Sacks v. FSR Brokerage, Inc.

• Decision Date: 25 June 1992
• Citation: 7 Cal.App.4th 950,9 Cal.Rptr.2d 306
• Court: California Court of Appeals Court of Appeals
• Parties: Stephen E. SACKS, Plaintiff and Appellant, v. FSR BROKERAGE, INC., et al., Defendants and Respondents. B058585

Page 306

9 Cal.Rptr.2d 306

7 Cal.App.4th 950

Stephen E. SACKS, Plaintiff and Appellant, v. FSR BROKERAGE, INC., et al., Defendants and Respondents.

B058585

Court of Appeal, Second District, Division 5, California.

June 25, 1992.

Rose & Brutocao, Robert J. Rose and William J. Brutocao, Covina, for plaintiff and appellant.

Laffin, Loeterman, Shulkin & Warner, Los Angeles, and Samuel H. Kraemer, Santa Monica, for defendants and respondents.

BOREN, Associate Justice.

After purchasing a house located at 3009 Vista Crest Drive in Los Angeles for $295,000, appellant Stephen E. Sacks sued the sellers (Jay and Joan Morgenstern) and respondents FSR Brokerage, Inc. (dba Fred Sands Realtors), Glen Gaither and Richard Beck. Respondents Gaither and Beck were the salespersons for respondent FSR Brokerage, Inc. ¹ Sacks' complaint alleged that the 75-year-old house he purchased came with a defective foundation, inadequate or defective plumbing and heating, and no insulation. The complaint asserted causes of action for fraud, misrepresentation, breach of fiduciary duty, breach of contract, negligence and intentional infliction of mental distress. The trial court granted respondents' motion for summary judgment against Sacks.

Because the trial court properly found Sacks had sufficient notice of the motion, because Sacks failed in the trial court to argue the merits of the motion, and because Sacks was not prejudiced by the death of respondent Gaither, we affirm the judgment.

PROCEDURAL FACTS

On March 12, 1991, respondents filed a motion for summary judgment or, alternatively, for summary adjudication of issues and noticed the hearing on the matter for April 9, 1991. The motion for summary judgment was based on the alleged absence of any triable issue of material fact. The alternative request for summary adjudication of issues addressed, in pertinent part, the alleged absence of any misrepresentations by respondents or reliance by Sacks on any representations regarding the insulation, plumbing or foundation, and the absence of any duty, breach of any duty, acts or causation by respondents regarding various causes of action. The motion was supported by points and authorities and various exhibits, including declarations, contract documents, escrow instructions, inspection reports and deposition excerpts. Accompanying the motion for summary judgment or summary adjudication of issues, respondents also filed an extensive statement of undisputed facts, pursuant to Code of Civil Procedure section 437c, subdivision (b).

On March 28, 1991, Sacks filed a brief response and objection to the motion for summary judgment based on the absence of jurisdiction because of purportedly inadequate service. Sacks alleged that service by mail on March 12, 1991, of the notice of motion was inadequate because it was not at least 33 days before the date noticed for the hearing (Code Civ.Proc., § 437c, subd. (a)) and that the personal service was required to be within the requisite "28 days before the time appointed for hearing." As to the personal service, Sacks asserted (but not in a declaration) that respondents' counsel "has alleged in a telephone conversation with [Sacks'] counsel that [respondents] had served the motion by personal service prior to that date [March 12, 1991]. However, [respondents] also admitted that it was served at an address that is almost a year old." Sacks' opposition to the motion for summary judgment did not specifically deny timely personal service by respondents.

On April 2, 1991, respondents filed a reply in support of the motion for summary judgment or summary adjudication of issues. Respondents pointed out that Sacks had provided the court "with not one single disputed issue, not one single disputed fact and not one shred of evidence to dispute anything set forth by [respondents]." Respondents specifically noted that Sacks failed to dispute that prior to purchasing the property Sacks hired a licensed inspector to inspect the property, that Sacks personally inspected the property numerous times, that Sacks signed several agreements exculpating respondents from any liability, and that Sacks had testified that he relied on the representations of his inspector and not the representations of respondents.

Regarding the timeliness of service, respondents urged that, as indicated in the proof of personal service, it had personally served Sacks at his counsel's address of record (as noted on the complaint) within 28 days before the hearing date. Respondents further argued that Sacks never filed a notice of change of address informing respondents of any address change, that Sacks had served a document as recently as February 27, 1991, which confirmed the address where respondents served their motion, and that all other parties continued to serve Sacks at that same address of record of his counsel (i.e., Stuart Hirsh at 8383 Wilshire Blvd., Suite 900, Beverly Hills, CA 90211). ² Respondents alleged that Hirsh had moved to another suite (Suite 1030) but told no one, although he had a responsibility to advise other counsel of his address change. (See Cal. Rules of Court, rule 385.)

The declaration of attorney Samuel H. Kraemer, counsel for respondents, indicated Hirsh called Kraemer on another matter regarding this case and during that conversation this summary judgment motion "was brought up and [Kraemer] was informed for the first time that Mr. Hirsh had moved." Respondents thus contended that Hirsh admitted he received the summary judgment motion by March 13, 1991, and therefore had the requisite 14 days (Code Civ.Proc., § 437c, subd. (b)) to file his opposition when he filed it on March 27, 1991. Respondents therefore argued that since Sacks had the requisite notice and service but chose not to file opposition to the substance of respondents' summary judgment motion, the motion should be granted.

On April 9, 1991, respondents' motion was argued, submitted, and thereafter granted by the trial court. The court's minute order stated, in pertinent part, as follows: "It appears from the proof of service filed with the court that plaintiff [Sacks] was given timely notice of this motion at [his] counsel's address of record ... [m]oving party has adequately supported each of its issues. Plaintiff has failed to offer any contrary evidence [or] arguments in opposition."

On April 16, 1991, Sacks filed a motion for reconsideration in which Hirsh declared that he had moved his offices on June 1, 1990, from Suite 900 to Suite 1030 of the same building. Hirsh declared that he "did not receive constructive notice of [the motion for summary judgment] until March 13, 1991," that on March 13, 1991, he received a telephone call from attorney Kraemer inquiring if he had received the summary judgment motion, that Kraemer "was informed" that Hirsh had not received it, and that the next morning Hirsh "found a copy of the motion on the receptionist[']s desk."

On May 3, 1991, respondents filed an opposition to the motion for reconsideration, noting no new facts were alleged in support of the motion, as required by Code of Civil Procedure section 1008. The opposition was also supported by another declaration by Kraemer, which stated that "[o]n March 12, 1991, [respondents'] motion for summary judgment was personally served on the address of record of [Sacks'] attorney" and which disputed several of Hirsh's factual allegations.

On May 10, 1991, the trial court denied the motion for reconsideration. The court's minute order stated, "[N]o new facts. Even if reconsideration were to be granted, moving party has never offered any opposition on the merits. All indications are that service was proper. Proof of Service shows that motion [was] personally served 28 days before the hearing at the Address of record of plaintiff's attorney."

Judgment was thereafter entered in favor of respondents, and Sacks appeals.

DISCUSSION

I. Death of a Party, Respondent Glen Gaither

Sacks requests that we take judicial notice of the death of respondent Gaither, who was one of respondent Fred Sands Realtors' salespersons, and that we hold that the trial court had no jurisdiction to enter any judgment as to Gaither. We grant the unopposed request for judicial notice of the death certificate of Gaither (Evid.Code, §§ 459, 452; People v. Terry (1974) 38 Cal.App.3d 432, 439, 113 Cal.Rptr. 233), which reveals that Glen A. Gaither died on February 19, 1990, as a result of cardiorespiratory arrest due to AIDS. ³ However, we reject Sacks' contention that we must reverse the judgment as to Gaither on account of his death.

The statutes of this state make clear that Sacks' lawsuit and causes of action against Gaither may survive Gaither's death. Section 385 of the Code of Civil Procedure provides, in pertinent part: "An action or proceeding does not abate by the death ... of a party ... if the cause of action survives or continues. In case of the death ... of a party, the court, on motion, may allow the action or proceeding to be continued ... against his or her [personal] representative." In harmony with the foregoing provision is Probate Code section 573, subdivision (a), which provides: "Except as provided in this section, no cause of action is lost by reason of the death of any person, but may be maintained by or against the person's personal representative." ⁴ In the present matter, the trial court, upon a proper motion of any party, could have permitted the action to continue against Gaither's personal representative or insurer (if applicable). (Herring v. Peterson (1981) 116 Cal.App.3d 608, 612, 172 Cal.Rptr. 240.)

As a general proposition, it is true, as Sacks contends, that under these provisions judgment cannot be rendered for or against a decedent, nor for or against a personal representative of a decedent's estate until the representative has been made a party by substitution. (Johnson v. Simonelli (1991) 231 Cal.App.3d 105, 107, fn. 1, 282...