Graham v. City of Biggs

• Decision Date: 23 August 1979
• Citation: 157 Cal.Rptr. 761,96 Cal.App.3d 250
• Court: California Court of Appeals Court of Appeals
• Parties: Irene GRAHAM, Plaintiff and Appellant, v. CITY OF BIGGS, Dan Tiffee, Michael Long, Ben L. Pruden, Eunice Smith, William Callaway, William Carson, and Roy Turner, Defendants and Respondents. Civ. 18027.

Page 761

157 Cal.Rptr. 761

96 Cal.App.3d 250

Irene GRAHAM, Plaintiff and Appellant, v. CITY OF BIGGS, Dan Tiffee, Michael Long, Ben L. Pruden, Eunice Smith, William Callaway, William Carson, and Roy Turner, Defendants and Respondents.

Civ. 18027.

Court of Appeal, Third District, California.

Aug. 23, 1979.

Jordan N. Peckham, Chico, for plaintiff and appellant.

Leonard & Lyde, Raymond A. Leonard, Oroville, for defendants and respondents.

PARAS, Associate Justice.

Plaintiff appeals the dismissal of her seconded amended complaint after defendants' demurrers were sustained without leave to amend.

For purposes of appeal we treat the allegations in the complaint as true. (Haggerty v. County of Kings (1953) 117 Cal.App.2d 470, 478, 256 P.2d 393.) They show the following. Plaintiff was raped in her car on March 14, 1977, in Biggs, a community in Butte County. She reported the rape and the identity of the rapist to Officer Michael Long of the Biggs police, who in turn reported it to Chief of Police Dan Tiffee. Although she was in physical pain and emotional distress, Long refused to drive her to the hospital, thereafter compelled her to wait at the hospital for the examining physician to complete his report, then caused her to drive herself home despite the fact that the doctor had given her valium. She was later caused to pay for the examination.

Tiffee refused to come to the assistance of Long, who called him twice during the evening with requests for help. Tiffee and Police Commissioner Ben L. Pruden (who is also the Mayor of Biggs and a member of the city council) refused to order the questioning of three men who were overheard discussing the rape the same evening. Plaintiff's car was never examined for evidence; nor was the man she identified as the rapist located or questioned. Her complaint to the Biggs City Council elicited a written reply containing factual inaccuracies and implying that she had not been raped. She then filed a claim with the city which was denied by the city council.

The complaint alleges generally that the defendants acted in concert in the performance (or lack thereof) of their official duties, to deny plaintiff due process, equal protection, and the privileges and immunities of citizenship; and that all the acts and omissions were the result of implementation of the policies of the defendant city. Plaintiff alleges she suffers emotional distress, fear of going to public places in Biggs, gross injury to her reputation, and other injury and damage.

The issue presented to us is whether plaintiff's complaint states a cause of action against the Biggs police (defendants Long, Tiffee and Pruden), city officials and councilmen (defendants Pruden, Eunice Smith, William Callaway, William Carson and Roy Turner), and the city itself. The specific question is whether the action is barred as to any or all the defendants by the immunity provisions of California Tort Claims Act (Gov.Code, tit. 1, div. 3.6). We hold the allegations of the complaint sufficient to state a cause of action for violation of the federal Civil Rights Act of 1871, specifically 42 United States Code sections 1983, 1985, subdivision (3), and 1986, by each of the named defendants. ¹

The 1871 Act, also known as the Ku Klux Act (Monroe v. Pape (1961) 365 U.S. 167, 171, 81 S.Ct. 473, 476-77, 5 L.Ed.2d 492, 496), was enacted in response to President Grant's urgent request that Congress pass legislation to "effectually secure life, liberty, and property, and the enforcement of law in all parts of the United States. . . ." (Quoted in Monroe v. Pape, supra, 365 U.S. at p. 173, 81 S.Ct. at p. 476, 5 L.Ed.2d at p. 497.) The momentum behind the bill was supplied by the failure of certain states to enforce the laws even-handedly. "Vigorously enough are the laws enforced against Union people. They only fail in efficiency when a man of known Union sentiments, white or black, invokes their aid. Then Justice closes the door of her temples." (Senator Pratt of Indiana during the debates. Quoted in Monroe v. Pape, supra, 365 U.S. at p. 178, 81 S.Ct. at 479, 5 L.Ed.2d at p. 500.)

Defendants' failure to enforce the law equally is exactly what plaintiff alleges. Unless barred by the Tort Claims Act, her complaint states a classic cause of action for violation of civil rights. Omissions as well as affirmative acts by the police are actionable under 42 United States Code section 1983 (Azar v. Conley (6th Cir. 1972) 456 F.2d 1382, 1387); the same has become true as to municipalities, which are now to be treated as "persons" within the meaning of section 1983 (Monell v. New York City Dept. of Soc. Serv. (1978) 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611). Specific intent to deprive plaintiff of her constitutional rights is not required. (Monroe v. Pape, supra, 365 U.S. at p. 187, 81 S.Ct. at 484, 5 L.Ed.2d at p. 505.) The allegations of defendants' actions pursuant to a city policy of nonenforcement of the rape law by cursory investigation contain the necessary "invidiously discriminatory animus" to support a section 1985, subdivision (3), conspiracy action and a section 1986 action for refusal to prevent. (Griffin v. Breckenridge (1971), 403 U.S. 88, 91 S.Ct. 1790, 29 L.Ed.2d 338; Azar v. Conley, supra.) ² Also, contrary to defendants' contention, the complaint contains sufficient factual allegations to support a cause of action. ³ (Code Civ.Proc., § 452.)

We turn now to the immunity issue. The short answer to defendants' contention that sections of the Tort Claims Act (e. g. Gov.Code, §§ 818.2, 820.4) ⁴ bar plaintiff's suit is the one given by the United States Supreme Court in Monell, supra, 436 U.S. at page 695, fn. 59, 98 S.Ct. at 2038 fn. 59, 56 L.Ed.2d at p. 638, fn. 59: "This has never been the law." Our own Supreme Court has held the supremacy clause of the United States Constitution (U.S.Const., art. VI, cl. 2), precludes the application of the claim filing requirements of the Tort Claims Act in a 42 United States Code section 1983 action against police officers. (Williams v. Horvath (1976) 16 Cal.3d 834, 842, 129 Cal.Rptr. 453, 548 P.2d 1125.) The general principle is found in a Williams court quotation:

"While it may be completely appropriate for California to condition rights which grow out of local law and which are related to waivers of the sovereign immunity of the state and its public entities, California may not impair federally created rights or impose conditions upon them." (Willis v. Reddin (9th Cir. 1969) 418 F.2d 702, 704-705; see also Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 152 Cal.Rptr. 65.)

The judgment is reversed.

REGAN, Acting P. J., and REYNOSO, J., concur.

1 42 United States Code section 1983: "Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress."

42 United States Code section 1985, subdivision (3): "If two or more persons in any State or...