Armstrong v. City of Belmont

California Court of Appeal Mar 25, 1958 No. Civ. 17332Published

Before: Wood (Fred B.)

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Holding. The court held that the city is immune from liability for the alleged misconduct of its officers in the performance of a governmental function, but that the complaint states a valid cause of action against the individual officers for their intentional, non-discretionary misconduct.

Issues

Whether the city is liable for the alleged misconduct of its officers in the exercise of police power.
Whether the complaint states a cause of action against the city officers in their individual capacities for intentional interference with the plaintiff's right to electrical service.

Disposition. Affirmed in part, reversed in part, and remanded.

Quotations verified verbatim against the opinion

“It is a governmental function in the performance of which the city is not liable for the misconduct of its officers in the absence of a constitutional or statutory provision imposing liability.”

“However, we think the complaint does state a cause of action against the officers in their individual capacities.”

“The complaint speaks of the personal conduct of each councilman and the city administrator. It alleges an intentional (not merely negligent) failure and refusal to perform a nondiseretionary duty imposed by law.”

[642]

WOOD (Fred B.), J.

Judgment was rendered in favor of the city, its councilmen and its city administrator, after sustaining a general demurrer to the second amended complaint, without leave to amend.

Plaintiff alleges he built a house in Belmont. Final inspection disclosed full compliance with the city’s electrical code, entitling plaintiff to be furnished with electrical service. All electrical wiring was approved by the electrical inspector. Defendants and each of them ‘ arbitrarily, wilfully, maliciously and unlawfully refused to cause or permit to be energized the electrical service for the residence” despite plaintiff’s demands that they do so. By reason of said conduct of the defendants plaintiff was compelled to file a complaint before the state Public Utilities Commission against defendant Pacific Gas and Electric Company. The commission ordered the company to install an electric meter and furnish electric service. By reason of defendants’ conduct, plaintiff was deprived of electric service for some seven months, to his damage in the sum of $50,000.

No cause of action against the city has been stated, nor can there be. The granting, denial or revocation of a permit such as that here involved is, obviously, the exercise of the police power. It bears no relation to any activity that might be carried on by a private enterpriser. It is a governmental function in the performance of which the city is not liable for the misconduct of its officers in the absence of a constitutional or statutory provision imposing liability. We are aware of no such provision.

However, we think the complaint does state a cause of action against the officers in their individual capacities. The gist of the complaint is that these persons wrongfully and intentionally prevented plaintiff from getting electric service at his residence for a considerable period of time. If plaintiff proves that, will he not have shown a violation by each individual defendant of his duty "to abstain from injuring the person or property of another, or infringing upon any of his rights”? (Civ. Code, § 1708.) Here we find alleged a willful breach, no mere negligent breach of that duty. If authority be needed, it is furnished

by Doeg

Cook,

Armstrong v. City of Belmont

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