Seltzer v. Seltzer

• Citation: 276 Cal.App.2d 137,80 Cal.Rptr. 688
• Parties: Emma L. SELTZER, Plaintiff and Appellant, v. Emmett Francis SELTZER, Defendant and Respondent. Civ. 33873.
• Decision Date: 16 September 1969
• Court: California Court of Appeals Court of Appeals

Page 688

80 Cal.Rptr. 688

276 Cal.App.2d 137

Emma L. SELTZER, Plaintiff and Appellant, v. Emmett Francis SELTZER, Defendant and Respondent.

Civ. 33873.

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

Sept. 16, 1969.

Brinton N. Bowles, Visalia, for appellant.

Hart & Mieras, Los Angeles, for respondent.

LILLIE, Associate Justice.

Defendant's motion therefor having been granted, plaintiff appeals from the ensuing summary judgment in defendant's favor determining interests to certain residential property in La Crescenta.

Defendant (also referred to as 'Emmett') is the brother of John P. Seltzer, now deceased, from whom Emma, plaintiff herein, was awarded an interlocutory decree of divorce in December of 1963. Such decree, pursuant to stipulation of the parties, included the following 'orders': Emma shall have exclusive use of the property, found to be held in joint tenancy, until the youngest of their children reaches the age of twenty-one, after which time it shall be sold and the proceeds equally divided; and each party shall pay one-half of the taxes, costs of reasonable repairs and insurance premiums, all 'until further order of Court.' Seven months later, in July of 1964, John conveyed his interest in the property to his brother, Emmett, defendant herein, assertedly for $2,000.00. In November of the same year, and before the expiration of the time within which either party could apply therefor, Emma secured an order requiring her husband to show cause why he should not be restrained from obtaining a final decree until an adjudication of her claim, set forth in the application for such order, that John had concealed some $7,000.00 in community assets. Although more than eight witnesses were subpoenaed, no evidence of concealed assets was produced at the hearing and the show cause order was discharged.

Following the discharge of such order, and pursuant to the agreement of counsel for both parties, John submitted both himself and his records to a private examination by Emma's then attorney. By letter her attorney thereafter advised Emma that there was insufficient evidence to proceed further absent new evidence supportive of her claims. A final judgment of divorce was thereafter entered (January 11, 1965) without any modification of the material provisions of the interlocutory decree; this was done prior to John's death.

The foregoing matters are set forth in an affidavit of Emmett's attorney supporting his motion for summary judgment in the instant proceeding which was initiated by Emma on March 3, 1966, some seven months after John's death. No counter-affidavits were filed. By her complaint, Emma sought judgment setting aside the conveyance to Emmett upon the grounds of fraud and lack of consideration (first cause of action), declaratory relief adjudging her interests in and to the property (second cause of action), and judgment impressing a constructive trust in her favor on certain designated items of community property conveyed by John to Emmett (third cause of action). By the summary judgment here challenged the court adjudged that defendant prevail as to the first and third causes of action; as to the remaining (second) cause of action, it was adjudged that 'the parties are to abide by all the terms and conditions of the Interlocutory Decree of Divorce' entered on the date in question.

Plaintiff contends that the declaration and affidavit in support of the challenged judgment do not comply with the statutory requirement that as to facts stated therein 'affiant, if sworn as a witness, can testify competently' (Code Civ.Proc. § 437c); too, that the affidavit of defendant's attorney contains averments which, being in the nature of hearsay, are not the best evidence of that which transpired on the order to show cause. Such argument, of course, invokes the established rule that because of the drastic nature of the relief thereby sought, the affidavit of the party moving for summary judgment must be strictly construed, while a liberal construction must be accorded any affidavits in opposition. (R. D. Reeder Lathing Co. v. Allen, 66 Cal.2d 373, 376--377, 57 Cal.Rptr. 841, 425 P.2d 785.) It is further contended that the trial court had no legitimate basis upon which to grant the adjudication prayed for since the moving papers (strictly construed) were insufficient to sustain a judgment in defendant's favor and set forth matters which presented triable issues of fact; that such is the test is likewise settled. (Pettis v. General Tel. Co., 66 Cal.2d 503, 505, 58 Cal.Rptr. 316, 426 P.2d 884.) But there is another principle also governing here: Where (as in the instant proceeding) the party against whom a motion for summary judgment is made files no counteraffidavit, the trial is entitled to accept as true the allegations of the movant's affidavit and must assume that the other party either cannot dispute the truth of statements in such documents or cannot controvert them. (International Oil & Metal Corp. v. State of California, 204 Cal.App.2d 565, 570, 22 Cal.Rptr. 568; Atchison v. McGee, 141 Cal.App.2d 515, 518, 296 P.2d 860.)

The latter of the above two claims, the sufficiency of the supporting papers, will be disposed of first. The affidavit of defendant's attorney, Edward P. Hart, recites that he was at all times the attorney of record for Emmett's brother John in the divorce action previously referred to. Attached thereto are copy of the interlocutory judgment, copy of the order to show cause and copy of the application for a subpoena duces tecum; ¹ also the affidavit refers to such prior action by title and court number. Accordingly, matters in the file of that proceeding were not only subject to judicial notice in the trial court (Martin v. General Finance Co., 239 Cal.App.2d 438, 442, 48 Cal.Rptr. 773; Evid.Code, § 452, subd. (d)), but also in this court (Martin v. General Finance Co., Supra). Too, after reference to the letter of Emma's attorney (a copy of which is attached thereto) wherein the opinion is given that it would be useless for her to proceed further absent additional evidence, the affidavit asserts that 'said issue of hidden assets having been fully explored by Emma L. Seltzer and her counsel in said cause No. D629,020, that she is now estopped from raising said issue in the above entitled proceeding.'

Emma's first cause of action sought to set aside her husband's conveyance of his joint tenancy interest in the property to Emmett upon the ground of fraud, while the third cause of action asks the imposition of a constructive trust on various and sundry community assets, excluding (it should be noted) the above joint tenancy interest. Since there can be but little doubt that the trial court applied the doctrine of collateral estoppel in reaching its determination as to these two causes of actions, plaintiff argues that it was error to do so. She cites Krupp v. Mullen, 120 Cal.App.2d 53, 56, 260 P.2d 629, for the proposition that estoppel is an affirmative defense which must be specifically pleaded; but, as shown above, Emmett did so affirmatively plead. Furthermore, the Krupp decision was concerned with estoppel in pais, whereas our case involves estoppel by judgment. 'The reason for the doctrines covering estoppel by judgment, whether the rule be 'law of the case' or 'res judicata' is the need for curtailment of prolonged and multiple litigation causing 'vexation and expense to the parties and wasted effort and expense in judicial administration.' (Citations.)' (City of North Sacramento v. Citizens Utilities Co., 218 Cal.App.2d 178, 185, 32 Cal.Rptr. 308, 312.) Although plaintiff seemingly suggests otherwise, the authorities clearly hold that res judicata is a proper ground upon which to grant a summary judgment. (Smith v. City of Los Angeles, 190 Cal.App.2d 112, 128, 11 Cal.Rptr. 898; Stafford v. Ware, 187 Cal.App.2d 227, 236--237, 9 Cal.Rptr. 706.)

The question thus presented is whether plaintiff is barred from pursuing her claims any further because of res judicata and the estoppel by judgment that arises therefrom. We think the answer must be in the affirmative. The subject of plaintiff's first cause of action involved a property interest adjudged under the interlocutory decree to have been held in joint tenancy by both Emma and John--indeed they stipulated to the character of such interest. Thus, since the court was without power to award John's interest therein to Emma (Fox v. Fox, 18 Cal.2d 645, 646, 117 P.2d 325), John could have sold or encumbered such interest at his pleasure regardless of Emma's knowledge or consent. (MEYER V. WALL, 270 CAL.APP.2D ---, ---,^{A 2} 75...