Best v. Burch

California Court of Appeal May 13, 1955 No. Civ. 16301Published

Before: Kaufman

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Holding. The court held that the summary judgment was proper because the plaintiffs' affidavit established a cause of action and the defendant failed to file a counter-affidavit to present a triable issue of fact. Furthermore, the court ruled that orders denying a change of venue and rulings on the sufficiency of pleadings are not reviewable on an appeal from a summary judgment.

Issues

Whether an order denying a change of venue is reviewable on an appeal from a summary judgment.
Whether the sufficiency of pleadings can be reviewed on an appeal from a summary judgment.
Whether the trial court properly granted summary judgment when the defendant failed to file a counter-affidavit.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Such order is therefore not reviewable on an appeal from the judgment.”

“It is well settled in this state that any question regarding the sufficiency of the pleadings cannot be reviewed on an appeal from a summary judgment.”

“since defendant did not controvert them by counter affidavit, no triable issue of fact was presented and the summary judgment was proper.”

KAUFMAN, J.

This is an appeal from a summary judgment entered in favor of plaintiffs and respondents on March 5, 1951, decreeing that plaintiffs recover from defendant the sum of $985.05 and costs.

Plaintiffs and respondents Ervin S. Best and Charles Baer, attorneys, instituted suit in the municipal court against Marble E. Burch for recovery of the balance due on a promissory note which had been executed in payment for legal services rendered to appellant by respondents. Defendant by his verified answer admitted execution and delivery of the note.

Appellant filed an answer, counterclaims and cross-complaint seeking recovery of sums in excess of the jurisdiction of the municipal court, which resulted in the transfer of the case to the superior court.

A hearing was held on respondents’ demurrer to the answer and cross-complaint, and on December 9, 1953, a minute order was made granting the motion to strike as to certain paragraphs of the answer, sustaining the demurrer to the third defense with 10 days to amend, to the fourth defense without leave to amend. The demurrer to the cross-complaint was overruled. On December 21,1953, appellant filed a motion for a change of venue asking that the case be transferred to the Superior Court of Trinity County, which motion was denied on December 29, 1953. To the first amended answer, counterclaim and cross-complaint respondents filed a motion to strike and a demurrer. On January 25, 1954, the court granted the motion to strike out certain paragraphs of the first amended answer and the entire cross-complaint. Demurrer to the third answer and counterclaim was sustained with 10 days to amend. Appellant failed to amend his third answer.

On February 17, 1954, respondents filed their notice of motion for summary judgment supported by affidavit. Appellant filed no affidavit in opposition to said motion and made no appearance in connection therewith. The motion was therefore granted after a hearing at which respondents argued in propria persona.

Appellant contends on this appeal that the court erred in refusing to grant his motion for change of venue. The appeal herein is solely from the summary judgment. No ap

[861]

Best v. Burch

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KAUFMAN, J.

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