Taliaferro v. Coakley

• Decision Date: 10 November 1960
• Docket Number: No. 18892,18892
• Citation: 186 Cal.App.2d 258,9 Cal.Rptr. 529
• Court: California Court of Appeals Court of Appeals
• Parties: Eugene A. TALIAFERRO, Plaintiff and Appellant, v. Thomas COAKLEY, Judge, et al., Defendants. Thomas Coakley, Judge, Defendant and Respondent.

Page 529

9 Cal.Rptr. 529

186 Cal.App.2d 258

Eugene A. TALIAFERRO, Plaintiff and Appellant, v. Thomas COAKLEY, Judge, et al., Defendants.

Thomas Coakley, Judge, Defendant and Respondent.

No. 18892.

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

Nov. 10, 1960.

Eugene A. Taliaferro, San Pablo, in pro. per.

John A. Nejedly Dist. Atty., Charles L. Hemmings Chief Civil Deputy Dist. Atty., Charles R. Mack, Deputy Dis. Atty., County of Contra Costa, Martinez, for respondent.

BRAY, Presiding Justice.

Plaintiff appeals from a judgment in favor of defendant Coakley after order granting motion for summary judgment.

Questions Presented.

1. Will summary judgment apply in a mandamus proceeding?

2. Will summary judgment lie when no answer is filed?

3. Effect of failure to file counter-affidavit.

4. Failure to file points and authorities on motion.

Record.

Plaintiff as a taxpayer sued defendant Coakley, the Judge of the Superior Court of Mariposa County (who presided pro tem. in the Superior Court of Contra Costa County in actions in which plaintiff was involved), the Board of Supervisors of Contra Costa County, the County Treasurer, the District Attorney, the Controller of the State of California and the Attorney General. The gist of his action is that defendant Coakley wrongfully received payments of travel expenses and salary, for which plaintiff prays judgment, and also asks that a writ of mandate issue ordering the other defendants to investigate and bring suit and take other proceedings for the recovery of said payments. Defendant Coakley, without answering, filed a motion for summary judgment, filing an affidavit in support thereof. Plaintiff filed no counter-affidavit. The other defendants did not participate in the motion. The court granted the motion.

1. Summary Judgment In Mandate.

Loveland v. City of Oakland, 1945, 69 Cal.App.2d 399, 159 P.2d 70, decided that section 437c, Code of Civil Procedure, as it then read, did not apply to mandamus proceedings and hence summary judgment would not lie in such proceedings. At that time section 437c limited summary judgment proceedings to actions 'to recover upon a debt or upon a liquidated demand * * * or to recover an unliquidated debt or demand for a sum of money only arising on a contract express or implied in fact or in law or to recover possession of specific real or personal property or for specific performance of a contract in writing for the sale or purchase of property, or for an accounting arising on a written contract * * *'. In 1953 (Stats.1953, ch. 908, § 1, p. 2264) the section was amended to apply 'in any kind of action.' The following sentence was added: 'The word 'action' as used in this section shall be construed to include all types of proceedings.' This sentence is still in the section. Thus it clearly appears that the Legislature no longer intended to limit summary proceedings to actions as distinguished from proceedings. ^*

2. Answer Not Required.

Here the situation is similar to that discussed in (1). The Legislature has changed section 437c in another respect after court construction of the section as it once existed. Gale v. Wood, 1952, 112 Cal.App.2d 650, 653, 247 P.2d 67, and Loveland v. City of Oakland, supra, 69 Cal.App.2d 399, 159 P.2d 70, held that a motion for summary judgment would not lie until after answer filed. However the 1957 amendment to section 437c provides: 'A motion [for summary judgment] filed pursuant to the provisions of this section shall be considered a pleading.' As the question before the court on such a motion is whether there is an issue of fact to be tried (Eagle Oil & Refining Co. v. Prentice, 19 Cal.2d 553, 556, 122 P.2d 264), and this question is determined upon affidavits and not upon the complaint and answer, there is no reason to require an answer to be filed before determining the motion.

3. No Counter-Affidavit.

The only cause of action in which plaintiff seeks judgment against defendant Coakley is the first; the other four causes of action prayed only for writs against the other defendants, none of whom have been served. Defendant filed an affidavit setting forth facts which completely negate the charges concerning him in the first cause of action. Plaintiff filed no counter-affidavit. As we said in Nini v. Culberg, 183 Cal.App.2d 657, 7 Cal.Rptr. 146, at page 151, 'The motion must be determined on facts set forth in the affidavits, and not on allegations of the complaint.' In Cone v. Union Oil Co., 129 Cal.App.2d 558, 563, 277 P.2d 464, 467, the court said: 'Often there is no genuine issue of fact, although such an issue is raised by the formal pleadings. Absent a genuine issue of fact as disclosed by the affidavits, a party is not entitled to proceed to trial and the court, applying the law to the uncontroverted material facts, may render a summary judgment.' In our case, plaintiff in not filing a counter-affidavit or affidavits failed to show that there was a genuine issue of fact in the case, and the court had no alternative but to grant the motion.

Defendant filed his 'Affidavit for...