Hicks v. Bridges

California Court of Appeal Jun 27, 1957 No. Civ. 17300Published

Before: Kaufman

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Holding. The court held that the summary judgment against the appellant was improper because the supporting affidavit failed to establish that the appellant agreed to a lien on her property interest, and the hearsay evidence provided by her co-defendant was insufficient to bind her.

Issues

Whether the trial court abused its discretion in granting the motion for summary judgment.
Whether the appellant's affidavit established a triable issue of fact.
Whether the evidence presented in the affidavit was sufficient to support the imposition of a lien on the appellant's property interest.

Disposition. reversed

Quotations verified verbatim against the opinion

“It is the general rule that where a transfer of property is made to one person and the purchase price is advanced by another as a loan to the transferee, the lender is not entitled to an equitable lien upon the property”

“In the affidavit for summary judgment the affiant nowhere states that appellant agreed that the asserted debt should be a lien upon the property.”

“Since this defense applies to part of the claim of plaintiff in intervention, section 437c Code of Civil Procedure, in its last paragraph clearly prohibits the entry of the summary judgment against appellant.”

KAUFMAN, P. J.

This is an appeal by the plaintiff and defendant in intervention, Nancy Bridges Hicks, from a summary judgment in favor of respondents and plaintiffs in intervention, Frances Foster and George R. Andersen. The plaintiff was divorced from Harry R. Bridges on January 20,1955. She and Harry R. Bridges are the owners as joint tenants in fee simple of certain real property in the city of San Francisco. Plaintiff filed a complaint requesting the partition and sale of this property. Defendant Harry R. Bridges filed an answer alleging a debt of $7,843.36 owed to Frances Foster and George R. Andersen. Frances Foster and George R. Andersen filed a complaint in intervention alleging that Nancy Bridges Hicks and Harry R. Bridges became indebted in the sum of $7,843.36 which was advanced by plaintiffs in intervention as a down payment on the purchase of the property involved, and that this debt was recognized in the property settlement agreement executed by the defendants in intervention on November 12,

[148]

1954. Nancy Bridges Hicks denied that she was indebted to the plaintiffs in intervention or that any sum at all was ever advanced or owed. The trial court granted the respondents’ motion for summary judgment.

Such a motion is addressed to the sound discretion of the trial court and in the absence of a clear showing of abuse thereof, the exercise of that discretion will not be disturbed on appeal. Therefore, the issue on appeal is whether the trial court abused its discretion in granting the motion. A motion for a summary judgment raises the issue of whether any triable issues of fact exist.

(Desny

Wilder,

46 Cal.2d 715 at p. 725 [299 P.2d 257].) Under Code of Civil Procedure, section 437c, the motion must be supported by affidavit of any person or persons having knowledge of the facts. If the affidavit of the other party does not show facts which present a triable issue of fact, the judgment may be entered. The sufficiency of the allegations of a complaint do not determine the motion for a summary judgment.

(Coyne

Hicks v. Bridges

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KAUFMAN, P. J.

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