Singer v. Bogen

• Decision Date: 11 January 1957
• Citation: 147 Cal.App.2d 515,305 P.2d 893
• Court: California Court of Appeals Court of Appeals
• Parties: Herbert L. SINGER, Mrs. Herbert L. Singer, and Sharon Singer, by and through her guardian ad litem, Herbert L. Singer, Plaintiffs and Appellants, v. David BOGEN et al., Defendants, Judge William B. McKesson and Judge William B. Neeley, Defendants and Respondents. Civ. 22026.

Page 893

305 P.2d 893

147 Cal.App.2d 515

Herbert L. SINGER, Mrs. Herbert L. Singer, and Sharon Singer, by and through her guardian ad litem, Herbert L. Singer, Plaintiffs and Appellants, v. David BOGEN et al., Defendants Judge William B. McKesson and Judge William B. Neeley, Defendants and Respondents.

Civ. 22026.

District Court of Appeal, Second District, Division 1, California.

Jan. 11, 1957.

Randolph Weltner, C. A. Weltner, Los Angeles, for appellants.

Harold W. Kennedy, County Counsel, Wm. E. Lamoreaux, Asst. County Counsel, Isaac Pacht, Los Angeles, for respondents.

FOURT, Justice.

This is an appeal by the plaintiffs from a judgment of dismissal made and entered in favor of the respondents and against the plaintiffs.

The plaintiff Sharon Singer, a minor, and her father and mother, Mr. and Mrs. Herbert L. Singer, filed an action for false imprisonment against respondents Judge William B. McKesson and Judge William B. Neeley, judges of the superior court of the State of California in and for the County of Los Angeles. The trial court ordered a dismissal of the action after having sustained the demurrer of the respondents to the amended complaint.

Substantially, the allegations of the amended complaint are as follows: That Judge William B. McKesson and Judge William B. Neeley are sued in their official capacities as judges of the superior court. As to Judge William B. McKesson, it is alleged that on June 29, 1955, after a petition was filed to have Sharon Singer de clared a ward of the juvenile court, Judge McKesson, without any hearing, ordered Sharon detained in Juvenile Hall and that on June 30, 1955, he conducted a pre-detention hearing in regard to Sharon, but that no citation with reference to the hearing was served upon Sharon's parents; that at the pre-detention hearing Judge McKesson ordered the continued detention of Sharon in Juvenile Hall, and on July 1, 1955, ordered her transferred to a boarding home where she was kept until she was returned to Juvenile Hall on July 6, 1955, on the further order of Judge McKesson. It is not alleged that Sharon's parents were not present at the hearing held on June 30, 1955.

It is then alleged that the petition to declare Sharon a ward of the juvenile court was finally terminated by Judge McKesson in favor of Sharon.

It is further alleged, on information and belief, that after the defendant David Bogen, Superintendent of Juvenile Hall, had been served with an order issued by the District Court of Appeal, District Two, Division Three, to release Sharon, he conferred with Judge McKesson, who instructed the defendant Bogen to disregard the order and that one hour expired before Sharon was released.

As to Judge William B. Neeley, it is alleged that on June 24, 1955, he signed an order to detain Sharon in Juvenile Hall, pursuant to a written request of the district attorney, a copy of which was attached to the complaint, and is as follows:

'In the Superior Court of the County of Los Angeles, State of California, Sitting in Separate Session in the Exercise of Jurisdiction as Juvenile Court

'In the Matter of

S/Sharon Singer

A person under the age of twenty-one years

Petition No. 183 213

Request for Order Detaining Material Witness

'In the Matter of the above mentioned minor person, it is respectfully submitted as follows:

'That a petition has been filed in the Juvenile Court of the County of Los Angeles; that said above mentioned person is residing within said county, and is a person alleged to come within the provisions of the 'Juvenile Court Law,' of the State of California; that said person is of the age of 8 years, and should be detained, as a material witness for the People of the State of California pending the trial of People of the State of California vs. S/David Eli Singer Dist. Atty's No. 211 526, on a charge of 288 of the Penal Code.

'In the interests of justice because of pending charge against said adult and for the welfare and protection of said minor person it is necessary that said witness be not interviewed or allowed any visitors except on consent of the District Attorney or under conditions prescribed by the court which will insure that the minor witness will not be improperly influenced or intimidated. The reasons for requesting that said witness be so held are as follows: Defendants is grandfather of victim and parents do not wish to have him prosecuted. Case came to attention of police through neighbors who had observed defendant's actions.

'The District Attorney hereby agrees to notify the Probation Department when said minor is no longer needed as a material witness in the above entitled action.

'Wherefore, your petition respectfully requests that said minor be detained in Juvenile Hall or other suitable place until no longer needed as a witness in the above entitled action.

'Dated this 24 day of June, 1955

'District Attorney

'By Florence E. Linn

'S/ Deputy District Attorney 'For the welfare and protection of said minor, and in the interest of justice, it is hereby ordered that said minor be detained in Juvenile Hall as a material witness for the People of the State of California for the reasons above set forth, without visitation as above requested, except with the approval of the District Attorney or by order of this court.

'Dated: This 24 day of June, 1955

'William B. Neely

'S/ Judge of the Juvenile Court'

The judge signed the order to detain the child as is set forth on the Exhibit above. The complaint then alleges that at the time of the order no petition had been filed and none was filed until June 29, 1955.

It is at once apparent that the two judges involved were acting in their official capacities as judges of the juvenile court of the State of California, in and for the County of Los Angeles.

The appellants contend that the judges of the juvenile court had no jurisdiction to incarcerate or detain the minor for use as a witness and that the judges, acting without jurisdiction, are now subject to an action for false imprisonment.

The appellants rely heavily upon the case of De Courcey v. Cox, 94 Cal. 665, 30 P. 95, which was an action for false imprisonment. The judgment in that case went in favor of the defendant on the pleadings, the plaintiff appealed, and the judgment was reversed. The complaint set forth that upon a complaint made before the defendant, a justice of the peace, charging plaintiff with refusing to return the sum of $20, alleged to have been overpaid the plaintiff by mistake by the El Cajon Vineyard Company, the defendant issued a warrant of arrest, upon which the plaintiff was arrested and brought before the defendant and required to and did plead to the charge, and after trial the defendant rendered judgment that the plaintiff restore the amount of $20 or be committed to jail for twenty days; that pursuant to the judgment, the defendant issued a commitment and placed it in the hands of an officer who executed it by imprisoning the plaintiff in the county jail for three days. The court stated, 94 Cal. at page 668, 30 P. at page 95: 'Defendant proceeded upon the charge as he might have done had it constituted a crime, which it clearly did not.'

In Platz v. Marion, 35 Cal.App. 241, 169 P. 697, it was held that a justice of the peace was not liable for damages for false imprisonment in issuing a warrant for and causing the arrest of an attorney at law upon a complaint filed with him which attempted to charge, but was wholly insufficient to charge the attorney with the crime of common barratry, in the absence of any claim that the justice was actuated by malice or corrupt motives, his action being based upon an erroneous determination as to the sufficiency of the complaint. The De Courcey case is well analyzed in the Platz case, the court stating, 35 Cal.App. at page 251, 169 P. at page 701:

'* * * The Supreme Court held that the complaint stated a cause of action in favor of the plaintiff and against the defendant (the justice of the peace) for damages for false imprisonment. But readily it will be observed that absolutely no public offense whatever under the law was stated in the so-called complaint filed with the justice against the plaintiff. The justice had no jurisdiction of the subject-matter of the complaint, so far as a criminal charge was concerned. The complaint merely alleged that the plaintiff, by a mistake, had been overpaid, and there was no pretense, so far as the complaint disclosed, that he obtained or even retained the amount overpaid through any criminal act on his part. If the so-called complaint disclosed anything at all, it was merely a civil action for money had and received, and obviously the proceeding taken by the justice under the complaint was wholly and entirely coram non judice. It was not a case which called for the arrest of the person of the plaintiff. It was, as before suggested, in no sense a criminal case or a proceeding in which the plaintiff was accused of committing a public offense. The facts pleaded by the plaintiff in his action against the justice of the peace might therefore be held sufficient to raise the implication that malice characterized the acts of the justice of the peace in issuing the warrant for the arrest of and in committing the plaintiff to imprisonment.'

The court in the Platz case went on further to say, 35 Cal.App. at pages 248-249, 169 P. at page 700: 'The early case of Grove v. Van Duyn, 44 N.J.L. 654, 42 Am.Rep. 648, holds to this view. In that case, which, in its general aspect, resembles the case at bar, a justice of the peace had authorized the arrest of the plaintiff and held him to bail for unlawfully carrying away bundles of cornstalks, 'under a statute which came no nearer to specifying such an offense than carrying away a stack of corn.' It was held that the justice was not civilly liable. So much is said in the opinion in that case that is instructive and enlightening upon the question involved in the...