Jones v. Dolgin

California Court of Appeal Sep 10, 1963 No. Civ. 20772Published

Before: Draper

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Holding. The court held that summary judgment for the plaintiffs was proper because the defendants failed to provide any declarations or affidavits to support their claims or rebut the plaintiffs' evidence, rendering their defenses sham.

Issues

Whether a verified pleading is sufficient to defeat a motion for summary judgment when the moving party has filed supporting declarations.
Whether the trial court properly denied leave to amend the cross-complaint when the defendants failed to provide evidence supporting their claims.

Disposition. Affirmed

Quotations verified verbatim against the opinion

“the object of the summary judgment proceeding is to determine whether the issues raised by the pleadings are real and do require a trial. Thus a pleading, though verified, cannot be relied upon to meet the affidavits of the moving party”

“The burden then was upon defendants to show, by affidavit or declaration, that some fact issue remained to be tried”

“defendants persistently failed to assert the truth of their claims of failure of consideration or of damages for fraud. This refusal fully warranted the trial court’s conclusion that the claims were sham.”

DRAPER, P. J.

JDefendants appeal from a summary judgment granted to plaintiffs in this action on a promissory note-

Defendants D’Orazi purchased an Oregon ranch from plaintiffs. As part of the purchase price they endorsed to plaintiffs, with recourse, unsecured installment note of defendant Dolgin. Upon default in installment payments, plaintiffs declared the entire amount due and brought this action. Defendants answered by denials, and the D’Orazis cross-complained for rescission of the agreement for purchase of the ranch, alleging fraudulent misrepresentation of its value. Answer denied these charges. Plaintiffs moved for summary judgment on complaint and cross-complaint. They filed declarations setting forth in detail the defaults in payment of the note and the amount due. Meeting the cross-complaint for rescission, they declared that defendants D ’Orazi had sold the ranch they purchased from plaintiffs. Defendants filed no declaration. At hearing on the motion for summary judgment, they requested leave to amend the cross-complaint to seek damages, rather than rescission. The hearing was continued, and defendants filed a motion for leave to amend, but offered no proposed pleading. The court continued hearing-on both motions to allow filing of the proposed amendment. At the third hearing, the amendment was before the court but was unverified. It alleged (as had the original verified cross-complaint) that D ’Orazis had agreed to pay some $96,000 for the ranch. Plaintiff, contesting the motion to amend, called as a witness the man who had bought the Oregon ranch from D’Orazis after their original cross-complaint was filed. He testified without objection that his purchase price was some $99;000. Defendants offered no contrary evidence, and did not ask time to file any declaration in rebuttal.

It is not disputed that plaintiffs’ declarations fully estab

[29]

listed the factual basis for recovery on the complaint, and met cross-complainants ’ affirmative claim for rescission by showing resale of the property, and consequent inability to restore it, although admittedly it is of substantial value. The burden then was upon defendants to show, by affidavit or declaration, that some fact issue remained to be tried

(Coyne

Jones v. Dolgin

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DRAPER, P. J.

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