Petitioner, following the denial of its motion for summary judgment in an action pending in respondent court, seeks a peremptory writ of mandate ordering that court to dismiss the complaint and to enter summary judgment for petitioner. It is concluded that petitioner is entitled to seek review of the trial court's denial in proceedings of this nature, and that on the merits it is entitled to the peremptory writ which it seeks.
Propriety of the Writ of Mandamus
"Petitioner argues that the rule is here inapplicable because a review and nullification of the order on appeal from the final judgment would not be a plain, speedy and adequate remedy. It is urged that unless certiorari is permitted it will allow the plaintiffs, as the unsuccessful party to the prior appeal so far as the first two counts are concerned, to return to the trial court, start in all over again, and compel petitioner, as the prevailing party as to those two counts, to submit to a trial and await the final outcome before obtaining redress for the unwarranted reopening of the litigation. If such action is here permitted, says the petitioner, every lawsuit could be perpetual. It is therefore argued that substantial justice requires that relief be afforded by certiorari.
"This argument is unsound for several reasons.... it would apply in some degree in every case where a trial court erroneously overruled a demurrer and compelled a defendant to proceed to trial. No one would contend that such order could be reviewed on certiorari." (Bank of America v. Superior Court (1942) 20 Cal.2d 697, at pp. 703-704 [128 P.2d 357].)
In Sjoberg v. Hastorf (1948) 33 Cal.2d 116 [199 P.2d 668], the trial court denied the defendant's petition for an order that arbitration proceed and that plaintiff's action for the balance allegedly due on the contract between
Nevertheless, it has been suggested that when an intermediate order prevents the plaintiff from proceeding on one of several causes of action on constitutional grounds, or upholds its right to proceed in the face of an objection on such grounds, that the ruling may be tested by mandamus or prohibition, as the case may be. (People ex rel. Dept. Public Works v. Rodoni, supra, 243 Cal.App.2d 771, 774-775.) In several cases the propriety of an order denying a motion for a summary judgment has been reviewed in connection with a petition for relief by way of an extraordinary writ. In State of California v. Superior Court, supra, 263 Cal.App.2d 396, a peremptory writ of prohibition restraining the trial court from proceeding to trial in a personal injury action was granted because the plaintiff, in connection with the hearing on the motion for summary judgment, failed to produce any substantial evidence from which it could be inferred that the state had the actual or constructive notice required by the provisions of the Government Code as a prerequisite to the imposition of liability (263 Cal. App.2d at pp. 399-401). In Kaiser Foundation Hospitals v. Superior Court, supra, 254 Cal.App.2d 327, the court granted an alternative, but denied a peremptory, writ of mandamus to compel the trial court to enter an order granting a motion for summary judgment. It found that the defense of res judicata, upon which the petitioner relied to establish the trial court's abuse of discretion in denying the motion, was not applicable because of lack of privity of parties (254 Cal. App.2d at p. 335). In Phillips Aviation
Where such relief is granted it must be predicated upon the following principles: "Where an order is not appealable, but is reviewable only upon appeal from a subsequent judgment, various factors, such as expense of proceeding with a trial and prejudice resulting from delay, may operate to make that remedy inadequate." (Phelan v. Superior Court (1950) 35 Cal.2d 363, 370 [217 P.2d 951]. See also Code Civ. Proc., §§ 1086 and 1103; State Farm etc. Ins. Co. v. Superior Court (1956) 47 Cal.2d 428, 432 [304 P.2d 13]; Harden v. Superior Court (1955) 44 Cal.2d 630, 635 [284 P.2d 9]; Tide Water Assoc. Oil Co. v. Superior Court (1955) 43 Cal.2d 815, 820-821 [279 P.2d 35]; Providence Baptist Church v. Superior Court (1952) 40 Cal.2d 55, 60 [251 P.2d 10]; City of San Diego v. Superior Court (1950) 36 Cal.2d 483, 485 [224 P.2d 685]; Tomales Bay etc. Corp. v. Superior Court (1950) 35 Cal.2d 389, 392 [217 P.2d 968]; State of California v. Superior Court, supra, 263 Cal.App.2d 396, 398; National Union Fire Ins. Co. v. Superior Court (1967) 252 Cal.App.2d 568, 573 [60 Cal.Rptr. 535]; Bricklayers & Masons Union No. 1 v. Superior Court, supra, 216 Cal.App.2d 578, 582; and Alexander v. Superior Court (1959) 170 Cal.App.2d 54, 57 [338 P.2d 502]. Cf. Field Research Corp. v. Superior Court (1969) 71 Cal.2d 110, 111 [77 Cal.Rptr. 243, 453 P.2d 747].)
"A writ of prohibition may issue to prevent a lower court from acting in excess of its jurisdiction and mandamus to compel a mandatory act. [Citations.]" (W.A. Rose Co. v. Municipal Court (1959) 176 Cal.App.2d 67, 75 [1 Cal.Rptr. 49].)
In the instant case, unlike Bricklayers & Masons Union No. 1 v. Superior Court, supra, the petitioner's motion for summary judgment did not question the jurisdiction of the trial court. It merely asserted that there was no basis in fact for the allegations upon which plaintiff relied to establish petitioner's
A review of the foregoing cases reveals no compelling precedent indicating that this court should generally review orders denying summary judgment by use of extraordinary writs. In the Bricklayers case, as noted, the motion raised a question of the jurisdiction of the court to proceed, and in the most recent case (State of California v. Superior Court, supra), the question of sovereign immunity was treated as a jurisdictional question. In Kaiser Foundation Hospitals v. Superior Court, the issue was a plea in bar of the action — res judicata. Even so the court observed, "Although it now appears from an examination of the record after oral argument that the alternative writ may have been inadvertently issued, nevertheless, having issued the alternative writ we assume for the purpose of this opinion only that mandamus is the proper remedy and that a determination on the merits of the issues raised by the petition will expedite rather than disturb the orderly processes of justice. (Lockheed Aircraft Corp. v. Superior Court, 28 Cal.2d 481, 483-484 ...; Bowles v. Superior Court, 44 Cal.2d 574, 582 ...; 3 Witkin, Cal. Procedure (1954) Extraordinary Writs, § 31, pp. 2503-2504.)" (254 Cal. App.2d at p. 332, italics added.) In the fourth case noted (Phillips Aviation Co. v. Superior Court, supra) no issue was
The Denial of the Motion for Summary Judgment
The complaint filed in the principal action names "Sutro's Ice Rink, Whitney's Playland at the Beach, George K. Whitney, and Ten Does" as defendants. It alleges, "That at all times mentioned herein, defendants were the owners, lessees and operators in control of an ice skating rink located in San Francisco, known as and by the name of Sutro's Ice Rink." Damages are sought for injuries allegedly suffered by real party in interest on October 24, 1965. It is alleged, "That defendants, among other things, recklessly and carelessly permitted the surface of the ice maintained by them to become and remain in a rutted, pitted, rough, uneven, watered and soft and dangerous condition, with knowledge of said condition."
The petitioner, Whitney's at the Beach, a California corporation, acknowledged
The declaration filed on behalf of petitioner's motion for summary judgment shows that the declarant was at the time of the alleged accident the president of petitioner corporation, and as such was familiar with its affairs. He states: "That said corporation was not on said date, or at any other time, the owner, lessee, or operator in control of an ice skating rink located in San Francisco known as SUTRO'S ICE RINK, the premises upon which plaintiff's accident allegedly occurred; that said corporation has never used, or maintained, or assumed any responsibility for the maintenance of said premises as a place for ice skating or otherwise."
The declaration of real party in interest, when stripped of legal conclusions, alleges in pertinent part as follows. "That the facts set forth in said complaint respecting ... the negligence alleged to defendants are in each case true and correct and each fact in respect thereto has merit to invalidate the claim of defendant WHITNEY'S AT THE BEACH, a California corporation, that said defendant never used, or maintained, or assumed any responsibility for the maintenance of said premises as a place for ice skating, or otherwise; but that the facts set forth in said complaint will permit plaintiff to establish before the Court a case showing that said defendant corporation, Whitney's at the Beach, did in fact own and control and lease the said premises to certain persons who operated said facility thereunder, said Whitney's at the Beach being the owners of said property; ..." (Italics added.)
Real party in interest relies upon oft-enunciated general principles governing summary judgments, which have been epitomized in Pettis v. General Tel. Co. (1967) 66 Cal.2d 503 [58 Cal.Rptr. 316, 426 P.2d 884], as follows: "The matter to be determined by the trial court on such a motion is whether facts have been presented which give rise to a triable factual issue. The court may not pass upon the issue itself. Summary judgment is proper only if the affidavits in support of the moving party would be sufficient to sustain a judgment in his favor and his opponent does not by affidavit show facts sufficient to present a triable issue of fact. The affidavits of the moving party are strictly construed and those of his opponent liberally construed, and doubts as to the propriety of summary judgment should be resolved against granting the motion. Such summary procedure is drastic and should be used with caution so that it does not become a substitute for the open trial method of determining facts. (Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412, 417 ... and cases there cited.)" (66 Cal.2d at p. 505. See also Slobojan v. Western Travelers Life Ins. Co.
In Stationers Corp. v. Dun & Bradstreet, Inc. (1965) 62 Cal.2d 412 [42 Cal.Rptr. 449, 398 P.2d 785], where the court found a triable issue of fact, it stated: "Thus, the trial court was justified in granting the motion here only if the declarations filed in support of it, strictly construed, contain facts sufficient to entitle the defendants to judgment, and those of the plaintiffs, liberally construed, show that there was no issue of fact to be tried." (62 Cal.2d at p. 417. See also Snider v. Snider, supra, 200 Cal.App.2d 741, 748.)
The disclaimer by petitioner's president if established at the trial would certainly preclude any recovery by the real party in interest. A learned commentator on the decisions under section 437c of the Code of Civil Procedure has noted, "This review of the cases demonstrates that a defendant succeeded in obtaining a summary judgment in two quite distinct ways.... The other line of authority does not attempt to remove credibility issues but accords recognition to the defensive position of a defendant. These cases shift to the plaintiff the burden of producing evidence substantiating the cause of action and grant a summary judgment against him for his failure to do so. Such a full disclosure of evidence is not required of the plaintiff in every case, but only in those cases in which the affidavits of the defendant-movant show that the plaintiff probably will be unable to establish a cause of action at a trial. As thus interpreted, these decisions further the fundamental policy of a summary judgment procedure; that trials serving no
Real party in interest complains that if a case can be disposed of on the affidavit of a corporate officer that the corporation was in no way involved, it will obviate the necessity of any trial whatsoever concerning the facts.
In Snider v. Snider, supra, this court observed, "In the summary judgment procedure, the party opposing the motion cannot rely on a verified pleading alone. [Citations.] If such party cannot do so directly, she cannot do so indirectly by merely restating the verified pleading in her counteraffidavit." (200 Cal. App.2d at p. 755, see also discussions pp. 749-755; and Saporta v. Barbagelata, supra, 220 Cal.App.2d 463, 469.)
The declaration filed in opposition to the motion additionally states: "That plaintiff has stated the facts of this case to his attorney, ... and has been advised by his said attorney, after setting forth said facts, that he in fact has a good and meritorious case on the merits; and declarant therefore states that he as plaintiff has a good cause of action against WHITNEY'S AT THE
Real party in interest further implies "that depositions should be taken to establish the chain of responsibility, if any, of Whitney's at the Beach" (italics added) and that defendant is proceeding in bad faith by applying for a writ of mandate in view of having suggested such procedure at the time of the hearing on the motion. The alleged injury occurred October 25, 1965; the complaint was filed October 19, 1966; it was not served on petitioner until June 2, 1967; the petitioner's answer was filed July 6, 1967; the petitioner's notice of motion was dated May 7, 1969, was filed May 9, 1969, and it came on regularly for hearing on May 29, 1969. Real party in interest has not explained why he failed to pursue such discovery during the approximately two years in which the case was at issue; nor has he shown that he requested a continuance on the hearing on the motion in order to conduct such discovery. Moreover, he has failed to reveal any facts which would indicate that such discovery would be fruitful in the face of defendant's declaration of non-involvement.
In Nini v. Culberg, supra, the court observed, "Plaintiffs' counteraffidavit does not state that defendant in any manner participated in either the loading or transportation. This affidavit does not state the affiant knows any of the facts in the case (section 437c states that the affidavit is to be made by a person having knowledge of the facts and must show that the facts stated are within the personal knowledge of the affiant). The affidavit does not dispute or contradict the facts of nonparticipation as stated in defendant's affidavit. It merely states that during the trial it may be established that the instructions given by defendant may prove to be more detailed than as stated by defendant. If such a statement causes to arise an issuable question of fact, then there never could be a summary judgment granted, for all a defendant would have to do when confronted by a motion for summary judgment would be to state in his counteraffidavit that at the trial facts might be produced which might contradict the definite statement of facts in the moving party's affidavit." (183 Cal.App.2d 657, 661-662. See also Spencer v. Hibernia Bank (1960) 186 Cal.App.2d 702, 715-716 [9 Cal.Rptr. 867].)
On this record it became the clear legal duty of the trial court to grant the motion for summary judgment. Since under the circumstances the discretion of the court could be exercised legally in only one way it was an abuse of discretion to deny the motion and make the order which it did.
It is ordered that a peremptory writ of mandate issue commanding respondent superior court to set aside its Order Denying Motion for Summary Judgment signed May 29, 1969 and filed June 2, 1969, and to order summary
Molinari, P.J., and Elkington, J., concurred.