Truslow v. Woodruff

• Citation: 252 Cal.App.2d 158,60 Cal.Rptr. 304
• Court: California Court of Appeals
• Decision Date: 29 June 1967
• Parties: David W. TRUSLOW and Virginia L. Truslow, Plaintiffs and Appellants, v. Florence C. WOODRUFF, Defendant and Respondent. Civ. 30660, 30933.

Page 304

60 Cal.Rptr. 304

252 Cal.App.2d 158

David W. TRUSLOW and Virginia L. Truslow, Plaintiffs and Appellants, v. Florence C. WOODRUFF, Defendant and Respondent.

Civ. 30660, 30933.

Court of Appeal, Second District, Division 2, California.

June 29, 1967.

Rehearing Denied July 26, 1967.

Hearing Denied Sept. 27, 1967.

Arthur Shivell, Los Angeles, for appellants.

Rich & Ezer, by Mitchel J. Ezer, Beverly Hills, for respondent.

ROTH, Presiding Justice.

The record before us is the most verbose and futile we have yet had the misfortune to dissect. It comprises four complaints, the original and three amended, answers and counterclaims, numerous affidavits and declarations in support of a number of repetitive and prolix motions. The motions embrace requests for reconsiderations of rulings, summary judgment, judgment on the pleadings, early settings, protective orders, contempt, to expunge an order, leave to file amendments, leave to renew, for a new trial and to reopen. No pleading was filed in respect of which there was not a demurrer or a motion to strike. Few rulings were made in respect of which there were not requests for reconsideration. Needless to say, the record is replete with aimless points and authorities. From June 10, 1965, to February 1, 1966, there were fifteen separate minute orders, many of which include separate orders ruling on a multiplicity of matters presented by separate motions.

The facts, in spite of the prolific, confusing and complex maneuvers of the litigants, are relatively simple.

David W. and Virginia L. Truslow, plaintiffs and appellants (Truslow), appeal from a summary judgment pursuant to section 437c of the Code of Civil Procedure entered in favor of Florence C. Woodruff, respondent, (No. 30933).

Truslow also purports to appeal (No. 30660) from an order expunging a Lis pendens filed against property of Florence C. Woodruff located at 831 No. Western Avenue, Los Angeles, the real property which is the subject of this litigation.

Respondent Woodruff was, on February 25, 1965, sued for specific performance of an oral contract to sell the Western Avenue property, and for damages. A grant deed in favor of appellants and written escrow instructions, signed by Mrs. Woodruff, were attached to the complaint. Concurrently with the complaint, a Lis pendens was filed against the Woodruff property.

Truslow's third-amended complaint contained three counts: for specific performance, declaratory relief and reformation of contract. The court, on August 12, 1965, sustained respondent's demurrer to the specific performance count without leave to amend and overruled the demurrers as to the other two counts. Respondent answered and counterclaimed in respect of counts II and III.

No separate judgment of dismissal was tendered or entered as to the first count at the time of the ruling; however, the formal judgment before us entitled 'Judgment by Court under 437c CCP', although it leaves much to be desired, does dismiss the entire complaint. Respondent petitioned on October 27, 1965, that the Lis pendens be expunged. It was. Appellants' motion to vacate the order expunging the Lis pendens was denied. Mandate was thereafter sought to compel reinstatement of Lis pendens. Mandate was denied, affirmed on appeal, and a hearing denied by the Supreme Court.

Respondent, on December 9, 1965, moved for summary judgment on counts II and III. On February 3, 1966, summary judgment was granted. Appellants filed no declarations nor affidavits in opposition. The attorney for appellants did file a document entitled 'Memorandum In Opposition To Defendant's Motion For Summary Judgment, (sic) &c.' which will be treated in more detail later.

Respondent's declaration and documents in support of her motion for summary judgment show that for some time prior to November 27, 1964, Truslow had been anxious to buy the Woodruff property which is contiguous to property he owns at 805--811 No. Western Avenue, where he maintains an automobile repair business he wishes to expand. Mrs. Woodruff, with her dogs, lives in a small house in the rear; a yard and a secondhand store in the front comprise the property.

On November 27, 1964, Truslow offered $43,500 to buy the property, whether all cash or on what terms in lieu thereof is not clear, and agreed to lease it back to respondent for 'at least' two years as he had no current use for it and knew of Mrs. Woodruff's need to have the yard for her dogs. Respondent agreed to sell if a lease-back on 'acceptable terms' could be finalized. Truslow drove respondent to a branch of the Bank of America. En route, he stated he wanted to give her a $5,000 note secured by a second trust deed on the property as part of the purchase price. Respondent stated, 'I would have to consider it.'

Truslow dictated the terms of the escrow instructions. They were handed to Mrs. Woodruff in Truslow's presence. Mrs. Woodruff did not have her glasses with her and declares she could not read the instructions. She asked Truslow whether they were in accordance with their agreement. He said yes. She signed. She says she learned later that she had also signed a grant deed attached to and made a part of the escrow instructions.

The following day, Truslow indicated he planned immediately to use the rear of respondent's property to park cars and would not lease back that portion of the property. Respondent declares further that she did not realize this from her reading of the escrow instructions, nor did she understand that the escrow instructions included a $5,000 note secured by a second trust deed with no interest rate stated until she showed them to her son. She declares she had not agreed to accept a note nor discussed an interest rate or lack of one. She thereafter refused to go through with the sale and made demand on the bank to cancel the escrow.

Excerpts from depositions of Truslow, Mrs. Itson, (the escrow clerk) and respondent were included in support of the motion for summary judgment. The depositions show that respondent stated that the leaseback agreement was for two years of the whole property. Truslow admitted they had agreed respondent was to live on the property for two years, that she was to pay rent, and that the agreement was oral only. Mrs. Itson stated that no interest rate was given her on the $5,000 note and that eventually she had inserted a 7 percent figure at Truslow's direction without concurrence, either orally or in writing, from respondent.

As heretofore pointed out, Truslow filed in response to this motion a document entitled 'Memorandum In Opposition, etc.' but no counter-affidavits or declarations.

Four months prior to August 12, 1965, the date on which the demurrer to the first cause of action was sustained without leave to amend, to wit: on April 27, 1965, Truslow had filed a notice of motion for summary judgment limited to his action for specific performance only, supported by affidavits of himself, Elsie Itson, the escrow clerk of the Bank of America, to which were attached the escrow instructions, signed by the parties, a deed to the property, signed by respondent and a note secured by a deed of trust signed by Truslow.

In opposition, respondent filed the declarations of herself and of Charles Fyfe, her son, the substance of which has already been set forth.

In spite of the fact that there are fifteen several minute orders, each including more than one ruling, we find no ruling which indicates that Truslow's motion for summary judgment was ever heard or denied, although the Memorandum to which we have referred and which we discuss infra, indicates that it was.

When respondent's motion for summary judgment came on for hearing late in December 1965, approximately seven months after Truslow had filed his motion for summary judgment and the supporting documents detailed, the only documents in opposition filed by Truslow was the 'Memorandum In Opposition, etc.' signed 'respectfully submitted Arthur Shivell, attorney for plaintiffs.' This was filed on December 16, 1965. The Memorandum is not an affidavit and it is not a declaration. If it were intended as a declaration, it would have to be made under penalty of perjury. (Code of Civil Procedure, § 2015.5.) The Memorandum states, among other things, in the first paragraph thereof 'Plaintiffs incorporate as their first point in opposition to motion of defendant Florence C. Woodruff, for Summary Judgment, (sic) * * * their 'Affidavit of David W. Truslow in Support of Motion for Summary Judgment, with Certificate of Escrow and Certified Copies of Documents', dated April 21, 1965, and filed April 23, 1965, and 'Excerpts from Deposition of Defendant ...