Grudt v. City of Los Angeles

CourtUnited States State Supreme Court (California)
Citation468 P.2d 825,86 Cal.Rptr. 465,2 Cal.3d 575
Decision Date13 May 1970
Parties, 468 P.2d 825 Delma GRUDT, Plaintiff and Appellant, v. CITY OF LOS ANGELES et al., Defendants and Respondents. L.A. 29715.

Belli, Ashe, Ellison, Choulos & Lieff, San Francisco, Irmas, Simke, Rutter, Green, Lasher & Hecht, Beverly Hills, Melvin Belli, San Francisco, David Manning Chodos, S. M. Irmas, Jr., Beverly Hills, and Harvey A. Schneider, Pasadena, for plaintiff and appellant.

Roger Arnebergh, City Atty., and John A. Daly, Asst. City Atty., for defendants and respondents.

MOSK, Acting Chief Justice.

On February 24, 1965, John Grudt was shot and killed by two Los Angeles police officers. Mrs. Delma Grudt, his widow, brought a wrongful death action for damages against the two officers and the City of Los Angeles. After a jury verdict for defendants, plaintiff appeals. 1

On the night of the shooting at 12:15 A.M., John Grudt, a 55-year-old carpenter who was slightly hard of hearing, was observed by two plainclothes police officers as they drove an unmarked blue 1960 Plymouth four-door sedan without siren or red light. Grudt was driving northbound on Western Avenue at about 35 to 40 miles per hour and narrowly missed running down two women in the crosswalk. The officers determined to stop Grudt for questioning because he was driving in a high crime area, but they did not intend to arrest him for traffic violations. They pulled along the side of Grudt's moving car, and the officer on the passenger side raised his badge, shined his flashlight on it, and shouted 'Police Officer. Pull Over.' Grudt continued driving and turned right at the next corner with the officers in pursuit. The officers again pulled alongside, the passenger showed his badge, and the driver flashed his bright lights and sounded his horn, but Grudt did not yield. Grudt made two more right turns and returned northbound on Western Avenue. The officers became alarmed when Grudt was seen to reach under the front seat of his car, although he did not exhibit any weapon.

Two other plainclothes policemen, Officers Kilgo and Rinehart, driving an unmarked 1961 pink-beige Dodge four-door heard a police broadcast that plain-clothes officers were pursuing a 1959 green and white Ford northbound on Western Avenue. According to Officer Kilgo's testimony, he and Rinehart positioned their vehicle partially across Western Avenue at the intersection of 22d Street, and Officer Rinehart waved a red light to alert oncoming traffic. Grudt's vehicle and another unidentified vehicle just ahead stopped at the intersection, where there were no traffic signals. Officer Kilgo alighted from his vehicle and loaded his double-barreled shotgun as he approached Grudt's car. The other car drove away and Kilgo tapped loudly on the closed left front window of Grudt's car with the muzzle of his shotgun. Grudt looked at Kilgo and 'was surprised and appeared to be frozen to the wheel.' Kilgo, realizing Grudt might have been frightened at seeing him without his uniform and carrying a shotgun, lifted his shotgun in the air, leaned forward and pointed to his badge displayed on his left front pocket. Thereupon, Grudt turned his wheels toward the left and accelerated his car. The car brushed Kilgo back and he feared that it was heading towards Officer Rinehart, who was standing in front and to the left of the Grudt car. Kilgo fired a shotgun blast through the left rear window of the vehicle. Rinehart testified that Grudt's vehicle struck his leg and that he jumped to his right and fired four rounds from his revolver into the left front window. About three seconds elapsed from the time that Kilgo saw Grudt 'frozen to the wheel' to the moment of the shots.

Grudt died within seconds of the shooting. It was undisputed that, after the shooting, Grudt's vehicle was at rest at the south side of a pedestrian crosswalk at the intersection of a Santa Monica freeway on-ramp and Western Avenue, about three car-lengths north of the 22d Street intersection. The car was pointing northward and was about six feet away from the curb to the east. There was a working traffic signal at the on-ramp intersection. At the time of the shooting, black and white marked police vehicles were converging on the area from both the north and the south.

Despite a thorough investigation after his death, no evidence of any crime committed by Grudt was uncovered. His wallet containing less than five dollars was found under the front seat, where he had apparently placed it during the chase. Grudt did not drink and had no previous criminal record.

Edward A. Plankers, a meatcutter, testified for plaintiff and contradicted the officers' version of the shooting. He was on his way home from work and was driving north on Western Avenue in the left-hand lane. He stopped for a red traffic light at the intersection of the on-ramp to the Santa Monica freeway, about 40 feet north of 22d Street. Grudt's car stopped abreast of his car and to his right. Plankers was emphatic that neither he nor Grudt stopped at the intersection of 22d Street. Just before the light changed, Plankers saw a man with a shotgun coming toward them and he 'didn't know what to think.' He started off when the light changed and had not gone far when he heard a shot. He had looked back in his rearview mirror as he drove off, and he testified that Grudt's car did not move before the shot was fired. Plankers' testimony was partially corroborated by the testimony of James Graves, who was on foot on the freeway overpass at the time of the shooting. He saw Kilgo approaching with the shotgun; he saw another car that had been beside Grudt's car speed away; and he saw police cars approaching. He dropped to the ground when he heard the shots.

Dr. LaJoie, an internist specializing in cardiology, testified as an expert for plaintiff. Based upon the autopsy report, he opined that death was caused by the shotgun blast. It was his testimony that Grudt suffered an immediate paralysis and could not thereafter have engaged in any useful activity. William Harper, a consulting physicist, also testified for plaintiff. Based upon his examination of the 1959 Ford driven by Grudt the night he was killed and the officers' testimony as to where Grudt stopped and where Officer Rinehart was standing, Harper concluded that the steering wheel of the Grudt vehicle would have required more than two and a half complete turns to its maximum left position in order to strike Rinehart. After such a turn, it was Harper's opinion that the vehicle could not return to a parallel position of the kind that it admittedly occupied after the shooting without some human intervention.


Plaintiff makes three separate specifications of error by the trial court. First, she contends it was error to strike the second cause of action of her first amended complaint. Plaintiff's original complaint in the action was filed on September 7, 1965, and alleged that Officers Kilgo and Rinehart were employees of the City of Los Angeles and had intentionally and wrongfully shot her husband to death. On July 5, 1966, the law and motion department granted plaintiff's motion filed a month earlier to amend her complaint to state a second cause of action against the City. In the second cause of action, she alleged that the City was negligent in continuing to employ Officers Kilgo and Rinehart after it knew or should have known that they were dangerous and violent officers, prone to the use of unnecessary physical force. On the opening day of the trial, defendants moved to strike the second cause of action on the ground that plaintiff had sought to amend her complaint after the one-year statute of limitations had run. The trial judge granted the motion.

The prevailing rule with respect to actions involving parties designated by their true names in the original complaint is that, if an amendment is sought after the statute of limitations has run, the amended complaint will be deemed filed as of the date of the original complaint provided recovery is sought in both pleadings on the same general set of facts. (Austin v. Massachusetts Bonding & Insurance Co. (1961) 56 Cal.2d 596, 600, 15 Cal.Rptr. 817, 364 P.2d 681.) It is conceded that plaintiff amended her complaint after the statute of limitations had run and, therefore, the only question is whether the trial court correctly determined that the second cause of action in plaintiff's amended complaint did not seek recovery on the same general set of facts contained in the initial complaint. We conclude that the court erred.

No doubt plaintiff's second cause of action added a significant new dimension to the lawsuit. Not only was it asserted that the City was liable as the employer of negligent employees on a Respondeat superior theory, but it was also claimed that the City was liable for its own negligence in retaining the services of officers known to be dangerous. However, the Austin rule requires only that the original and amended pleadings seek recovery 'on the same general set of facts' (Id. at p. 600, 15 Cal.Rptr. at p. 819, 364 P.2d at p. 683), and plaintiff's amended complaint in the instant action would appear to meet that test.

Although no California authorities deal with the precise question at issue, plaintiff finds support by way of analogy to several cases. In Weinstock v. Eissler (1964) 224 Cal.App.2d 212, 36 Cal.Rptr. 537, plaintiff was permitted, after the statute of limitations had run, to add a cause of action for fraud to a complaint alleging negligent and intentional tort by a physician in the performance of an operation. 'While count three (for fraud) sets forth certain facts, not found in the preceding two counts, which assert in essence the inducement of plaintiff's consent to the operation by false representations on the part of the defendant, these additional facts do not set forth a wholly distinct and different obligation. They do no more...

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