Barry v. Rodgers

California Court of Appeal May 7, 1956 No. Civ. 21556Published

Before: Fox

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Holding. The court held that summary judgment for the defendants was proper because their affidavits established a complete defense of nonliability and the plaintiff failed to present any evidence to create a triable issue of material fact.

Issues

Whether the defendants' affidavits established a complete defense of nonliability regarding the plaintiff's claims of false arrest, false imprisonment, and malicious prosecution.
Whether the plaintiff's affidavit in opposition was sufficient to raise a triable issue of material fact.
Whether the plaintiff may rely on the allegations of his complaint to dispute the defendants' affidavits in a summary judgment proceeding.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The plaintiff may not rely on the allegations of his complaint as a means of disputing the affidavits filed by the defendants.”

“In a summary judgment proceeding whether there is a triable issue of fact is determined from the affidavits. The pleadings may not be resorted to for that purpose.”

FOX, J.

Plaintiff appeals from a summary judgment in favor of defendants Sam Portelli and Lillian Portelli.

By his amended complaint plaintiff seeks to recover damages from Willard K. Rodgers, Sam Portelli, Lillian Portelli and others, for false arrest, false imprisonment and malicious prosecution. His asserted causes of action grow out of the fact that in December, 1953, defendant Rodgers swore to a criminal complaint charging plaintiff with perjury. Plaintiff was thereupon arrested, arraigned, and, upon a preliminary hearing, was held to answer in the superior court. The charges against him, however, were later dismissed. Plaintiff alleges that the Portellis had a part in this unhappy experience. The Portellis filed an amended answer denying plaintiff’s allegations insofar as they related to them.

Thereafter the Portellis filed a notice of motion for summary judgment, supporting the same with their respective affidavits, which are identical except in one particular which will be later noted. These affidavits disclose that in 1951 Mr. and Mrs. Portelli rented a restaurant from Rocky Ybarra; that Milo Barry, plaintiff herein, prepared the lease; that in 1952 a civil action was instituted by Barry against defendant Rodgers and his wife, Rachael; that the matter before the court related to payment under a lease covering the identical restaurant premises. Mrs. Portelli’s affidavit states that she was served with a subpoena requiring her to testify at the

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trial of said action; that she was called as a witness and testified as to the date that she and her husband took possession of the restaurant and as to the rent they paid. It does not appear from Mr. Portelli’s affidavit that he was subpoenaed as a witness or testified.

Thereafter it appears from the affidavits of both Mr. and Mrs. Portelli that they were subpoenaed by the Los Angeles Police Department as witnesses on behalf of the People in a criminal proceeding entitled

The People

Milo Barry;

that at said criminal trial they each testified as to the date they took possession of the restaurant and as to the rent they paid. Each of them denied ever having accused Barry of committing

Barry v. Rodgers

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FOX, J.

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