Dugar v. Happy Tiger Records, Inc.

Opinion

Plaintiff Connie P. Dugar, an assignee, initiated this action against defendant Happy Tiger Records, alleging both common counts and fraudulent misrepresentation. Upon plaintiff’s motion for summary judgment, the trial court rendered judgment in plaintiff’s favor. Defendant appeals.

In her complaint, plaintiff alleged that defendant was indebted to her in the sum of $21,762.03.^[1] The motion for summary judgment was supported by two affidavits. The first affidavit, submitted by Anthony Troilo, an officer of plaintiff’s assignor’s parent corporation, stated that he had examined the documents attached to the affidavit and incorporated therein by reference, and that they were accurate. Unfortunately the documents designated as Exhibit A and sought to be incorporated in the affidavit were not attached. The documents in question were certain business invoices showing a series of commercial transactions between plaintiff’s assignor and the defendant.^[2] The second affidavit, submitted by Norman Lyons, comptroller of plaintiff’s assignor, stated that he also had reviewed copies of the business documents which were attached to Troilo’s affidavit, and concluded that the sum of $21,762.03 was presently due and owed by defendant to plaintiff.

While we are of the opinion that- the erroneous consideration of the documents by the trial court requires reversal of the judgment, as an aid to the court and the parties upon remand, we discuss several of defendant’s contentions raised on appeal.

We first answer the contention that the documents appended to-plaintiff’s motion for summary judgment, which documents represented invoices for goods and materials sent by plaintiff’s assignor to the defendant pursuant to their business transactions, were not the originals of those documents but rather photostatic copies thereof and thus were not competent evidence under the best evidence rule. (Evid. Code, § 1500 et seq.)^[4]

It is well established that where materials are properly incorporated by reference into an affidavit, they must conform to the rules of evidence. (Miller & Lux, Inc. v. Bank of America, 212 Cal.App.2d 719 , 725 [ 28 Cal.Rptr. 401 ]; Family Service Agency of Santa Barbara v. Ames, 166 Cal.App.2d 344 , 349 [ 333 P.2d 142 ]; Schessler v. Keck, 138 Cal.App.2d 663 , 669-670 [ 292 P.2d 314 ]; 4 Witkin, Cal. Procedure (1971) Proceedings Without Trial, § 185, p. 2835.) As the court stated in Miller & Lux, supra, at page 725, “The [general] rule is . . . that averments in the movant’s affidavits which depend upon written documents are incompetent and

The California Evidence Code recognizes exceptions in regard to the use of copies.^[5] Section 1510 permits the use of copies only where the originals are themselves produced at the hearing and made available for inspection by the adverse party. The record before us does not disclose whether the originals were in fact produced at the hearing for summary judgment. We hold that such a blank record does not give rise to the inference that section 1510 had been complied with or was even relied upon to make copies admissible.

Furthermore, Evidence Code section 1550^[6] recognizes an exception to the best evidence rule for photostatic copies made in the regular course of business where such copies are themselves preserved as part of the records of the business. Although we have found no cases in California interpreting this section,^[7] the general rule in other jurisdictions which have enacted similar statutes is that the exception is specifically limited to those situations where the photostatic copy is itself made and preserved in the regular course of business and not merely for litigation purposes. (Toho Bussan Kaisha Ltd. v. American Pres. Lines, Ltd., 265 F.2d 418 , 424 [ 76 A.L.R.2d 1344 ]; School District No. 91, Bonneville County v. Taysom (1972) 94 Idaho 599 [ 495 P.2d 5 ].) In the instant case, we are of the opinion that the documents do not fall within the purview of section 1550.

Several of the leading commentators in the field, however, have urged that photostatic copies be deemed “duplicate originals.” (Witkin, Cal. Evidence (2d ed.) § 690, p. 644; McCormick, Evidence (2d ed.) § 236, p. 569.) This rationale has been adopted in the Proposed Federal Rules of

There is also some authority in California for the proposition that a copy of a writing which is either verified or certified could excuse the production of the original documents.^[8] (See Low v. Woodward Oil Co., Ltd., 133 Cal.App.2d 116 , 121-122 [ 283 P.2d 720 ]; Gardenswartz v. Equitable etc. Soc., 23 Cal.App.2d Supp. 745 , 750 [ 68 P.2d 322 ].) However, we are of the opinion that these cases are no longer authoritative since the enactment of Evidence Code section 1510 in 1965. It seems clear that section 1510 requires the production of the originals at the hearing for inspection by the adverse party.

We are, nevertheless, confronted here by the general rule in California that in order to raise the point of erroneously admitted evidence on appeal, there must be a showing that a timely objection had been made at trial directing the attention of the trial court to the particular' evidence sought to be excluded. Where no objection is shown to have been made, the admission of secondary evidence is sufficient to sustain a judgment. (Evid. Code, § 353; Sublett v. Henry’s etc. Lunch, 21 Cal.2d 273 , 276 [ 131 P.2d 369 ]; Greenfield v. Insurance, Inc., 19 Cal.App.3d 803 , 811 [ 97 Cal.Rptr. 164 ]; Hausen v. Goldman, 124 Cal.App.2d 25 , 30 [ 267 P.2d 852 ]; Witkin, Cal. Evidence (2d ed.) § 1285, p. 1188.) The issue we have been discussing was not raised below. However, the general rule is inapplicable in summary judgment proceedings since there can be no waiver of the right to object to inadmissible evidence in such proceedings. (Southern Pacific Co. v. Fish, 166 Cal.App.2d 353 , 365 [ 333 P.2d 133 ].) The Fish case relied extensively on the Michigan case of MacClure v. Noble, 259 Mich. 601 [ 244 N.W. 174 ], wherein the court rejected the assertion that defendant had waived all errors in plaintiff’s affidavits by failing to object to them at trial.

It is clear that the Fish case is dispositive of this issue. In Fish, a copy of an order of the Interstate Commerce Commission which was

Code of Civil Procedure section 437c provides that in a'motion for summary judgment" an answer may be stricken unless the other party, by affidavit, shall show such facts as may be deemed by the court sufficient to present a triable issue of fact. Since defendant failed to file any affidavits in opposition to the affidavits filed by the plaintiff, the trial court was entitled to accept as true the facts stated in support of plaintiff’s motion which were within the personal knowledge of the affiant and to which the affiant could competently testify. (Coyne v. Krempels, 36 C'al.2d 257, 261-262 [ 223 P.2d 244 ].) A failure of the defendant to file counter-affidavits cannot be remedied by resort to allegations or denials in a verified answer. (Id.; Cone v. Union Oil Co., 129 Cal.App.2d 558 , 562-563 [ 277 P.2d 464 ]; 4 Witkin, Cal. Procedure (1971) Proceedings Without Trial, § 188, p. 2837.) Therefore, the judgment may be entered in accordance with the uncontroverted allegations in a moving party’s affidavits)^[9]

The failure of an opposing party to file counteraffidavits, however, does not relieve the moving party of the burden of establishing the evidentiary facts of every element necessary to entitle him to a judgment. (Vesely v. Sager, 5 Cal.3d 153 , 159 [ 95 Cal.Rptr. 623 , 486 P.2d 151 ]; Coyne v. Krempels, supra, at p. 263 .) The. issue then is to determine whether the moving party is entitled to a summary judgment on the basis of the undisputed facts in the affidavits and on the pleadings filed by the opposing party to whom the motion is directed. (Joslin v. Marin Mun. Water Dist., 67 Cal.2d 132 , 148 [ 60 Cal.Rptr. 377 , 429 P.2d 889 ]; 4 Witkin, Cal. Procedure (1971) Proceedings Without Trial,.§ 182, p. 2833.) As the Supreme Court stated in Joslin (at p. 148): “[A] party [cannot] rely on his own pleadings in lieu or in support of affidavits in opposition to a motion. [Citations omitted.] However, [a party can] . . . rely on his adversary’s rather than his own pleadings to establish facts not contained in his affidavit.” Apparently, defendant has erroneously interpreted the language in this case. It is clear that a plaintiff cannot rely on the complaint, and that a defendant cannot rely on the answer, but either party can rely on the other’s pleading. Defendant is under the misconception that the

Defendant further contends that the award of punitive damages was invalid because plaintiff in this case was an assignee. As previously noted, $10,000 of the total amount of the judgment were punitive damages based on plaintiff’s fourth cause of action for fraudulent misrepresentation. It is the general rule that in the absence of a statute punitive damages are allowed only to the immediate person injured. (People v. Superior Court, 9 Cal.3d 283 , 287 [ 107 Cal.Rptr. 192 , 507 P.2d 1400 , 55 A.L.R. 3d 191 ]; French v. Orange County Inv. Corp., 125 Cal.App. 587 , 591 [ 13 P.2d 1046 ].) As the court .stated in the French case (at p. 591): “The plaintiff’s objection that he was not awarded exemplary damages ... is not well taken, because plaintiff prosecutes this action solely and only as assignee of the cause of action.” Since the plaintiff in the instant case is. bringing this action as an assignee, a judgment rendered in her favor with regard to punitive damages cannot be sustained.^[10]

Defendant also contends that venue was improperly laid. However, defendant has waived any claim he may have had with respect to this issue by filing an answer with the court. Code of Civil Procedure section 396b provides in pertinent part: “. . . . Except as otherwise provided in Section 396a, if an action or proceeding' is commenced in a court having jurisdiction of the subject matter thereof, other than the court designated as the proper court for the trial thereof, under the provisions of this title, the action may, notwithstanding, be tried in the court where commenced, unless the defendant, at the time he answers or demurs, or, at his option, without answering or demurring and within the time otherwise limited to plead, files with the clerk ... an affidavit of merits and notice of motion for an order transferring the action or proceeding to the proper court, together with proof of service, upon the adverse party, of a copy of such papers. Upon the hearing of such motion the court shall, if it appears that the action or proceeding was not commenced in the proper court, order the same transferred to the proper court; . . . provided further, that in any case if an answer be filed, the court may consider opposition to the motions, if any, and may retain the action in

Defendants’ failure to file a separate motion for change of venue precludes it from raising the venue issue on appeal.^[11]

Defendant also raises several miscellaneous contentions relative to his claim that certain alleged “unconscionable conduct on the part of plaintiff’s attorneys” violated his right to due process of law under the Fourteenth Amendment. We are convinced that there has been no significant deprivation of any of defendant’s rights relative to the merits of this controversy.

The judgment is reversed. Costs on appeal to defendant.

Kaus, P. J., and Ashby, J., concurred.