Shakespeare v. City of Pasadena

• Decision Date: 26 October 1964
• Citation: 40 Cal.Rptr. 863,230 Cal.App.2d 375
• Court: California Court of Appeals Court of Appeals
• Parties: Gene SHAKESPEARE, Plaintiff and Appellant, v. CITY OF PASADENA, Defendant and Respondent. Civ. 28262.

Page 863

40 Cal.Rptr. 863

230 Cal.App.2d 375

Gene SHAKESPEARE, Plaintiff and Appellant, v. CITY OF PASADENA, Defendant and Respondent.

Civ. 28262.

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

Oct. 26, 1964.

Rehearing Denied Nov. 12, 1964.

Hearing Denied Dec. 23, 1964.

Gene Shakespeare, in pro. per.

Wendel R. Thompson, City Atty., Hahn & Hahn and Leonard M. Marangi, Pasadena, for defendant and respondent.

KINGSLEY, Justice.

This is one of three cases, all arising out of the arrest and imprisonment of appellant and his mother. Because of factual and legal differences in the cases, we deal with each appeal in a separate opinion. ¹

In the instant case, appellant sued 'defendants CITY OF PASADENA, PACIFIC INDEMNITY CO., PASADENA POLICE DEPARTMENT, and OTHERS.' The city appeared separately and demurred. The city's demurrers to the original complaint and to a first amended complaint were sustained with leave to amend, its demurrer to the second amended complaint was sustained without leave to amend, judgment of dismissal was entered, and appellant has appealed from that judgment. The appeal comes to us on an Engrossed Statement on Appeal which, although including the body of the several pleadings, omits all captions. The result is that we cannot determine exactly who, beside the city, was made a party defendant and, therefore, it is almost impossible to determine whether or not any of the causes of action other than the first were intended to state a cause of action against the city. However, as the city has done in its brief, we assume that the city was intended as a codefendant in all causes of action attempted to be stated.

The complaint is prolix, full of averments of evidentiary matters, indefinite and confusing. An order sustaining a special demurrer with leave to amend further would have been of unquestioned validity. However, the record shows that the city's demurrer was urged and sustained on the ground of failure to state a cause of action and we address ourselves to that issue alone. Since only the judgment in favor of the city is before us, we express no opinion as to the existence of a cause of action against any other defendant, except as the rights, duties and liabilities of the police officers of the city are necessarily involved in the action against their employer.

Reading the complaint most favorably to the pleader, and resolving sundry ambiguities in his favor, the following story appears: Plaintiff's foster brother, DeFrenn, had contracted with Simon Zervos for the purchase of certain real property in the City of Pasadena. Disputes arose between those parties and litigation ensued. DeFrenn contended that Zervos was permitting waste to be committed on the property and obtained a court order authorizing him to enter on the premises for the purpose of protecting his claimed interest in certain particulars set out in that order. DeFrenn executed an instrument in writing appointing plaintiff as his agent to carry out the court order. (It is nowhere alleged that notice of this appointment was ever given to Zervos; whether or not oral notice was given to the police officers at the time of plaintiff's arrest is left to conjecture.) Plaintiff, accompanied by his mother, went to the premises on the afternoon of May 4, 1962. They discovered that one door was unfastened, went to a neighboring house to notify the police, and plaintiff then returned to the premises. When he reached the property, Zervos and police officers were present. Plaintiff and his mother were arrested, jailed, charged with a violation of section 602, subdivision (j) of the Penal Code, tried and acquitted.

I

The city urges first that the complaint is fatally defective for not alleging compliance with the claims provisions of the Pasadena City Charter.

The allegation in this respect reads as follows:

'In compliance with Article 11 of the Pasadena Charter, on September 6, 1962 Plaintiff filed with the City Clerk of the City of Pasadena at 100 N. Garfield Ave., a Claim for $325,750.00 damages of this tort of the City of Pasadena. This claim was presented to the Pasadena Board of City Directors on September 11, 1962 and was referred to the Pasadena City Attorney, and was publicized in the Pasadena Independent of September 12, 1962.' (Emphasis added.)

The applicable provisions of the Pasadena Charter (of which we and the trial court take judicial notice) are as follows: ²

'Section 1. All claims and demands whatever against the City of Pasadena * * * shall be paid only on demands as herein provided.'

Section 2. Every demand shall be presented to the City Controller and shall be numbered by him.'

'Section 12. No suit shall be brought upon any claim for money or damages, whether founded on tort or contract, against the City of Pasadena, or any department thereof, until a demand for the same has been presented as provided herein * * * and rejected in whole or in part.'

It is obvious that the allegation above quoted is defective in two particulars: It is alleged that the claim was presented to the city clerk rather than to the city controller, and there is no allegation that the claim has ever been rejected, either in whole or in part, by the controller or by the city board of directors. In his brief, appellant refers to his points and authorities filed in the trial court, wherein he had contended:

'In Pasadena it is a procedural impossibility for the claimant to file a claim with the City Controller because the City Controller does not file claims on presentation by claimants, but rather refers claimants to the City Clerk. The City Manager also directs claimants to file with the City Clerk, and the City Clerk accepts and files claims in the regular course of business.'

While none of these matters appear in the complaint, still, if true, plaintiff could show compliance with the charter requirement, either on the theory that the controller had made the clerk his agent for the receipt of claims, or on a theory of estoppel. No point was made by the city of the failure to allege rejection. Under the circumstances, if plaintiff has a cause of action, and if the city charter provisions are applicable, he should be allowed an opportunity to amend his pleadings to supply these deficiencies if he can and desires so to do. (Wennerholm v. Stanford University School of Medicine (1942) 20 Cal.2d 713, 128 P.2d 522, 141 A.L.R. 1358.)

However, plaintiff's right to proceed in this action depends not only on the city charter but on the effect of legislation enacted in 1961 and in 1963. (Stats.1961, c. 1404; Stats.1963, c. 1681.)

Prior to the 1961 legislation just referred to, plaintiff's alleged causes of action, being for intentional acts of the city's officers, were governed by the city charter and not by the general law provisions of section 715 of the Government Code. (Farnsworth v. Cote (1962) 199 Cal.App.2d 762, 19 Cal.Rptr. 45; Whitson v. LaPay (1957) 153 Cal.App.2d 584, 315 P.2d 45.) ³ But, in 1961, following the decision of the Supreme Court in Muskopf v. Corning Hospital District (1961) 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457, (which abrogated sovereign immunity in this state) the Legislature enacted a moratorium statute (Chapter 1404 of the 1961 statutes). So far as here pertinent, that act provided as follows:

'Section 1. The doctrine of governmental immunity from tort liability is hereby re-enacted as a rule of decision in the courts of this State, and shall be applicable to all matters and all governmental entities in the same manner and to the same extent that it was applied in this State on January 1, 1961.

* * *

* * *

'Sec. 3. Section 1 of this act shall remain in effect until the 91st day after the final adjournment of the 1963 Regular Session of the Legislature, and shall have no force or effect on the after that date.

'Sec. 4. (a) On or after the 91st day after the final adjournment of the 1963 Regular Session of the Legislature, an action may be brought and maintained in the manner prescribed by law on any cause of action which arose on or after February 27, 1961 and before the 91st day after the final adjournment of the 1963 Regular Session, and upon which an action was barred during that period by the provisions of this act, if and only if both of the following conditions are met: (1) a claim based on such cause of action has been filed with the appropriate governmental body in the manner and within the time prescribed for the filing of such claims in Division 3.5 (commencing with Section 600) of Title 1 of the Government Code, and (2) the bringing of the action was barred solely by the provisions of this act and is not barred by any other provision of law enacted subsequent to the enactment of this act. * * *'

In the light of this statute, as construed in Corning Hospital Dist. v. Superior Court (1962) 57 Cal.2d 488, 20 Cal.Rptr. 621, 370 P.2d 325, and in Thelander v. Superior Court (1962) 58 Cal.2d 811, 26 Cal.Rptr. 643, 376 P.2d 571, plaintiff's cause of action was suspended as soon as it arose unless it was given life by the 1963 legislation. Whatever may be the rule as to the retroactivity of the 1963 act on causes of action which accrued prior to the effective date of the 1961 statute, conduct thereafter can, in the light of that act, constitutionally be governed by the 1963 legislation.

By its express terms, the 1963 statutes did not revive any causes of action which were barred on the date (September 20, 1963) when it became effective. (Stats.1963, c. 1681, § 45(b).) But, whatever its effect on causes of action recognized by the Muskopf case and arising prior to the effective date of the 1961 act (September 15, 1961), the 1961 act clearly applies to causes of action such as are herein involved, which arose, if at all, in 1962. The tentative life given to tort actions by section 4 of that act was conditioned, among other things, on the filing of a proper claim. And the...