City of Los Angeles v. Superior Court

Decision Date27 September 1978
Citation85 Cal.App.3d 143,149 Cal.Rptr. 320
CourtCalifornia Court of Appeals Court of Appeals
PartiesCITY OF LOS ANGELES and Frank Gravante, Petitioners, v. SUPERIOR COURT of the State of California, FOR the COUNTY OF LOS ANGELES, Respondent; Louis F. LEVY, Real Party in Interest. Louis F. LEVY, Plaintiff and Appellant, v. COUNTY OF LOS ANGELES, Harold J. Ostly, Philip E. Watson, John L. Coplen, Gerald P. Vacchio, Irwin Zlotnik, Duane Ballard, W. Starr, Defendants and Respondents. Civ. 48770, 50055.
Burt Pines, City Atty., John T. Neville, Asst. City Atty. and Arthur D. Rutledge, Deputy City Atty., for petitioners

Aaron L. Lincoff, Los Angeles, for real party in interest and appellant.

John H. Larson, County Counsel, and Frederick R. Bennett, Deputy County Counsel, Los Angeles, for respondents.

KAUS, Presiding Justice.

Plaintiff, appellant and real party in interest, Louis F. Levy, filed an action against the City and County of Los Angeles and certain of their employees, seeking damages for the seizure, withholding and loss of personal property. All defendants moved for summary judgment, urging that the action was barred by earlier proceedings, state and federal. The motion filed on behalf of the County and its employees was granted and Levy's appeal from the ensuing judgment is one of the matters before us. The motion of the City and its employees was denied. This ruling was protested by them in a petition for a writ of mandate. We issued an alternative writ and the question whether a peremptory writ should be granted is the other matter dealt with in this opinion.

FACTS
The Present ("Second State") Action Levy III

The complaint names as defendants the City of Los Angeles and Frank Gravante, a sergeant in the Los Angeles Police Department, the County of Los Angeles and a pride of county officials, such as its tax collector, tax assessor, county counsel, and some of their deputies, and alleges:

Levy's problems with the various defendants started on August 19, 1970, when Gravante made the first of three illegal arrests of Levy; the two others followed on August 25 and September 1, 1970. On each occasion Gravante seized personal property "consisting generally of jewelry, precious medals, items of a personal coin collection and other personal effects." The properties so seized remained in possession of the City of Los Angeles until July 31, 1973, when they were returned to Levy; however, certain "key coins" worth $25,000 were missing. Levy's loss of use on the property that was returned by the City was $14,875. 1

On September 3, 1970, Gravante informed certain county officials that Levy had more, similar personal property at his Beverly Hills home, that the property had been obtained by Levy "by improper and unlawful means" and that it was "being secreted and concealed" by Levy for the purpose of "evading the payment of unsecured personal property taxes . . . " This information was knowingly false. Nevertheless, on September 14, 1970, certain county officials caused more of Levy's personal property to be seized and taken away from his home "and to be the subject of escape assessments for alleged unpaid unsecured personal property taxes for the fiscal years 1965 through 1970, . . . " 2

On November 4, 1970, Levy filed an action ("Levy I") in which he sought an injunction enjoining the County from selling the personal property seized by it for nonpayment of unsecured property taxes and a The complaint also pleads that the various arrests, seizures and proceedings described humiliated and embarrassed Levy and caused him to suffer severe emotional and mental distress. He therefore seeks punitive and exemplary damages against all individual defendants in the sum of $100,000. Nowhere, however, does he demand compensatory damages for these personal slights and mortifications. 4

declaration that the personal property involved was exempt from taxation. In May, 1973, the superior court rendered judgment against the County, ordering that all personal property seized from Levy be returned. On August 1 and 2, the County purported to return all of the property that it had seized, but failed to return certain items worth $250,000. In addition Levy suffered a loss of use of $81,667 on the property the County did return. 3

The Federal Civil Rights Action Levy II

This action, brought under the Civil Rights Act (42 U.S.C. § 1983) was filed on August 17, 1973. Suitably decorated as a civil rights complaint, 5 it pleads, in the main, the facts later alleged in Levy III. 6 Neither the City nor the County, the two public agencies before us, was named as a defendant. Under the law as it was thought to be at the time (Moor v. County of Alameda (1973) 411 U.S. 693, 715, 93 S.Ct. 1785, 36 L.Ed.2d 596; Monroe v. Pape (1961) 365 U.S. 167, 187-192, 81 S.Ct. 473, 5 L.Ed.2d 492) any attempt to name either entity would have been quixotic. 7

After a long trial Levy II went to a jury. Verdicts in favor of all defendants were returned and the judgments entered thereon became final.

The First State Action Levy I

While both the County's and the City's motions for summary judgment rely on Levy II, the County has another string to its bow: the 1970 state action, referred to in the present complaint, which resulted in total triumph for Levy. In brief, on May 31, 1973, there was entered a judgment Although, as noted, Levy contends that the County failed to return $250,000 worth of property, no proceedings with respect thereto were commenced in the first state action.

against the County in which it was (1) permanently enjoined from "selling, transferring, conveying or in any other manner disposing of" plaintiff's personal property; (2) ordered and directed to return plaintiff's property to him; and (3) ordered to release the "hold" on [85 Cal.App.3d 149] plaintiff's property that was physically in possession of the Los Angeles Police Department. In the judgment the court further ordered that it would retain jurisdiction over the "issue of compliance or noncompliance" with the key provisions of the judgment and any such "matter and issue may be reset for hearing on the merits before this Court, on motion of the Court of either of the parties hereto, and upon due notice of the time and place thereof being given to the other party."

Additional facts will be related where appropriate.

DISCUSSION
I

Both the City and County urge that Levy is estopped from pursuing the present action against either of them or their employees because the "conversion action was actually litigated and determined adversely to (Levy)" by the jury in Levy II, the federal civil rights action.

The plain fact is that we have no way of telling just what the jury in that action determined. Conversion is a species of strict liability in which questions of good faith, lack of knowledge and motive are ordinarily immaterial. (Henderson v. Security Nat. Bank (1977) 72 Cal.App.3d 764, 770-771, 140 Cal.Rptr. 388.) Yet the federal civil rights jury was instructed that a prerequisite to a verdict for plaintiff was a finding that the "defendant knew or reasonably should have known that the action he took would violate the constitutional rights of the plaintiff, or that he took the action with malicious intention to cause a deprivation of constitutional rights or other injury to the plaintiff." 8 Thus, the general verdict in the civil rights action could have been based solely on a finding that plaintiff had not proved the requisite knowledge or intent to violate his civil rights, a finding wholly independent of the issue of conversion. Since we cannot determine from the face of the record in the federal action that the question of conversion was necessarily decided by the jury, the verdict in that case does not bar the present action by way of collateral estoppel. (See Horton v. Goodenough (1920) 184 Cal. 451, 460, 194 P. 34; Davies v. Krasna (1970) 12 Cal.App.3d 1049, 1054, 91 Cal.Rptr. 250.)

II

More complex but determinative of the proceedings before us is the claim that Levy III is barred by Levy II because by pursuing Levy III, Levy is attempting to split a single cause of action and make it the basis of several suits a practice prohibited whether the first suit is still pending (e. g., Wulfjen v. Dolton (1944) 24 Cal.2d 891, 894-895, 151 P.2d 846) or has been disposed of. (E. g., Slater v. Blackwood (1975) 15 Cal.3d 791, 795, 126 Cal.Rptr. 225, 543 P.2d 593; see generally 3 Witkin, Cal. Procedure (2d ed. 1971) "Pleading" § 32, pp. 1715-1717.) 9

Before we reach the question whether the conversion counts pursued in Levy III form part of the cause of action submitted to the court in Levy II, we should discuss whether it matters that Levy II was a federal action, based on a federal statute, brought in a federal court.

There are at least three separate reasons for ignoring the state-federal distinction. First: if the facts alleged in Levy II and Levy III derived "from a common nucleus of operative fact . . ." (United Mine Workers v. Gibbs (1966) 383 U.S. 715, 725, 86 S.Ct. 1130, 1138, 16 L.Ed.2d 218), the conversion counts could have been tried in the United States District Court under that court's "pendent jurisdiction." The "common nucleus" requirement is obviously satisfied here. 10 Second: no one compelled Levy to file his civil rights action in the federal court. He could have sued in the state court (Williams v. Horvath (1976) 16 Cal.3d 834, 837, 129 Cal.Rptr. 453, 548 P.2d 1125), where his power to join the conversion counts with his civil rights grievances would have been unquestioned. (Code Civ.Proc., § 427.10.) Third: it appears to be the law that a litigant cannot avoid the impact of the rule against splitting causes of action by choosing for his first foray a tribunal of limited jurisdiction. (Rest., Judgments, § 62, com. j; cf., Zirker v. Hughes (1888) 77 Cal. 235, 19 P. 423.)

In any event, it is clear that the rule against splitting...

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