Rodes v. Shannon
Decision Date | 15 August 1961 |
Citation | 194 Cal.App.2d 743,15 Cal.Rptr. 349 |
Court | California Court of Appeals Court of Appeals |
Parties | Nicholas RODES, Plaintiff and Respondent, v. Irene SHANNON, also known as Irene Mack, Defendant and Appellant. Civ. 25332. |
Rager & Olio, Fontana, for appellant.
Fainer & Steele, Los Angeles, for respondent.
Defendant appeals from a summary judgment decreeing specific performance of a contract to convey real property. Appellant contends (1) that the court was without jurisdiction to grant a summary judgment when a demurrer was pending; (2) that the pleadings are insufficient to support a judgment for specific performance; (3) that appellant did not receive proper notice of the date to which the hearing was continued; and (4) that the affidavits are insufficient to entitle plaintiff to a decree of specific performance.
On May 9, 1958, the complaint was filed in which it is alleged that plaintiff's assignor, Blanche Nelson, and defendant, on or about March 6, 1958, entered into a written contract whereby plaintiff's assignor agreed to purchase, and defendant agreed to sell, at a purchase price of $2,400, certain real property in the County of Los Angeles, therein particularly described; that said assignor had fully performed her part of the contract; that 'the reasonable value of the premises aforesaid, is the sum of $300.00 per month;' that Blanche Nelson has duly assigned her claim against defendant. The prayer is for specific performance. No averment as to the value of the premises (except the rental value) or as to adequacy of consideration is made, and no showing, even by way of conclusion, that the contract is fair, just and equitable.
Plaintiff, on July 29, 1960, filed a motion to strike answer and for a summary judgment pursuant to Code of Civil Procedure, § 437c, the hearing being noticed for August 15. The motion was supported by the affidavit of plaintiff which merely restates the allegations of the complaint and contains no evidentiary matter. Defendant's counsel filed points and authorities in opposition to the motion, citing 45 Cal.Jur.2d 351-353, for the general proposition that in an action for specific performance of a contract the complaint must allege facts showing that the contract is fair, the consideration adequate, and that it would not be inequitable to enforce it. It is also asserted that 'In our Answer we have filed, in Paragraph IV thereof, a General Demurrer.'
In support of plaintiff's motion an additional affidavit was filed on August 22. It was made by Blanche Nelson. She asserts that she is the assignor of plaintiff in the within action; alleges, as in the complaint, the making of the written contract, the payment by her of the sum of $2,400 into escrow and full performance on her part; that * * *'
The trial court on August 25, denied plaintiff's motion to strike the answer, and granted the summary judgment for specific performance, directing defendant to 'execute any and all necessary papers and documents to perform the written contract,' and to deliver same to plaintiff within thirty days.
Appellant's argument that the pleadings are insufficient to support a judgment for specific performance cannot be sustained. Although the complaint contains no allegations as to the adequacy of the consideration or that the contract is just and reasonable, which allegations are necessary to statement of a cause of action for specific performance which will withstand a general demurrer (Joyce v. Tomasini, 168 Cal. 234, 237, 142 P. 67; Eichholtz v. Nicoll, 66 Cal.App.2d 67, 69, 151 P.2d 664; Mayer v. Beondo, 83 Cal.App.2d 665, 667-668, 189 P.2d 327, 190 P.2d 23; Mackay v. Whitaker, 116 Cal.App.2d 504, 509, 253 P.2d 1021), this defect in the pleading does not control the ruling upon a motion for summary judgment. In House v. Lala, 180 Cal.App.2d 412, 419, 4 Cal.Rptr. 366, 370, we said: To the same effect is Best v. Burch, 132 Cal.App.2d 859, at page 861, 283 P.2d 262, 263, wherein the court said:
Krupp v. Mullen, 120 Cal.App.2d 53, 260 P.2d 629, involved an answer to complaint which did not plead estoppel but defendant nevertheless sought to establish that contention by his affidavits in support of his motion for summary judgment. The court said, 120 Cal.App.2d at page 56, 260 P.2d at page 632.
The seeming contradiction between Krupp on the one hand and House and Best on the other appears to be dissipated by the opinion in Estate of Kelly, 178 Cal.App.2d 24, at page 29, 2 Cal.Rptr. 634, 637, which says: ...
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...Cal.App.2d 597, 604, 22 Cal.Rptr. 606; Snider v. Snider (1962) 200 Cal.App.2d 741, 748, 19 Cal.Rptr. 709; and Rodes v. Shannon (1961) 194 Cal.App.2d 743, 748, 15 Cal.Rptr. 349.) There is no requirement, however, that the statutory language be included in the affidavit. In Schessler v. Keck ......
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