Silver Land & Dev. Co. v. Cal. Land Title Co.

Once again, the temptation to cut the Gordian knot of involved litigation by resort to a summary judgment has proven erroneous. Silver Land and Development Company, the plaintiff in a quiet title action, appeals from the court’s determination of the motion of two specifically named defendants, California Land Title Company and Marin Title Guaranty Co., for a summary judgment resulting in the dismissal of the complaint as against them. Because of the complexity of the facts and perhaps the obfuscation caused by some of the declarations filed by the two sides, the court apparently lost sight of the principle that the purpose of the summary judgment procedure is not to provide a short cut to decide the merits of the case, but to determine whether there are factual issues involved in the litigation.

A summary judgment is drastic in nature and it should be resorted to sparingly and with great caution. (Eagle Oil & Ref. Co. v. Prentice, 19 Cal.2d 553 , 556 [ 122 P.2d 264 ]; Albermont Petroleum, Ltd. v. Cunningham, 186 Cal.App.2d 84 [ 9 Cal.Rptr. 405 ]; Kimber v. Jones, 122 Cal. App.2d 914 , 919 [ 265 P.2d 922 ]; Fidelity Investors, Inc. v. Better Bathrooms, Inc., 146 Cal.App.2d Supp. 896 [ 304 P.2d 283 ].) This court has even said in Johnson v. Banducci, 212 Cal.App.2d 254 , at page 261 [ 27 Cal.Rptr. 764 ] : “If, after an examination of the affidavits, doubt exists as to whether summary judgment should be granted, such doubt should be resolved against the moving party. ’ ’ (Citing Whaley v. Fowler, 152 Cal.App.2d 379 , 381 [ 313 P.2d 97 ]; House v. Lala, 180 Cal.App.2d 412 , 415 [ 4 Cal.Rptr. 366 ]; Travelers Indemnity Co. v. McIntosh, 112 Cal.App.2d 177 , 182 [ 245 P.2d 1065 ].)

In Stationers Corp. v. Dun & Bradstreet, Inc., 62 Cal.2d 412 , 417 [ 42 Cal.Rptr. 449 , 398 P.2d 785 ], the proper attitude of the trial court toward an application for summary judgment is thus stated: “The matter to be determined by the trial court in considering such a motion is whether the defendant (or the plaintiff) has presented any facts which give rise to a triable issue. The court may not pass upon the issue itself. Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show such facts as may be deemed by the judge hearing the

The inquiry which a trial judge must make below is not which side is entitled to prevail on the merits, but whether there is an issue of fact which should be determined in the ordinary way in an ordinary trial. The rule is thus laid down in Walsh v. Walsh, 18 Cal.2d 439 , 441-442 [ 116 P.2d 62 ] ; . . in passing upon a motion for summary judgment, the primary duty of the trial court is to decide whether there is an issue of fact to be tried. If it finds one, it is then powerless to proceed further, but must allow such issue to be tried by a jury unless a jury trial is waived. By an unbroken line of decision in this state since the date of the original enactment of section 437c, [Code Civ. Proc.] the principle has become well established that issue finding rather than issue determination is the pivot upon which the summary judgment law turns. [Citations.] As was said in Shea v. Leonis, supra, at p. 187 [ 29 Cal.App.2d 184 , 187 ( 84 P.2d 277 )] : ‘A motion for summary judgment is not a trial upon the merits. It is merely to determine whether there is an issue to be tried. ’ The same thought was expressed in Bank of America v. Casady, supra, at p. 168 [ 15 Cal.App.2d 163 , 168 ( 59 P.2d 444 ) ] : ‘If an issue of fact is raised, then a summary judgment is improper, and the case must proceed to trial. ’ ’ ’

It is essential, in order for us to appraise the situation justly, to examine the pleadings to determine the issues, keeping in mind, however, that the affidavits filed by the contending parties must constitute the ultimate test of the propriety of the lower court’s action.

A complaint to quiet title was filed by Silver Land and Development Company, a California corporation, on November 26, 1965. Two defendants, the respondents herein, were specifically named—California Land Title Company, a California corporation, and Marin Title Guaranty Co., a California corporation; in addition, there were numerous fictitious defendants—Black Company, a corporation, White Company, a copartnership, Does One through Twenty, and “all persons unknown claiming any right, title, estate, lien or interest in the real property described in the complaint adverse to the plaintiff’s ownership, or any cloud on plaintiff's title thereto.” Until the judgment herein, only the two specifically named parties had been served, but the conclusion is inescapable from the record that at least six other persons jointly claim title to the land involved; that they are known by name to plaintiff’s counsel; and that ultimately they must be brought in as defendants in order that title to the real property involved may be legally ascertained.

The complaint alleges that plaintiff and the two defendant corporations were duly organized and existing under the laws of the State of California; “that the plaintiff is the owner and seized in fee simple of all that certain real property situate in the County of Trinity,” described in Exhibit “A”; the described land known as Valdor consists of extensive parcels, including mining claims, the description of which occupies more than four pages in the clerk’s transcript.

The complaint continues as follows: ‘‘ That the plaintiff is by itself, in the actual, exclusive and adverse possession of the whole of the said real property and of each and every parcel and part thereof, and by itself and its predecessors in interest has been in the actual, exclusive and adverse possession of the

The complaint then alleges that each of the defendants claims “some right, title, estate, lien or interest in said real property adverse to plaintiff’s ownership, which said claim or claims constitute a cloud upon plaintiff’s title thereto.” The initial pleading avers that such claims are without right and void and prays that the rights and interests of defendants be adjudged to be of no effect and that plaintiff’s title to the whole of said property be quieted against all of the defendants. The complaint is verified by the president of the plaintiff.

The California Land Title Company and the Marin Title Guaranty Co. filed an answer which contains numerous affirmative defenses. The answering defendants did not, as claimed by plaintiff, file an outright disclaimer. But they did say that they were once the owners of the real property, and that, through a chain of successive deeds, California Land Title Company had finally conveyed it to R. W. Brandes, Ruth E. Brandes, his wife, Edwin J. Regan and Julia B. Regan, his wife, and Fred H. Howell and Anne S. Howell, his wife, said deed having been recorded on the 13th day of October, 1965. In a separate defense, the answering defendants allege that California Land Title Company has issued a policy of title insurance to the above-named grantees, and that said California Land Title Company therefore has an interest in seeing that the title conveyed to the six persons so named remains in them. The answering defendants deny that they have no interest in the title.

The four affirmative defenses contained in the answer plead in detail facts which, if true and applicable, would defeat the interest of the plaintiff in the land; it is alleged that the plaintiff herein is relying for its claim of title upon the effect of a deed allegedly executed on or about the 8th day of June 1965, by one William M. Braunschweig, and his wife, Galena

To include a detailed examination of the conflicting declarations, in our judgment, would be superfluous. It is sufficient to say that the major difference in the viewpoints of the parties, as developed by the opposing declarations, is, on the one hand, that the members of the Steinberg group are the owners of the land by reason of an unrecorded deed, and, on the other hand, that the six local purchasers are the owners of the realty because they acquired title by another deed from the former owners without knowledge or notice of the Steinberg interests. It is claimed on behalf of the respondents that the title of the plaintiff is not valid because of facts alleged in the declarations of the respondents, which oppose, sometimes questionably, the allegations contained in the complaint. And it is the position of appellant that the declarations of the devisees named in the second deed do not show by admissible evidence that all six were without knowledge, or at least notice, of the existence of the Steinberg unrecorded deed at the time their deed was delivered; in this connection, three of the six made affidavits that they took the deed in question without knowledge of any claim by the Steinberg group; however, the three wives did not file affidavits, and the Steinberg claimants argue that the hearsay statements of the three male purchasers are insufficient proof that the three wives knew nothing about the Steinberg deed at the time they received delivery of their own deed; in this connection, the appellant points to the requirement of the code section that the persons filing affidavits in support of an application for summary judgment must be able themselves to testify to the contents. (Code Civ. Proc., § 437e.)

It cannot be denied that the contending declarations bristle with factual questions.

The first duty of the judge in considering this motion for a

The judgment is reversed.

Stone, J., and Gargano, J., concurred.