Callahan v. Chatsworth Park, Inc.

Section 437e, Code of Civil Procedure, which governs summary judgments, specifies that the motion shall be “supported by affidavit of any person or persons having knowledge of the facts,” also that, “ [t]he affidavit or affidavits in support of the motion must contain facts sufficient to entitle plaintiff or defendant to a judgment in the action, and the facts stated therein shall be within the personal knowledge of the affiant, and shall be set forth with particularity, and each affidavit shall show affirmatively that affiant, if sworn as a witness, can testify competently thereto.” Again: “The facts stated in each affidavit shall be within the personal knowledge of the affiant, shall be set forth with particularity, and each affidavit shall show affirmatively that the affiant, if sworn as a witness, can testify competently thereto.”

The instant notice of motion was accompanied by a declaration (the equivalent of an affidavit under Code Civ. Proc., § 2015.5) of Arnold Lesin, dated January 24, 1961, who stated that “I am” president of Chatsworth Park, Inc., the defendant corporation; also that he “engaged plaintiff Calvin E. Callahan under a written agreement on March 31, 1960,” obviously referring to the agreement alleged in the second count of the complaint and attached thereto as Exhibit A. It may be assumed that these allegations are the equivalent of an averment of personal knowledge and competence to testify thereto, but subsequent allegations of the Lesin declaration clearly do not measure up to the statutory standard. It consists in the main of enumeration of credits and offsets to which defendant claimed to be entitled, and not mentioned in the notice of mechanic’s lien (which notice is not in the complaint or elsewhere in the record),—all leading up to the conclusion “that the claim of the plaintiff is sham and frivolous, without merit, and that the lien claim and action is filed purely for harassment.”

In numerous instances the declaration asserts that claims were made against defendant by creditors of plaintiff for work or labor on the job and that a compromise payment or a

Claims of Bob Farrell for $552.50, White’s Water Truck for $535.30, R. H. Hening for $1,775.50, are said by Lesin to have been paid by defendant or settled, with releases and assignments of claim taken by defendant. Whether this was done to the knowledge or with the consent of plaintiff is not shown or when, if at all, before the filing of the Lesin declaration plaintiff was advised of these facts. What were the merits of these claims or how ascertained is not stated. Defendant claims a credit of $2,864 asserted to be due to R. H. Flickinger Co. for rental of equipment to plaintiff; but nothing is said about the merits of the claim or any investigation of same, merely that defendant was served as a defendant in a mechanic’s lien foreclosure and plaintiff “was not available for service in that action and defendant was required to pay said claim and obtained a release and assignment of it”; also that defendant was required to pay attorney fees in the sum of $170 in connection with that suit. Was the claim meritorious, wholly or in part? If so, how did defendant determine that fact? Was the attorney fee fixed by the court or was it a compromise amount ? Who handled this transaction and had personal knowledge of the facts pertaining to it? To none of these questions does the Lesin declaration give an answer.

Credit is claimed by defendant for an amount of $936 asserted by Willard W. Shepherd as plaintiff in a foreclosure action which is still pending; also, for a claim of Bohannan Bros., Inc., which has not been sued upon or paid. Who knows about the merits of these claims? Lesin? We are not told.

Lesin further avers that, “ [f]urther, by agreement on July 14, 1960, defendant paid Construction Company, as a subcontractor, the sum of $2,102.73 in settlement of other claims,”

The above claims of credit or offset made in the Lesin declaration aggregate $14,202.55. He says in paragraph 14, without showing personal knowledge or descending to constituent facts, that "[a] s a result of the demands to complete the work and the failure of plaintiff to do so and the subsequent release, defendant engaged other contractors to complete the work and paid one Lester McCoy the total sum of $6,801.18 and paid one O. M. Jack the sum of $639.42 on December 1st. The total lien claims against the property on the work done by Callahan was $13,246.63. The work to complete, which is only partial, as stated above, is $7,481.60, a total of $20,727.23, apart from the Shepherd claim, which is $936.00. We have another bill of O. M. Jack for $962.88, and all of this is more than the causes of action set forth in the complaint. ’ ’

Here we pause to call attention to the case-made rules that the affidavits of the moving party are to be strictly construed, that generalities and conclusions will not suffice in a moving party’s declaration. On the other hand, the affidavits presented in opposition to the motion are to be liberally construed and need not consist entirely of evidentiary facts. Moreover, that opposing affidavit is to be accepted as true. Eagle Oil & Ref. Co. v. Prentice, 19 Cal.2d 553 , 556 [ 122 P.2d 264 ] : “Because the procedure is summary and presented on affidavits without the benefit of cross-examination, a trial by jury and opportunity to observe the demeanor of witnesses in giving their testimony, the affidavits filed on behalf of the defendant should be liberally construed to the end that he will not be summarily deprived of the full hearing available at a trial of the action and the rights incident thereto.

“The procedure is drastic and should be used with caution in order that it may not become a substitute for existing methods in the determination of issues of fact. [Citation.]

“For these reasons it may further be said that the affidavits of the moving party, the plaintiff in this ease, should be strictly construed and those of his opponent liberally construed. [Citations.] And in this connection it may be further observed that the better rule is that the facts alleged in the affidavits of the party against whom the motion is made must be accepted as true, and that such affidavits to be sufficient

The declaration filed by plaintiff Callahan in opposition to the motion says: "That I performed work and improvements on the real property involved in this lawsuit for a total amount of $26,738.11. This work is shown by invoice number 8003 attached in the amount of $5,000.00 and by invoice number 8102, which consists of three pages, in the amount of $21,738.11.” He concedes that defendant should be credited with $1,000 paid to him and mentioned in paragraph 4 of Lesin’s declaration, $3,256.75 paid to Kirby-Erwood Co., $608.20 paid to the laborers above mentioned, and certain other sums totaling $5,727.30, paid as alleged in paragraph 7 of Lesin’s declaration, but he says that defendant should not be credited the full amount of those claims as “the subcontractors continue to have a claim against the plaintiff for any difference between the sum paid and the amount claimed ’ ’; then follows an enumeration of items representing such differences which total $3,927.48. Plaintiff then says: “Summarized the total sums to which defendant should be credited as set forth above is $8,792.93. This would leave a balance of $17,945.18 due owing and unpaid. It should be pointed out that there is no affidavit of any payment by the defendant to B. H. Pliekinger Company, Inc. for any sum whatsoever. Nor is there showing of any payment by the defendant to Willard W. Sheppard in any amount whatsoever nor any record of any payment by the defendant to Bohannan Bros., Inc. for any sum whatsoever. ’ ’

Concerning paragraph 14 of Lesin’s declaration, quoted above, plaintiff says: “In answer to the allegations set forth in paragraph 14 the declarant alleges that he was wrongfully prevented from completing the job and he has no knowledge or information as to any sums set forth by Arnold Lesin in this paragraph nor is the defendant entitled to any offset against plaintiff’s claim for any sums set forth in this paragraph.”

Paragraph 13 of the Lesin declaration says that on August 2, 1960, “plaintiff and declarant met in conference to discuss the continuation of the work and the claims being brought against defendant, and it was agreed that plaintiff would release the defendant from the contract of March 31, 1960, and release from all other claims by the company. A

Documents used in support of a motion for summary judgment must be properly authenticated or they may not be considered. We quote Low v. Woodward Oil Co., Ltd., 133 Cal.App.2d 116 , 121 [ 283 P.2d 720 ] : “The material portions of that affidavit refer to various documents, none of which are attached to the affidavit, from which the affiant deduces that title to the disputed property is vested in defendant. This statement of the legal effect of those documents is, of course, a mere conclusion of law as to the very matter here in issue, and would be incompetent as evidence. [Citations.] Furthermore, there being no showing of the loss of the instruments referred to, or other circumstances which would excuse production either of the original or authenticated copies, affiant could not give competent testimony even to the contents of said documents. Under such circumstances, where the affidavit of a movant depends upon written documents, his affidavit is insufficient unless there is attached thereto the original documents, or a verified or certified copy of such instruments.” See also Schessler v. Keck, 138 Cal.App.2d 663 , 669-670 [ 292 P.2d 314 ]; Murphy v. Kelly, 137 Cal.App. 2d 21 , 28 [ 289 P.2d 565 ].

Of no greater effect are the motions made by plaintiff on March 24, 1961, to vacate the order directing summary judgment or the declaration submitted upon that later hearing. Though they are in the clerk’s transcript they do not enlarge the showing which was made upon the motion now under consideration. The fact that there was no appeal from the order denying the motion to vacate, or that that order is not appealable, does not change the situation. (Cf. Hunt v. Plavsa, 103 Cal.App.2d 222 , 224 [ 229 P.2d 482 ] ; White v. Jones, 136 Cal.App.2d 567 , 569 [ 288 P.2d 913 ].)

Respondent argues that the ruling is sustainable by application of Code of Civil Procedure, sections 1190.1, subdivision (e) and 1193.1, subdivision (k). The minute order indicates that such was the basis of the ruling below.

Section 1190.1, subdivision (e) says: “Any person who

In Blanck v. Commonwealth A. Corp., 19 Cal.App. 720 , 724 [ 127 P. 805 ], the court said: “In response to defendant’s contention that the claims of lien filed by the Bradley-Martin Company, the Bruce Lumber Company and the San Francisco Cornice Company were void, because of the alleged willful and fraudulent inclusion therein of materials not actually used in the building under construction, it will suffice to say that the trial court specifically found that in each instance the mistakes and errors of the several claims of lien were unintentional and free from fraud. This finding is fully supported by the evidence, and under the provisions of section 1203a of the Code of Civil Procedure as it existed when the liens were filed and this ease decided, no mistake or error in the statement of a claim of lien will invalidate it unless the court finds that such mistake or error was made with the intent to defraud.”

The question of whether evidence is clear and convincing that there has been a violation of sections 1190.1, subdivision (e) and 1193.1, subdivision (k) necessarily involves a weighing of the evidence, and that is not the function of the court upon a motion for summary judgment. Likewise an intent to defraud always presents a factual question and the duty of the judge hearing a motion under section 437e is to find upon the existence of triable issues, not to solve them. (Whaley v. Fowler, supra, 152 Cal.App.2d 379 , 381.) Significantly, respondent’s brief says: “The issue, we submit, in this matter, and every similar case, is whether the admitted variance is innocent or was made with the intent to defraud. Here the court below determined that the variance was not innocent. We submit that the record unequivocally supports this position as a matter of law.”

The cases decided under section 119.6.1 and its predecessors, sections 1203 and 1203a, make it clear that mistakes and errors, including those with respect to the amount due, will not invalidate a lien in the absence of a finding of intent to

Leibowitz v. Berry, 114 Cal.App. 5 , 15 [ 299 P. 779 ], is cited by defendant for the proposition that a right of lien is lost where a claimant knows or should know that his claim is unjust. Examination of the opinion reveals that the court held for the lien claimant and merely observed, on the page cited to this court, that the owner always has the defense that the amount claimed is not due, and that the lien claimant must prove his case. Defendant also cites Oregon eases for the proposition that the failure to credit the owner for a payment actually received establishes fraud as a matter of law. To the extent that these cases so hold they are in conflict with California law and do not apply.

Referring to former section 1203, the predecessor of section 1196.1 (both of which require a finding of intent to defraud before a lien will be invalidated), the opinion in Los Angeles Board of Adjusters v. Bailes, 116 Cal.App. 316 [ 2 P.2d 557 ], at page 318, states: “A statute of this character demands that we give it full effect where applicable. The true purpose of the statute is to relieve a lien claimant from the consequences of an error of this nature. The fact that the amount erroneously inserted in the claim was identical with another account for goods sold does not affect the ease. If the legislature had intended an exception in such cases it would have so declared. But the only exceptions made are those involving fraud and

At every turn we meet in this record a question of fact to be tried. The ruling cannot be sustained. The erroneous granting of a motion for summary judgment is a denial of a fair trial and reversible because it lies outside the curative provisions of section 4% of article VI of the Constitution. (See Spector v. Superior Court, 55 Cal.2d 839 , 843-844 [ 13 Cal.Rptr. 189 , 361 P.2d 909 ]; People v. Elliot, 54 Cal.2d 498 , 506 [ 6 Cal.Rptr. 753 , 354 P.2d 225 ] ; People v. Sarazzawski, 27 Cal.2d 7 , 11 [ 161 P.2d 934 ].)

Judgment reversed.

Fox, P. J., and Herndon, J., concurred.

A petition for a rehearing was denied July 9, 1962.