Oppenheimer v. City of Los Angeles

VALLÉE, J.

Appeal by plaintiff from (1) a judgment of dismissal entered pursuant to an order sustaining, without leave to amend, the demurrers of the city of Los Angeles, Clemence B. Horrall, V. Fallon, and W. Erskine to the second amended complaint, (2) an order denying plaintiff’s motion to vacate the judgment, (3) an order striking plaintiff’s amendment to the second amended complaint, (4) an order quashing a subpoena duces tecum, and (5) an order denying plaintiff’s motion to annul the order quashing the subpoena duces tecum. The foregoing defendants, in the order named, are the city of Los Angeles, a municipal corporation, the chief of police, and two police officers of the city.

The first count of the second amended complaint alleges that on November 12, 1948, while on the premises of a restaurant located at 648 South Broadway, “the defendant city by and through its agents and employees, defendants, Doe One and Doe Two [police officers], and each did, accost, seize and wilfully assault plaintiff, bruise and twist his right arm, and unlawfully arrest him at nighttime, without a warrant and against his will, on a pretended charge of a misdemeanor not witnessed by either of them, and then did turn

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the plaintiff over to the defendants V. Fallon and W. Brskine, for them to take the said plaintiff to jail”; that “defendants V. Fallon and W. Brskine and each did, in fact then take plaintiff to city jail, on such purported charge of a misdemeanor not witnessed by them, and without a warrant of arrest, and there imprison the said plaintiff and restrain him of his liberty without any right or authority so to do, until the afternoon of the 17th day of November, 1948”; that defendant Clemence B. Horrall, “then Chief of Police of the defendant city, on or about April 6, 1949, in effect ratified, condoned and abetted the cruel and lawless actions of the other non-corporate defendants, and has never repudiated them. ’ ’ The complaint recites the filing of a verified damage claim with defendant city, which claim was subsequently denied. Damage in the sum of $19,000 is alleged.

The second count, directed against defendant city, alleges that on November 12, 1948, and while plaintiff was wrongfully confined, the city maintained and operated a jail which was unfit, overcrowded, unsanitary and not a suitable place of detention; the food was not fit for human consumption and caused plaintiff to become ill; plaintiff was confined in a “stall” with the “dregs and degenerates of human society, as well as thieves and other parasites and disreputable characters