Lincoln v. Didak

• Decision Date: 06 August 1958
• Citation: 162 Cal.App.2d 625,328 P.2d 498
• Court: California Court of Appeals
• Parties: A. LINCOLN, Plaintiff and Appellant, v. E. DIDAK et al., Defendants. E. Didak, R. Arenbergh, P. Grey, R. Burns, G. Barbour, J. A. Ford and W. H. Parker, Respondents. Civ. 22792.

Page 498

328 P.2d 498

162 Cal.App.2d 625

A. LINCOLN, Plaintiff and Appellant, v.E. DIDAK et al., DefendantsE. Didak, R. Arenbergh, P. Grey, R. Burns, G. Barbour, J. A. Ford and W. H. Parker, Respondents.

Civ. 22792.

District Court of Appeal, Second District, Division 3, California.

Aug. 6, 1958.

A. Lincoln, in pro. per.

Roger Arnebergh, City Atty., and William B. Burge, Deputy City Atty., Los Angeles, for respondentsE. Didak, R. Arenbergh, P. Grey, R. Burns and W. H. Parker.

Harold W. Kennedy, County Counsel, and Lloyd S. Davis, Deputy County Counsel, Los Angeles, for respondentsGeorge J. Barbour and John Anson Ford.

PER CURIAM.

Plaintiff, who is also known as John G. Oppenheimer, appeals from orders dismissing his complaint against various named defendants, being the City Attorney of the City of Los Angeles, three of his deputies, the Chief of Police of the City of Los Angeles, a member of the Board of Supervisors of the County of Los Angeles and the Clerk of the Municipal Court of the Los Angeles Judicial District.

The complaint which was directed not only against the defendants above named, who are respondents upon this appeal, but many others including judges of the Municipal Court of the Los Angeles Judicial District, the City of Los Angeles, the County of Los Angeles, the State of California and the People of the State of California, is in two counts.The first alleges that each of the defendants, 'wilfully, unlawfully, wrongfully and maliciously, and with intent to oppress and injure the plaintiff, caused, instigated, directed and agitated the arrest and imprisonment of said plaintiff, without a warrant, and on or about December 26, 1956, did, in fact, arrest and imprison said plaintiff without a warrant, and detain him in overcrowded Lingering Heights jail, and continued to and did wrongfully and unlawfully and maliciously confine the said plaintiff in said jail, all without warrant or legal authority of any kind, whatsoever, until on or about January 2, 1957, and without taking plaintiff before a magistrate, as required by section 849, Penal Code', to his damage in the sum of $10,000.The second count incorporates therein by reference the foregoing allegations and in addition alleges that 'In doing the things herein alleged, defendants maliciously abused and exceeded their rights, power authority and jurisdiction, if any, under the Eighth and Fourteenth Amendments to the Constitution of the United States; under Article I, sections 6,7and13, of the California Constitution; under the provisions of 28 U.S.C.A. § 1450; under the provisions of section 591 of the Vehicle Code; under section80.76(1) of the Los Angeles Municipal Code, OrdinanceNo. 77,000, andsection 80.73.2, of the Los Angeles Municipal Code, Ordinance No. 88,642, and lawlessly and maliciously and unreasonably enforced the provisions of each of said municipal ordinances against plaintiff by criminal process or pretense thereof, and maliciously abused said criminal process or purported process against the plaintiff for an improper purpose, and for a purpose for which it was not intended, and wilfully and unlawfully took and stole from, and deprived the plaintiff of, $1,000.00 cash, in lieu of bail, lawful money of the United States, and the sole property of the plaintiff, without warrant or authority of law so to do, and with intent to take it, so as to unjustly enrich themselves at plaintiff's expense, and to oppress, injure, intimidate and damage the plaintiff, and to coerce and force him to pay tribute for baseless parking tickets, without defending against them, and to extort money from the said plaintiff, without notice of, or trial or hearing on, a parking ticket or citation.'This is followed by a copy of sections 80.76and80.73.2 of the Municipal Code of the City of Los Angeles which make it unlawful for any person owning or possessing or having the control of any vehicle to park the same upon any street or alley for more than 120 hours in the aggregate during any period of 121 consecutive hours, and provide a penalty for the first violation thereunder of a fine not to exceed $50 or by imprisonment in the city jail for a period not exceeding five days.

Each of the respondents filed a general and special demurrer to the complaint and at the same time gave notice of motions to strike and dismiss the complaint upon the grounds that the purported action was sham and fictitious, based upon false allegations and not brought in good faith; that the filing of the complaint and the maintenance of the action constituted an abuse of the processes of the court; that plaintiff could not prove sufficient facts on which to base a claim for relief; that the defendant has a valid affirmative defense based upon incontrovertible facts, and that the interest of justice would be served by a dismissal of the action.

The notices of the motions to strike and dismiss were accompanied and supported by affidavits setting forth the official status of each of the respondents; that plaintiff's purported cause of action arose out of certain criminal proceedings instituted against plaintiff in the Municipal Court of the Los Angeles Judicial District and appeals taken by the plaintiff from the judgments and orders therein to the Appellate Department of the Superior Court of the County of Los Angeles, the official court files in each of said proceedings being identified and incorporated by reference in the affidavits.Also attached to one of such affidavits and incorporated by reference in the others are copies of two commitments dated December 26, 1956, issued by a judge of the Municipal Court of the Los Angeles Judicial District, from which it appears that in two separate proceedings instituted by the People of the State of California against the plaintiff herein the said plaintiff was convicted of violating section 80.73.2 of the Los Angeles Municipal Code and sentenced to serve five days in the city jail of the city of Los Angeles on each such conviction.The commitments recite, among other things, the fact of his conviction on January 18, 1955, the sentence then imposed; that an appeal was taken by the plaintiff to the Appellate Department of the Superior Court, and that said judgments were by said Appellate Department affirmed.It further appears from the court records hereinbefore referred to that after the affirmance of said judgments plaintiff herein moved to vacate and suspend the judgments and reduce bail, which motions were denied, following which plaintiff again appealed to the Appellate Department which affirmed said orders on July 27, 1956; that the municipal court forfeited the $1,000 cash bail deposited by the plaintiff upon his appeals from the judgments of conviction for his failure to appear in satisfaction of said judgments rendered against him; that plaintiff thereafter again moved to vacate the judgments and upon denial of such motion he appealed from said order as well as the order forfeiting bail to the Appellate Department which on December 11, 1956 dismissed the appeals.SeePeople v. Oppenheimer, 147 Cal.App.2d Supp. 827, 305 P.2d 306.

While the plaintiff filed affidavits ostensibly in reply to affidavits filed by the respondents, each of these is equivocal and evasive.Therein plaintiff does not deny the official status of each of the respondents as set forth in their respective affidavits and while undertaking to deny the genuineness, due execution and validity of the commitments issued upon the judgments of conviction against...