Palmquist v. Palmquist

BRAY, P. J. Plaintiff appeals from an adverse summary judgment.

Question Presented1

Were there any issues of fact to be tried? This depends upon whether plaintiff is entitled to attack in this action the dismissal of a prior action between the same parties for the same relief.

Record

November 1, 1960, plaintiff commenced this action to quiet title to real property. His complaint alleged the same claim and prayed for the same relief as in a prior action brought by him against defendant to quiet title to the same property, which action was dismissed with prejudice by a dismissal signed by plaintiff’s counsel in that action. Defendant was not served in this action. She discovered its existence when the lis pendens filed by plaintiff blocked an attempted sale of the property. Thereupon defendant answered herein setting up the dismissal of the earlier action as a bar to this action. She also cross-complained claiming that plaintiff [342]has no interest whatsoever in the property. Defendant denied the material allegations of the cross-complaint.

Defendant filed a motion for summary judgment based on the dismissal of the prior action, and a motion to quash notice of deposition theretofore given by plaintiff. An order shortening time for serving the notice of both motions was obtained. At the hearing, the court held that all claims by plaintiff against the property in question were barred by the prior dismissal, decreed that plaintiff had no interest in the property, and quieted title to the property in defendant.

Mat Plaintiff Attack the Dismissal ?

“ In a proceeding under section 437c, Code of Civil Procedure, issue finding rather than issue determination is the pivot upon which the summary judgment law turns. [Citations.] Whether an issue of fact exists is to be determined from the affidavits which have been filed. [Citations.] ” (Whaley v. Fowler (1957) 152 Cal.App.2d 379, 381 [313 P.2d 97].) “[A] summary judgment will stand if the supporting affidavits state facts sufficient to sustain a judgment and the counteraffidavits do not proffer competent and sufficient evidence to present a triable issue of fact. [Citations.] ” (Burke v. Hibernia Bank (1960) 186 Cal.App.2d 739, 744 [9 Cal.Rptr. 890].)

Defendant’s affidavit set forth so far as pertinent here that plaintiff on May 31, 1960, filed a complaint in a quiet title action against defendant herein, in Santa Clara County, in all respects identical to the complaint in this action, the parties and the cause of action being the same; that under a certain property settlement agreement plaintiff agreed to file a dismissal with prejudice of the other action; that in accordance with that agreement, defendant’s attorneys dismissed that action with prejudice on June 30, 1960. Reference was then made to a judgment in a certain separate maintenance action brought by defendant against plaintiff, in which said agreement was held to be valid. (The decision on appeal sustaining the trial court in that action was filed this day by this court; see ante, p. 322 [27 Cal.Rptr. 744].) It is then stated that the dismissal with prejudice of said quiet title action is a bar to this action.