Luders v. Pummer

California Court of Appeal Jul 3, 1957 No. Civ. 22146Published

Before: Fox

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Holding. The court held that the trial court erred in granting summary judgment because the defendant's affidavits raised a material factual issue regarding her community property interest in the obligations she sought to set off against the plaintiff's claim. Under Code of Civil Procedure section 368, a defendant may set off obligations acquired before notice of an assignment, and the affidavits sufficiently established a prima facie case for such an interest.

Issues

Whether the defendant's affidavits raised a material issue of fact regarding a community property interest in the obligations sought to be set off.
Whether a summary judgment is appropriate when affidavits show a sufficient defense despite potential deficiencies in the pleadings.
Whether Code of Civil Procedure section 368 precludes a set-off for obligations assigned to the defendant after notice of the plaintiff's action.

Disposition. reversed

Quotations verified verbatim against the opinion

“By the affidavit of the defendant and her husband, defendant raised a material factual issue relative to her community interest in the note and agreement which plaintiff’s assignor had executed in favor of Rudolf.”

“The propriety of granting or denying a motion for summary judgment depends upon the affidavits that are filed.”

“‘Even though the pleading itself be deemed insufficient, the motion must be denied if the affidavits show facts sufficient to constitute a defense entitling the pleader to defend.’”

FOX, J.

This is an appeal by defendant from a summary judgment.

Plaintiff brought this action to recover on a promissory note in favor of Harry Luders, plaintiff’s husband, for $3,000 executed by defendant in May, 1955. In June, the payee, Harry Luders, assigned the note to himself and his wife, plaintiff herein, as joint tenants. In the following November, Harry Luders passed away and plaintiff thereupon became vested with title to said note. She filed suit on the note on April 5, 1956.

Defendant answered, setting up a counterclaim consisting of two items: (1) a promissory note for $1,000 dated July 5, 1952, executed by Harry Luders (and his former wife, Leona) in favor of Rudolf Pummer, husband of defendant; and (2) an agreement dated September 26, 1952, between Harry Luders and Rudolf Pummer, by which, inter alia, it is alleged that Luders agreed to pay Rudolf Pummer $2,500. Defendant alleged that on April 12, 1956, her husband, Rudolf, assigned the aforesaid note and the agreement to her, and that no payments had been made upon either of these obligations. She thus sought to offset these items against the note on which plaintiff sued. In this connection it should be noted that there is no contention that plaintiff is a holder in due course of the note.

Plaintiff made a motion for summary judgment, supporting it by her affidavit to which was attached a copy of the note

[278]

showing the assignment to her and her late husband as joint tenants, and further stating that he had passed on and that she thereby became the owner of the note.

Defendant and her husband Rudolf filed a joint affidavit in opposition to the motion. This affidavit asserted that Harry Luders, plaintiff’s husband, was indebted to Rudolf Pummer, defendant’s husband, in a substantial amount; also, that Harry Luders had loaned defendant $3,000 to apply on the purchase of a home. The affidavit further states that “Prior to May 23, 1955, affiants [the Pummers] agreed between themselves that any and all of the debts and obligations owed to Rudolf L. Pummer by Harry Luders would be their community property ...” Defendant bases her counterclaim on her asserted community interest in these obligations and by reason of Rudolf’s assignment of his interest in them to her under date of April 12, 1956, which was seven days after plaintiff filed suit on the $3,000 note executed by defendant.'

Luders v. Pummer

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FOX, J.

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