Roscoe Moss Co. v. Roggero

• Decision Date: 01 December 1966
• Citation: 54 Cal.Rptr. 911,246 Cal.App.2d 781
• Court: California Court of Appeals Court of Appeals
• Parties: ROSCOE MOSS COMPANY, Plaintiff and Respondent, v. Anthony M. ROGGERO et al., Defendants and Appellants. Civ. 685.

Page 911

54 Cal.Rptr. 911

246 Cal.App.2d 781

ROSCOE MOSS COMPANY, Plaintiff and Respondent, v. Anthony M. ROGGERO et al., Defendants and Appellants.

Civ. 685.

Court of Appeal, Fifth District, California.

Dec. 1, 1966.

Don C. Mayes, Merced, for appellants.

Griswold & Barrett and George C. Barrett, Merced, for respondent.

CONLEY, Presiding Justice.

Defendants appeal from what the trial court termed a 'summary judgment,' which was granted following an expression of viewpoints by counsel for the several parties at a pretrial conference, in total disregard of the procedural requirements for securing such a judgment as established by section 437c of the Code of Civil Procedure.

The plaintiff sued the defendants for $1424.59 as the alleged reasonable market value of materials for a well, including casing, a starter, and shoe, and to foreclose a mechanic's lien in that basic amount on the real property of defendants. In their answer, the defendants averred that the material delivered was not of good quality; that it was not uniform; and that there were defects in some sections of the casing, so that it was bent by the driller when it was used, causing the casing to collapse; defendants denied that they owed plaintiff any sum; they filed a cross-complaint and also a cross-complaint against William R. Branch, the well driller, and Merrill Pump and Machine Works, in a second suit, claiming that, because of the defective material furnished by the plaintiffs and negligence on the part of those interested in installing the well, they were substantially damaged. A motion for consolidation of the two cases was granted and a pretrial conference held.

At the conference, in the chambers of the judge presiding, Roscoe Moss Company made an oral motion for summary judgment as to appellants; it was granted by the court. In a formal 'Order Granting Motion for Summary Judgment,' the court ordered that the answer and cross-complaint filed by the defendants herein be stricken and that judgment be entered in favor of plaintiff and against the defendants.

The pretrial conference order states:

'At the time of the Pre-Trial Conference, Mr. Barrett made a motion for summary judgment on the part of Roscoe Moss Company and after discussion in chambers, Mr. Mayes stipulated that the Evidence against Roscoe Moss was very meager indeed and thought that the summary judgment in favor of Roscoe Moss should be granted. Accordingly, the Court grants Roscoe Moss Company's petition for summary judgment. 'In view of the foregoing granting of summary judgment, Roscoe Moss And Company are no longer in this particular case and the action will continue in No. 33520 together with the cross-complaint filed by the Roggero's against the Merril Pump and Machine Works and William R. Branch.' (Italics added.)

The judgment, as signed by the judge and filed, recites:

'The plaintiff duly made a Motion for Summary Judgment herein and the Court did on December 5, 1965, enter its Order Granting Motion For Summary Judgment.'

The judgment continues to the effect that the cross-complainants take nothing by reason of their cross-complaint; that the plaintiff shall have a lien upon the real property of defendants for the sum of $1424.59 principal, and $183.66 interest, and that the property be sold to effect payment thereof.

The judgment was filed on February 7, 1966. On March 16, 1966, the defendants served a notice of motion to vacate the judgment on the grounds that the judgment was void in that no notice in writing was given of any hearing on any motion for summary judgment, no affidavit in support of any such motion was ever served or filed, and no hearing in open court was held on any motion for summary judgment; further, that there are triable issues of fact to be determined in the case as set out in the answer and cross-complaint, including the question whether plaintiff furnished casing of merchantable quality reasonably fit for the type of well which was drilled. The authorities cited in support of the motion included section 437c of the Code of Civil Procedure, setting forth the required statutory procedure needed to secure a summary judgment. Declarations in support of the motion to vacate the judgment were made by Anthony M. Roggero and also by his attorney. Mr. Roggero stated:

'That I did not receive any notice of any hearing on any motion for a Summary Judgment herein. If I had such notice I would have been able to have prepared a Counter Affidavite (sic) opposing such motion which would show that plaintiff Roscoe Moss Co., did represent to me that well casing furnished to me was good and proper for the purpose needed, but I have since discovered that the type furnished was different from, and inferior to that actually recommended in printed specifications by the plaintiff Roscoe Moss Company, and if the printed recommendations had been followed I am informed and believe my well would not have been a failure.'

The court denied the motion to vacate the judgment, and a notice of appeal from the judgment was filed in due time.

Section 437c of the Code of Civil Procedure requires that when it is claimed that an action has no merit or that a plaintiff believes that there is no defense to an action, a notice of motion for a summary judgment may be given by one side to the other at least ten days before the time fixed for the hearing '* * * supported by affidavit of any person or persons having knowledge of the facts. Upon a proper showing, the answer may be stricken, or the complaint dismissed and judgment entered for the prevailing party unless the person justifying the pleading '* * * 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 obvious that the procedural requirements of this section were ignored; no proper notice of such a hearing was given and no affidavits, or declarations, establishing facts, were filed. Thus, there was no justification for the entry of a summary judgment unless, because of unusual factors not contemplated by section 437c of the Code of Civil Procedure, the defendants are estopped to question the result. Basically, the respondent argues that a deposition of the defendant Roggero, which was called to the attention of the court at the hearing, did not show positively that he had a valid defense, and that the defense attorney, by stating that the defendants had little evidence and that he thought a summary judgment in favor of Roscoe Moss should be granted, constituted in effect a stipulation for the entry of such a judgment; respondent, consequently, urges that the defendants and cross-complainants are estopped from objecting to the judgment against them.

There is no reporter's transcript in this case and none is procurable, because the oral motion for summary judgment was not made in open court, or with a reporter present, but informally in the chambers of the judge who was conducting the pretrial conference. The attorney for the defendants is adamant in his assurance that he did not stipulate, or intend to stipulate, that a summary judgment against his clients should be awarded at that time. He states very frankly that he did say that...