Cowing v. City of Torrance

• Decision Date: 05 August 1976
• Citation: 60 Cal.App.3d 757,131 Cal.Rptr. 830
• Court: California Court of Appeals Court of Appeals
• Parties: , 87 A.L.R.3d 137 Virgil COWING, Plaintiff and Appellant, v. CITY OF TORRANCE, a Municipal Corporation, Defendant and Respondent. Civ. 47002.

Page 830

131 Cal.Rptr. 830

60 Cal.App.3d 757, 87 A.L.R.3d 137

Virgil COWING, Plaintiff and Appellant, v. CITY OF TORRANCE, a Municipal Corporation, Defendant and Respondent.

Civ. 47002.

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

Aug. 5, 1976.

Hearing Denied Oct. 21, 1976.

David Daar, Michael R. Newman, Los Angeles, for plaintiff and appellant.

Buck & Smith by Mark D. Rutter, Long Beach, for defendant and respondent.

BEACH, Associate Justice.

Plaintiff Cowing appeals from a summary judgment in favor of City of Torrance.

Appellant's complaint alleged that a City License Inspector for the City of Torrance unlawfully, surreptitiously, without the consent of the appellant or the appellant's manager, through the use of skeleton keys and without color of law or authority of law, forcefully entered the premises of the appellant through a locked door. The purported purpose was for inspecting some vending machines on the premises of appellant's property and for determining whether the appellant was in possession of the appropriate permit or license from the City of Torrance for said vending machines.

The City License Inspector gained entrance to appellant's premises by following a mail carrier who had a key to enter. The inspector did not possess or use a master key or any other key to gain entrance. The premises consist of an apartment complex with a recreation building within which were cigarette and soda pop vending machines and two pool tables, all coin-operated. The City ordinance requires a permit for the machines and pool tables. These machines and tables did not have the necessary permits.

The Torrance Municipal Code provides that the license inspector 'shall . . . have the authority . . . to enter free of charge, at any time, any place of business for which a license is required by this Division . . ..'

After the license inspector followed the mail carrier into the front entrance, he noticed the unlicensed vending machines. In addition to the mailman, each of the tenants in the apartment complex had a key to get through the main lobby door.

APPELLANT'S CONTENTIONS:

Appellant lists six separate contentions. Contentions numbered I, V and VI attack the summary judgment upon procedural and factual deficiencies and allege the existence of factual issues to resolve. Contentions numbered II, III and IV all are based generally upon the claimed violation of appellant's constitutional rights in that: the inspector had no search warrant (II); where a warrant is required no authority otherwise to enter can be expressly or impliedly given by law (III); and the entry and subsequent search and seizure were illegal (IV).

DISCUSSION:

We reject appellant's contentions and we affirm the judgment.

Appellant claims the existence of several unresolved issues of fact. There were no issues of fact remaining after the filing of the complaint and the affidavit in support of the motion. There is no question as to what kind of premises these were. The apartment complex was precisely that. It was an apartment and home to the approximately sixty individuals who live there. (Erwin v. City of San Diego (1952) 112 Cal.App.2d 213, 246 P.2d 105.) But it was also a business venture. There was no question that the building was in fact an apartment house building.

Whatever appellant desires to call the premises, whether it be an apartment house, hotel, or whatever, the operation of an apartment house is a business that may be taxed under the general authority granted to Municipal Corporations under State Law. (Clark v. City of San Pablo (1969) 270 Cal.App.2d 121, 126, 75 Cal.Rptr. 726, and authorities cited therein.) Here the license tax is with respect to vending machines and not with respect to the business of letting the property to tenants.

Supplying accommodations to lodgers is a business different from that of letting property to tenants. (Edwards v. City of Los Angeles (1941) 48 Cal.App.2d 62, 70, 119 P.2d 370; Clark v. City of San Pablo, supra, 270 Cal.App.2d at p. 126, 75 Cal.Rptr. 726.)

No fact need be decided as to whether or not the inspector made a demand for the exhibition of the license. Under the ordinance, the inspector is authorized to make a demand for the exhibition of a license, but it is not required that he make such demand. (Torrance Municipal Code section 31.3.9.) The fact that the inspector was or was not 'appointed a police officer' is also irrelevant because the authority to enter (if valid) is not predicated upon the status of the inspector as an appointed police officer but upon a separate provision (Paragraph 2) of section 31.3.9 of the Torrance Municipal Code.

Appellant's contention V is that the claim of ignorance by the City's agents as to the existence of any master key or skeleton key raises a question of credibility. That is entirely irrelevant. We may assume that the entry was without express permission of the owner-appellant herein. The operative and undisputed fact is that the inspector did enter. There is no dispute as to that. The real question herein is perhaps a two-part question: (a) Is the License Inspection Code giving the City Inspector the right to inspect, a valid constitutional exercise of the police power? and (b) Is the business of operating an apartment house containing vending machines that require licenses an act constituting implied consent or permission to enter to inspect the machines for licensing compliance? This issue also requires no further factual resolution at bench. There is no issue or question as to how the inspector gained entry. There is no issue as to the use of unnecessary physical force or any physical breaking to enter. At most, the act might be described as surreptitious. Inasmuch as there is no question of fact to be decided, appellant's contentions in parts I and II in this respect and in contention number VI that the declarations do not contain sufficient facts upon which a judgment may be based, are totally without merit.

There is no common law governmental tort liability in California; and except as otherwise provided by statute, there is no liability on the part of a public entity for any act or omission of itself, a public employee, or any other person. (Govt.Code, § 815, subd. (a); Datil v. City of Los Angeles (1968) 263 Cal.App.2d 655, 660, 69 Cal.Rptr. 788; Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 808, 75 Cal.Rptr. 240.)

Appellant presents to us no California authority holding a public entity charged with inspection or licensing liable for invading an individual's right of privacy or for conducting an unreasonable search and seizure.

Government Code section 821.8 provides in relevant part:

'A public employee is not liable for an injury arising out of his entry upon any property where such entry is expressly or impliedly authorized by law. . . .'

At bench the entry of the City Inspector was authorized by section 31.3.9(a) (2) of the Torrance Municipal Code which specifically conferred the authority upon the City Inspector to enter free of charge at any time, any place of business for which a license is required.

Appellant's position is that the provision of the Torrance Municipal Code authorizing the City Inspector's entry without a search warrant is unconstitutional and invalid. However, Government Code section 820.6 provides:

'If a public employee acts in good faith, without malice, and under the apparent authority of an enactment that is unconstitutional, invalid or inapplicable, he is not liable for an injury caused thereby except to the extent that he would have been liable had the enactment been constitutional, valid and applicable.'

As a matter of law appellant's right to privacy was not invaded and no unlawful search and seizure was conducted. There is no unlawful search and seizure unless the appellant had a reasonable expectation of privacy and that expectation was violated by an unreasonable governmental intrusion. (People v. Bradley (1969) 1 Cal.3d 80, 84, 81 Cal.Rptr. 457, 460 P.2d 129; Katz v. United States, 389 U.S. 347, 353, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).) Appellant claims that when the City Inspector followed the mailman through the main lobby entrance such entry constituted an unreasonable governmental intrusion in that appellant had a reasonable expectation of privacy by having the main lobby door equipped with a self-locking device such that the use of a key would be necessary to enter into the common areas of the apartment complex.

The coin-operated machines were located within a recreation building within the apartment complex and were in the plain view of any of the tenants who desired to use the recreation room; each of the tenants had his own key to get through the main lobby door. The mailman also had a key to get through the main lobby door. There is no claim that the City Inspector entered any individual private dwelling or house or apartment, merely that the City Inspector had entered the common entrance to the apartment complex through a normally locked front lobby door.

Appellant does not demonstrate a reasonable personal expectation of privacy inasmuch as tenants as well as a mailman had keys to the main lobby. Appellant is apparently attempting to assert an invasion of some collective but indefinite right of privacy of His tenants as the basis of the tort to him. However, the right of privacy is personal and there is no derivative right on which a civil cause of action may be based. (Coverstone v. Davies (1952) 38 Cal.2d 315, 323, 239 P.2d 876; Kelly v. Johnson Publishing Company (1958) 160 Cal.App.2d 718, 721, 325 P.2d 659; James v. Screen Gems, Inc. (1959) 174 Cal.App.2d 650, 653--654, 344 P.2d 799.)

The unlicensed vending machines were in plain view in a common area of the apartment complex. The issue in this case is whether the License...