MEYER v. GLENMOOR HOMES INCORPORATED

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Court of Appeal, First District, Division 1, California.

Lenore A. MEYER, Plaintiff and Respondent, v. GLENMOOR HOMES, INCORPORATED, Defendant and Appellant.

Civ. 22881.

Decided: December 07, 1966

LeRoy A. Broun, Fremont, for appellant. Spruance, Simonian & Pretzer, San Leandro, for respondent.

OPINION ON DENIAL OF REHEARING

In her petition for rehearing plaintiff directs attention to an alleged conflict between the conclusion herein expressed that each fact of which a corporate seal is prima facie evidence (Corp.Code, s 833) is similar to a mere inference which is dispelled by evidence of the nonexistence of the fact which is clear, positive, uncontradicted and of such a nature that it cannot rationally be disbelieved (see Leonard v. Watsonville Community Hosp. (1956) 47 Cal.2d 509, 515, 305 P.2d 36), and a prior statement by this court to the effect that prima facie evidence is presumptive in character. (Hansen v. G & G Trucking Co. (1965) 236 Cal.App.2d 481, 492, 46 Cal.Rptr. 186.)1

The language in question was written in connection with the construction of the provisions of section 869a of the Civil Code which refers to the effect of a conveyance from a person who holds an interest as ‘trustee’ without any indication or naming of a beneficiary. The statute provides that such conveyance ‘shall prima facie affect’ the interest held ‘according to the tenor of such instrument.’ Further provisions define the circumstances under which a presumption, which is in the first part of the statute, that the person holds free from any trust, becomes conclusive. Immediately preceding the language to which plaintiff alludes, this court stated: ‘It is apparent that the Legislature used the words ‘shall prima facie affect’ in the sense of a rebuttable presumption since the language in the very next sentence refers to the terminology of the preceding clause as a ‘presumption.“

The foregoing, therefore, uses the term prima facie in the sense that a prima facie presumption is the equivalent of a rebuttable presumption and properly concludes that it will support a finding consistent with it in the face of conflicting evidence produced by other than the party relying on the presumption. (Hansen v. G & G Trucking Co., supra, 236 Cal.App.2d at pp. 499—500, 305 P.2d 36 and cases cited.) People v. Fitzgerald (1936) 14 Cal.App.2d 180, 58 P.2d 718 similarly dealt with a statute which expressly created a prima facie presumption. (Stats.1887, ch. 95, s 6, pp. 110—111.) Maganini v. Quinn (1950) 99 Cal.App.2d 1, 221 P.2d 241 considered the provisions of section 6714 of the Revenue and Taxation Code, and Frank Meline Co. v. Kleinberger (1930) 108 Cal.App. 60, 290 P. 1042 considered the prima facie case which had been established on a prior appeal in the same case. Each states that a prima facie Case is one which is received or continues until the contrary is shown. The latter decision indicates that a prima facie Case will create a conflict with the rebutting evidence. This, however, is not the same as stating, as has been done herein, that a fact which is only established ‘at first view’ by proof of another fact may be rejected when the only direct evidence on the subject of the existence of the fact demonstrates its nonexistence.

The statement in Hansen that ‘the term ‘prima facie evidence’ * * * is presumptive in character' when viewed in its context is therefore not inconsistent with the distinction applied herein and noted in Leonard v. Watsonville Community Hosp., wherein it is stated: ‘Generally speaking, it may be said that a presumption is dispelled as a matter of law only when a fact which is wholly irreconcilable with it is proved by the uncontradicted testimony of the Party relying on it or of such party's own witnesses. (Citations.) * * * On the other hand, as we have seen (see quotation from Leonard in body of opinion), an Inference can be dispelled as a matter of law by evidence produced by Either party.’ (47 Cal.2d 509 at pp. 517—518, 305 P.2d 36 at p. 41.) In short, an inference is created by the provisions of section 833 of the Corporations Code and section 1833 of the Code of Civil Procedure, whereas presumptions, both rebuttable and conclusive, are created by the provisions of section 869a of the Civil Code.

Section 1833 of the Code of Civil Procedure, as distinguished from section 1961, expressly provides for a form of evidence which is to suffice for proof of another fact in lieu of direct proof, and expressly provides by example for the rejection of that fact upon proof of the true fact. The latter section refers to a deduction which is to be made from particular facts, and which may be held to persist until the fact deduced or the facts upon which it rests are rejected by the trier of fact.

Plaintiff further insists that the evidence, some of which is noted in the original opinion, permits a finding that the conveyances from Glenmoor Sales Agency, Inc. and the respective wives to the three husbands were made prior to the construction of the apartment house. From this premise it is asserted that the defendant corporation, which she seeks to charge as the maker of the note, received consideration in the form of a building contract which ensued after, not before, title passed and the loan was secured.

If it be assumed that the continuity of events was as now contended by plaintiff some of the proceeds of the loan which was obtained following the grant from plaintiff may have been paid over to the corporation. The fact remains, however, that there is nothing to show that the corporation bargained for this incidental benefit. If it did in fact receive the construction contract and partial payment thereon following the conveyance and loan, there is no basis from those facts alone to subject it to a liability which it never agreed to assume.

The petition for rehearing is denied.

FOOTNOTES

1.  ‘Moreover, the term ‘prima facie evidence’ (‘prima facie’ being a term which relates to evidence—see Code Civ.Proc., s 1833, defining ‘prima facie evidence’) is presumptive in character, there being no difference in law between the quantum and character of evidence necessary to overcome a ‘prima facie’ showing and that necessary to overcome a presumption. (See People v. Fitzgerald, 14 Cal.App.2d 180, 206—207, 58 P.2d 718; Code Civ.Proc., s 1961; and see Maganini v. Quinn, 99 Cal.App.2d 1, 8, 221 P.2d 241; Frank Meline Co. v. Kleinberger, 108 Cal.App. 60, 62—63, 290 P. 1042.)' (Hansen v. G & G Trucking Co. (1965) 236 Cal.App.2d 481, 492, 46 Cal.Rptr. 186, 193.)

PER CURIAM: