Barrier v. Alexander

MUSSELL, J.

Plaintiff appeals from a judgment of dismissal entered in favor of defendant Wesley Patton after a demurrer to the second amended complaint was sustained without leave to amend.

It was alleged in substance in the second amended complaint that a complaint was filed against plaintiff herein in the Justice’s Court of Mecca Township charging him with violation of section 505 of the Vehicle Code on October 18, 1948; that at the time of the commission of the said purported act plaintiff was not arrested; that thereafter and pursuant* to section 737 of the Vehicle Code plaintiff was notified in writing by defendant Tyson, of the California Highway Patrol, to appear in the justice’s court on November 15, 1948 ; that plaintiff was unable to appear at the time stated and was orally notified by the court that he need not appear until February 25, 1949; that at said time and place, plaintiff, with

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counsel, appeared in court; that the magistrate held that the complaint was faulty and ordered the district attorney to file an amended complaint; that plaintiff was released on his own recognizance and thereafter an amended complaint was filed charging him with the same offense from which he had been released on his own recognizance; that on March 1, 1949, plaintiff was arrested by defendant Wesley Patton, an officer of the highway patrol, upon a warrant of arrest issued by the same court and was imprisoned until his release on bail. It was further alleged, in effect, that the process upon which plaintiff was arrested was illegal; that the court had no jurisdiction to issue the warrant because plaintiff had been notified under the provisions of section 737 of the Vehicle Code that he need not appear in court until November 15, 1948; that said notification was a waiver of plaintiff’s written promise to appear and that, therefore, the warrant of arrest was void as violative of section 739f of the Vehicle Code.

A cause of action was not stated for false imprisonment or malicious prosecution and the trial court properly sustained the demurrer of defendant Patton to the second amended complaint.

False imprisonment is the unlawful violation of the personal liberty of another, and malicious prosecution is the procuring of the arrest and prosecution of another under lawful process, but from malicious motives and without probable cause. (12 Cal.Jur. 430;