appellant) * * *, pursuant to said lease * * *.

'* * * (U)pon ascertaining the fact of the execution * * *, (appellant) * * * promptly made demand upon * * * (respondents), * * *, to comply with the terms and conditions of said lease * * * and to commence construction pursuant to said lease * * *; * * * (respondents) * * * have failed and refused to provide (appellant) with any reasons for the delay in construction * * * or to communicate with (appellant) about the matter at all.'

[245 Cal.App.2d 758] In support of their motion for summary judgment, respondents filed two declarations. Appellant filed none. Among other things, respondents declare as follows:

'* * * (American) * * * by Grand Deed dated August 6, 1963 delivered and recorded on the 6th day of September, 1963 (to respondents the deed to the land purchased by respondents). The original of said Deed is attached hereto marked Exhibit 'C' * * *.'

The deed referred to contains no suggestions, direct, remote or otherwise, to the lease in question.

The declarations further state:

'4. Prior to August 6, 1963 declarant and his co-purchasers of the real property described in Exhibit 'C' were orally advised by * * * seller that seller had tentative unrecorded leases on portions of the proposed structure which were being held in suspension and could be affirmed or rejected

Page 220

by return of the deposits held by seller. Said representation was relied upon by declarant and his co-purchasers * * *.

'Paragraph 2 of the opening escrow instructions dated August 6, 1963 signed by (respondents) and seller is as follows:

"2. It is understood and agreed that the Buyers reserve the right to reject the existing leases on the subject property within 10 days of the above date, hence: August 16, 1963.'

'In the Escrow instructions signed by Seller and all buyers on August 23, 1963 it was provided:

"4. That it is hereby * * * agreed that buyers are not accepting the existing leases, and that the Seller will refund all lease deposits.'

'Relying upon said representations and said escrow instructions declarant and his co-purchasers believed that all existing leases had been surrendered and cancelled and the depots (sic) thereon returned by the seller to said prospective lessees.

'The declarant and his co-(respondents) were not aware that said lease of (appellant) had not been cancelled and terminated until on or about the 31st day of March, 1964 when declarant and his co-(respondents) learned of the filing of a Notice of Lis Pendens by (appellant) * * * against the property * * * on or about the 24th day of February, 1964 in an action for specific performance filed on September 27, 1963 in action No. SOC 6469, Superior Court of Los Angeles County, by Property Controllers, Inc., a corporation, as plaintiff vs. American Engineers and Contractors, a corporation, [245 Cal.App.2d 759] defendant, in which action neither declarant nor any of his co-owners was named as defendant. None of the (respondents) in this cause was served with process or notified in any way of the pendency of said action SOC 6469 or the recording of any of the notices of Lis Pendens therein, notwithstanding they had been the owners of record of the land described therein since the 6th day of September, 1963.

'At no time prior to March 31, 1964 did (appellant) or anyone on its behalf assert or claim to declarant or any of his co-owners an interest in said property or demand that said lease be performed in any respect.

'5. Declarant and his co-owners or any of them never at any time in writing or otherwise executed said lease * * * and never at any...

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5 practice notes
  • Santa Clara County v. Curtner
    • United States
    • California Court of Appeals
    • October 20, 1966
    ...estate in fact presented evidence, outside the presence of the jury, establishing its right to a lien on the proceeds. Page 273 [245 Cal.App.2d 755] In view of the small spread in the testimony concerning the value of the 1.033 acres which were taken, the jury's verdict thereon, and the fai......
  • Wetherton v. Growers Farm Labor Ass'n
    • United States
    • California Court of Appeals
    • July 28, 1969
    ...and depositions submitted by the parties that there is no triable issue of fact (Property Controllers, Inc. v. Shewfelt (1966) 245 Cal.App.2d 755, 54 Cal.Rptr. 218; Saporta v. Barbagelata (1963) 220 Cal.App.2d 463, 469, 33 Cal.Rptr. 661). The affidavits submitted by the moving party are to ......
  • Rainer v. Grossman
    • United States
    • California Court of Appeals
    • April 11, 1973
    ...cause of action exists or whether the complaint is simply the product of artful pleading. (Property Controllers, Inc. v. Shewfelt, 245 Cal.App.2d 755, 54 Cal.Rptr. Page 471 Thus we examine the papers offered in connection with the motion for summary judgment to determine if the facts would ......
  • Walker v. Stauffer Chemical Corp.
    • United States
    • California Court of Appeals
    • August 26, 1971
    ...use of this procedure to determine whether or not a genuine cause of action in fact exists. (Property Controllers, Inc. v. Shewfelt, 245 Cal.App.2d 755, 761, 54 Cal.Rptr. 218.) The motion in the instant case was properly supported and opposed by the use of both declarations and answers to i......
  • Request a trial to view additional results
5 cases
  • Santa Clara County v. Curtner
    • United States
    • California Court of Appeals
    • October 20, 1966
    ...estate in fact presented evidence, outside the presence of the jury, establishing its right to a lien on the proceeds. Page 273 [245 Cal.App.2d 755] In view of the small spread in the testimony concerning the value of the 1.033 acres which were taken, the jury's verdict thereon, and the fai......
  • Wetherton v. Growers Farm Labor Ass'n
    • United States
    • California Court of Appeals
    • July 28, 1969
    ...and depositions submitted by the parties that there is no triable issue of fact (Property Controllers, Inc. v. Shewfelt (1966) 245 Cal.App.2d 755, 54 Cal.Rptr. 218; Saporta v. Barbagelata (1963) 220 Cal.App.2d 463, 469, 33 Cal.Rptr. 661). The affidavits submitted by the moving party are to ......
  • Rainer v. Grossman
    • United States
    • California Court of Appeals
    • April 11, 1973
    ...cause of action exists or whether the complaint is simply the product of artful pleading. (Property Controllers, Inc. v. Shewfelt, 245 Cal.App.2d 755, 54 Cal.Rptr. Page 471 Thus we examine the papers offered in connection with the motion for summary judgment to determine if the facts would ......
  • Walker v. Stauffer Chemical Corp.
    • United States
    • California Court of Appeals
    • August 26, 1971
    ...use of this procedure to determine whether or not a genuine cause of action in fact exists. (Property Controllers, Inc. v. Shewfelt, 245 Cal.App.2d 755, 761, 54 Cal.Rptr. 218.) The motion in the instant case was properly supported and opposed by the use of both declarations and answers to i......
  • Request a trial to view additional results

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