Susman v. City of Los Angeles

• Decision Date: 18 February 1969
• Citation: 269 Cal.App.2d 803,75 Cal.Rptr. 240
• Court: California Court of Appeals Court of Appeals
• Parties: I. B. SUSMAN et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES et al., Defendants and Respondents. Civ. 32056.

Page 240

75 Cal.Rptr. 240

269 Cal.App.2d 803

I. B. SUSMAN et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES et al., Defendants and Respondents.

Civ. 32056.

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

Feb. 18, 1969.

Hearing Denied April 17, 1969.

Long & Levit, Bert W. Levit, John B. Hook, and Gregory Archbald, San Francisco, for appellants.

Roger Arnebergh, City Atty., John A. Daly, Asst. City Atty., and Arthur Y. Honda, Deputy City Atty., for respondent, City of Los Angeles.

Thomas C. Lynch, Atty. Gen., Marvin Goldsmith and Robert H. O'Brien, Deputy Attys. Gen., for respondent, State of California.

FORD, Presiding Justice.

The plaintiffs have appealed from a judgment of dismissal entered after the general demurrers of the defendants City of Los Angeles and State of California to the plaintiffs' complaint as amended had been sustained with leave to amend (see Rule 202(e), California Rules of Court) and the plaintiffs had elected not to file another amended pleading. The action relates to the 'Watts' Riot' of 1965.

In paragraph VIII of the first cause of action it was alleged that the plaintiffs were the owners of real and personal property in the City of Los Angeles as to which they suffered damage as follows: 'In August 1965, a crowd of men and women assembled in front of the premises owned by plaintiffs * * * and by mob action and in a riotous manner broke into and entered said premises, and removed, broke, and destroyed articles of personal property owned by plaintiffs and situated on such premises; and said crowd also set fire to plaintiffs' buildings, which fires consumed and destroyed the entire buildings, and the personal property remaining therein, and interrupted and destroyed the business of plaintiffs being conducted on said premises in an amount presently unknown but the total damage to plaintiffs' property is believed to be in excess of $69,000.00.' That paragraph was incorporated by reference in each of the other causes of action.

The allegations of tortious conduct set forth respectively in the eleven causes of action of the complaint will be noted hereinafter.

In California all government tort liability is now dependent on statute. (Gov.Code, § 815; see Cobey, The New California Governmental Tort Liability Statutes (1964) 1 Harv.J.Legis. 16, 20; Van Alstyne, California Government Tort Liability (Cont.Ed.Bar 1964) § 5.6, p. 124.) ¹ The California Tort Claims Act (Gov.Code, § 810 et seq.) governs the matter of government liability for damage caused by mob or riot. (See Van Alstyne, California Government Tort Liability (Cont.Ed.Bar 1964) § 2.15, p. 45.) Reference to pertinent sections of the California Tort Claims Act will be made in the course of the consideration of the several causes of action.

In view of the fact that tort causes of action against public entities are now based on statute, the general rule that statutory causes of action must be pleaded with particularity is applicable. Every fact essential to the existence of statutory liability must be pleaded. (Van Alstyne, California Government Tort Liability (Cont.Ed.Bar 1964) § 9.13, p. 422; see Feingold v. County of Los Angeles, 254 Cal.App.2d 622, 625, 62 Cal.Rptr. 396.)

While not involving an action under the California Tort Claims Act, the reasoning of the court in Rubinow v. County of San Bernardino, 169 Cal.App.2d 67, 336 P.2d 968, aptly expresses the necessity of pleading facts showing the existence of a duty and a breach thereof sufficient to sustain a recovery by the plaintiff. In Rubinow the plaintiffs alleged that the accident in which the death occurred was caused by the negligent driving of one Moore and that a deputy sheriff who was following the Moore automobile failed and neglected 'to faithfully perform his duties, to stop and prevent the violation of the law being committed in his presence' by Moore. The plaintiffs based their contention of liability on statutory provisions relating to the duties of officers. In holding that the pleading was deficient in alleging facts which would place a duty on the officer to make an arrest, the court stated (169 Cal.App.2d, at page 71, 336 P.2d at page 970): 'It is perfectly true that, ordinarily speaking, negligence may be pleaded in general terms. (Citation.) But first a duty to act must be shown. (Citations.) It appears to us that in a case of the type here at hand there is at least some degree of discretion required to be exercised by the officer, and where that is true the facts which plaintiffs rely upon to place on the shoulders of the officer the duty to act should be sufficiently alleged so as to make that duty clear and unequivocal. This is a simple, ordinary rule of fairness. In the case at bar, the pleading does not allege facts from which the officer would necessarily know, even in the exercise of extraordinary diligence, that an offense was being committed. * * * Before the officer would be under any duty to act in any way there must have been either actual or constructive knowledge of an offense committed in his presence, and there is nothing for the general allegation of negligence to attach to until the facts creating a duty are first set forth.'

We turn to the consideration of each cause of action as pleaded by the plaintiffs.

The First Cause of Action

The core of the first cause of action is pleaded as follows: 'On or about the period from 11 August 1965 until 18 August 1965, defendants City of Los Angeles and State of California, by and through their employees defendants Does One through Two Thousand, did each and every one of them negligently and carelessly cause, aggravate, and incite a riot; which negligence and carelessness of each and every one of said defendants were the direct and proximate cause of the mob action and loss to plaintiffs described in * * * (paragraph VIII) above.'

The allegations of the first cause of action contain no showing of a duty to act which was breached. Section 845 of the Government Code relates to the matter of liability with respect to police protection and is as follows: 'Neither a public entity nor a public employee is liable for failure to establish a police department or otherwise provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service.' ²

In section 818.2 it is provided: 'A public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law.' ³ Section 846 relates to the matter of arrest: 'Neither a public entity nor a public employee is liable for injury caused by the failure to make an arrest or by the failure to retain an arrested person in custody.'

It is manifest that the pleader did not allege facts essential to the existence of statutory liability. Consequently, the general demurrers of the State of California and the City of Los Angeles to the first cause of action were properly sustained.

The Second Cause of Action

The question of the sufficiency of the second cause of action pleaded by the plaintiffs must be resolved in the light of the following allegations: 'On or about 11 August 1965 defendant State of California, by and through its employees defendants Does One Thousand and One through One Thousand and Fifty, so negligently and carelessly executed the arrest of a person for drunk driving within the city limits of Los Angeles that a large and angry crowd assembled; and said defendants, together with the defendant City of Los Angeles, by and through its employees defendants Does One through Fifty, did each and every one of them negligently and carelessly fail to disperse the angry crowd which had assembled; and instead each and every one of the defendants negligently caused, aggravated and incited a riot, all of which negligence and carelessness was the direct and proximate cause of the mob action and loss to plaintiffs, described in * * * (paragraph VIII) of the First Cause of Action.'

The allegation that there was an arrest 'negligently and carelessly executed' fails to show the violation of any duty by the State of California. There is, of course, no assertion of any violation of the rights of the person arrested. The plaintiffs are third persons but the pleading contains no facts showing a duty as to them which had been breached.

In Ne Casek v. City of Los Angeles, 233 Cal.App.2d 131, 43 Cal.Rptr. 294, while we held that no cause of action was stated, the pleading therein set forth facts sufficient to show the nature of the duty which the plaintiff claimed was breached. ⁴ If in the case presently before us the plaintiffs meant to allege that a riot ensued because the persons witnessing the arrest did not approve of the manner in which the arrest was executed by the officers, it is to be noted that the plaintiffs alleged no facts showing that the formation of a mob and the inception of a riot constituted a risk reasonably to be perceived by the officers in making the arrest under the circumstances presented to them. Consequently, no breach of any duty was shown (see Dillon v. Legg, 68 Cal.2d 728, 739, 69 Cal.Rptr. 72, 441 P.2d 912) which could be the basis for statutory liability. ⁵

Insofar as it is alleged in the second cause of action that the State of California and the City of Los Angeles failed to disperse the crowd which had assembled, no cause of action was stated because, as noted in the discussion as to the first cause of action, a public entity is not liable for injury arising from a failure to provide sufficient police protection service (Gov.Code, § 845) or caused by a failure to enforce any law (Gov.Code, § 818.2). The remaining portion of the allegations, namely, that 'the defendants negligently caused, aggravated and incited a riot' appears to be coupled with the allegation just discussed and is deficient for the same reason. But, if it is considered by itself, it is insufficient to state a cause of...