McCorkle v. City of Los Angeles

• Decision Date: 30 January 1969
• Court: California Supreme Court
• Parties: , 449 P.2d 453 Devon A. McCORKLE, Plaintiff and Respondent, v. CITY OF LOS ANGELES, Defendant and Appellant. L.A. 29610.

Page 389

74 Cal.Rptr. 389

70 Cal.2d 252, 449 P.2d 453

Devon A. McCORKLE, Plaintiff and Respondent, v. CITY OF LOS ANGELES, Defendant and Appellant.

L.A. 29610.

Supreme Court of California In Bank.

Jan. 30, 1969.

Roger Arnebergh, City Atty., Bourke Jones and John A. Daly, Asst. City Attys., and Nowland C. Hong, Deputy City Atty., for defendant and appellant.

Heily & Blase, Oxnard, and Edward L. Lascher, Ventura, for plaintiff and respondent.

Edward I. Pollock, Los Angeles, Robert E. Cartwright, San Francisco, Theodore A. Horn, Los Angeles, Leo M. O'Connor, Sacramento, and Leonard Sacks, Los Angeles, as amici curiae on behalf of plaintiff and respondent.

TOBRINER, Justice.

The City of Los Angeles appeals from a judgment of the Ventura County Superior Court imposing liability on the City in the amount of $45,000 for damages incurred by the plaintiff in a highway accident.

We granted a hearing in this court after decision by the Court of Appeal, First Appellate District, Division Four, because of a conflict among the various Courts of Appeal as to the proper interpretation and application of Government Code, section 820.2 (governmental immunity for discretionary acts of public employees) in the light of Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457, and Lipman v. Brisbane Elementary School Dist. (1961) 55 Cal.2d 224, 11 Cal.Rptr. 97, 359 P.2d 465. ¹

Subsequent to our granting of a hearing in the instant case, we decided the case of Johnson v. California (1968) 69 A.C. 813, 73 Cal.Rptr. 240, 447 P.2d 352. Johnson resolved the conflicting decisions of the Courts of Appeal and formulated a definitive rationale for the application of Government Code, section 820.2.

After a thorough examination of the present case, we conclude that the Court of Appeal has correctly resolved the governmental immunity question by applying the rationale subsequently embraced by this court in Johnson. Furthermore, in our judgment, the Court of Appeal has correctly decided the other issues pertinent to the proper disposition of this case. Accordingly, the opinion of the Court of Appeal, authored by Justice Rattigan and concurred in by Presiding Justice Devine and by Justice Christian, is adopted (with minor alterations) as and for the opinion of this court. The opinion (with appropriate deletions and additions as indicated) is as follows: ²

Plaintiff sued several defendants for damages incurred in two separate highway accidents. The jury's verdict was in his favor and against the City of Los Angeles alone. ( )

In the first accident, plaintiff's automobile collided with a vehicle driven by Edgar D. Phillips. Shortly thereafter Michael A. Lombardo, an officer of the Los Angeles Police Department, arrived at the scene and commenced to investigate the collision. The second accident occurred when plaintiff, while on foot with Lombardo during the investigation, was struck by an automobile operated by Sam C. Wells.

The accidents occurred on October 2, 1962. Plaintiff commenced the action on May 22, 1963, alleging that negligence on the part of Phillips, Lombardo and Wells had proximately caused certain injuries and damages. The original complaint named as defendants these three, each by his true name, and 'Does I through VIII, inclusive.' The City was not named as a defendant, but was referred to by name in the complaint as Lombardo's employer and as the recipient of a verified claim for damages in which plaintiff asserted Lombardo's negligence. (This claim is not involved on the appeal.)

Defendants Wells, Lombardo and Phillips were served with summons, and with the original complaint, immediately; the City was not. Wells and Phillips answered the complaint. Lombardo filed general and special demurrers which, on July 11, 1963, were sustained with leave to amend within 15 days.

The complaint was not amended until December, when plaintiff obtained from the trial court an Ex parte order permitting the filing of a first amended complaint naming the City as defendant 'Doe I.' This was on December 20, 1963. The first amended complaint was filed, and an alias summons addressed to the City was issued, on the same day. When both were served on the City, it moved to quash the service upon the ground that the trial court lacked jurisdiction of the City's person. ³

At the same time, defendant Lombardo moved for an order dismissing the action as against him, upon the ground (Code Civ.Proc. § 581, subd. 3) that the original complaint had not been amended within 15 days after--and as permitted in--the order of July 11, 1963, sustaining his demurrers. Lombardo also moved to strike the first amended complaint because he had not been given notice of plaintiff's application for the order permitting the pleading to be filed.

The trial court granted Lombardo's motion to dismiss and ruled that his motion to strike was thereby rendered moot. The City's motion to quash was denied. The City did not seek appellate review of the order of denial, but filed an answer to the first amended complaint. The answer alleged as an affirmative defense that plaintiff had been contributorily negligent.

The case went to trial against the City, Wells and Phillips as defendants. During the trial, plaintiff settled with Phillips and dismissed the action as to him. The jury's verdict was in favor of Wells, but the plaintiff and against the City in the amount of $45,000.

Appealing from the judgment, the City first contends that the trial court erred in denying its motion to quash service to summons upon it as a 'fictitious defendant.' (See footnote (3), ante.) Plaintiff responds that the order may not be challenged on the appeal because the City did not seek appellate review, pursuant to Code of Civil Procedure, section 416.3, ⁴ when the order was entered.

Plaintiff's position must be sustained. As indicated by authoritative sources published both before and after the enactment of section 416.3 in 1955, the Legislature intended (1) that the section would provide (a) method of obtaining appellate review of the order here in question, and (2) that the availability of the interlocutory appellate remedy would, accordingly, preclude review of the order upon appeal from a judgment entered after trial on the merits. (Report of State Bar Committee on Administration of Justice (1954) 29 State Bar J. 224, 227(--228); Legislative Note (1955) 43 Cal.L.Rev. 695 (--) 699; Comment (1955) 29 So.Cal.L.Rev. 94, (98--101).)

Before section 416.3 was enacted, moreover, the rule was that the unsuccessful moving party waived his jurisdictional objection entirely if he made a general appearance after his motion was denied. (Jardine v. Superior Court (1931) 213 Cal. 301, 304, 2 P.2d 753, 79 A.L.R. 291; Remsberg v. Hackney Manufacturing Co. (1917) 174 Cal. 799, 801, 164 P. 792; see 1 Witkin, Cal. Procedure (1954) Jurisdiction, § 80, p. 349.) Section 416.3 was intended to forestall this consequence by permitting the moving party to defer a general appearance while pursuing the interlocutory appellate remedy (Hartford v. Superior Court (1956) 47 Cal.2d 447, 452, 304 P.2d 1; see 1 Witkin, supra, 81A (1967 Supp., pp. 162--164)) (brackets in the original Court of Appeal opinion), but the section does not relieve him of the consequence if he makes the appearance. (See Hartford v. Superior Court, supra, (, 47 Cal.2d 447, 452, 304 P.2d 1).)

In the present case the City answered plaintiff's first amended complaint and went to trial on the merits. So doing, it appeared generally, waived its jurisdictional objection, and therefore cannot assert the objection on this appeal. (Jardine v. Superior Court, supra (, 213 Cal. 301, 304, 2 P.2d 753, 79 A.L.R. 291); Remsberg v. Hackney Manufacturing Co., supra (, 174 Cal. 799, 801, 164 P. 792); 1 Witkin, Cal. Procedure (1954) Jurisdiction, § 80, p. 349.)

The City, arguing to the contrary, first relies upon the language of section 956. (This section provides for review on appeal of certain intermediate rulings and orders. ⁵ Regardless of whether the denial of a motion to quash service of summons is such a ruling or order, section 956 does not alter the rule that a general appearance constitutes a waiver of the jurisdictional objection.)

The City also relies upon two decisions which have indicated that an order denying a motion to quash service of summons--as distinguished from an order granting such motion--may be reviewed on appeal from a subsequent judgment. (Kneeland v. Ethicon Suture Laboratories (1952) 113 Cal.App.2d 335, 248 P.2d 447; Saroff v. Saroff (1944) 66 Cal.App.2d 330, 152 P.2d 333.) (These decisions both refer to cases in which the objecting defendant does not enter a general appearance. We agree that a defendant may reserve his jurisdictional objection on appeal if, after the denial of his motion to quash, he makes no general appearance but suffers a default judgment. The defendant in the present case, however, proceeded to defend on the merits and cannot avoid the fact of its waiver of the jurisdictional objection.)

The City's additional contentions on appeal require a review of the evidence, which follows.

The collision between plaintiff's and Phillips' automobile occurred at about 7:45 p.m., in the intersection of Pacific Coast Highway and two side streets. Plaintiff received a forehead laceration (apparently a minor injury) in the Phillips accident. Pacific Coast Highway runs north and south at the intersection, which is within the incorporated limits of the City of Los Angeles. Officer Lombardo arrived at the scene, driving a police car, shortly after 8:00 p.m. He testified that he was 'called to the scene'; although he did not elaborate, it may be fairly inferred that he had been dispatched there by a police radio call received in his car.

The Phillips vehicle had been removed from the intersection when Officer Lombardo arrived. Plaintiff's automobile was removed shortly thereafter....