Silver v. City of Los Angeles

FILES, P. J.

This action was commenced by a taxpayer, purportedly on behalf of the City of Los Angeles, to recover into the city treasury the salary paid to the superintendent of the receiving hospital upon the allegation that the superintendent had failed to devote his entire time to the duties of the office. The action was dismissed before trial upon the ground that the second amended complaint failed to state a cause of action, and plaintiff is here appealing from the judgment.

Plaintiff has no basis for criticizing the procedure followed in the trial court. The issue arose there when the defendants moved for a protective order

1

to prohibit the taking of depositions upon the ground, among others, that the complaint stated no cause of action. That motion was placed off calendar pending a special hearing on the underlying legal issue. Plaintiff had an opportunity to argue his position at this hearing and in his motion for rehearing, before judgment was entered against him. The record shows no surprise or unfairness in raising the issue. The infirmity in the pleading is not a mere matter of form, and there is no contention that the complaint could have been improved by amendment. Once it is recognized that the complaint shows that plaintiff has no claim, all concerned should be spared the expense of further

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proceedings. The fact that another judge had previously overruled a demurrer to this complaint did not bind the court.

(Wrightson

v.

Dougherty,

5 Cal.2d 257, 265 [54 P.2d 13];

Kelly

v.

Liddicoat,

35 Cal.App.2d 559, 563-564 [96 P.2d 186].)

The substance of the second amended complaint is as follows:

In 1949 the city council adopted Ordinance No. 95,733 which created a department of city government to be known as the “Department of the Receiving Hospital,” to be under the control of a general manager to be called the superintendent. The ordinance prescribes the qualifications and duties of the superintendent, who is to be appointed by a majority vote of the council and removed in the same manner. Section 1 of the ordinance further states: “He [the superintendent) shall devote his entire time to the duties of his office. ’ ’