Ramsden v. Western Union

• Decision Date: 29 June 1977
• Citation: 138 Cal.Rptr. 426,71 Cal.App.3d 873
• Court: California Court of Appeals Court of Appeals
• Parties: Donald La Verne RAMSDEN, William Edward Stettler, Dale James Northcutt, Plaintiffs and Appellants, v. WESTERN UNION, a corporation, Civil Air Patrol, a corporation, Paul Bosack, Larry Konrad, aka Lorenz Konrad, Howard R. Tangle, Tim Fox, aka Timothy Fox, Raymond Johnson, Defendants and Respondents. Civ. 48927.

Page 426

138 Cal.Rptr. 426

71 Cal.App.3d 873

Donald La Verne RAMSDEN, William Edward Stettler, Dale James Northcutt, Plaintiffs and Appellants, v. WESTERN UNION, a corporation, Civil Air Patrol, a corporation, Paul Bosack, Larry Konrad, aka Lorenz Konrad, Howard R. Tangle, Tim Fox, aka Timothy Fox, Raymond Johnson, Defendants and Respondents.

Civ. 48927.

Court of Appeal, Second District, Division 5, California.

June 29, 1977.

Saltz & Saltz and Philip Saltz, Encino, for plaintiffs and appellants.

Lawler, Felix & Hall, Kenneth B. Wright, Jane H. Barrett, and Bernard E. LeSage, Los Angeles, for defendant and respondent Western Union.

Albert I. Kaufman, Woodlands Hills, for defendants and respondents Civil Air Patrol, Larry Konrad, Howard R. Tangle, Tim Fox, and Raymond Johnson.

Fernandes & Le Berthon and John M. Maller, Hollywood, for defendant and respondent Paul Bosack.

ASHBY, Associate Justice.

Plaintiffs appeal from an order of dismissal entered after plaintiffs failed to file a third amended complaint following the sustaining of demurrers to the second amended complaint with leave to amend. (Code Civ.Proc., §§ 581, subd. 3; 581d.)

The second amended complaint alleges four causes of action: (1) false arrest; (2) malicious prosecution; (3) negligence; and (4) defamation. There are three plaintiffs, Ramsden, Stettler and Northcutt. Defendant Bosack is alleged to be an employee and agent of defendant Western Union acting within the course and scope of his employment and agency. Defendants Konrad, Tangle, Fox, and Johnson are alleged to be officers, employees, and agents of defendant Civil Air Patrol, acting within the course and scope of said employment and agency.

The first three causes of action are stated in the alternative. It is alleged that on July 9, 1973, defendants caused plaintiffs to be arrested and incarcerated by the Los Angeles Police Department without warrant on a felony charge 'upon the false information and request of the Defendants, and each of them.' Defendants knew that the alleged felony 'did not take place' but requested the arrest of plaintiffs and 'insisted on continuing the prosecution of Plaintiffs' despite the fact that defendants 'had knowledge that Plaintiffs were innocent of the charge for which they were arrested.' Prior to the arrest defendants were given information by plaintiffs and another individual employed by Western Union that established the innocence of plaintiffs, but defendants completely disregarded this information. (First cause of action--false arrest.)

Defendants accused plaintiffs of violating Penal Code section 496 (receiving stolen property) and 'insisted and directed' that plaintiffs be arrested, detained, charged, arraigned, and held for trial in municipal case No. 744871. On December 6, 1973, said criminal proceedings were finally terminated in favor of each of the plaintiffs by dismissal thereof on a motion by the People based upon lack of evidence. Defendants acted without reasonable or probable cause and acted maliciously in that they knew said accusation was false but continued to 'prosecute' said action with the intent to vex plaintiffs. (Second cause of action--malicious prosecution.)

Defendants 'negligently accused' plaintiffs and 'further negligently acted in causing the Plaintiffs' to be arrested, detained, charged, arraigned, and held for trial on the said charges, 'in that they breached a duty of care which was owed to the Plaintiffs . . . to determine the truthfulness of the information supplied them showing the innocence of Plaintiffs prior to accusing Plaintiffs of the commission of a crime. Further, once having received information showing the innocence of Plaintiffs, said Defendants breached their duty owned (sic) to Plaintiffs by neglecting to take some affirmative action to have the criminal proceedings dismissed.' (Third cause of action--negligence.)

As to these causes of action it is alleged that the acts of defendant Bosack were approved and ratified by defendant Western Union 'in that WESTERN UNION through various other employees and agents, did conduct its own inquiry into the facts pertaining to the incidents complained of herein, did thereafter continue the employment of the Defendant, PAUL BOSACK, and did adopt the conduct and acts of PAUL BOSACK as its own.' It is further alleged that the acts of defendants Konrad, Tangle, Fox, and Johnson 'were done with the prior consent and knowledge of the Defendant, CIVIL AIR PATROL, and were approved and ratified by CIVIL AIR PATROL, in that CIVIL AIR PATROL, through various other employees and agents, did conduct its own inquiry into the facts pertaining to the incidents complained of herein, did thereafter continue the membership, employment, and agency of said individual Defendants, KONRAD, TANGLE, FOX and JOHNSON, did thereafter take action to demote and did demote at least one of the Plaintiffs herein, did nothing to discipline or reprimand said individual Defendants and did otherwise adopt the conduct and acts of KONRAD, TANGLE, FOX and JOHNSON as its own.'

The fourth cause of action, for defamation, is limited to defendants Civil Air Patrol, Konrad, Tangle, Fox, and Johnson. It alleges that on July 18, 1973, and other various times these defendants orally and in writing published false and malicious statements that plaintiffs were guilty of violating Penal Code section 496 and that the commission of said crime constituted conduct unbecoming a member of the Civil Air Patrol.

Various general and special demurrers were sustained as to the original complaint, first amended complaint, and the second amended complaint. Following the sustaining of demurrers to the second amended complaint with leave to amend, plaintiffs declined to amend, and the dismissal and this appeal followed.

DISCUSSION

Defendants' basic argument for upholding the order is that the second amended complaint fails to state facts sufficient to constitute a cause of action. In support of this argument, defendants also urge that we take judicial notice of an arrest report contained in the municipal court file of the criminal action in which plaintiffs were charged with receiving stolen property. It is urged that the arrest report sets forth 'the real facts' concerning exactly what statements were made by which defendants and the extent of independent investigation by the authorities, and that therefore the complaint fails to state a cause of action 'in that the averments are contrary to the facts as contained in the arrest report.' Defendants' various contentions in this regard reflect a misunderstanding of the role of pleadings and demurrers in the litigation.

On demurrer the complaint must be liberally construed with a view to substantial justice between the parties. (Code Civ.Proc., § 452.) A demurrer lies only for defects appearing on the face of the complaint or from matters of which the court must or may take judicial notice. (Code Civ.Proc., § 430.40.) On demurrer the allegations of the complaint are assumed to be true. A demurrer is simply not the appropriate procedure for determining the truth of disputed facts. It would be inappropriate for us to rely upon the arrest report for the purposes suggested by defendants. Although in ruling on a demurrer courts may take judicial notice of files in other judicial proceedings (Saltares v. Kristovich, 6 Cal.App.3d 504, 510, 85 Cal.Rptr. 866), this does not mean that they take judicial notice of the truth of factual matters asserted therein. (Beckley v. Reclamation Board, 205 Cal.App.2d 734, 741, 23 Cal.Rptr. 428; People v. Long, 7 Cal.App.3d 586, 591, 86 Cal.Rptr. 590.) As stated in Day v. Sharp, 50 Cal.App.3d 904, 914, 123 Cal.Rptr. 918, 924, ". . . There exists a mistaken notion that this means taking judicial notice of the existence of facts asserted in Every document of a court file, incluiding pleadings and affidavits. However, a court Cannot take judicial notice of Hearsay allegations as being true, just because they are part of a court record or file. A court may take judicial notice of the Existence of each document in a court file, but can only take judicial notice of the truth of facts asserted in documents such as orders, findings of fact and conclusions of law, and judgments." (Emphasis in original.)

The elements of a cause of action for false imprisonment are an arrest without legal process, imprisonment, and damages. (Collins v. Owens, 77 Cal.App.2d 713, 715, 176 P.2d 372; Kaufman v. Brown, 93 Cal.App.2d 508, 511, 209 P.2d 156.) Plaintiffs have pleaded these elements. The allegation that the arrest was without a warrant places the burden on defendants to plead and prove that the arrest was lawful. (Collins v. Owens, supra, 77 Cal.App.2d at pp. 715, 718, 176 P.2d 372; Kaufman v. Brown, supra, 93 Cal.App.2d at pp. 511, 512, 209 P.2d 156.)

The fact that the arrest was made by Los Angeles police officers and not directly by defendants does not render them immune, because a party who 'authorizes, encourages, directs or assists an officer to do an unlawful act, or procures an unlawful arrest, without process, or participates in the unlawful arrest or imprisonment, is liable.' (Kaufman v. Brown, supra at p. 515, 209 P.2d at p. 160; Collins v. Owens, supra 77 Cal.App.2d at p. 719, 176 P.2d 372; Miller v. Fano, 134 Cal. 103, 104, 66 P. 183.) Plaintiffs' allegations that the arrests were at the request and insistence of defendants were sufficient. (Collins v. Owens, supra.)

The allegations were also sufficient to render Western Union and Civil Air Patrol liable, because the acts of the individual defendants were alleged to be within the course and scope of their employment and agency by Western Union and Civil Air Patrol. A principal is liable for false imprisonment by an agent or employee acting in the scope of his authority. (Kaufman v. Brown, supra, 93 Cal.App.2d at p. 515, 209 P.2d 156; Peckham v. Warner Bros. Pictures, Inc., 36...