King v. Andersen

[608]

PIERCE, P. J.

Plaintiff Pierre King, while, or immediately after, shopping in a Payless Drug Store, was arrested for alleged shoplifting. After an acquittal of a charge of theft, King sued Payless, defendant Ollie Andersen, a security officer, and the owner (defendant Johnson) of the detective firm by whom she was employed, for (1) false arrest and (2) assault. The motion of defendants Andersen and Johnson for summary judgment was granted and plaintiff appeals.

The grounds of the trial court for granting summary judgment were that the evidence before the court upon which the motion for summary judgment was based showed without substantial conflict (1) that as a matter of law there was probable cause for the arrest, and (2) that there was no assault. We sustain the trial court’s position.

A trial court must grant a motion for summary judgment by a defendant if it appears without substantial conflict from the affidavits, counteraffidavits and other documents upon which the motion is heard that no justiciable cause of action exists in favor of the plaintiff. (Code Civ. Proc., § 437c;

Aguirre

v.

Southern Pac. Co.,

232 Cal.App.2d 636 [43 Cal. Rptr. 73].) Use of depositions as well as affidavits in support of, or in opposition to, a motion for summary judgment is proper.

(Saporta

v.

Barbagelata,

220 Cal.App.2d 463, 469 [33 Cal.Rptr. 661].)

In the case at bench the facts appeared by affidavit, counter-affidavits and by several depositions, including the plaintiff’s, From this evidence the following is shown without controversy :

On January 25, 1963, plaintiff and his wife were shopping in defendant store for school supplies, a meat hammer and some drugs. Having obtained these items, plaintiff, as stated above, picked up a wrench in the tool department and put it in his pocket. He was observed by Miss Andersen, a security officer. The Kings went to one of a number of check-out stations (the customary check-out procedure in this self-help store) and laid all of the items selected on the cashier’s counter excepting the wrench. That item remained in plaintiff King’s pocket. The clerk at the check stand asked: “Will that be all?” Plaintiff answered: “Yes.” The question and answer were repeated. The items displayed were paid for; not the wrench. It was not disclosed. The Kings then went through the station towards the garden or nursery department which was in a temporary front enclosure and roofed extension which were outside the check-out station. All of this having