Lincoln v. Fox

California Court of Appeal Feb 16, 1959 No. Civ. 18234Published

Before: Draper

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Holding. The court held that the plaintiff's complaint failed to state a cause of action under Penal Code section 1505 because the underlying petition for a writ of habeas corpus lacked sufficient factual allegations to entitle the petitioner to relief.

Issues

Whether a complaint alleging a judge's refusal to grant a writ of habeas corpus states a cause of action under Penal Code section 1505 when the underlying petition fails to allege facts with particularity.
Whether the trial court properly sustained a demurrer without leave to amend where the petition for habeas corpus failed to establish grounds for the writ.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Under the most lenient view, the petition alleged by plaintiff failed to establish any ground for issuance of the writ.”

“The amended complaint here states no cause of action under any construction of that section.”

DRAPER, J.

Demurrer to amended complaint was sustained without leave to amend. Plaintiff appeals from judgment of dismissal thereafter entered. The amended complaint alleges denial by a District Court of Appeal of an application for writ of habeas corpus. In identical terms, a separate cause of action is alleged against each of three members of that court.

The pleading alleges that the action is brought under Penal Code, section 1505, which provides: “If any judge, after a proper application is made, refuses to grant an order for a writ of habeas corpus, ... he shall forfeit and pay to the person aggrieved” an amount not exceeding a specified sum. Application for the writ of habeas corpus is made by petition. “If the imprisonment is alleged to be illegal, the petition must also state in what the alleged illegality consists.” (Pen. Code, § 1474.)

The amended complaint alleges only that each judge “did unlawfully fail and refuse” to grant an order for the writ after “proper application therefor.” However, copy of the petition filed with the District Court of Appeal is attached to and made a part of the pleading. This petition alleges that petitioner is confined “under a void and invalid

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order of contempt, made by the Superior Court.” The only specifications of the alleged invalidity are that the “reporter’s transcript of all the testimony . . . contains no more than gossip”; that “the accusatory affidavit is defective and insufficient”; the “contempt proceeding has been fixed, rigged and prejudged”; and the county jail “is unsafe, unfit, overcrowded, and has been condemned.”

It is apparent that these allegations are but conclusions. An appellate court is entitled to and does “require of a convicted defendant that he allege with particularity the facts upon which he would have a final judgment overturned.”

(In re Swain,

34 Cal.2d 300, 304 [209 P.2d 793]; see also

In re Razutis,

35 Cal.2d 532 [219 P.2d 15].) The petition for the writ must show facts entitling the petitioner to be discharged.

Lincoln v. Fox

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DRAPER, J.

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