Klimper v. City of Glendale
| Decision Date | 18 September 1950 |
| Citation | 222 P.2d 49,99 Cal.App.2d 446 |
| Court | California Court of Appeals Court of Appeals |
| Parties | KLIMPER v. CITY OF GLENDALE et al. Civ. 17380. |
Paul S. Crouch, Los Angeles, for appellant.
Henry McClernan, City Attorney, John W. McElheney, Deputy City Attorney and City Prosecutor, Glendale, for respondents City of Glendale, Charles R. Dyer, Mrs. Earle Bullock, Charles Dieffenbach, Frances W. Kelley, W. R. Stenberg and Walter E. Hegi.
Plaintiff appeals from a judgment in favor of defendants City of Glendale, Charles R. Dyer (Police Judge of Glendale), and five police officers of Glendale, which judgment was entered upon orders sustaining, without leave to amend, demurrers of said defendants. The demurrers of the first two defendants above mentioned were to the second amended complaint. The demurrers of the other defendants above mentioned were to the third amended complaint. Plaintiff also appeals from a judgment in favor of another defendant, Marshall B. Everett, entered upon an order sustaining, without leave to amend, his demurrer to the third amended complaint.
It was alleged in the second amended complaint as follows: The City of Glendale is a political subdivision of California. Defendant Dyer at all times mentioned therein was a police judge of the City of Glendale. Defendant Rassmussen at all times therein mentioned was Chief of Police of said city. Defendant Hegi at said times was a captain of police of said city. Defendants Bullock, Dieffenbach, Kelley, and Stenberg at said times were police officers of said city and were acting under the supervision of defendants Rassmussen and Hegi. On October 27, 1947, defendant Everett filed a complaint in the police court of said city, a copy of which is attached to the third amended complaint and marked exhibit A. Plaintiff alleged upon information and belief that defendant Everett filed said complaint at the request of defendant Stenberg. On October 28, 1947, pursuant to said complaint, defendant Dyer, Police Judge of Glendale, issued a warrant of arrest, and pursuant to said warrant the defendants Bullock, Dieffenbach and Kelley, acting under the direction of defendants Rassmussen and Hegi, arrested plaintiff and incarcerated her in the city jail; that defendants Rassmussen, Hegi, Bullock, Dieffenbach and Kelley refused to let plaintiff communicate with an attorney, bail bond broker, or any of her relatives or friends and plaintiff therefore was unable to 'raise bail' until the morning of October 29, 1947. Defendant Dyer set the bail in the amount of $100, which bail was disproportionate to the offense involved. Said warrant was issued in violation of provisions of section 739 of the Vehicle Code 'in that if an offense had been committed it was in the presence of Defendant W. R. Stenberg, and of which he was aware.' Plaintiff was not at any time prior to her arrest given a notice to appear pursuant to provisions of section 739 of the Vehicle Code, and defendants did not comply with any of the provisions of said section, and 'the Complaint issued by said defendant was a misdemeanor' and an alleged violation of the provisions of the Vehicle Code, and that section 739 of the Vehicle Code 'was the only statute applicable for procedure for the alleged violation.' Defendants and each of them acted wilfully and with malice and intent to degrade, humiliate and embarrass plaintiff, and the defendants knew that the warrant was not issued pursuant to the provisions of said section 739. Within 90 days from October 27, 1947, plaintiff did present to the City of Glendale a claim. By reason of the aforesaid acts plaintiff suffered shock and humiliation which affected her health and she was unable to work for a period of time and by reason thereof she has sustained actual damages in the sum of $25,000, and plaintiff asks for an additional $25,000 as exemplary damages.
For a further and separate cause of action it was alleged therein as follows: (Paragraph I) Plaintiff incorporates all of the said allegations of her first cause of action, above stated, as though set out verbatim. (Paragraph II) Within 90 days from October 28, 1947, plaintiff did present her claim to the City of Glendale
The third amended complaint was in substance the same as the second amended complaint, with the following exceptions: (1) The City of Glendale and Charles R. Dyer were not parties thereto; (2) Paragraph II of the second amended complaint was omitted from the third amended complaint, and in lieu thereof it was alleged as follows: Within 90 days from October 28, 1947, the ...
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...Code as the cause at bar. To same effect see Slavin v. City of Glendale, 97 Cal.App.2d 407, 410, 217 P.2d 984; Klimper v. City of Glendale, 99 Cal.App.2d 446, 451, 222 P.2d 49. The fact of absence of state preemption of the field is reflected in section 730 Government Code enacted in 1959 (......
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...The authority of Baker has already been weakened in that it was based in part on the erroneous holdings of Klimper v. City of Glendale, 99 Cal.App.2d 446, 451, 222 P.2d 49, and Slavin v. City of Glendale, 97 Cal.App.2d 407, 409, 217 P.2d 984, that estoppel only applied to situations involvi......
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Rand v. Andreatta
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