Michenfelder v. City of Torrance

• Decision Date: 19 October 1972
• Citation: 104 Cal.Rptr. 501,28 Cal.App.3d 202
• Parties: George V. MICHENFELDER and Nancy L. Michenfelder, Plaintiffs and Appellants, v. CITY of TORRANCE, Defendant and Respondent. Civ. 39558.
• Court: California Court of Appeals Court of Appeals

Page 501

104 Cal.Rptr. 501

28 Cal.App.3d 202

George V. MICHENFELDER and Nancy L. Michenfelder, Plaintiffs and Appellants, v. CITY of TORRANCE, Defendant and Respondent.

Civ. 39558.

Court of Appeal, Second District, Division 4, California.

Oct. 19, 1972.

Ralph E. Brogdon, Redondo Beach, for plaintiffs and appellants.

Buck, Burrows & Smith and F. Eugene Westhafer, Long Beach, for defendant and respondent.

FILES, Presiding Justice.

This appeal arises out of a claim against the City of Torrance for damages for the alleged negligence of city police officers in failing to take appropriate action to protect the property of plaintiffs. The city's demurrer to the complaint, as amended was sustained without leave to amend further, and the complaint was dismissed as to the city. Plaintiffs are appealing from that judgment.

The only portion of the complaint which was directed against the city was denominated the twelfth and thirteenth causes of action. The twelfth cause of action alleged the following facts, in substance:

Plaintiffs were in possession of a retail women's apparel shop which plaintiffs operated on leased premises in Torrance under a franchise agreement with an entity known as 'Rags for Dolls,' whose representative was Dean Tinney. Between 3:00 a.m. and 4:00 a.m. on December 6, 1969, Dean Tinney and other defendants (hereinafter referred to as the Tinneys) wrongfully and without plaintiffs' consent entered plaintiffs' premises, removed a plate glass window, changed the locks, and removed and destroyed or otherwise disposed of fixtures, supplies, goods and other items from plaintiffs' premises. Police officers of the City of Torrance (identified only as Does XXVI through XXX), within the scope of their employment, became aware of these activities at the time of their occurrence.

It is also alleged that the Tinneys 'asserted some civil claim of right against plaintiffs, and each of them, and that each of said defendants was utilizing 'self-help' with respect to said claim of right' but that the police officers knew or should have known 'that said actions by the defendants as aforesaid was (sic) in violation of the law and constituted a trespass, civil in nature, if not criminal, and that said acts of defendants (Tinneys) required the completion of certain civil processes before lawful entry could be accomplished . . ..'

The thirteenth cause of action incorporates all of the twelfth, and adds the allegation that plaintiffs' shop was equipped with a burglar alarm in working condition, that prior to December 5, 1969, plaintiffs had informed the city police department where they could be reached in the event of any emergency, but the officers at the scene made no attempt to notify plaintiffs, nor did the officers at the scene communicate with their supervisors as to the course of action which they should follow when they saw what the Tinneys were doing.

The sole issue argued on this appeal is stated in plaintiffs' brief in this language:

'Whether or not appellants' complaint, as amended (see Clerk's Transcript, pp. 75 through 82 and referenced Exhibits) (see Clerk's Transcript, pp. 26 through 58), with respect to causes of action twelve and thirteen state (sic) sufficient facts to constitute a cause of action against the City of Torrance. More particularly, whether or not the provisions of the Government Code of the State of California, and in particular, section 845, provide an immunity under the facts in the instant case, i.e., where the police entity undertakes to investigate a given situation and then negligently stands by proximately thereby causing damage to one of the parties affected by that investigation.'

Preliminarily we note that the complaint also alleges that 'defendants, Does XXVI through XXX, inclusive, and each of them, negligently and carelessly, directed, allowed, approved, instructed, assisted and oversaw' the defendants Tinney in all of the acts complained of. Despite the apparent breadth of this language, plaintiffs' argument makes clear that plaintiffs are charging the officers only with wrongful inaction, and that they have not intended to allege actual participation in or express encouragement of the alleged trespass and removal of property. We therefore proceed to consideration of the issue which plaintiffs have presented here.

Government Code section 845 provides:

'Neither a public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service.'

This section was relied upon in Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803, 73 Cal.Rptr. 240, holding that no cause of action could be stated against the city for failing to provide effective protection for the plaintiffs' property during a The Susman complaint invoked several theories, including charges of inaction by the Los Angeles police at critical times, but the Court of Appeal concluded that section 845 operated as a bar.

The present case is factually dissimilar from Susman. Here the Torrance police faced nothing like the problem of preventing or stopping a riot. Under the facts alleged here the Torrance police were physically capable of stopping the alleged wrongdoing if they had seen fit to do so.

Plaintiffs' position here is that this is not a case of 'failure to provide sufficient police protection service,' but neglect of duty by the police who were provided.

Contrary to plaintiffs' assumption section 845 is not the portion of the Government Code when is closest in point.

Section 846 provides:

'Neither a public entity nor a public employee is liable for injury caused by the failure to make an arrest or by the failure to retain an arrested person in custody.'

Section 820.2 provides:

'Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.'

Section 818.2 provides that a public entity is not liable for an injury caused by 'failing to enforce any law,' and section 821 gives immunity to a public employee for an injury caused 'by his failure to enforce an enactment.'

This latter section must have been intended to apply to peace officers, for the Law Revision...