Towne Development Co. v. Lee

• Citation: 63 Cal.2d 147,403 P.2d 724,45 Cal.Rptr. 316
• Court: United States State Supreme Court (California)
• Decision Date: 07 July 1965
• Parties: , 403 P.2d 724 TOWNE DEVELOPMENT CO., Plaintiff and Appellant, v. Al E. LEE et al., Defendants and Respondents. L. A. 27468.

Page 316

45 Cal.Rptr. 316

63 Cal.2d 147, 403 P.2d 724

TOWNE DEVELOPMENT CO., Plaintiff and Appellant, v. Al E. LEE et al., Defendants and Respondents.

L. A. 27468.

Supreme Court of California, In Bank.

July 7, 1965.

Oshman, Brownfield & Smith, Richard Oshman and John Joseph Hall, Los Angeles, for plaintiff and appellant.

Jerome T. Stewart, Los Angeles, for defendants and respondents.

McCOMB, Justice.

The trial judge granted a summary judgment in favor of defendants in an action for specific performance of a contract for the sale of land. Plaintiff appeals.

A summary judgment is proper only if (1) the affidavits in support of the moving party are sufficient, strictly construed, to sustain a judgment in his favor and (2) the affidavits filed by the opponent, liberally construed, do not show facts deemed by the judge hearing the motion sufficient to present a triable issue. (Code Civ.Proc., § 437c; Stationers Corp. v. Dun & Bradstreet, Inc., 62 A.C. 427, 431-432(1-7), 42 Cal.Rptr. 449, 398 P.2d 785.)

As pointed out in Stationers Corp. v. Dun & Bradstreet, Inc., supra, 62 A.C. 427, 432(3), 42 Cal.Rptr. 449, 398 P.2d 785, 'The aim of the procedure is to discover, through the media of affidavits, whether the parties possess evidence requiring the weighing procedures of a trial.'

In the present case, as will hereinafter appear, the affidavits before the trial court showed that triable issues were presented to it. Accordingly, under the foregoing rules it was improper to grant a summary judgment.

In its complaint, plaintiff, a corporation licensed as a general building contractor, alleged, as follows:

(1) Defendants owned a certain parcel of real property located in Los Angeles County, and on September 18, 1961, the parties entered into a contract for the sale of a portion of such property. The contract was party written and partly oral.

(2) The written part of the contract consisted of escrow instructions, signed by the parties, wherein an escrow was opened with Golden West Escrow Company for the sale of the property to plaintiff for $18,000 cash on or before March 18, 1962.

(3) The oral portion of the contract provided that upon execution of the escrow instructions, plaintiff would immediately attempt to obtain a rezoning of defendants' property 'from A2 to R.S.' and that defendants would reimburse plaintiff for the rezoning costs applicable to the portion retained by them.

(4) Thereafter, plaintiff caused necessary maps, engineering work, and documents to be prepared, and applied to the city plainning commission for the rezoning of the property. After a public hearing on November 6, 1961, plaintiff's rezoning application was recommended for approval. On November 22, 1961, the city planning commission approved the recommendation, and on April 3, 1962, it approved the tentative tract prepared by plaintiff.

(5) On April 5, 1962, plaintiff informed defendants that it had complied with the conditions of said contract on its part and requested them to consummate the sale of the portion of their real property covered by the contract of sale and to reimburse plaintiff for the rezoning costs applicable to the portion retained by them.

(6) Plaintiff tendered the sum of $18,000 to defendants, but they refused to perform, although they still owned the real property and were able to perform.

(7) The sum of $18,000 was adequate and fair consideration for the land to be conveyed to plaintiff under the land sale contract, since the land was worth less than that amount before the rezoning.

Defendants filed a motion for summary judgment, supported by one affidavit, that of defendant Dorothy Lee, which stated: 'DOROTHY LEE, being first duly sworn, deposes and says: That she is one of the defendants in the above entitled action; that she believes she has a good and valid defense to the plaintiff's action, based upon the following facts which, if sworn as a witness, affiant can and will testify to.

'That for three weeks prior to March 18, 1962, affiant and the husband of affiant, Al E. Lee, one of the defendants herein, tried repeatedly to contract Mr. Towne, the President of the plaintiff in this action, to ascertain if he intended to proceed with the closing of the escrow for the purchase of the property which is the subject of this action. That said Mr. Towne refused to see defendants or return telephone calls or to contact defendants in any manner whatsoever. That on March 23, 1962, these defendants notified the Golden West Escrow, in writing, by Registered Mail, that the escrow for the purchase of the property was canceled.

'That at no time has the plaintiff paid into the escrow or to either of the defendants $18,000.00 or any sums of money whatsoever, and at no time prior to the cancellation of said escrow did plaintiff make any tender of performance.'

In oppostion to defendants' motion for summary judgment, Mr. Towne, president of plaintiff, filed a supplemental affidavit stating in part as follows: 'That between March 10 and March 18, 1962, affiant did attempt to tender the Eighteen Thousand Dollars ($18,000.00) to be paid in to the escrow which is the subject matter of the instant lawsuit, to Golden West Escrow, Incorporated, 15029 Roscoe Boulevard, Panorama City, California, their escrow number 1740; that he called the Escrow Company on several occasions to ascertain the correct amount of the tender, by virtue of the fact that the exact amount of money to be tendered would be uneven due to pro ration of taxes, insurance, escrow fees and other items; that on each of the occasions when he called the phone numbers of the Escrow Company during normal business hours, the phone was not answered;

'That upon ascertaining that the Escrow Company did not answer their phone calls he sent his secretary, Mrs. Helen Stanley, to the premises of the Escrow Company at the above address, during regular business hours, and the said Mrs. Helen Stanley reported to affiant that she had contacted the neighbors of the Escrow Company and that they had told her that the place was closed;

'That during the said period time between March 10 and...