Vivell v. City of Belmont

DRAPER, P. J.

Plaintiff’s complaint sought damages from respondent city and one Henry Hughes for (1) false arrest and imprisonment, (2) malicious prosecution, and (3) abuse of process. It alleged that the city and Hughes caused a misdemeanor complaint to be filed against plaintiff for violation of a city ordinance requiring connecting sewer lines to the city system. Warrant issued upon the city’s complaint. Plaintiff was arrested by San Francisco police upon this warrant, and was held until bail was furnished. The opening statement asserted that: Hughes was a city councilman of Belmont; he owned land adjoining a parcel owned by plaintiff, and had constructed a sewer line along the common boundary of the two to a city main line; plaintiff had agreed to pay a fixed amount toward cost of this construction; Hughes claimed a larger amount due; plaintiff refused to pay the excess and did not connect his property to the common line, but continued use of a septic tank; Hughes wrongly claimed that plaintiff lived in the building on his land, and persuaded the city to file the misdemeanor complaint.

At the conclusion of this statement, a lengthy discussion of the merits of the case against appellant was held oiit of the presence of the jury. In this colloquy, plaintiff’s counsel had ample opportunity to state other facts he intended to prove, and did so. Thus nonsuit could be granted if the opening statement was inadequate in law.

(Wright

v.

Arcade School Dist.,

230 Cal.App.2d 272, 275-276 [40 Cal.Rptr. 812].) Nonsuit was granted as to the city. Plaintiff appeals.

It affirmatively appears from the complaint and the opening statement that the arrest and brief imprisonment of plaintiff

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were not the acts of Belmont employees, but of the San Francisco police. Thus no cause of action for false arrest or imprisonment, independent of that for malicious prosecution, is stated against respondent city

(Dawson

v.

Martin,