Moore v. City & County of San Francisco

• Citation: 5 Cal.App.3d 728,85 Cal.Rptr. 281
• Court: California Court of Appeals
• Decision Date: 20 March 1970
• Parties: Phoebe A. MOORE, Plaintiff, Respondent and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation, Defendant, Appellant and Respondent. Civ. 25516.

Page 281

85 Cal.Rptr. 281

5 Cal.App.3d 728

Phoebe A. MOORE, Plaintiff, Respondent and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation, Defendant, Appellant and Respondent.

Civ. 25516.

Court of Appeal, First District, Division 2, California.

March 20, 1970.

Lewis & Stein, San Francisco, for plaintiff.

Thomas M. O'Connor, City Atty. of City and County of San Francisco, George P. Agnost, William C. Gordon, Deputy City Attys., San Francisco, for defendant.

DAVID, Associate Justice pro tem. ^*

Appellant Phoebe A. Moore sued respondents for false arrest and imprisonment. A jury verdict exculpated all defendants and Mrs. Moore appeals; the court granted plaintiff a limited judgment notwithstanding the verdict, and in the alternative, granted a new trial, and respondent City and County of San Francisco appeals.

In this case, the verdict of the jury (incorporated in the judgment) was:

'We, the jury, duly empaneled, find as follows: * * *

'A1. We find (for) * * * defendant CITY AND COUNTY OF SAN FRANCISCO on the issue of false imprisonment.

'A2. We find (for) * * * defendants CLARK and FITZPATRICK and the CITY AND COUNTY OF SAN FRANCISCO on the issue of false imprisonment.

'A3. We find (for) * * * defendant CLARK and the defendant CITY AND COUNTY OF SAN FRANCISCO on the issue of false arrest.

'A4. We find (for) * * * defendant FITZPATRICK and the defendant CITY AND COUNTY OF SAN FRANCISCO on the issue of false arrest.'

The plaintiff Phoebe Moore thereafter moved to vacate the verdict and to enter a judgment on liability in favor of plaintiff notwithstanding the verdict; and that if this was not granted, to vacate the verdict and judgment and to grant a new trial on the grounds of insufficiency of the evidence to justify the verdict; that said verdict is against law; and errors of law occurring at the trial and excepted to by plaintiff.

Though both appellants and respondents urge us to do so, we follow the rules applicable to appeals in general and do not pass upon the weight or effect of the conflicting evidence upon which the jury's verdicts and the court's orders are based. (Estate of Bristol (1943) 23 Cal.2d 221, 223, 143 P.2d 689.)

We have examined the record, as our attention has been called to it in the briefs, in reference to the judgment and orders appealed from, and have satisfied ourselves as to the existence of those conflicts and issues which support the order granting the motion for new trial.

Code of Civil Procedure section 629 provides (in part) 'If the court grants the motion for, * * * judgment notwithstanding the verdict, and likewise grants the motion for a new trial, the order granting the new trial shall be effective only if, on appeal, the judgment notwithstanding the verdict is reversed and the order granting a new trial is not appealed from or, if appealed from, is affirmed.'

The only 'judgment' before us is the order of the trial court dated October 23, 1967, and entered as such. It reads in part as follows: 'For the reasons set forth in the accompanying opinion the motion for new trial and judgment notwithstanding the verdict will be denied except as follows:

'1. Motion for judgment notwithstanding the verdict will be granted as against the City and County of San Francisco on the issue of liability for the false imprisonment of the plaintiff, and a new and different verdict ordered entered finding for the plaintiff and against the City and County of San Francisco on the issue of liability for false imprisonment and the matter is directed to be retried on the issue of damages.

'2. The motion for new trial will be granted as against the City and County of San Francisco on the issue of false imprisonment on the following grounds: (a) That the verdict is not supported by the evidence; and (b) that the verdict is against the law.

'In view of the time element the above will be in lieu of a formal order.'

The appealability of this purported judgment does not depend upon its ultimate validity, but upon what it purports to be. Otherwise, there would be no need for appeal. If it were treated as interlocutory only, without determining the challenge to its validity at the inception, it might well result in a fruitless trial, with delay and expense to the litigants, and an added burden to the courts.

Although all defendants were embraced in the motions, the trial court dropped out the individual defendants from its judgment notwithstanding the verdict. This, of course, was predicated upon the jury's finding the arrest was lawful, which the trial court reluctantly concluded was supported by minimal evidence. Since the connection of the individual defendants with the cause stopped when plaintiff was delivered to the patrol wagon, the trial court's opinion referred to her alleged detention, after cash bond was posted, and until plaintiff's release on such bail. There seems to have been inadequate consideration of the relationships established in liability matters by Government Code sections 820, 820.4, and 815 .2.

A judgment notwithstanding the verdict can be sustained only when it can be said as a matter of law that no other reasonable conclusion is legally deducible from the evidence, and that any other holding would be so lacking in evidentiary support that the reviewing court would be compelled to reverse it, or the trial court would be compelled to set it aside as a matter of law, as this court held in Spillman v. City etc. of San Francisco (1967) 252 Cal.App.2d 782, 786, 60 Rptr . 809. As Shoemaker, P.J., there stated (at p. 786, 60 Cal.Rptr. 809 at p. 812): 'The court is not authorized to determine the weight of the evidence or the credibility of witnesses. (Palmer v. Agid (1959)171 Cal.App.2d 271, 276, 340 P.2d 303.) Even though a court might be justified in granting a new trial, it would not be justified in directing a verdict or granting judgment notwithstanding the verdict on the same evidence.'

Usually, a judgment notwithstanding the verdict is sought by a defendant, who thereby interposes a demurrer to the evidence. Code of Civil Procedure section 629 permits the motion by an unsuccessful plaintiff. If the trial court sets aside the verdict, and itself proceeds to assess damages, it deprives defendants of their constitutional right to jury trial on that question. (Spillman v. City etc. of San Francisco, supra, 252 Cal.App.2d at p. 787, 60 Cal.Rptr. 809; Hozz v. Felder (1959) 167 Cal.App.2d 197, 200, 334 P.2d 159.)

Since assessment of damages intrinsically involves the determination of liability, we hold that the same principle is applicable. It was error for the trial court here to declare liability, notwithstanding the verdict, and to grant a new trial as to damages only, on any factual basis. (Jach v. Edson (1967) 255 Cal.App.2d 96, 101, 62 Cal.Rptr. 925; cf. Gordon v. Strawther Enterprises, Inc. (1969) 273 A.C.A. 540, 78 Cal.Rptr. 417.)

The record indicates that the trial judge predicated the judgment notwithstanding the verdict upon three additional erroneous premises . The first was, that the verdict of the jury on the issue of false arrest, exculpating the defendants including the arresting officers, limited the false imprisonment charge to the conduct of the employees of the City and County of San Francisco at the jail. The second was, that detention of the plaintiff Phoebe Moore for booking (as defined in Penal Code section 7, subdivision 21) as a condition precedent to such release on cash bail under Penal Code section 1295, was unconstitutional and void. Hence, the court concluded, there was liability as a matter of law, thus meeting the criteria for application of Code of Civil Procedure section 629 for judgment notwithstanding the verdict. The third error was in assuming that a split judgment could be given limited to determining the damage issue, in the same fashion a motion for new trial might be limited.

The judgment notwithstanding the verdict, as given, violates the established rule that there ordinarily cannot be multiple final judgments in a single action. (Code Civ.Proc. § 577; Sjoberg v. Hastorf (1948) 33 Cal.2d 116, 118, 199 P.2d 66 8; Bank of America v. Superior Court (1942) 20 Cal.2d 697, 701, 128 P.2d 357.)

Thus, the purported judgment is invalid on its face, and must be reversed. Since it is reversed, we proceed to determine the scope and validity of the alternate order granting a new trial.

Imprisonment based upon a lawful arrest is not false, and is not actionable in tort. (Peterson v. Robison (1954) 43 Cal.2d 690, 696, 277 P.2d 19.) On the other hand, since an arrest involves detention or restraint, false arrest always involves an imprisonment, and a suit for false imprisonment automatically embraces the wrongful arrest; and two separate torts are not involved. (Cf. Gill v. Epstein (1965) 62 Cal.2d 611, 618, 44 Cal.Rptr. 45, 401 P.2d 397, arrest is a proximate cause.)

Although the verdicts purport to relate to two causes of action, false arrest and false imprisonment, they are not cumulative. As is stated in 32 Am.Jur.2d, section 2, page 74, 'False arrest and false imprisonment as causes of action are said to be distinguishable only in terminology. The difference between them lies in the manner in which they arise. It is not necessary, to commit false imprisonment, either to intend to make an arrest or actually to make an arrest. However, a person who is falsely arrested is at the same time falsely imprisoned, and an unlawful arrest may give rise to a cause of action for either false arrest or false imprisonment. Furthermore, unlawful detention after a lawful arrest may give rise to a false imprisonment action. It has been held, however, that a person improperly detained pursuant to a lawful arrest, though having the right to bring an action for false imprisonment, cannot bring an action for false arrest.' False arrest is merely one way of committing a false imprisonment. (Harrer v. Montgomery Ward & Co ....