Byer v. Arguello

California Court of Appeal Feb 17, 1950 No. Civ. 17161Published

Before: White

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Holding. The court held that a complaint should not be dismissed as sham or fictitious based on deposition testimony that contradicts the complaint's allegations, as the plaintiff may still be able to present evidence at trial to support the complaint's averments.

Issues

Whether a trial court may dismiss an action as sham or fictitious when deposition testimony contradicts the allegations in the complaint.
Whether the existence of triable issues of fact precludes a motion to dismiss.

Disposition. reversed and remanded

Quotations verified verbatim against the opinion

“Before a motion to dismiss may be granted the record must disclose that no relief can be granted to the plaintiff.”

“From the complaint and the affidavits here under consideration, it cannot be said that beyond peradventure of doubt no cause of action can be proven against the Kramers.”

“To hold otherwise would be to open a veritable Pandora’s box of motions to dismiss actions, based upon statements in depositions contrary to averments in complaints.”

WHITE, P. J.

Plaintiff instituted this action to recover damages for the alleged wrongful death of his minor son as a result of the latter being attacked and bitten by dogs belonging to defendants Arguello and by a dog belonging to defendants Kramer. The gravamen of plaintiff’s complaint is that defendants were the keepers of vicious dogs, that they did wrongfully harbor said dogs and allowed them to go at large without proper guard and without leash; that said dogs came upon the premises occupied by plaintiff and his minor child, and that said dogs did bite and attack the person of said child; that as a proximate result thereof said child died. Answers were filed denying these allegations.

When plaintiff’s deposition, was taken he testified that he did not contend that the Kramer dog bit the child; further, that so far as he knew the Kramer dog did not bite the child at any time. Then he stated that his theory of Kramers’ liability was that their dog was in heat, and it was negligence for them to allow the animal to go at large, an attraction for

[93]

male dogs in the neighborhood where the Kramers and the child lived.

Defendants Kramer moved for a summary judgment, supporting said motion by affidavit setting forth the foregoing testimony of plaintiff as given in his deposition. The motion was denied. The same defendants then moved the court to dismiss the action against them on the ground that the same “is sham and fictitious.” This motion was also supported by an affidavit similar to the one filed in support of the motion for summary judgment. The second motion was granted. From the judgment of dismissal entered thereon plaintiff prosecutes this appeal. No brief has been filed by respondents.

Following the filing of appellant’s opening brief, respondents moved this court to dismiss the appeal, basing said motion upon the pleadings and the aforesaid affidavits on file. The motion was denied by this court.

(Byer

Arguello,

94 Cal.App.2d 110 [210 P.2d 328].)

From a consideration of the record herein, we are satisfied that the pleadings in this action present triable issues. We are equally satisfied that our holding on the motion to dismiss

Byer v. Arguello

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WHITE, P. J.

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