Walsh v. Glendale Fed. Sav. & Loan Assn.

Decision Date07 November 1969
Citation1 Cal.App.3d 578,81 Cal.Rptr. 804
CourtCalifornia Court of Appeals Court of Appeals
PartiesLarry WALSH, Plaintiff and Appellant, v. GLENDALE FEDERAL SAVINGS & LOAN ASSOCIATION, Defendant and Respondent. Civ. 33833.

Phill Silver, Hollywood, for plaintiff and appellant.

William W. Berryhill, Glendale, for defendant and respondent.

DUNN, Associate Justice.

This appeal is from a summary judgment favoring respondent. The circumstances giving rise to the controversy, as disclosed by the pleadings and declarations, are as follows:

On January 10, 1964, appellant and his wife were indebted to respondent in the amount of $31,600, evidenced by promissory notes secured by a first deed of trust. The notes contained the following provision: 'Undersigned agrees, in the event any installment shall not be paid when due, to pay the holder at its option and without notice, an additional interest charge upon the balance of said principal sum then unpaid at the rate of one-half of one percent per month from the date such installment was due until the same shall be paid.'

On July 16, 1964, respondent informed appellant and his wife that they were delinquent a total of $468.98 on their June and July, 1964 payments, that they were subject to a late charge of $31.47 and they risked the possibility of a foreclosure.

Appellant applied to a savings and loan association and to a mortgage company for sufficient funds to refinance the loan. Each of these prospective lenders requested information from respondent concerning the unpaid balance due. As a result of information received, each of the prospective lenders was alleged to have rejected appellant's loan application.

Appellant failed to pay the August, 1964 installment and on August 17th respondent notified appellant that late charges for that delinquency would be assessed at the full amount specified in the note (one-half of one percent per month on the unpaid principal balance), which was $157.33 per month based on the principal balance at that time.

On December 17, 1964, appellant finally paid respondent the overdue installments for the months of June through December, 1964. The total late-charge interest for such payments was $954.46 and was also paid. Thereafter, appellant again fell behind in his payments. He obtained refinancing from another source and in March, 1965 respondent was paid the entire principal and interest. As the installments for January and February, 1965 were not paid until March, respondent collected additional late-charge interest in the sum of $311.52.

In 1966 appellant filed a complaint and first amended complaint for damages alleging fraud and interference with business relations. The theory of these complaints was that respondent had wrongfully appellant from obtaining refinancing by giving the prospective lenders false and fraudulent information concerning contemplated foreclosure proceedings and appellant's credit standing. Respondent's demurrers to these were sustained with leave to amend.

Thereafter appellant filed a second amended complaint. The allegations in its first cause of action were substantially the same as those of the original and first amended complaints. Respondent's demurrer was sustained with leave to amend.

In a third amended complaint, appellant again alleged wrongful interference with his relationship with prospective refinancing agencies. Except for the addition of certain specifics, such as the names of the prospective lenders and the dates on which appellant contacted them, the allegations are not greatly different from those in the second amended complaint. A second count for unjust enrichment was also pleaded.

Respondent's general demurrer to the first cause of action was sustained without leave to amend, and its demurrer to the second cause of action for unjust enrichment ultimately was sustained but with leave to amend.

Appellant then filed fourth and fifth amended complaints, each containing two causes of action denominated 'common counts.' They alleged that respondent demanded from appellant the sum of $1,265.98 as a 'penalty' for appellant's delinquencies on loan payments and that such sum was paid to respondent. It was further alleged respondent was not legally entitled to the $1,265.98, and held the same for the use and benefit of appellant. The fifth amended complaint added an allegation that respondent acted with malice, oppression and fraud and by reason thereof appellant was entitled to punitive damages.

Respondent moved for an order dismissing the fifth amended complaint and for summary judgment and the court granted the motion.

Appellant now makes following contentions: The trial court (1) erred in granting the motion for summary judgment, and (2) abused its discretion in sustaining, without leave to amemd, the general demurrer to the first cause of action in the third amended complaint.

I. Did The Trial Court Err In Granting The Motion For Summary Judgment?

Code of Civ.Proc. § 437c, relating to summary judgments, provides in pertinent part: '* * * (I)f it is claimed the action has no merit, * * * on motion * * * supported by affidavit of any person or persons having knowledge of the facts, * * * the complaint may be dismissed and judgment may be entered, in the discretion of the court unless the other party, by affidavit or affidavits shall show such facts as may be deemed by the judge hearing the motion sufficient to present a triable issue of fact.'

The issue to be determined by the trial court in considering a motion for summary judgment is whether the party opposing the motion has presented any facts which give rise to a triable issue, but the court may not pass upon the issue itself. Stationers Corp. v. Dun & Bradstreet, Inc., 62 Cal.2d 412, 417, 42 Cal.Rptr. 499, 398 P.2d 785 (1965); Malone v. Jones, 208 Cal.App.2d 343, 345, 25 Cal.Rptr. 262 (1962); Balling v. Finch, 203 Cal.App.2d 413, 417, 21 Cal.Rptr. 490 (1962). Whether a triable issue of fact exists is determined from the affidavits of the parties. People ex rel. Mosk, etc. v. City of Santa Barbara, 192 Cal.App.2d 342, 349, 13 Cal.Rptr. 423 (1961); Enos v. Foster, 155 Cal.App.2d 152, 157, 317 P.2d 670 (1957). The affidavits of the moving party must be strictly construed, and those of his opponent liberally construed. Pettis v. General Tel. Co., 66 Cal.2d 503, 505, 58 Cal.Rptr. 316, 426 P.2d 884 (1967); Dreyfuss v. Burton, 246 Cal.App.2d 629, 631, 54 Cal.Rptr. 843 (1966). If the affidavits so construed present a triable issue of fact, summary judgment may not be granted. Fugate v. Cook, 236 Cal.App.2d 700, 702, 46 Cal.Rptr. 291 (1965); Gorham v. Taylor, 176 Cal.App.2d 600, 602, 1 Cal.Rptr. 546 (1959). However, if the affidavits do not present any triable issue of fact the problem is resolved into a question of law (Vallejo v. Montebello Sewer Co., Inc., 209 Cal.App.2d 721, 730, 26 Cal.Rptr. 447 (1962); Beach v. Arblaster, 194 Cal.App.2d 145, 160, 14 Cal.Rptr. 854 (1961)), and summary judgment is proper (West v. Guy F. Atkinson Constr. Co., 251 Cal.App.2d 296, 298, 59 Cal.Rptr. 286 (1967); Zaluskey v. Mundt, 240 Cal.App.2d 713, 715, 49 Cal.Rptr. 921 (1966), cert. denied, 385 U.S. 871, 87 S.Ct. 142, 17 L.Ed.2d 98--99 (1966), rehearing denied, 385 U.S. 1044, 87 S.Ct. 778, 17 L.Ed.2d 688 (1967); Pacific Inter--Club Yacht Assn. v. Richards, 192 Cal.App.2d 616, 620, 13 Cal.Rptr. 730 (1961)). On appeal from a summary judgment, an appellate court is limited to the facts shown by the affidavits, and is to determine only whether such facts give rise to a triable issue (Dudum v. City of San Mateo, 167 Cal.App.2d 593, 598, 334 P.2d 968 (1959)); and in order for a factual issue to preclude entry of summary judgment, such issue must be material (Pettus v. Standard Cabinet Works, 249 Cal.App.2d 64, 69, 57 Cal.Rptr. 207 (1967); Spencer v. Hibernia Bank, 186 Cal.App.2d 702, 713, 9 Cal.Rptr. 867 (1960), appeal dismissed, cert. denied, 368 U.S. 2, 82 S.Ct. 15, 7 L.Ed.2d 16 (1961)).

In support of its motion for summary judgment, respondent filed the declaration of E. L. Miller, a vice president of respondent. He stated: respondent is not a banking institution, but a federal savings and loan association chartered under the laws of the United States; on August 1, 1960 respondent made a loan to Greenwood, a partnership (appellant's predecessor in interest), evidenced by a promissory note and secured by a deed of trust; on December 10, 1962 and January 10, 1964 respondent made additional loans to appellant and his wife, each loan being evidenced by a promissory note secured by the same trust deed; concurrently with the execution of each note, and on the reverse side thereof, appellant and his wife executed agreements consolidating the unpaid balance with the new loan represented by each note; 1 the monthly installments for the period of June through December, 1964 on the loan so consolidated were not paid until December 17, 1964; the unpaid balance of the loan as of May 15, 1964 was.$31,466.05; late-charge interest due and paid, computed at the rate of one-half of one percent per month on the unpaid balance was $157.33 per month for a total of $954.46; the loan balance as of December 15, 1964 was $31,151.54; the monthly installments for the period January-March, 1965 were not paid until March 16, 1965; additional interest due because of such late payment, computed at the agreed rate, was $155.76 per month for a total of $311.52 and was paid; and neither declarant nor respondent at any time acted with malice or oppression or for the purpose of defrauding appellant.

In his declaration 2 in opposition to the motion for summary judgment, appellant states: he executed the three notes in favor of respondent; he became delinquent in the June and July 1964 payments, totaling $468.98; respondent informed him of the two months' delinquency on August 10, 1964 and that late charges totaling $62.94 were also due; on August 17, 1964 resp...

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