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District Court of Appeal, Fourth District, California.

ALVAK ENTERPRISES, a Corporation, et al., Plaintiffs, Cross-Defendants and Respondents, v. Philip C. PHILLIPS et al., Defendants, Cross-Complainants and Appellants.

Civ. 5911.

Decided: February 02, 1959

Thompson & Colegate, Riverside, F. Gillar Boyd, Jr., Palm Springs, Joseph Henry Wolf, Los Angeles, for appellants. Shaw & Barnett, William W. Shaw, Riverside, for respondents.

In their petition for a rehearing, appellants contend that the facts stated in our opinion are incorrect because ‘on appeal from an order granting or denying a motion, which is decided on the basis of affidavits and where there are affidavits filed by both sides which strongly contradict each other, then it will be presumed that the trial court believed the facts to be as stated in the affidavits of the prevailing parties', citing Cameron v. Cameron, 110 Cal.App.2d 258, 261, 242 P.2d 408; Deyl v. Deyl, 88 Cal.App.2d 536, 199 P.2d 424; and Brock v. Fouchy, 76 Cal.App.2d 363, 172 P.2d 945. This is not a true statement of the rule. On appeal from an order based on conflicting affidavits it will be presumed that the trial court found as true the facts most favorable to the prevailing party. Huskey v. Berini, 135 Cal.App.2d 613, 619, 288 P.2d 43; Maselli v. E. H. Appleby & Co., Inc., 117 Cal.App.2d 634, 638, 256 P.2d 618. “An appellate court will not disturb the implied findings of fact made by the trial court in support of an order, any more than it will interfere with the express findings upon which a final judgment is predicated. When the evidence is conflicting, it will be presumed that the court found every fact necessary to support its order that the evidence would justify. So far as it has passed on the weight of evidence or the credibility of witnesses, its implied findings are conclusive. This rule is equally applicable whether the evidence is oral or documentary. In the consideration of an order made on affidavits involving the decision of a question of fact, the appellate court is bound by the same rule as where oral testimony is presented for review.” Griffith Co. v. San Diego College For Women, 45 Cal.2d 501, 507, 289 P.2d 476, 479, 47 A.L.R.2d 1349; Bailey v. County of Los Angeles, 46 Cal.2d 132, 137, 293 P.2d 449; Murray v. Superior Court, 44 Cal.2d 611, 619, 284 P.2d 1; Byrnes v. Johnson, 138 Cal.App.2d 443, 446, 292 P.2d 1; Russell v. Landau, 127 Cal.App.2d 682, 690, 695, 274 P.2d 681; In re Jost, 117 Cal.App.2d 379, 388, 256 P.2d 71.

As a consequence, when an issue is tried by affidavits and the evidence presented thereby is conflicting, on appeal from an order based thereon, those facts in support of that order will be accepted as true whether they are supplied by affidavits of the losing party or the prevailing party, or both. ‘The trier of fact may believe and accept a portion of the testimony of a witness, and disbelieve the remainder’ (People v. Whitehurst, 112 Cal.App.2d 140, 144, 245 P.2d 509, 511), even though the witness is a party. Goes v. Perry, 18 Cal.2d 373, 378, 115 P.2d 441; Industrial Indemnity Co. v. Industrial Accident Comm., 115 Cal.App.2d 684, 692, 252 P.2d 649.

Some of the facts related in our opinion are based on affidavits presented by appellants in connection with prior motions resulting in orders favorable to them. Respondent made these affidavits a part of his motion to stay proceedings. A rule which would require a court to reject the testimony presented by affidavits upon which it based a former order, in arriving at a later decision based on the same affidavits, would be unreasonable and illogical.

The petition for a rehearing is denied.


MUSSELL, Acting P. J., SHEPARD, J., and STONE, Justice pro tem., concur.

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