Kane v. County of San Diego

• Citation: 83 Cal.Rptr. 19,2 Cal.App.3d 550
• Court: California Court of Appeals
• Decision Date: 11 December 1969
• Parties: John L. KANE, Plaintiff and Respondent, v. The COUNTY OF SAN DIEGO, Defendant and Appellant. Civ. 9158.

Page 19

83 Cal.Rptr. 19

2 Cal.App.3d 550

John L. KANE, Plaintiff and Respondent, v. The COUNTY OF SAN DIEGO, Defendant and Appellant.

Civ. 9158.

Court of Appeal, Fourth District, Division 1, California.

Dec. 11, 1969.

Rehearing Denied Jan. 5, 1970.

Hearing Denied Feb. 5, 1970.

[2 Cal.App.3d 552] Bertram McLees, Jr., County Counsel, McInnis, Focht & Fitzgerald and Laurence L. Pillsbury, San Diego, for defendant and appellant.

No appearance for plaintiff and respondent.

OPINION

GERALD BROWN, Presiding Justice.

Plaintiff sued San Diego County in negligence and conversion for destroying his interest in 28 greyhounds at the County's Vista Animal Shelter October 29, 1963. Plaintiff's appraiser testified the degs' value was $8,750. The County's appraiser's minimum value was $2,960. The judgment, following jury trial, favored plaintiff in the sum of $3,365 with interest at 7% From October 29, 1963 to date of judgment August 30, 1967.

We will, as required, assume the existence of every fact in support of the judgment, on either or both causes of action, that can reasonably be deduced from the evidence (People v. Bard, 70 A.C. 1, 3, 73 Cal.Rptr. 547, 447 P.2d 939).

Plaintiff leased 28 greyhound dogs to Ruby Lilley of Ramona, California, October 19, 1963. Nine days later, October 28, Mrs. Lilley mailed a letter to Mr. Kane in Colorado, stating they were taking the dogs to the Vista Animal Shelter October 29, and the Shelter would hold them 3 days. Mr. Kane received the letter October 30. On October 29, 1963 Ruby's husband, Benjamin, delivered the dogs to the Shelter, telling the attendant he did not own the dogs but had had their possession, and asked the Shelter to take the dogs. The Shelter destroyed all the dogs that same day.

The defendant unmeritoriously contends it could destroy the dogs immediately; it need delay destruction only where a dog's owner is unknown. California state law controls the situation. Agricultural Code, section 439.26, in effect October 29, 1963 (now Agr.Code, §§ 31107, 31108) required the County to wait 72 hours; if the owner is known he must be given notice. The court properly instructed the jury on the 72 hour hold requirement.

Under the cause of action for conversion plaintiff was entitled to interest from the date of the dogs' destruction, October 29, 1963 (Civ.Code, § 3336; Crofoot Lumber, Inc. v. Ford, 191 Cal.App.2d 238, 248, 12 Cal.Rptr. 639; Murphy v. Wilson, 153 Cal.App.2d 132, 136, 314 P.2d 507).

Defendant, as a subdivision of the state, claims immunity from an award of prejudgment interest, citing Abbott v. City of Los Angeles, 50 Cal.2d 438, 466--468, 326 P.2d 484 and Imperiale v. City & County of S.F., 128 Cal.App.2d 277, 282--283, 275 P.2d 569. These cases deal with liability for interest In addition to damages where damages are liquidated and a plaintiff's right to them vests before trial (Civ.Code, § 3287); they hold such interest may not be recovered from a public entity unless recovery is specifically authorized by statute. Civil Code, section 3336, however, does not provide for tacking on of interest to an award of damages as does section 3287. Section 3336 reads in part:

'The detriment caused by the wrongful conversion of personal property is presumed to be:

'First--The value of the property at the time of the conversion, with the interest from that time, or, an amount sufficient to indemnify the party injured for the loss which is the natural, reasonable and proximate result of the wrongful act complained of and which a proper degree of prudence on his part would not have averted; * * *.'

The section states a presumption for determining the plaintiff's detriment to be compensated. The provision for value of property plus interest is an alternative to an award for the actual amount of loss proximately resulting from a conversion. Because the defendant County is liable for the amount of damages reasonably required to compensate plaintiff for his detriment, it is not immune from paying 'interest' which is a presumptive measure of plaintiff's actual detriment. A contrary implication in Imperiale v. City & County of S.F., Supra, 128 Cal.App.2d 277, 283, 275 P.2d 569, is dictum.

Plaintiff was not under costs, entitled to his $150 expense in coming to California for his deposition...