Severini v. Massae

SCHOTTKY, J.

Plaintiff commenced an action for damages for malicious prosecution against defendant Massae and certain fictitious defendants, alleging that said defendants maliciously and without probable cause charged plaintiff with the crime of offering to receive a bribe for testifying in a civil action; and that plaintiff was arrested on said charge, held in custody for five and one-half hours and thereafter held to answer to the superior court; that he was compelled to stand trial on said charge, and that on the second day of the trial the charge against him was dismissed by the district attorney. The complaint alleged in substance further that he was not guilty of the charge and that he had been greatly damaged.

Defendant Massae filed an answer admitting the making of the charge but denying that it was done “wrongfully and/or falsely and/or maliciously and/or without probable cause.”

' Thereafter defendant Massae filed a motion for summary judgment under section 437c of the Code of Civil Procedure asking the court to strike out the complaint and enter judgment in favor of defendant on the ground “that there is no issue between the parties that entitles plaintiff to any relief. ’ ’ Said motion was supported by the affidavits of defendant Massae, Robert V. Blade, one of his counsel, and R. A. Leonard, District Attorney of Butte County. These affidavits were in considerable detail and were amply sufficient to support defendant Massae’s defense that he acted with probable cause and upon the, advice of counsel.

Plaintiff filed his own affidavit in opposition to said motion in which he alleged that defendant Massae first approached

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him and offered to bribe him to give favorable testimony in certain civil litigation pending against defendant Massae, and that he advised said defendant that he would not perjure himself. Plaintiff’s affidavit denied the allegations in defendant Massae’s affidavit that plaintiff had offered to testify in favor of defendant in return for money, and alleged that certain subsequent conversations between them which were recorded “were engaged in by affiant for the purpose and with the intent of procuring evidence with which to discredit and impeach said Massae as defendant in said litigation brought against him for fraud as aforesaid.”