Illerbrun v. Conrad
| Citation | 216 Cal.App.2d 521,31 Cal.Rptr. 27 |
| Parties | Leon ILLERBRUN, Plaintiff and Appellant, v. Robert B. CONRAD and William E. Harms, Defendants and Respondents. Civ. 26577. |
| Decision Date | 22 May 1963 |
| Court | California Court of Appeals |
Phill Silver, Hollywood, for appellant.
Roger Arnebergh, City Atty., Victor P. Spero, William B. Burge, Deputy City Attys., for defendants and respondents.
This is an appeal by plaintiff from a summary judgment in favor of defendants.
Plaintiff's complaint alleged that defendants, two police officers in the employ of the city of Los Angeles, entered and searched plaintiff's apartment without a search warrant or other legal authority, arrested plaintiff, seized certain goods belonging to him and accused him of having stolen them. In the course of the arrest defendants allegedly employed an unreasonable amount of physical force upon the person of plaintiff and in addition, cursed and threatened him with violence. It was further alleged that plaintiff was transported to a police station, held in custody for 3 hours and thereafter released without any charges having been filed against him. Plaintiff alleged that the accusations made against him by defendants were completely false.
Defendants in separate answers denied that excessive or unreasonable force was used or that they threatened or used abusive language toward plaintiff. In addition, defendants stated facts allegedly constituting reasonable and probable cause for the search, seizure and arrest of plaintiff.
Thereafter, defendants moved for a summary judgment and in support thereof each filed a declaration setting forth the circumstances under which the arrest was made and further reciting that they had never been presented by plaintiff, or by anyone purporting to act on his behalf, with claims for damages arising out of the facts alleged in plaintiff's complaint. Additional supporting documents filed by defendants included the declaration of a deputy city clerk stating that on claim had been filed in the office of the city clerk by plaintiff or by anyone acting in his behalf, and a certified copy of the city of Los Angeles ordinance No. 114,957. Plaintiff filed no affidavit or declaration in opposition to the motion.
Plaintiff admits he did not file a claim for damages as required by sections 363 and 376 of the charter of the city of Los Angeles. The sole question raised in this appeal is whether failure to file the claim is in the nature of a defense in abatement which could be waived if not timely raised, or whether it is an integral part of plaintiff's cause of action.
The applicable portions of charter sections 363 and 376 and ordinance number 114,957 are as follows:
In section 363 it is stated 'Every claim for money or damages against the City, or any officer, board or department thereof, * * * shall be filed with the City Clerk * * *.' (Emphasis added.) Section 376 provides, (Emphasis added.)
Ordinance 114,957, passed November 2, 1959, and described as 'an ordinance establishing a definition of the term 'officer' as used and referred to in sections 363 and 376 of the Los Angeles City Charter,' provides in section 1 'The term 'officer' as used in Sections 363 and 376 of the Los Angeles City Charter, shall include any employee of the City of Los Angeles representing said City in the regular scope of his employment in the enforcement of the laws and ordinances of said City, the State of California, or the United States of America, including City police officers. * * * (Emphasis added.)
Plaintiff contends that failure to comply with the charter provisions requiring the presentment of a claim for damages is in the nature of a plea in abatement, an affirmative defense, which must be timely raised in the action or is waived. It is argued by plaintiff that the trial court erred in permitting defendants 'to avail themselves of this affirmative defense' in the motion for summary judgment despite the fact the 'affirmative defense' was not pleaded in defendant's answer or by a demurrer. Plaintiff contends defendants should not have been permitted to avail themselves of this defense after delaying the making of the motion until after the statutory period for filing claims had elapsed. Plaintiff's contentions are not supported by the case law of this state.
A plea in abatement does not challenge the merits of an action, but merely...
To continue reading
Request your trial
-
State v. Superior Court, S114171.
...integral part of plaintiff's cause of action.'" (Williams, at p. 842, 129 Cal.Rptr. 453,548 P.2d 1125, quoting Illerbrun v. Conrad (1963) 216 Cal.App.2d 521, 524, 31 Cal.Rptr. 27.) We further observed that "[o]ur own view of the claims requirement comports with that of" Willis v. Reddin (9t......
-
Williams v. Horvath
...Van Alstyne, Cal. Government Tort Liability Supp. (Cont.Ed.Bar 1969) §§ 8.13, 8.14.) As aptly described in Illerbrun v. Conrad (1963) 216 Cal.App.2d 521, 524, 31 Cal.Rptr. 27, 29, the filing of a claim for damages 'is more than a procedural requirement, it is a condition precedent to plaint......
-
Real v. City of Riverside
...order to prevail. (Wood v. Riverside General Hospital (1994) 25 Cal.App.4th 1113, 1119-1120, 31 Cal.Rptr.2d 8; Illerbrun v. Conrad (1963) 216 Cal.App.2d 521, 524, 31 Cal.Rptr. 27.) Del Real admits that City is a public entity. Further, she admits that her claims against Charrette are based ......
-
Rossiter v. Benoit
...precedent to the maintenance of an action under state law. (Citations omitted.) As aptly described in Illerbrun v. Conrad (1963) 216 Cal.App.2d 521, 524, 31 Cal.Rptr. 27, 29, the filing of a claim for damages 'is more than a procedural requirement, it is a condition precedent to plaintiff's......