Snider v. Snider

Decision Date27 February 1962
Citation19 Cal.Rptr. 709,200 Cal.App.2d 741
CourtCalifornia Court of Appeals Court of Appeals
PartiesMarion Kathleen SNIDER, an infant, by Joan K. Black, her Guardian ad litem, Plaintiff and Appellant, v. Mathew A. SNIDER and John L. Snider, Defendants and Respondents. Civ. 19577.

Harry O. B. Farris, Watsonville, for appellant.

Robert E. Lawson, Sunnyvale, for respondents.

SULLIVAN, Justice.

Plaintiff Marion Kathleen Snider, an infant, by Joan K. Black, her mother and guardian ad litem appeals from a judgment in favor of the defendants Mathew A. Snider and John L. Snider, entered upon the order granting defendants' motion for a summary judgment. 1 Mathew is the father and John the paternal grandfather of the plaintiff.

Plaintiff's complaint filed November 6, 1959, when she was six years old, separately states two causes of action. The complaint alleges that on or about June 20, 1958, the defendants entered into a written contract pursuant to the terms of which each of the defendants promised and agreed with the other defendant to pay plaintiff seven and one-half per cent (7 1/2%) of the amount received by each pursuant to a certain settlement set forth in the contract; that the said amounts to be paid plaintiff pursuant thereto total the sum of $15,000; and that defendants have not paid said sum or any part thereof although demand has been made therefor. In the second cause of action, the complaint alleges a common count in indebitatus assumpsit for the same amount of money due pursuant to the terms of what is apparently the same contract. No copy of any contract is attached to the complaint as an exhibit.

The defendants filed a demurrer to the complaint and at the same time a motion for summary judgment. The motion is supported by affidavits of Mathew Snider, John L. Snider and George Catlin, attorney for Mathew.

Mathew Snider's affidavit states that his mother Kathleen E. Snider died on June 11, 1958, leaving a will naming him as executor and sole beneficiary; that to avoid a will contest he and his father agreed to negotiate a settlement, each feeling they should have a share in the estate; that affiant was desirous of providing for the plaintiff, referred to as Kathy, as well as after-born children, and requested his father to take slightly less than one-half of the estate; that affiant and his father tentatively agreed upon this shortly after the funeral of affiant's mother, but no agreement was reduced to writing or executed because the details were not settled; that, as pointed out by affiant's attorney George Catlin, such agreement could not be drafted until certain legal and tax considerations had been researched; that affiant expressed a desire to create a trust for Kathy out of his share but his attorney advised him that this would not be desirable, since such a trust might involve tax problems and excessive legal expense; that, therefore, upon advice of counsel; affiant decided not to create a trust for Kathy and not to pay over any part of his share of the estate.

Mathew's affidavit further states that on December 1, 1958, affiant and his father John entered into a written contract (a copy of which is attached to and incorporated in the affidavit) pursuant to which the parties divided the entire estate of affiant's mother between themselves but 'did not agree to pay Kathy any sum of money nor create a trust for her'; that '[p]ursuant to the terms of said agreement, affiant collaterally promised to provide for Kathy during his life and to bequeath a certain part of his inheritance to Kathy upon his death; that, on June 23, 1959, affiant and his father entered into a final agreement, * * * [a copy of which is also attached to and incorporated in the affidavit] rescinding all former agreements and dividing the estate in a certain manner. Absolutely no provision was made in reference to Kathy'; that Kathy had given no consideration of any kind for the alleged contract of June 20, 1958 and did not change her position in reliance thereon.

Mathew's affidavit further states that affiant and his father did not enter a written agreement, or any agreement whatsoever on or about June 20, 1958, or at any other time promising that each of them would pay Kathy seven and a half per cent (7 1/2%) of the amounts received by them; that affiant has never considered payment of any money to his daughter aside from monthly support payments and periodic gifts of small amounts; that one of the reasons for not considering transfer of any substantial amounts of money to Kathy was that her mother Joan K. Black would have control of it during Kathy's minority and she lacked adequate business acumen to properly manage the same; that affiant has made adequate provision for his daughter in the event of his death, but 'affiant did not and will not transfer not [sic] contract to transfer' substantial sums to his daughter.

The affidavit of John Snider avers his personal knowledge of the material facts of Mathew's affidavit which John had read and alleges that he confirms and adopts such statements.

The affidavit of George Catlin, Mathew's attorney, alleges that beginning in June 1958 Mathew requested the preparation of a settlement agreement by affiant; that Mathew originally considered creating a trust for Kathy and afterborn children, but because of 'the tax and practical consideration no definite agreement could be reached in the early stage of negotiation; that affiant advised Mathew in July 1958 that a trust for Mathew's child or children was impracticable; that affiant therefore advised Mathew to set aside in his own name a portion of his share of the Kathleen Snider estate in case of an emergency during his child or children's minority and to create a testamentary trust for such child or children; that thereafter several drafts of an agreement were considered by Mathew and John, and ultimately an agreement dated December 1, 1958, was signed by them; subsequently this agreement 'was replaced by an agreement dated June 23, 1959.'

Joan K. Black, plaintiff's guardian ad litem filed an amended counter-affidavit (no original affidavit is in the record) alleging that on or about June 20, 1958, in Los Angeles, California, the defendants made and entered into a written agreement by which they settled their rights and interests in the Estate of Kathleen E. Snider; that as a part of such agreement each of the defendants promised and agreed with the other 'that a trust would be set up' for the benefit of plaintiff and that each said defendant would pay 'into the said trust fund' seven and a half per cent of the amount received pursuant to the agreement; that said amount totalled $15,000; and that the defendants have failed and refused to set up the trust or to pay the said sums into the said trust or to plaintiff.

The counter-affidavit concludes with the statement that: '[t]he facts stated herein are within the personal knowledge of the affiant, and the affiant, if sworn as a witness, can testify competently thereto.'

Upon hearing the motion, and after consideration of all affidavits and exhibits attached thereto, the counter-affidavit and all the pleadings, the court below granted defendant's motion for summary judgment. Demurrers were considered moot and not necessary to be ruled on. In its memorandum of decision the court below stating that 'the alleged agreement' of June 20, 1958, was rescinded by the defendants, inferentially by their agreement of December 1, 1958, and directly by this agreement of June 23, 1959, held that the defendants had the right to so rescind. The court pointed out that the counter-affidavit did not deny the execution of the later agreement.

Plaintiff contends in her opening brief that 1) it was improper for the court to hear and grant defendant's motion for a summary judgment with only a demurrer, and not an answer, on file; and 2) plaintiff's rights as an infant, third party donee beneficiary arising out of the contract alleged in her complaint could not be defeated by the later agreements of December 1958 and June 1959. In meeting the issue raised in respondents' brief, plaintiff also contends 3) that her counter-affidavit is not fatally defective in that it fails to meet the requirements of section 437c of the Code of Civil Procedure.

We shall consider the issues presented by plaintiff's first and third contentions. Our decision herein makes it unnecessary for us to discuss plaintiff's second contention.

Plaintiff's argument that section 437c of the Code of Civil Procedure does not authorize a motion for summary judgment by defendants in the absence of an answer to the complaint, is disposed of by a reference to the code section in question. Prior to the 1957 amendment to section 437c (Stats.1957, ch. 1457, § 1) said section read as follows: 'In superior courts and municipal courts when an answer is filed in any kind of action if it is claimed that there is no defense to the action or that the action has no merit, on notion of either party * * * the answer may be stricken out or the complaint may be dismissed and judgment may be entered. * * *' (Emphasis added.) The 1957 amendment struck out the above italicized language 'when an answer is filed' and the section now reads: 'In superior courts and municipal courts if it is claimed the action has no merit * * *.' It is clear that the Legislature by the above amendment intended to make it definite that no answer need be on file. (See 2 Witkin Calif.Procedure, p. 1714, 1961 Supp. p. 164; Taliaferro v. Coakley, 186 Cal.App.2d 258, 260, 9 Cal.Rptr. 529.)

The cases of Loveland v. City of Oakland, 69 Cal.App.2d 399, 159 P.2d 70 cited by appellant and Gale v. Wood, 112 Cal.App.2d 650, 247 P.2d 67, although containing dicta stating that a motion under section 437c will not lie unless an answer is on file, were both decided prior to the effective date of the 1957 amendment to such section and, we feel, are...

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