(See Blair v. Pitchess (1971) 5 Cal.3d 258, 284-285 [ 96 Cal.Rptr. 42, 486 P.2d 1242, 45 A.L.R.3d 1206]; Collins v. City and County of San Francisco (1975) 50 Cal.App.3d 671, 674 [ 123 Cal.Rptr. 525]; Roman Catholic Archbishop v. Superior Court (1971) 15 Cal.App.3d 405, 410-411 [ 93 Cal.Rptr. 338]; Estate of Kerner, supra, 275 Cal.App.2d 785, 789. Cf. Stationers Corp. v. Dun Bradstreet, Inc., supra, 62 Cal.2d 412, 417; Varco-Pruden, Inc. v. Hampshire Constr. Co. (1975) 50 Cal.App.3d 654, 658-659 [ 123 Cal.Rptr. 606]; and Frye v. Felder (1966) 246 Cal.App.2d 136, 138-140 [ 54 Cal.Rptr. 627].)
The only apparent — and not unreasonable — justification for denying defendant's motion for summary judgment was that announced by the respondent court: that plaintiffs should not be deprived of the benefit of cross-examination. In this the court echoed the holding of Frye v. Felder (1966) 246 Cal.App.2d 136, 139 [ 54 Cal.Rptr. 627], where a summary judgment was reversed because the moving papers raised "a serious question of credibility. . . ." Defendant's declarations do, of course, raise an issue of credibility: the fact that the Department of Motor Vehicles did not receive the notice which defendant swears she mailed, creates a doubt as to the fact of mailing and, hence, as to her credibility.
They argue that respondents' good faith belief in the vitality of Southwestern's case in the federal court is an issue uniquely to be determined by reference to the credibility of respondents' witnesses so that determination of the issue without the opportunity of cross-examination at trial is improper. (See, e.g., Harding v. Purtle, 275 Cal.App.2d 396, 399 [ 79 Cal.Rptr. 772]; Frye v. Felder, 246 Cal.App.2d 136, 140 [ 54 Cal.Rptr. 627].) The argument ignores the posture of the parties. If the respondents' witnesses on the issue of good faith belief are thoroughly impeached, the record is nevertheless insufficient to justify a judgment for appellants who have the burden of proving lack of that belief.
It has been suggested that courts have permitted conclusory statements of ultimate facts to suffice in counteraffidavits whenever a resisting party is unable to come forward with evidentiary facts concerning a particular event because such facts are simply unavailable to that party. (See Stationers Corp. v. Dun Bradstreet, Inc., supra, 62 Cal.2d 412; Frye v. Felder, 246 Cal.App.2d 136 [ 54 Cal.Rptr. 627]; Dreyfuss v. Burton, supra, 246 Cal.App.2d 629; Harding v. Purtle, 275 Cal.App.2d 396 [ 79 Cal.Rptr. 772].) Thus the "liberal" rule has served as a rather artificial test which has permitted courts to deny motions for summary judgment whenever it was felt that the resisting party should have an opportunity to ascertain for itself what the precise facts regarding a particular issue are.
(5) Causes may arise in which knowledge of events remains so confined within the bosom of a declarant that proof to controvert the declarant's version is difficult to come by and therefore of necessity excused. (See Frye v. Felder, 246 Cal.App.2d 136, 138-139 [ 54 Cal.Rptr. 627]; Bauman, California Summary Judgment: A Search for a Standard, 10 U.C.L.A. L.Rev. 347.) (3c) In this instance, however, the Clarks' version of Michael's life was verifiable. If Michael's asserted paranoid schizophrenia had been obvious to his parents it would have been manifest in some degree to other persons — teachers, doctors, fellow students, friends, acquaintances, neighbors.
Summary judgments have been reversed where the record indicated both a question of the credibility of the moving party's witnesses, and a basis for inferring from the record that the opposing party might prevail at a trial on the merits. (See, e.g., Harding v. Purtle (1969) 275 Cal.App.2d 396 [ 79 Cal.Rptr. 772]; Frye v. Felder (1966) 246 Cal.App.2d 136 [ 54 Cal.Rptr. 627]; Dreyfuss v. Burton (1966) 246 Cal.App.2d 629 [ 54 Cal.Rptr. 843].) (1b) But in the case at bench there are no circumstances casting any shadow upon the credibility of the moving party's declarations (other than the self-interest which is almost always involved).
He claims that the Phillips declaration is defective, but no particulars are cited and none have been discovered by us. It has the ring of truth. (Cf. Frye v. Felder, 246 Cal.App.2d 136, 139-140 [ 54 Cal.Rptr. 627].) Plaintiff made no attempt to raise any factual issue with respect to the reason for defendant's sudden affluence in the matter of tickets.
Professor Bauman's article mentioned has been cited in several California appellate court decisions. It was the subject of at least qualified approval in Frye v. Felder (1966) 246 Cal.App.2d 136, 139 [ 54 Cal.Rptr. 627] (hear. den.).
Thus the credibility of the defendants' declarations was itself a factual issue to be tried. In Frye v. Felder, 246 Cal.App.2d 136 [ 54 Cal.Rptr. 627], the trial court granted a summary judgment in favor of plaintiff, based upon an uncontradicted declaration of the plaintiff concerning a transaction to which no other available person could testify. There were other circumstances which raised a question of credibility.
In relevant part, subdivision (e) provides that “[i]f a party is otherwise entitled to a summary judgment pursuant to this section, summary judgment may not be denied on grounds of credibility.” This provision was enacted to legislatively overrule Frye v. Felder (1966) 246 Cal.App.2d 136, 139-140 and similar decisions, that held that summary judgment could be denied based on the mere possibility that the trier of fact could disbelieve otherwise uncontradicted evidence propounded by the party moving for summary judgment. This change in summary judgment law conformed to a parallel rule applicable to motions for directed verdict.