Swope v. Moskovitz

California Court of Appeal Aug 14, 1967 No. Civ. 30404Published

Before: Files

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Holding. The court held that summary judgment for the defendants was proper because the plaintiff failed to present any competent evidence to create a triable issue of fact regarding the alleged slander, relying instead on mere hope that witnesses would change their testimony at trial.

Issues

Whether the trial court erred in granting summary judgment for defendants in a slander action where the plaintiff lacked personal knowledge of the alleged defamatory statements and failed to produce evidence to support his claims.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Plaintiff’s declaration, no matter how liberally construed, raises no issue of fact, for plaintiff eoncededly is not a competent witness to prove the utterance of the alleged slanderous statements.”

“In order to defeat the motion, a party must present something more substantial than that.”

“In the case at bench a trial to examine the credibility of defendants’ witnesses will not help plaintiff. Here plaintiff has the burden of proving that the alleged slander was uttered. The record shows that he has no evidence.”

FILES, P. J.

Plaintiff Carl Swope filed this action seeking damages for slander against Robert Moskovitz, Gerald Novak, and Joseph E. Seagram & Sons, Inc., “a corporation doing business as Calvert Distilling Co.” Plaintiff, a former employee of Seagram, was discharged from his position on January 19, 1962. In his complaint, filed on January 17, 1963, plaintiff alleges that within the past year Moskovitz and Novak, as agents of Seagram, made certain dafamatory remarks about plaintiff to fellow employees and others in the liquor industry. Seagram, Moskovitz and Novak filed answers in which they denied ever having made the utterances attributed to them.

Plaintiff’s replies to questions put to him in a deposition and by written interrogatories make it clear that plaintiff himself has no personal knowledge of the defamatory statements;

he bases his allegations on information received from others. Plaintiff initially identified two of his informants as his attorney Harry E. Weiss and a Mir. Lee Rogers, but refused to divulge the names of the others until ordered to do so by the court. In his “further answer” to interrogatories, plaintiff states that the following people told him that defendants Moskovitz and Novak made the alleged defamatory remarks about him: Lillian Kazluckas, Mary Petibone, Edward Napoli, Richard White, Stewart White, Sam Greenfield, Stanley Silverman and Dudley Clements.

On September 3, 1965, defendants filed a notice of motion for a summary judgment under Code of Civil Procedure section 437c. The motion was supported by the declaration of defendant Novak and the deposition of defendant Moskovitz, both of whom denied having uttered the defamatory statements, the declarations of Mary M. Pettibone, Ed. Napoli

[516]

Richard S. White, Stuart E. White, Stanley I. Silverman and Samuel Greenfield, all of whom denied having heard any such statements, and the declaration of defendants’ attorney which set forth the admissions theretofore made by plaintiff that he had no personal knowledge of such statements.

Plaintiff filed his own declaration in opposition to the motion, in which he reaffirmed his belief that the statements had been made even though he had not been present.

Swope v. Moskovitz

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FILES, P. J.

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