Gill v. Epstein

• Decision Date: 21 April 1965
• Docket Number: No. L,L
• Citation: 62 Cal.2d 611,44 Cal.Rptr. 45,401 P.2d 397
• Court: California Supreme Court
• Parties: , 401 P.2d 397 Ed Rolland GILL, Plaintiff and Appellant, v. Justin A. EPSTEIN et al., Defendants and Appellants. A. 28279

Page 45

44 Cal.Rptr. 45

62 Cal.2d 611, 401 P.2d 397

Ed Rolland GILL, Plaintiff and Appellant, v. Justin A. EPSTEIN et al., Defendants and Appellants.

No. L. A. 28279.

Supreme Court of California

April 21, 1965.

Lippold, Cross, McCartin & Hall and Christopher Hall, Costa Mesa, for plaintiff and appellant.

Tully H. Seymour and Walter W. Charamza, City Attys., Newport Beach, for defendants and appellants.

McCOMB, Justice.

Defendants Justin A. Epstein, Samuel Amburgey, John Burns, and Allen L. Johnson, police officers of the City of Newport Beach, appeal from an order granting a new trial and cross-appeal from a judgment entered pursuant to a jury verdict in favor of plaintiff. Plaintiff appeals from the order granting a new trial and cross-appeals from the judgment.

Facts: On September 25, 1961, it was discovered that a cash box had been stolen from an elementary school in Newport Beach. Plaintiff was employed as a janitor at the school, and was one of seven persons having a master key to the place where the cash box had been kept.

On October 4, defendant police officers arrested plaintiff without a warrant on 'suspicion' of committing theft. The officers then questioned plaintiff and searched his house, garage, and car, but found no evidence connecting him with the crime. At the request of the officers, however, plaintiff consented to submit to a 'lie-detector' After four tests on October 4, certain of plaintiff's responses were 'interpreted' by the polygraph operator as 'showing deception.'

The same day plaintiff was interviewed in jail by a Dr. Benton. Plaintiff believed he was to be given a dose of sodium pentothal, a so-called 'truth serum,' but Dr. Benton instead administered sodium amytal, which is not a 'truth serum' at all but which causes hallucinations in the patient for four or five hours. After an interview conducted under such circumstances, Dr. Benton concluded that plaintiff 'could not be excluded' from consideration as the guilty person. Plaintiff was thereafter interrogated for several more hours and on October 5 was given another 'lie-detector' test.

On October 6 at 9 a. m. plaintiff was taken to the district attorney's office, where he was further questioned, and a criminal complaint for theft was drawn up against him. About 1:30 p. m. that day, plaintiff was arraigned in municipal court and then returned to jail. He remained in jail until the preliminary hearing five days later, at which time the case against him was dismissed by the court on motion of the district attorney.

Plaintiff brought this action for false arrest and false imprisonment against the city and the four police officers who handled his case. The first cause of action charged unlawful arrest without probable cause and imprisonment for eight days; the second cause of action charged unnecessary and unreasonable delay in taking plaintiff before a magistrate.

After a judgment of dismissal was entered as to defendant city on sustaining a demurrer, the case went to trial against the four individual defendants. At the close of the evidence, the court determined as a matter of law that there was no probable cause for the arrest and that the delay in taking plaintiff before a magistrate was unnecessary and unreasonable; accordingly, only the matter of damages was submitted to the jury.

A verdict was returned awarding plaintiff $16,000 in general and special compensatory damages, no punitive damages, and $390 in compensatory damages for the delay in taking him before a magistrate.

Defendants moved for a new trial on the issues of probable cause for the arrest, reasonableness of the delay in taking plaintiff before a magistrate, and the amount of the general and special damages. The motion was made on all the statutory grounds (Code Civ.Proc. § 657) except surprise and newly discovered evidence.

After hearing on September 13, 1962, the trial court by minute order ruled that 'the defendant's motion for a new trial as to the judgment upon both Counts be and it is granted unless, within a period of ten (10) days from the date of this order, plaintiff shall file with the Clerk his consent to a remission, in respect of the first count, of the amount of the judgment in excess of $7,610.00.'

Plaintiff's counsel thereupon informed the court by letter that they were 'unable to determine whether a new trial will be ordered in its entirety or whether the Court will only order a new trial on the issue of damages,' and requested a clarification to enable them to decide whether to accept the remission or not.

In response, the court on September 20 (i. e., within the period allowed to plaintiff to accept the remission) made a further order declaring that the conditional order of September 13 'is corrected and modified, nunc pro tunc, by adding on Page 3 after the end of the last sentence the following sentence. If said motion for new trial be granted as aforesaid it is ordered that the new trial thereupon ordered be limited to the issue or issues of damages only.'

Questions: First. Did the trial court err in making its order of September 20 modifying nunc pro tunc its previous order of September 13 granting a motion for a new trial on certain conditions?

No. It is contended that the supplementary order of September 20 was a nullity, because it was 'a complete change and not a clerical change.' It appears, however, that the error was clerical.

These rules are here applicable:

(1) Independent of statute, a trial court has power to correct mistakes and to annul orders and judgments inadvertently or improvidently made. A trial court has power to vacate judgments and orders inadvertently made which are not actually the result of the exercise of judgment. It has no power, however, having once made its decision after reular submission, to set aside or amend judicial errors except under appropriate statutory proceedings. (Estate of Doane, 62 A.C. 55, 58(2), 41 Cal.Rptr. 165, 396 P.2d 581.)

(2) In determining whether an error is clerical or judicial, great weight should be placed on the declaration of the judge as to his intention in signing the order. (Estate of Doane, supra, at p. 58(3), 41 Cal.Rptr. 165, 396 P.2d 581.)

(3) The distinction between a clerical error and a judicial error does not depend so much on the person making it as it does no whether it was the deliberate result of judicial reasoning and determination. (Estate of Doane, supra, at p. 58(4), 41 Cal.Rptr. 165, 396 P.2d 581.)

Applying the foregoing rules to the facts in the instant case, it is apparent that the error in the original order of September 13 was clerical, since the record discloses that in granting the conditional order of new trial on September 13, the court intended to limit such trial to the issue of damages.

The question of liability was decided not by the jury but by the court, which determined it favorably to plaintiff as a matter of law.

All indications are that the trial judge thereafter remained steadfast in his ruling on this issue. The very form of the conditional order predicated, as it was, on a remission by plaintiff of a certain amount of the damages awarded implies that the question of liability was deemed to be settled. This implication is strengthened by the memorandum opinion filed simultaneously with the conditional order, in which the court continues to speak of plaintiff's 'unlawful arrest and excessive detention.'

Further, at the time of the hearing held in the trial court in connection with the supplementary order of September 20, counsel for defendants recognized that the sole outstanding issue was the proper amount of damages and that in its original order of September 13 the court 'decided that there would be no new trial on the issue of liability.'

The trial judge agreed, explaining, 'when I made the order of September 20th, even though I am willing to confess it isn't perfectly clear, I had in mind awarding the new trial on both of the issues, the punitive (damages) issue and the issue of general damages.'

Here, as in Theriot v....