Varwig v. Anderson-Behel Porsche/Audi, Inc.

Opinion

DRAPER, P. J.

—This action for deceit charges misrepresentation of title.

[580]

One Pennell purportedly bought a 1973 Chevrolet from Fairway Chevrolet in Las Vegas. In California, he turned the car in to defendant Anderson-Behel Porsche/Audi, Inc. for a credit of $1,700 on the purchase of a Porsche. Anderson-Behel sold the Chevrolet to Autocar-Europe, Inc., which in turn sold it to plaintiff Varwig. At some unspecified date the Las Vegas dealer caused the car to be repossessed. No issue as to the propriety of that retaking is raised here. Varwig sued Autocar and Doe defendants, including Anderson-Behel. The latter defendant moved for summary judgment. The motion was granted and summary judgment was entered in favor of Anderson-Behel against plaintiff, who appeals.

The declaration filed by respondent in support of its motion for summary judgment avers only that respondent “has never had any contact with nor made any representations to the plaintiff concerning the automobile in question,” and that respondent “was not a party to the written agreement between defendant Autocar . . . and plaintiff.” Appellant filed no declaration in opposition. Respondent asserts that “an opponent of a motion for summary judgment cannot rely on pleadings, but must make an independent showing.” But a defendant seeking summary judgment must “rule out

all possible

merit” in plaintiff’s action

(Residents of Beverly Glen, Inc.

v.

City of Los Angeles,

34 Cal.App.3d 117, 127 [109 Cal.Rptr. 724]). Moreover, although neither party can depend upon allegations in his own pleadings to cure deficient affidavits, “a party can rely on his adversary’s pleadings to establish facts”

(Parker

v.

Twentieth Century-Fox Film Corp.,

3 Cal.3d 176, 181 [89 Cal.Rptr. 737, 474 P.2d 689, 44 A.L.R.3d 615]).