Shea v. Leonis

WHITE, J.

Plaintiffs made a motion for summary judgment against defendant Boyle Avenue Investment Company under section 437c of the Code of Civil Procedure, which provides in part as follows:

[186]

“When an answer is filed ... if it is claimed that there is no defense to the action, on motion of the plaintiffs . . . supported by affidavit of any person or persons having knowledge of the facts, the answer may be stricken out and judgment may be entered, in the discretion of the court, unless the defendant, by affidavit or affidavits shall show such facts as may be deemed by the judge hearing the motion sufficient to entitle him to defend. ...”

In support of their motion plaintiffs presented an affidavit, and defendant company filed two in opposition. The motion was granted, and defendant Boyle Avenue Investment Company appeals.

It is first contended by appellant that the affidavit of Willard W. Shea, one of the plaintiffs, which constituted the only evidence offered in support of the motion, is insufficient, for the claimed reason that it fails to negative the defense of a surrender of the lease as set up in the defendant’s answer. Section 437c of the Code of Civil Procedure requires that the affidavits in support of the motion must contain “facts sufficient to entitle plaintiff to a judgment in the action, and the facts stated therein shall be within the personal knowledge of the affiant, and shall be set forth with particularity, and each affidavit shall show affirmatively that the affiant, if sworn as a witness, can testify competently thereto”. In so far as it is pertinent in connection with the defense of alleged abandonment and surrender of the lease, the plaintiff Shea in his affidavit states:

“That plaintiffs, or any of them, have not accepted any surrender of the lease relied upon in the complaint of this action, nor have they entered into any agreement to accept a surrender of said lease;

“That at no time since the execution of said lease have plaintiffs, or any of them, taken or assumed possession of the property covered by said lease, or assumed, or attempted to assume, any of the authority of ownership or control over the same, nor have they done any act inconsistent with the landlord-tenant relationship existing between themselves and defendant Boyle Avenue Investment Company;