Sarafini v. City and County of San Francisco

• Citation: 300 P.2d 44,143 Cal.App.2d 570
• Court: California Court of Appeals
• Decision Date: 31 July 1956
• Parties: Pearl SARAFINI, Plaintiff and Respondent, v. CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation, Defendant, Alvin Nicolini, Henry J. Kiernan, William C. Sullivan and Lester Eugene Hance, Defendants and Appellants. Civ. 16375.

Page 44

300 P.2d 44

143 Cal.App.2d 570

Pearl SARAFINI, Plaintiff and Respondent, v. CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation, Defendant Alvin Nicolini, Henry J. Kiernan, William C. Sullivan and Lester Eugene Hance, Defendants and Appellants.

Civ. 16375.

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

July 31, 1956.

Rehearing Denied Aug. 30, 1956.

Hearing Denied Sept. 25, 1956.

Dion R. Holm, City Atty., Edward F. Dullea, Robert M. Desky, William E. Mullins, Deputy City Attys., San Francisco, for appellants.

Gladstein, Andersen, Leonard & Sibbett, George R. Andersen, Rubin Tepper, San Francisco, for respondent.

DOOLING, Justice.

This is an appeal by defendants from a judgment of the Superior Court in and for the City and County of San Francisco entered in favor of plaintiff following a jury verdict.

The judgment recited that respondent Pearl Sarafini should recover from appellants Henry J. Kiernan, William C. Sullivan, Lester Eugene Hance and Alvin Nicolini (four individual police officers of the City and County of San Francisco) the sum of $3,000. The City and County of San Francisco is not a party to this appeal as the court sustained a demurrer to the complaint as to it without leave to amend.

The complaint alleged that on or about February 24, 1950, at or about the hour of 11 p. m., the appellants, without any just or legal excuse or reason therefor, and without being in possession of any legal process of any kind, forcibly and violently broke into respondent's home. At the time respondent and her child were alone in the home. Respondent further alleged that appellants did not inform her as to their identity, used heavy instruments in breaking into the premises, created a great deal of noise, and terrorized her. As a result of this manner of breaking into her home respondent asserted that she was subjected to great and severe mental and nervous shock.

It appears that three of the appellants (Sergeant Henry Kiernan, Patrolman Lester E. Hance, Patrolman William C. Sullivan) were sent to observe the apartment or flat of respondent at 1665 Grant Avenue by their superior, appellant Lieutenant Alvin J. Nicolini. Nicolini was not present at the trial and it was stipulated between the parties that if he were called he would testify he knew nothing about the incident.

Respondent's apartment is one of eight located in a four-story building. There is a common entrance and stairway for all of the apartments.

Appellant Hance arrived at the 1600 block of Grant Avenue about 7:15 p. m. on the night in question. He remained in his car parked across the street from the building in which respondent's apartment was located until about 10:30 p. m. During this time he observed from 15 to 20 oriental male persons enter this building. About 10:30 p. m. Hance met appellants Kiernan and Sullivan and the three of them continued to observe the building for a while during which time other male orientals entered the building. Then Kiernan and Sullivan went up to the front entrance of respondent's apartment while Hance went to the back.

Respondent testified that on February 24, 1950, she was at home alone with her daughter; that about 11 p. m. while she was sleeping her door bell rang; that she went to answer the door in her sleeping garments and pushed back the curtain on it to see who was there; that she saw a strange man there; that the strange man started to bang on the door and batter it down; that she then started to run in order to escape out the back entrance; that a man coming up the back entrance grabbed her by the arm; that she was dressed in her pajamas at the time of this incident; that she thought the men were trying to burglarize or rape her or something. Respondent further testified that she did not remember much about what happened; that she did remember being in the kitchen with two of the men (Hance, one of the appellants, intercepted her on the back stairway and led her back into her kitchen); that her husband came home later that she was nervous and hysterical the next day and her husband called a doctor who came to see her; and that the following Monday she went into the hospital where she stayed five days. She further testified to her continued nervousness and ill health.

Appellant Kiernan testified on cross-examination that although he saw some orientals going into the building, he could not see any enter respondent's flat or apartment since the door of the apartment was not visible from the outside. He further testified that after respondent came to her door in response to his ring he said 'police officer' and held his badge up in his hand. Respondent denied that anything was said to her or that the badge was displayed. It was stipulated that all of the officers were in plain clothes.

Appellant Sullivan testified that he and appellant Kiernan forcibly broke into and entered respondent's apartment by battering down the door after they saw her go towards the rear of the premises.

Appellant Hance testified that he first saw respondent when she ran out her back door and at that time she was upset and nervous. He further stated that he seized her left arm with his right hand and held her to keep her from getting away. She was then taken by him back to her kitchen where the other two officers were present.

Respondent apparently in answer to inquiries of the police officers as to the location of the house of prostitution told them to 'try downstairs.' Such a house was found by them at 1655 Grant Avenue and arrests and convictions followed.

As one of their contentions, appellants assert that respondent failed to plead or prove a cause of action without establishing filing of claims with the individual police officers as required by Government Code, § 1981. The section provides in part:

'Whenever it is claimed that any person has been injured or any property damaged as a result of the negligence or carelessness of any public officer or employee occurring during the course of his service or employment * * * within 90 days after the accident has occurred a verified claim for damages shall be presented in writing and filed with the officer or employee and the clerk or secretary of the legislative body of the school district, county, or municipality, as the case may be. * * *' (Emphasis ours.)

We have emphasized the words 'negligence or carelessness' in this claims statute because they delimit the cases in which such claims are required to be filed. The tort here involved is an intentional, not a negligent or careless, one. The three officers who invaded plaintiff's home did so intentionally and deliberately. Their reason or motive for the intentional invasion of plaintiff's home may have been a negligent belief that a house of prostitution was being conducted therein, but the invasion itself was nonetheless a deliberate and intentional act. We are satisfied that this cause of action does not fall within the limits of the claims statute. Cf. Ward v. Jones, 39 Cal.2d 756, 249 P.2d 246.

At the outset of the consideration of the case on the merits we will state that nowhere in the record do we find any evidence to support the judgment against the appellant Nicolini. A superior police officer is liable for the tortious acts of his subordinates only if he directs, cooperates in, or ratifies them. Michel v. Smith, 188 Cal. 199, 205 P. 113; Kangieser v. Zink, 134 Cal.App.2d 559, 285 P.2d 950. There is no evidence that Nicolini directed the other defendants to break into plaintiff's home nor that he either cooperated in their conduct in doing so or ratified it. It was stipulated that if called as a witness Nicolini would testify that he knew nothing about the incident. The judgment against appellant Nicolini must be reversed as finding no support in the evidence. Hereafter, in referring to appellants or defendants, it will be understood that we are referring to the appellants-defendants other than Nicolini.

It will also simplify the discussion to point out that evidence of the prima facie tortious conduct of appellants is to be found in their own testimony. Appellants Kiernan and Sullivan testified that they battered down the door of plaintiff's home and forcibly entered it; appellant Hance testified that he went to the back entrance to intercept anyone who might attempt to escape that way and grasped plaintiff by the arm and forced her back into her home when she was attempting to flee in her night clothes. This admitted conduct was clearly tortious unless there was legal justification for it, as to which the burden of proof was on the defendants. Dragna v. White, 45 Cal.2d 469, 471, 289 P.2d 428.

The attempted justification of appellants is that they had reasonable cause to believe that criminal conduct was being engaged in in the plaintiff's home. The defendants submitted the following instructions on this theory which were given by the court:

'You are instructed that a police officer, in all cases, may break open a door of a house in which a person to be arrested is or in which they have reasonable grounds for believing him to be, after having demanded admittance and explained the purpose for which admittance is desired.

'If you find from the evidence that the defendant police officers made a reasonable mistake in breaking down the door of the plaintiff, if they acted on facts which would lead a reasonable person to conclude that the person or persons sought to be arrested were in the flat, after having demanded admittance and explained the purpose for which admittance is desired, then you must return a verdict in favor of defendants.'

So far as the record shows these were the only instructions on the subject of justification of their conduct proposed by the defendants. They cannot therefore complain that more detailed or other instructions on the subject were not given. Ornales v. Wigger, 35 Cal.2d 474, 478-479, 218 P.2d 531; Gioldi v. Sartorio, 119...