Beltram v. Appellate Department

• Decision Date: 01 February 1977
• Citation: 136 Cal.Rptr. 211,66 Cal.App.3d 711
• Court: California Court of Appeals Court of Appeals
• Parties: Nan BELTRAM et al., Petitioners, v. APPELLATE DEPARTMENT OF the SUPERIOR COURT of the State of California FOR LOS ANGELES COUNTY, Respondent; CITY OF LOS ANGELES and Vernon C. Dossey, Real Parties in Interest. Civ. 49509.

Page 211

136 Cal.Rptr. 211

66 Cal.App.3d 711

Nan BELTRAM et al., Petitioners, v. APPELLATE DEPARTMENT OF the SUPERIOR COURT of the State of California FOR LOS ANGELES COUNTY, Respondent CITY OF LOS ANGELES and Vernon C. Dossey, Real Parties in Interest.

Civ. 49509.

Court of Appeal, Second District, Division 2, California.

Feb. 1, 1977.

Hearing Denied March 31, 1977.

Hugh R. Manes, Hollywood, for petitioners.

Burt Pines, City Atty., John T. Neville, Asst. City Atty., Daniel U. Smith, Deputy City Atty., for real parties in interest.

No appearance by respondent.

Fred Okrand, Jill Jakes, Los Angeles, Mark D. Rosenbaum, Beverly Hills, Gary D. Sowards, Los Angeles, in amicus curiae for petitioners.

FLEMING, Acting Presiding Justice.

This proceeding in certiorari presents three questions. The first is whether a notice of appeal filed in the name of the City of Los Angeles includes a named defendant employee of the City. We conclude it does. The second involves the interpretation of Penal Code section 825 dealing with the right of a prisoner to see an attorney, and the penalty for refusing to allow an attorney to visit the prisoner when proper application has been made therefor. The third is whether the attorneys themselves have a cause of action under Penal Code section 825.

Petitioner Nan Beltram was arrested with two others (Pryor and Hertz, who are not involved in this proceeding) on 1 March 1972, for interfering with a meeting of the Board of Trustees of the Los Angeles Community College District. On 2 August 1972, Beltram, Pryor, and Hertz filed an action in the Municipal Court, Los Angeles Judicial District, which, among other things, alleged that plaintiffs had been deprived of their rights as guaranteed by Penal Code section 825. The City Attorney demanded an undertaking for costs pursuant to Government Code section 947(a). Beltram filed the undertaking 2 February 1973. The other two plaintiffs filed a dismissal 13 February 1973.

A separate action had also been filed in the municipal court by Ernest Aubry, and Robert Mundy, attorneys, alleging, among other things, they had been deprived of the right to visit their clients in violation of Penal Code section 825. Aubry and Mundy, who were representing petitioner in an action entitled Pryor, et al. v. Los Angeles Community College District, had been at the meeting when petitioner was arrested, and had followed her to Rampart Police Station.

The Aubry action (855951) was consolidated with the Beltram action (835201) by stipulation filed 2 October 1974. Both actions named the City of Los Angeles and Police Sergeant Vernon C. Dossey as defendants. A five-day jury trial resulted in verdicts against the City of Los Angeles and Vernon C. Dossey of $500 to Nan Beltram, $1,500 to Robert Mundy, and $1,000 to Ernest Aubry. The reason for the awards to the attorneys was that they each had more than one client at the time they were prevented from seeing their clients.

On 11 March 1975, defendant City of Los Angeles filed a timely motion for new trial or, in the alternative, for judgment notwithstanding the verdict. No such motion was filed for Sergeant Dossey. The motions were denied 9 April 1975. On 22 April 1975, the City of Los Angeles filed a timely notice of appeal to the Superior Court, Appellate Department. Notice of appeal was not, however, filed for Sergeant Dossey.

More than seven months after entry of judgment, the City of Los Angeles noticed a motion 'To Amend Notice of Appeal.' On 21 October 1975, the Appellate Department of the Superior Court granted the motion to amend the notice of appeal to add the name of Vernon C. Dossey.

An engrossed settled statement was filed 16 January 1976, and the Appellate Department ultimately filed its Memorandum Opinion and Judgment 12 July 1976, holding that since Nan Beltram had merely asked to see 'an attorney' and failed to specify such attorney by name, there was no violation of Penal Code section 825 either as to her or as to the attorneys.

I

We first consider the question whether the Appellate Department of the Superior Court exceeded its jurisdiction in permitting the name of the employee Vernon C. Dossey to be added to the City of Los Angeles' notice of appeal. The general rule is that although failure to file a notice of appeal is a jurisdictional defect that cannot be remedied, once a notice is filed it is to be construed liberally in favor of its sufficiency. (See Cal.Rules of Court 121(a) (cf. 1(a) to the same effect); discussion in 6 Witkin, Cal.Proc. (2d ed.) Pt. I, § 336, at 4315 (referring to the rule of liberal construction as a 'formidable array of authorities giving effect to all sorts of imperfect designations'). Among the cases which have permitted changes in the designation of parties in a notice of appeal, we note as particularly in point Boynton v. McKales (1956) 139 Cal.App.2d 777, 787--788, 294 P.2d 733, wherein plaintiff appealed an order that granted a new trial as to both the employer and the employee defendants. The notice of appeal referred only to the order granting a new trial for the employee. The court held the notice of appeal good for the employer as well, pointing out that the misdescription of the order in the notice of appeal could not possibly have prejudiced defendants since they must have understood that plaintiff would not appeal the new trial order as to the employee only. Likewise in Girard v. Monrovia City School Dist. (1953) 121 Cal.App.2d 737, 739, 264 P.2d 115, separate judgments had been entered in favor of each defendant, and plaintiff's notice of appeal referred to the judgment in favor of defendants and cited only one of such judgments; the court in the absence of any demonstrated prejudice to defendants construed the notice of appeal as referring to all defendants. The gist of the foregoing cases and many others cited in Witkin, Supra, is that the notice of appeal will be liberally construed unless respondent is prejudiced or misled by its defects.

In this case, the original notice of appeal named only the City of Los Angeles. Any liability of the City of Los Angeles to plaintiffs is wholly derivative from the liability of its employee, Vernon C. Dossey, under Penal Code section 825. The issues as to the City and its employee are identical. Therefore the inadvertent omission of the employee's name from the notice of appeal cannot have prejudiced or misled plaintiffs or in any way affected their preparation for the appeal.

The question is somewhat analogous to the rule that permits an amendment to a complaint after the Statute of Limitations has run to relate back to the original complaint, even though the cause of action may be changed (Austin v. Massachusetts Bonding & Ins. Co. (1961) 56 Cal.2d 596, 600, 15 Cal.Rptr. 817, 364 P.2d 681), or even entirely new parties added (Garrett v. Crown Coach Corp. (1968) 259 Cal.App.2d 647, 66 Cal.Rptr. 590), provided that the original and the amended complaint both relate to the same factual nexus. (See discussion in 3 Witkin, Cal.Proc. (2d ed.) Pleading, § 1080, pp. 2656--2658, § 1082, pp. 2661--2662.) With regard to both situations--the amendment of a complaint or the amendment of a notice of appeal--the courts adopt a rule of liberal construction in a situation where no one is misled or prejudiced, in order to further the policy of hearing legal disputes on their merits and avoid a windfall for one party as the result of another's technical procedural mistake. In accordance with the foregoing rules of construction we hold the notice of appeal good for both the City of Los Angeles and Vernon C. Dossey.

II

Turning next to the interpretation of Penal Code section 825, ¹ the record reflects that petitioner repeatedly demanded to see 'an attorney.' The Appellate Department was of the opinion that a request pursuant to Penal Code section 825 must designate a specific attorney by name. It was further of opinion that petitioner's action may have involved a violation of Penal Code section 851.5, ² but not of Penal Code section 825.

The question of the form in which an attorney is requested and the question who is 'the party aggrieved' under the statute are matters of first impression.

The City Attorney contends that petitioner had no right to see an attorney at Rampart Station because booking was not completed until after petitioner was transferred to Sybil Brand Institute for Women. That question has been dealt with in People v. Kingston (1963) 216 Cal.App.2d Supp. 879, 31 Cal.Rptr. 450. The statute does not require that booking be completed.

In the present case the facts are clear that shortly after petitioner arrived at the Rampart Station, the attorneys who were representing her in her original civil action against the Trustees of the Community College District were in the station, identified themselves, and asked to see their client, Beltram, while she was requesting to see 'an attorney.' It is a mere word game to say that petitioner can see a lawyer if she says 'I want to see Mr. Aubry, an attorney at law licensed to practice in the courts of record of California,' but cannot see a lawyer if she says 'I want to see an attorney,' when the facts indicate that there was no ambiguity as to what attorney was meant, and that the attorneys were physically present in the station at the time of the request and were attempting to see their clients. The Appellate Department's Memorandum Opinion expressed concern that it would be unfair to impose civil liability on a jailor for refusing to honor a 'generalized request...