Wilson v. County of Los Angeles

• Decision Date: 17 November 1971
• Citation: Wilson v. County of Los Angeles, 21 Cal.App.3d 308, 98 Cal.Rptr. 525 (Cal. App. 1971)
• Court: California Court of Appeals
• Parties: Kenneth John WILSON and Burton Thomas Bullard, Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents. Civ. 37378.

Page 525

98 Cal.Rptr. 525

21 Cal.App.3d 308

Kenneth John WILSON and Burton Thomas Bullard, Plaintiffs and Appellants, v. COUNTY OF LOS ANGELES et al., Defendants and Respondents.

Civ. 37378.

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

Nov. 17, 1971.

Max Fink and Sanford B. Schulhofer, Jr., Beverly Hills, for plaintiffs and appellants.

Flynn & Rafferty and Harry C. Flynn, Jr., Los Angeles, for defendants and respondents, Aero Components, Aerostrata Components and Robert Allred.

John D. Maharg, County Counsel, and Larry Cory, Deputy County Counsel for defendant and respondent, County of Los Angeles.

LILLIE, Associate Justice.

Plaintiff tried their false imprisonment action to a jury, and at the close of their case defendants moved to dismiss; the motion was granted and plaintiffs appeal from judgments entered on the dismissal. ¹

Although section 631.8, Code of Civil Procedure, expressly declares that its provisions are limited to a 'trial by the court,' and provides for findings, both groups of defendants erroneously moved for judgment thereunder. Thereafter the court made no findings. Subsequently such error was sought to be corrected by the submission of formal judgments, each captioned 'Judgment of Nonsuit' and reciting that the motions granted were for 'a judgment of nonsuit.' A motion for judgment under section 631.8, of course, is not a motion for nonsuit. (Charles C. Chapman Building Co. v. California Mart, 2 Cal.App.3d 846, 858, fn. 2, 82 Cal.Rptr. 830.) Too, the scope of appellate review is different. Unlike its consideration of a motion for nonsuit, the trial court is authorized by section 631.8 to weigh the evidence, and since its findings are accordingly entitled to the same respect on appeal as any other findings, the judgment will not be reversed if supported by substantial evidence. (U.S. Industries, Inc. v. Vadnais, 270 Cal.App.2d 520, 524, 76 Cal.Rptr. 44.) The 'substantial evidence' rule, however, does not govern a reviewing court when the appeal is from a judgment of nonsuit.

Plaintiffs initially contend that the court was not empowered to render judgment under section 631.8 and that its action in so doing constituted reversible error per se. At the same time they concede that the trial court's error may possibly have been one of form and not of substance, citing East-West Capital Corp. v. Khourie, 10 Cal.App.3d 553, 556--557, 89 Cal.Rptr. 369, and Estate of Pack, 233 Cal.App.2d 74, 77--78, 43 Cal.Rptr. 361. Both of these cases involve the converse of the situation here. In each case defendant contended that he really made a motion for judgment under section 631.8 which was inadvertently phrased a motion for nonsuit. (See also Milton Meyer & Co. v. Curro, 239 Cal.App.2d 480, 48 Cal.Rptr. 812.) In Estate of Pack it appears that although the trial court treated the motion as one for a nonsuit, the reviewing court nevertheless determined that the requirements of section 631.8 had been met, particularly in light of the fact that the court made adequate findings reflecting its view of the evidence. Summing up, the court declared that 'Reversal would require no more than that respondent's motion be couched in the language of the statute and that the court's findings and judgment be given a more appropriate label. Form would be exalted above substance and the cause of justice advanced not at all.' (Supra, 233 Cal.App.2d p. 79, 43 Cal.Rptr. p. 364.) In our case there is this specific concession by plaintiffs: '(I)f it appears that (the trial judge) observed and followed the rules that control a trial judge on a motion for nonsuit (new C.C.P. § 581c), then looking to 'substance rather than form,' (citations), his ruling may have been proper.' At the time of his ruling, the trial judge told plaintiffs' counsel, 'There was certainly probable cause on the part of the sheriffs to make the arrest and, as far as Mr. Allred is concerned, why, there was certainly no bad faith shown by you or anyone else in the matter * * *.' The reasonable import of such statements is that there was no evidence of sufficient substantiality to support a judgment in favor of the plaintiffs, the rule applied in deciding whether a nonsuit is warranted. (Timmsen v. Forrest E. Olson, Inc., 6 Cal.App.3d 860, 867--868, 86 Cal.Rptr. 359.) In light of all the above circumstances, therefore, and adopting the converse of the situation in Milton Meyer & Co. v. Curro, Supra, we treat the motions as motions for nonsuit.

Plaintiffs were formerly employed by one or the other of defendant corporations. They were arrested without a warrant by Deputy Sheriffs Lopez and Whitten following a complaint report made to Deputy Sheriff Winkler at the West Hollywood Sheriff's Station by defendant Allred, a co-owner of defendant corporations. Such report, filed on February 17, 1967, in pertinent part stated that Allred had been the victim of an embezzlement--the property consisting of company tools; that Allred was accompanied by his general manager, Mr. Cucinello who, when told by Allred about the loss, asked all of the employees if they had any knowledge who was responsible therefor; that a machinist (Fred Bessire) later advised Cucinello that 'Susp #1 Bullard,' recently 'fired,' had told him (Bessire) that 'he didn't mind being fired as he had enough to make it worthwhile'; that Allred then 'pulled' the company files and learned that Bullard, Wilson and a third suspect (Loranger) lived at the same address and had the same phone--all three had been fired for incompetence prior to the disclosure of the theft; that Allred phoned Bullard at his home asking him to explain the missing tools; that his reply was that Wilson and Loranger were involved in it as a 'three-way deal' (the conversation was overheard by Cucinello on an extension phone); that in the same conversation Bullard told Allred that he would meet him later that day and straighten out the matter; that later Deputy Sheriff Winkler phoned Bullard who told him that he did not take anything from the company's plant and had no idea who did; that Allred and Cucinello both could identify the property and that Allred 'is desirous of prosecution' and could be contacted at a specified place between certain designated hours.

Later, on the same afternoon (February 17, 1967), Bullard went to his former employer's plant and submitted to further interrogation by Allred; he repeatedly denied any knowledge of the tools. Despite these denials, Allred called the sheriff's substation, and two deputies (Lopez and Whitten) responded. They had previously read the complaint report and, after advising Bullard of his constitutional rights, questioned him about the missing tools. Lopez testified that the information appearing in the report was insufficient, in his opinion, to provide him with probable cause to make an arrest; he based this on Bullard's continued denials of any knowledge regarding the theft of the tools. Allred, who had been present during the above interrogation, then left the room with Lopez; according to Lopez, he was then told by Allred that Bullard was 'lying' since the latter had previously admitted that he knew about the missing tools. Lopez then called the substation and talked to his superiors who gave him permission to make the arrest. An arrest without a warrant immediately followed. While riding to the station in the patrol car, Bullard told Lopez that Loranger had taken the tools.

Later that same day, Wilson went to the West Hollywood Substation where he was arrested by Deputy Whitten on the same facts and in addition, on Bullard's statement in the patrol car. Bullard denied that he made any such statement. ²

In determining whether there is evidence of sufficient substantiality to support a judgment in the plaintiff's favor following the granting of a motion for nonsuit, an appellate court must view such evidence most favorably to plaintiff, drawing every legitimate inference in his favor and disregarding all conflicts. (Hughes v. Oreb, 36 Cal.2d 854, 857, 228 P.2d 550.) The above rule applies to both groups of defendants here--on the issue of lack of probable (or reasonable) cause in the case of the deputies, and lack of good faith in the instance of the remaining defendants who, vicariously or otherwise, assertedly instigated the arrests.

As to the arresting officers, it is not contended in their defense that the crime attributed to plaintiffs was other than a felony. Controlling, therefore, are the provisions of section 836, Penal Code, which state that 'A peace officer may * * * without a warrant, arrest a person: * * * 3. Whenever he has reasonable cause to believe that the person to be arrested has committed a felony, whether or not a felony has in fact been committed.' In People v. Talley, 65 Cal.2d 830, 835, 56 Cal.Rptr. 492, 496, 423 P.2d 564, 568, the court declared that 'Reasonable or probable cause exists when the facts and circumstances within the knowledge of the officers at the moment of the arrest are sufficient to warrant a prudent man in believing that the defendant has committed an offense. (Citations.)' Subsequently it was declared in People v. Hogan, 71 Cal.2d 888, 890, 80 Cal.Rptr. 28, 29, 457 P.2d 868, 869, that 'Although information provided by an untested informer or by an anonymous informer is not, without some showing justifying reliance, sufficient to justify an arrest (citation), information from a citizen who purports to be the victim of a robbery or an assault has been held sufficient even though his reliability has not been previously tested. (Citations.) Such a person, who may expect to be called to testify after an arrest, and may be exposing himself to an action for malicious prosecution if he makes unfounded charges, is more than a mere informer who gives a tip to law enforcement officers that a person is engaged in a course of criminal conduct.'

The foregoing observation is significant...