Barry v. Rodgers

CourtCalifornia Court of Appeals
Writing for the CourtFOX; MOORE, P. J., and ASHBURN
Citation141 Cal.App.2d 340,296 P.2d 898
Decision Date07 May 1956
PartiesMilo BARRY, Plaintiff and Appellant, v. Willard K. RODGERS et al., Defendants, Sam Portelli and Lillian Portelli, Respondents. Civ. 21556.

Page 898

296 P.2d 898
141 Cal.App.2d 340
Milo BARRY, Plaintiff and Appellant,
v.
Willard K. RODGERS et al., Defendants, Sam Portelli and Lillian Portelli, Respondents.
Civ. 21556.
District Court of Appeal, Second District, Division 2, California.
May 7, 1956.

Page 899

[141 Cal.App.2d 341] Milo Barry, in pro. per.

Raymond R. Roberts, Van Nuys, for respondents.

FOX, Justice.

Plaintiff appeals from a summary judgment in favor of defendants Sam Portelli and Lillian Portelli.

By his amended complaint plaintiff seeks to recover damages from Willard K. Rodgers, Sam Portelli, Lillian Portelli and others, for false arrest, false imprisonment and malicious prosecution. His asserted causes of action grow out of the fact that in December, 1953, defendant Rodgers swore to a criminal complaint charging plaintiff with perjury. Plaintiff was thereupon arrested, arraigned, and, upon a preliminary hearing, was held to answer in the superior court. The charges against him, however, were later dismissed. Plaintiff alleges that the Portellis had a part in this unhappy experience. The Portellis filed an amended answer denying plaintiff's allegations insofar as they related to them.

Thereafter the Portellis filed a notice of motion for summary judgment, supporting the same with their respective affidavits, which are identical except in one particular

Page 900

which will be later noted. These affidavits disclose that in 1951 Mr. and Mrs. Portelli rented a restaurant from Rocky Ybarra; that Milo Barry, plaintiff herein, prepared the lease; that in 1952 a civil action was instituted by Barry against defendant Rodgers and his wife, Rachael; that the matter before the court related to payment under a lease covering the identical restaurant premises. Mrs. Portelli's affidavit states that she was served with a subpoena requiring her to testify at the [141 Cal.App.2d 342] trial of said action; that she was called as a witness and testified as to the date that she and her husband took possession of the restaurant and as to the rent they paid. It does not appear from Mr. Portelli's affidavit that he was subpoenaed as a witness or testified.

Thereafter it appears from the affidavits of both Mr. and Mrs. Portelli that they were subpoenaed by the Los Angeles Police Department as witnesses on behalf of the People in a criminal proceeding entitled The People v. Milo Barry; that at said criminal trial they each testified as to the date they took possession of the restaurant and as to the rent they paid. Each of them denied ever...

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15 practice notes
  • Whitney's At for Beach v. Superior Court
    • United States
    • California Court of Appeals
    • January 6, 1970
    ...24, 28--29, 2 Cal.Rptr. 634; Wuelzer v. City of Oakland (1959) 170 Cal.App.2d 337, 339, 338 P.2d 912; Barry v. Rodgers (1956) 141 Cal.App.2d 340, 342, 296 P.2d 898; and Cone v. Union Oil Co. (1954) 129 Cal.App.2d 558, 562, 277 P.2d In Stationers Corp. v. Dun & Bradstreet, Inc. (1965), 62 Ca......
  • Swartzendruber v. City of San Diego, No. D013461
    • United States
    • California Court of Appeals
    • February 20, 1992
    ...398 P.2d 785] ) ... the purpose of a summary judgment 'is to expedite litigation by avoiding needless trials' (Barry v. Rodgers (1956) 141 Cal.App.2d 340, 342 [296 P.2d 898] )." (Burton v. Security Pacific Nat. Bank (1988) 197 Cal.App.3d 972, 976-977, 243 Cal.Rptr. 277.) The moving party ha......
  • Parker v. Twentieth Century-Fox Film Corp., CENTURY-FOX
    • United States
    • United States State Supreme Court (California)
    • September 30, 1970
    ...218 Cal.App.2d 711, 715, 32 Cal.Rptr. 682; Hatch v. Bush (1963) 215 Cal.App.2d 692, 707, 30 Cal.Rptr. 397; Barry v. Rodgers (1956) 141 Cal.App.2d 340, 342, 296 P.2d In view of the determination that defendant failed to present any facts showing the existence of a factual issue with respect ......
  • Burton v. Security Pacific Nat. Bank
    • United States
    • California Court of Appeals
    • January 19, 1988
    ...P.2d 1121); however, the purpose of a summary judgment "is to expedite litigation by avoiding needless trials" (Barry v. Rodgers (1956) 141 Cal.App.2d 340, 342, 296 P.2d 898). If there are no triable issues, summary judgment is appropriate. We find the court was correct in finding that appe......
  • Request a trial to view additional results
15 cases
  • Whitney's At for Beach v. Superior Court
    • United States
    • California Court of Appeals
    • January 6, 1970
    ...24, 28--29, 2 Cal.Rptr. 634; Wuelzer v. City of Oakland (1959) 170 Cal.App.2d 337, 339, 338 P.2d 912; Barry v. Rodgers (1956) 141 Cal.App.2d 340, 342, 296 P.2d 898; and Cone v. Union Oil Co. (1954) 129 Cal.App.2d 558, 562, 277 P.2d In Stationers Corp. v. Dun & Bradstreet, Inc. (1965), 62 Ca......
  • Swartzendruber v. City of San Diego, No. D013461
    • United States
    • California Court of Appeals
    • February 20, 1992
    ...398 P.2d 785] ) ... the purpose of a summary judgment 'is to expedite litigation by avoiding needless trials' (Barry v. Rodgers (1956) 141 Cal.App.2d 340, 342 [296 P.2d 898] )." (Burton v. Security Pacific Nat. Bank (1988) 197 Cal.App.3d 972, 976-977, 243 Cal.Rptr. 277.) The moving party ha......
  • Parker v. Twentieth Century-Fox Film Corp., CENTURY-FOX
    • United States
    • United States State Supreme Court (California)
    • September 30, 1970
    ...218 Cal.App.2d 711, 715, 32 Cal.Rptr. 682; Hatch v. Bush (1963) 215 Cal.App.2d 692, 707, 30 Cal.Rptr. 397; Barry v. Rodgers (1956) 141 Cal.App.2d 340, 342, 296 P.2d In view of the determination that defendant failed to present any facts showing the existence of a factual issue with respect ......
  • Burton v. Security Pacific Nat. Bank
    • United States
    • California Court of Appeals
    • January 19, 1988
    ...P.2d 1121); however, the purpose of a summary judgment "is to expedite litigation by avoiding needless trials" (Barry v. Rodgers (1956) 141 Cal.App.2d 340, 342, 296 P.2d 898). If there are no triable issues, summary judgment is appropriate. We find the court was correct in finding that appe......
  • Request a trial to view additional results

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