D'Alessandro v. Pickford

BARNARD, P. J. This is an action for malicious prosecution. A motion for a nonsuit was granted and the plaintiff has appealed from the judgment.

The appellant, having a written lease, operated a barber shop and beauty parlor in a building owned by the respondent. The respondent held two chattel mortgages on the equipment used in this business, which had been given by the appellant on separate occasions as security for unpaid rent and money loaned. Thereafter, on March 2, 1934, the respondent brought suit in a justice’s court for $460 for unpaid rent which had subsequently accrued. In pursuance of a writ of attachment an officer took technical charge of the equipment, remaining in the shop for some five days, although the appellant was allowed to continue his business and even the money in the cash register was not interfered with. On March 7, 1934, as a result of a written agreement entered into between the appellant and the respondent, the attachment was withdrawn and on March 10th the suit was dismissed. This action followed, the appellant modestly asking for damages in the sum of $64,000.

Some contention is made that the respondent failed to specify clearly any grounds in his motion for a nonsuit [241]and that the court committed prejudicial error in failing to give to the appellant an opportunity to remedy any defects in his proof. Not only does the motion, which appears in the record, fully and specifically set forth the grounds on which it is based, but the rule relied on by the appellant has no application where the motion for a nonsuit was granted. (Anchester v. Keck, 214 Cal. 207 [4 Pac. (2d) 934].) No request for permission to supply additional evidence was made and no intimation was given, even on the motion for a new trial, that such evidence was available.

The appellant’s main point is that want of probable cause conclusively appears in that the attachment was based upon a false affidavit. It is argued that the respondent had a lien for his rent under a clause of the lease which read:

“That it is mutually agreed by and between the parties to this agreement the Party of the Second Part may at any time remove from the premises herein above described all of the personal property by him installed, at his own expense, if rent is paid in full.”

The court correctly held that this provision did not constitute a lien within the meaning of section 537 of the Code of Civil Procedure. (Porter v. Brooks, 35 Cal. 199; Graham, v. Annis, 28 Cal. App. 754 [153 Pac. 981] ; Marshall v. Luiz, 115 Cal. 622 [47 Pac. 597] ; Ferguson v. Murphy, 117 Cal. 134 [48 Pac. 1018].) There was no dispute in the evidence with respect to the matter of probable cause, and the question was one of law for the court. (Collyer v. S. H. Kress & Co., 5 Cal. (2d) 175 [54 Pac. (2d) 20] ; Pacific Nat. Co. v. Southwest Fin. Co., 4 Cal. App. (2d) 326 [40 Pac. (2d) 862].)