433 F.2d 738 (9th Cir. 1970), 23622, Donovan v. Reinbold

Docket Nº:23622, 23671.
Citation:433 F.2d 738
Party Name:Michael Arthur DONOVAN, Plaintiff-Appellee, v. Earl REINBOLD and Harley Askew, Defendants-Appellants. Michael Arthur DONOVAN, Plaintiff-Appellant, v. Earl REINBOLD and Harley Askew et al., Defendants-Appellees.
Case Date:October 05, 1970
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 738

433 F.2d 738 (9th Cir. 1970)

Michael Arthur DONOVAN, Plaintiff-Appellee,


Earl REINBOLD and Harley Askew, Defendants-Appellants.

Michael Arthur DONOVAN, Plaintiff-Appellant,


Earl REINBOLD and Harley Askew et al., Defendants-Appellees.

Nos. 23622, 23671.

United States Court of Appeals, Ninth Circuit.

October 5, 1970

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[Copyrighted Material Omitted]

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Joseph A. Wheelock, Jr. (argued), Max L. Gillam, of Latham & Watkins, Los Angeles, Cal., for Earl Reinbold and Harvey Askew et al.

L. A. Newlan, Jr. (argued) of Newlan, Shapiro & Bailey, Los Angeles, Cal., for Michael Arthur Donovan.

Before KOELSCH and HUFSTEDLER, Circuit Judges, and THOMPSON, [a1] District Judge.

HUFSTEDLER, Circuit Judge:

Two municipal police officers, Chief Earl Reinbold and Lt. Harley L. Askew of the Santa Monica Police Department, appeal from a judgment awarding $5000 damages to plaintiff Donovan on his civil rights complaint against them. (42 U.S.C. § 1983.) The complaint, inter alia, charged that Reinbold and Askew, acting under color of state law, caused Donovan's loss of public employment as a lifeguard in retaliation for Donovan's exercising his First Amendment rights to express himself by authoring newspaper articles concerning activities on the Santa Monica beaches. 1

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Donovan cross-appeals from a judgment dismissing the same complaint against two other defendants, Robert G. Cockins and Robert D. Ogle, who were, respectively, City Attorney and Assistant City Attorney of Santa Monica. His complaint charged that Cockins and Ogle contributed to his loss of employment by advising Reinbold and Askew that a decision of the City's personnel board, holding Donovan's discharge unjustified, was not binding and further charging that that advice was motivated by Cockins' and Ogle's desire to punish him for writing the newspaper articles. The district court held, as a matter of law, that Cockins and Ogle were immune from liability under 42 U.S.C. § 1983. 2


Askew and Reinbold contend that: (1) Donovan's action was barred by limitations, (2) the evidence was insufficient to support the district court's finding that Donovan was discharged and not rehired because of his newspaper writing, (3) even if his writing were the cause of his loss of employment, at least part of the writings were outside constitutional protection and provided justification for a refusal to reinstate Donovan, (4) both defendants were immune from liability, and (5) the finding of damages was clearly erroneous.

Defendant police officers argue that the district court erred in holding that limitations did not bar Donovan's action against them in that: (1) the applicable limitations period is set by the California Tort Claims Act (Cal.Gov't Code § 810 et seq.), including the claims procedures explicated in sections 905, 911.2, 945.4, and 945.6 of the Government Code, with which Donovan did not comply; and, alternatively, (2) at least part of Donovan's claim was barred by the provisions of section 338(1) of the California Code of Civil Procedure.

In Smith v. Cremins (9th Cir. 1962) 308 F.2d 187, we held that the limitations statute applicable to a Civil Rights Act case arising in California and there being tried was section 338(1) of the California Code of Civil Procedure, limiting to three years the commencement of an action 'upon a liability created by statute.' Askew and Reinbold ask us to abandon Smith, because after that case was decided, California enacted the Tort Claims Act, the claims procedure and limitations provisions of which, they argue, should control. We reject their argument, disapprove Williams v. Townsend, 283 F.Supp. 580 (C.D.Cal.1968) sustaining their position, and adhere to Smith. (Accord, Willis v. Reddin (9th Cir. 1969) 418 F.2d 702.)

The California Tort Claims Act was the legislative response to the decision of the California Supreme Court in Muskopf v. Corning Hospital District (1961) 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457, abrogating common law governmental immunity from tort liability. That Act abolished all court declared and common law based forms of tort liability of public entities in the state, with some exceptions, and substituted therefor a statutory system of liability and immunity, together with a procedural scheme to enforce the system. The claims and limitations provisions are an integral part of that statutory scheme.

Reinbold and Askew argue that we should incorporate into the Civil Rights Act the limitations and claim provisions of the Tort Claims Act, instead of the limitation prescribed by section 338(1), because the causes of action to which the Tort Claims Act applies provide a closer analogy to a claim for relief under the Civil Rights Act than do the...

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