I dissent. As pointed out in the majority opinion, the present holding is contrary to the rule as announced by the appellate department of the Superior Court of Los Angeles County in two well-considered opinions by Mr. Presiding Judge Shaw, to wit, in Cowan Oil & Refining Co. v. Miley Pet. Corp., 112 Cal. App. (Supp.) 773 [295 Pac. 504], and Qardenswartz v. Equitable Life etc. Co., 23 Cal. App. (2d) (Supp.) 745 [68 Pac. (2d) 322], In both of the cases just cited the rule, supported by authority, is announced that in considering affidavits on a motion for a summary judgment the facts must be set forth and conclusions of law will be disregarded. Should I entertain any doubt, which I do not, as to the correctness of these two decisions, I still would be inclined to follow them, in view of the fact that in this case we are prescribing a rule of procedure to be followed in the superior court. It is my opinion that the rules of procedure, so far as practicable, should be identical in the municipal and superior courts. The Appellate Department of the Superior Court of Los Angeles County has for a number of years last past prescribed for the municipal court the rule of procedure set forth in the cases just cited. If the majority opinion in the instant case is to stand, a different rule will be applied in the superior court. This tends to complicate instead of to simplify the practice and procedure, and has a tendency to entrap attorneys and litigants rather than to cause their cases to be tried upon the merits.
For the foregoing reasons, in my opinion the judgment appealed from should be affirmed.
A petition by respondent to have the cause heard in the Supreme Court, after judgment in the District Court of Appeal, was denied by the Supreme Court on February 8, 1940.