Grudt v. City of Los Angeles
| Citation | 1 Cal.App.3d 529,81 Cal.Rptr. 821 |
| Court | California Court of Appeals Court of Appeals |
| Decision Date | 06 November 1969 |
| Parties | Delma GRUDT, Plaintiff and Appellant, v. CITY OF LOS ANGELES, Charles D. Kilgo, and William L. Rinehart, Defendants and Respondents. Civ. 32634. |
Belli, Ashe, Ellison, Choulos & Lieff, San Francisco, Irmas & Rutter, Beverly Hills, Irmas, Simke, Rutter, Green, Lasher & Hecht, Beverly Hills, Melvin M. Belli, San Francisco, S. M. Irmas, Jr., Beverly Hills, and Harvey A. Schneider, Pasadena, for plaintiff and appellant.
Roger Arnebergh, City Atty., John A. Daley, Asst. City Atty., and Arthur Y. Honda, Deputy City Atty., for defendants and respondents.
Plaintiff Delma Grudt appeals from the judgment entered upon a defense verdict in this action for the wrongful death of her late husband, John Grudt, which she instituted against the individual defendants, Charles D. Kilgo and William L. Rinehart, police officers, and their employer, the defendant of City of Los Angeles, a municipal corporation.
She has set forth six "specifications of errors," but only the following are pivotal to the disposition of this appeal: (1) prejudicial error in striking from plaintiff's first amended complaint her second cause of action premised upon the theory that defendant City of Los Angeles (hereinafter "City") was itself against negligent in retaining the defendant officers in its employ; (2) reversible error in (a) striking the issue of negligence grounded on the acts and omissions of the defendant police officers, Charles D. Kilgo (hereinafter "Kilgo") and William L. Rinehart (hereinafter "Rinehart"), and (b) striking from the evidence the police department tactical manual on "Use of Firearms" and all evidence pertaining thereto; and (3) prejudicial errors in permitting defendants to impeach plaintiff's witnesses on the basis of misdemeanor convictions, arrests, and statements of hostility toward the police on the theory that such evidence was probative of bias and prejudice of those witnesses against the parties defendant.
We have concluded that the specifications or assignment of error (1) lacks merit, (2) is well taken, and that (3) is meritorious in part only, for the reasons we shall shortly explain.
Plaintiff filed her verified complaint on September 7, 1965, alleging that defendants Kilgo and Rinehart had intentionally shot and killed her late husband, John Grudt, (hereinafter "Grudt"), on February 24, 1965, without just cause or provocation while they were employed by defendant City and acting in the course and scope of their employment. She averred that she had presented her claim for damages to the City on May 21, 1965, and that the City had rejected it in its entirety on June 15, 1965.
The City and Kilgo filed their respective answers to this original complaint on October 6, 1965. Rinehart filed his answer thereto on October 18, 1965.
On or about December 6, 1965, a counsel for plaintiff took the depositions of defendants Kilgo and Rinehart. On July 5, 1966, the trial court granted plaintiff's motion for leave to file their first amended complaint which added a new second cause of action premised upon the defendant City itself being negligent in retaining in its employment the two defendant officers who were prone to be excitable and "trigger happy" and which characteristics were known to the City. 1 (Fernelius v. Pierce (1943) 22 Cal.2d 226, 138 P.2d 12.)
Defendant City filed its answer to this first amended complaint on July 20, 1966, denying the essential allegations of this second cause of action and setting up numerous affirmative defenses, including one reading: "That the plaintiff amended her complaint to insert said Second Count or Second Cause of Action on July 5, 1966, therefore, the statute of limitations as contained in Section 945.6 of the Government Code as well as Section 340 of the Code of Civil Procedure bars said cause of action." The pretrial order preserved the issues raised by this amendment as being among those to be resolved at trial.
After the case was transferred to a trial department on April 5, 1967, defendant City moved to strike and dismiss this second cause of action and all matters in the pretrial order relative thereto. The motion was argued and granted. Plaintiff later moved to set aside the foregoing order, but it was denied after the court had heard further argument.
Plaintiff claims that this action of the trial court constituted prejudicial error. In support of her position, she cites Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596, 15 Cal.Rptr. 817, 364 P.2d 681, and numerous other cases, which we fell are distinguishable upon their facts. We hold that there was no error. This second cause of action was not a mere change in the theory of recovery upon the same basic facts as alleged in the original complaint. The Fernelius case itself recognizes that the theory of recovery is premised upon "a basically different factual pattern." (22 Cal.2d 226, p. 233, 138 P.2d 12.) The neglect sought to be charged here is not that of either Kilgo or Rinehart, but rather the neglect of their superiors at unknown times and places different from the conduct of Kilgo and Rinehart on the night of February 24, 1965. True, the second cause of action did not accrue until the damage occurred (Oakes & McCarthy Co. (1968) 267 Cal.App.2d 231, 254, 73 Cal.Rptr. 127), but only in this area limited to damage do the facts of this second cause of action coincide or overlap with the facts pleaded in the original complaint. At best the impingement is tangential only. In the cases cited by plaintiff, 2 the acts or omissions alleged to be negligent and the tortfeasors or wrongdoers remain the same in the amended pleading. Since the plaintiff tried to add an entirely new cause of action, even under the Austin definition, more than six months after plaintiff's counsel acquired the requisite knowledge from the taking of depositions on December 6, 1965, and after more than six months had elapsed from the date plaintiff was presumably notified of the rejection of her claim, the applicable statute of limitations constituted a bar as a matter of law. (Gov.Code, § 945.6; see Denham v. County of Los Angeles (1968) 259 Cal.App.2d 860, 863, 66 Cal.Rptr. 922.) Plaintiff moreover had had notice of the statute of limitations defense for almost nine months when the second cause of action was stricken. Plaintiff likewise made no attempt to start the six months' period running anew by filing an amended claim against the City.
After presentation of the plaintiff's case in chief and after the defendants had put on six witnesses, whose testimony covers around 246 pages of the reporter's transcript, defense counsel made a motion to exclude from the issue to be given to the jury the question of defendants' negligence based upon the acts and omissions of Kilgo and Rinehart on the night of February 24, 1965, and to strike the police tactical manual on the use of firearms from the evidence. Both motions were granted over the strenuous objections of the plaintiff. Plaintiff's motion for a mistrial premised upon the trial judge's granting of these two motions was denied. The judge later instructed the jury that the police tactical manual had been stricken from the evidence and that the jurors were to completely disregard it. Plaintiff contends that the foregoing action of the trial judge constituted reversible error. We agree.
Whether the acts of omissions of Kilgo and Rinehart constituted negligence and the liability, if any, flowing therefrom were among the issues to be tried by virtue of the pretrial order which raised these issues (Rule 216, Cal.Rules of Court; K. King and G. Shuler Corp. v. King (1968) 259 Cal.App.2d 383, 394, 229 Cal.App.2d 634, 636, 40 Cal.Rptr. 524, even though this theory had not been pleaded (Aero Bolt & Screw Co. v. Iaia (1960) 180 Cal.App.2d 728, 743, 5 Cal.Rptr. 53; Wiese v. Rainville (1959) 173 Cal.App.2d 496, 508-509, 343 P.2d 643). Counsel and the judge had agreed that this issue of negligence if any, flowing from the acts and omissions of Kilgo and Rinehart remained in the case notwithstanding the judge's striking of the complaint based upon the alleged negligence of City officials and employees other than Kilgo and Rinehart. In fact the judge told the jury at the outset of the trial that one of the issues in the case was: "Was the shooting of the decedent by Officers Kilgo and Reinhart [sic] negligent?"
The action of the trial judge in taking away this particular negligence issue from the jury appears to have been premised upon the theory that the officers had admitted that they shot with intent to kill or to harm Grudt, and since intentional and negligent theories of recovery upon the same set of facts were mutually exclusive, negligence was no longer in issue. And since negligence was removed, the police tactical manual became irrelevant. 2 However, a plaintiff is entitled to go to the jury on both intentional and negligent tort theories even though they be inconsistent. (Figlietti v. Frick (1928) 203 Cal. 246, 249, 263 P. 534; Wells v. Brown (1950) 97 Cal.App.2d 361, 217 P.2d 995; 2 Witkin, Cal.Procedure (1954) p. 1163.) The action of the trial court was tantamount to granting a belated motion for nonsuit (cf. Hortsman v. Krumgold (1942) 55 Cal.App.2d 296, 300, 130 P.2d 721) deviating from the customary practice of motions for nonsuit being made right after plaintiff rests his case in chief and motions for directed verdict upon the completion of the presentation of evidence in both sides 4 (Cal.Civil Procedure During Trial [Cont.Ed.Bar, 1960] § 15.25, p. 343).
Because of the unusual procedural posture of plaintiff's case and the juncture in the trial proceedings at which the negligence issue in question was removed from the case, plaintiff's contention of...
To continue reading
Request your trial