Feierbach v. Wynn

COUGHLIN, J. The issue on this appeal concerns the sufficiency of an affidavit to support an order striking a counterclaim and granting a motion for a summary judgment in favor of the plaintiff.

[455]The plaintiff, who is the respondent herein, is an attorney; brought an action against the defendant, the appellant herein, who is his client, for services rendered; moved the trial court to strike an answer and counterclaim filed by the defendant; and also moved the court to enter a summary judgment in his, the plaintiff’s, favor. The motion was granted. Judgment was entered thereon. The defendant moved that the judgment be set aside. This motion was denied. Thereupon the defendant appealed from the judgment entered and from the order refusing to vacate the same.

On appeal the defendant limits his ground for reversal to an alleged error by the trial court in granting the plaintiff’s motion as it applied to his counterclaim, contending that the affidavit in support thereof was insufficient to justify the order made. By the counterclaim in question the defendant alleged that the services rendered by the plaintiff, for which the latter brought this action, were “performed ... in such a careless, negligent and incompetent manner as to render the same not only valueless to this defendant, but to also bring about a disastrous result which has already cost this defendant a considerable sum of money and property,” and that, although he did not know the extent of his damages, when the same was ascertained he would set forth the full nature and extent thereof in an amended pleading.

The plaintiff’s complaint set forth two causes of action; one on an open book account for services rendered and the other upon an account stated. The defendant’s answer denied the allegations in this complaint.

In support of his motion to strike the defendant’s answer and counterclaim, and for a summary judgment, the plaintiff filed an affidavit containing allegations establishing both causes of action set forth in his complaint; referring to letters between the parties with respect to the transaction in question, copies of which were attached; and stating his conclusions with respect to the effect of these letters. The defendant did not file any affidavit in reply. The sole issue for consideration, therefore, is whether the plaintiff’s affidavit is sufficient to justify the action of the court in striking the defendant’s counterclaim. (Wuelzer v. City of Oakland, 170 Cal.App.2d 337, 340-341 [338 P.2d 912]; Kelliher v. Kelliher, 101 Cal.App.2d 226, 231-232 [225 P.2d 554].)