Oppenheimer v. City of Los Angeles

• Citation: 232 P.2d 26,104 Cal.App.2d 545
• Court: California Court of Appeals
• Decision Date: 01 June 1951
• Parties: OPPENHEIMER v. CITY OF LOS ANGELES et al. Civ. 18034.

Page 26

232 P.2d 26

104 Cal.App.2d 545

OPPENHEIMER v. CITY OF LOS ANGELES et al.

Civ. 18034.

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

June 1, 1951.

Hearing Denied July 26, 1951.

John G. Oppenheimer, in pro per.

Ray L. Chesebro, City Atty., Bourke Jones, Asst. City Atty. and Roland Wilson, Deputy City Atty., all of Los Angeles, for respondents.

VALLEE, Justice.

Appeal by plaintiff from 1) a judgment of dismissal entered pursuant to an order sustaining, without leave to amend, the demurrers of the City of Los Angeles, Clemence B. Horrall, v. Fallon, and W. Erskine to the second amended complaint, 2) an order denying plaintiff's motion to vacate the judgment, 3) an order striking plaintiff's amendment to the second amended complaint, 4) an order quashing a subpoena duces tecum, and 5) an order denying plaintiff's motion to annul the order quashing the subpoena duces tecum. The foregoing defendants, in the order named, are the City of Los Angeles, a municipal corporation, the chief of police, and two police officers of the city.

The first count of the second amended complaint alleges that on November 12, 1948, while on the premises of a restaurant located at 648 South Broadway, 'the defendant city by and through its agents and employees, defendants, Doe One and Doe Two [police officers], and each did, accost, seize and wilfully assault plaintiff, bruise and twist his right arm, and unlawfully arrest him at nighttime, without a warrant and against his will, on a pretended charge of a misdemeanor not witnessed by either of them, and then did turn the plaintiff over to the defendants V. Fallon and W. Erskine, for them to take the said plaintiff to jail'; that 'defendants V. Fallon and W. Erskine and each did, in fact then take plaintiff to city jail, on such purported charge of a misdemeanor not witnessed by them, and without a warrant of arrest, and there imprison the said plaintiff and restrain him of his liberty without any right or authority so to do, until the afternoon of the 17th day of November, 1948'; that defendant Clemence B. Horrall, 'then Chief of Police of the defendant city, on or about April 6, 1949, in effect ratified, condoned and abetted the cruel and lawless actions of the other non-corporate defendants, and has never repudiated them.' The complaint recites the filing of a verified damage claim with defendant city, which claim was subsequently denied. Damage in the sum of $19,000 is alleged.

The second count, directed against defendant city, alleges that on November 12, 1948, and while plaintiff was wrongfully confined, the city maintained and operated a jail which was unfit, overcrowded, unsanitary and not a suitable place of detention; the food was not fit for human consumption and caused plaintiff to become ill; plaintiff was confined in a 'stall' with the 'dregs and degenerates of human society, as well as thieves and other parasites and disreputable characters'; that in so confining plaintiff the defendant city was 'guilty of a wanton disregard of the rights and feelings of this plaintiff,' to his damage in the sum of $19,000.

The demurrers of the above named defendants were based on the grounds that the second amended complaint did not state facts sufficient to constitute a cause of action, that a cause of action for false imprisonment was improperly united with a cause of action for assault and battery and not separately stated, and that the complaint was uncertain.

The demurrer of city city was properly sustained. A municipality cannot be held in damages for the torst of its police officers acting in a governmental capacity. Stedman v. City and County of San Francisco, 63 Cal. 193; Brindamour v. Murray, 7 Cal.2d 73, 78, 59 P.2d 1009; Wood v. Cox, 10 Cal.App.2d 652, 653, 52 P.2d 565; Abrahamson v. City of Ceres, 90 Cal.App.2d 523, 526, 203 P.2d 98. A municipal corporation exercises a purely governmental function in maintaining and operating a jail. See cases cited Annotation 46 A.L.R. 97; 50 A.L.R. 268; 61 A.L.R. 569. The second count therefore does not state a cause of action.

The demurrer was likewise properly sustained as to the chief of police. A chief of police is not liable in damages for the unlawful acts and omissions of the subordinates of the department unless he has directed such acts or personally cooperated in the alleged false imprisonment. Abrahamson v. City of Ceres, 90 Cal.App.2d 523, 526, 203 P.2d 98; Downey v. Allen, 36 Cal.App.2d 269, 273, 97 P.2d 515. The only allegation with respect to the chief of police was that he 'in effect ratified, condoned and abetted' the actions of the other individual defendants. This allegation falls far short of an allegation that he directed such acts or personally cooperated in the false imprisonment.

As to respondents Fallon and Erskine, the complaint states a cause of action. A police officer is without right to arrest an individual, without a warrant, for a misdemeanor not committed in his presence. Pen.Code, § 836; Collins v. Owens, 77 Cal.App.2d 713, 718, 176 P.2d 372. Where a complaint is based upon an arrest made without a warrant, for a misdemeanor not committed within the presence of an officer, as it is here, all that need be alleged to charge the unlawful arrest is 1) the arrest without process, 2) the imprisonment, and 3) the damage. Collins v. Owens, supra, 77 Cal.App.2d at page 718, 176 P.2d 372; Kaufman v. Brown, 93 Cal.App.2d ...