Saporta v. Barbagelata

• Decision Date: 20 September 1963
• Citation: 220 Cal.App.2d 463,33 Cal.Rptr. 661
• Court: California Court of Appeals Court of Appeals
• Parties: Daniel SAPORTA and Allegra Saporta, his wife, Plaintiffs and Appellants, v. John J. BARBAGELATA, doing business as Barbagelata & Company, and Robert Dolman, Defendants and Respondents. Civ. 20996.

Page 661

33 Cal.Rptr. 661

220 Cal.App.2d 463

Daniel SAPORTA and Allegra Saporta, his wife, Plaintiffs and Appellants, v. John J. BARBAGELATA, doing business as Barbagelata & Company, and Robert Dolman, Defendants and Respondents.

Civ. 20996.

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

Sept. 20, 1963.

Rehearing Denied Oct. 9, 1963.

Hearing Denied Nov. 13, 1963.

Robert J. Cort, San Francisco, for appellants.

Barbagelata, Zief & Carmazzi, San Francisco, for respondents.

MOLINARI, Justice.

This is an appeal by plaintiffs from a summary judgment in favor of two of the six defendants in the action.

Question Presented

Was the trial court justified in granting the motion for a summary judgment?

Statement of the Case

The action in the instant case is one for rescission on the ground of fraud. The action is brought against two sellers of real property, a real estate broker, a real estate agent, an exterminator company, and a lumber company. Plaintiffs allege in their complaint that they were the purchasers of certain real property, improved with a house, owned by defendants Otto and Marie Weber and that they purchased said property through defendant real estate broker, John Barbagelata, and his agent, defendant Robert Dolman. The gist of the cause of action of the complaint against these lastmentioned defendants is that plaintiffs were defrauded by said defendants by reason of the concealment and nondisclosure that said house contained an extensive termite and fungus infestation, and by certain representations that said house was not so infested. After issue was joined, Barbagelata and Dolman made a motion for summary judgment. The motion was granted. This appeal is from the judgment entered pursuant to the order granting the motion.

The Motion for Summary Judgment

The motion for summary judgment was supported by the declaration of Dolman. Two declarations in opposition to the motion were presented by plaintiffs, one by plaintiff Daniel Saporta and the other by one of his attorneys, Joseph D. Taylor. In addition to these declarations it was stipulated by the parties to the motion, at the time it was heard, that the deposition of Daniel Saporta was to be considered by the trial court in opposition to the motion.

Before proceeding to a discussion of the merits of the affidavits and declarations before the court below in connection with the motion, we shall reiterate certain well-established legal principles applicable to summary judgments.

The purpose of the summary judgment procedure is to discover, through the media of affidavits, whether the parties possess evidence which demands the analysis of trial. (Burke v. Hibernia Bank, 186 Cal.App.2d 739, 744, 9 Cal.Rptr. 890; Kramer v. Barnes, 212 A.C.A. 438, 443, 27 Cal.Rptr. 895; Code Civ.Proc. § 437c.) The object of the proceeding is to discover proof. (2 Witkin, Cal.Procedure, pp. 1711-1715.) The affidavits of the moving party are strictly construed and those of his opponent liberally construed. (Eagle Oil & Ref. Co. v. Prentice, 19 Cal.2d 553, 556, 122 P.2d 264; Snider v. Snider, 200 Cal.App.2d 741, 748, 19 Cal.Rptr. 709.) A summary judgment will stand if the supporting affidavits state facts sufficient to sustain a judgment and the counteraffidavits do not proffer competent and sufficient evidence to present a triable issue of fact. (Burke v. Hibernia Bank, supra, 186 Cal.App.2d pp. 743-744, 9 Cal.Rptr. p. 893; Snider v. Snider, supra, 200 Cal.App.2d p. 748, 19 Cal.Rptr. p. 713.) In making this determination the respective affidavits are tested by certain applicable rules. The affidavit of the moving party must satisfy three requirements: (1) It must contain facts sufficient to entitle the moving party to a judgment, i. e., facts establishing every element necessary to sustain a judgment in his favor; (2) such facts must be set forth with particularity, i. e., all requisite evidentiary facts must be stated, and not the ultimate facts or conclusions of law; and (3) the affiant must show that if sworn as a witness he can testify competently to the evidentiary facts contained in the affidavit. (Snider v. Snider, supra, 200 Cal.App.2d p. 748, 19 Cal.Rptr. p. 713; House v. Lala, 180 Cal.App.2d 412, 416, 4 Cal.Rptr. 366; Kramer v. Barnes, supra, 212 A.C.A. p. 443, 27 Cal.Rptr. p. 898.) These requirements are applicable even though no counteraffidavit is filed, and also where the counter affidavit is insufficient. (Kramer v. Barnes, supra, 212 A.C.A. p. 443, 27 Cal.Rptr. p. 898; Goldstein v. Hoffman, 213 A.C.A. 883, 891, 29 Cal.Rptr. 334.) The counteraffidavit in opposition to the motion for summary judgment, on the other hand, must meet the following requirements: (1) It must set forth facts with particularity; and (2) it must set forth facts within the personal knowledge of the affiant, to which, as the affidavit shall show affirmatively, the affiant can testify competently if called as a witness. (Snider v. Snider, supra, 200 Cal.App.2d p. 750, 19 Cal.Rptr. p. 715; Code Civ.Proc. § 437c.) In the light of the rule of liberal construction applicable to affidavits in opposition to the motion for summary judgment, our Supreme Court has held that the facts alleged in the affidavits of the party against whom the motion is made must be accepted as true, and with regard to the requirement that the facts must be set forth 'with particularity,' has stated 'that such affidavits to be sufficient need not necessarily be composed wholly of strictly evidentiary facts.' (Eagle Oil & Ref. Co. v. Prentice, supra, 19 Cal.2d, p. 556, 122 P.2d p. 265; see Buffalo Arms, Inc. v. Remler Co., 179 Cal.App.2d 700, 703, 4 Cal.Rptr. 103; and see McComsey v. Leaf, 36 Cal.App.2d 132, 97 P.2d 242.) Accordingly, it has also been held that counter affidavits may state ultimate facts and conclusions of law and need not be composed wholly of evidentiary facts. (McComsey v. Leaf, supra; County of Los Angeles v. Stone, 198 Cal.App.2d 640, 646, 18 Cal.Rptr. 72; Whaley v. Fowler, 152 Cal.App.2d 379, 383, 313 P.2d 97.) It should be noted, however, that the rule of liberal construction does not go so far as to permit of a counter-affidavit which merely repeats the allegations of the pleadings or which contains no evidentiary facts at all. (See Snider v. Snider, supra, 200 Cal.App.2d p. 753, 19 Cal.Rptr. p. 717; and see 2 Witkin, Cal. Procedure, § 78, p. 1715.) It should also be noted that the use of depositions in support of, or in opposition to, a motion for summary judgment in conjunction with or in lieu of affidavits is proper. (Kramer v. Barnes, supra, 212 A.C.A. p. 441, 27 Cal.Rptr. p. 897; Cosper v. Smith & Wesson Arms Co., 53 Cal.2d 77, 346 P.2d 409; Desny v. Wilder, 46 Cal.2d 715, 299 P.2d 257; Nizuk v. Gorges, 180 Cal.App.2d 699, 4 Cal.Rptr. 565.)

We first apply the applicable rules to the affidavits of the moving parties. The declaration of Dolman in support of the motion declares: that he was employed as a real estate salesman by John Barbagelata; that during the early part of 1960, Otto and Marie Weber listed their home at 846 Faxon Avenue, San Francisco, with Barbagelata & Company for sale; that declarant at plaintiffs' request showed them the Weber home but that at no time did declarant make any statements indicating the lack or presence of termites or dry rot in said property; that plaintiffs offered to purchase the property which offer was subject to an inspection by a licensed pest control service; that declarant insisted that plaintiffs choose their own exterminator and deal directly with said service; that neither declarant nor Barbagelata had any dealings with any exterminator regarding the premises located at 846 Faxon Avenue; that at no time was declarant informed by the Webers of the probability of infestation of large areas in said premises; that at no time did declarant purport to act for or be the agent of plaintiffs, nor did he agree to select the points at which Rose Exterminator would drill the test holes; that at no time did declarant fail to disclose information known to him because at no time did he know of the large areas of infestation.

Applying the above rules, it is clear that Dolman's declaration sets forth facts which, if true, establish that plaintiffs' action is without merit as against Dolman and Barbagelata. While no affidavit or declaration was presented by Barbagelata, Dolman's declaration was sufficient to negate any liability on the part of Barbagelata. Plaintiffs' complaint does not allege any conduct or representations on the part of Barbagelata personally but seeks to fasten liability on him on the basis that Dolman was acting as his agent and employee. With respect to the conduct of Dolman, the complaint alleges in substance that he was informed by the owner of the property of the probability that infestation of large areas existed but that he did not disclose the same to plaintiffs; that Dolman agreed with plaintiffs to select the holes at which the exterminator company was to make tests, but that he directed such tests only at the places selected by the owner; that Dolman, because of his own knowledge, observation and experience, knew the location of the infestations, but failed to disclose them to plaintiffs; and that Dolman fraudulently concealed the locations of said infestation and caused the test holes to be made at locations which would not reveal extensive infestation. In the light of these allegations as to the fraud allegedly perpetrated by Dolman, the declaration by Dolman sets forth with sufficient particularity requisite evidentiary facts, which, if true, negate the allegations of the complaint and any liability of defendants Dolman and Barbagelata to plaintiffs. It appears from the declaration, moreover, that the facts are such that Dolman, if called as a witness, could competently testify thereto. ¹

Since Dolman's declaration states facts sufficient to entitle him and Barbagelata to a judgment, we must...