Illerbrun v. Conrad

JEFFERSON, J.

This is an appeal by plaintiff from a summary judgment in favor of defendants.

Plaintiff’s complaint alleged that defendants, two police officers in the employ of the City of Los Angeles, entered and searched plaintiff’s apartment without a search warrant or other legal authority, arrested plaintiff, seized certain goods belonging to him and accused him of having stolen them. In the course of the arrest defendants allegedly employed an unreasonable amount of physical force upon the person of plaintiff and in addition, cursed and threatened him with violence. It was further alleged that plaintiff was transported to a police station, held in custody for three hours and thereafter released without any charges having been filed against him. Plaintiff alleged that the accusations made against him by defendants were completely false.

Defendants in separate answers denied that excessive or unreasonable force was used or that they threatened or used abusive language toward plaintiff. In addition, defendants stated facts allegedly constituting reasonable and probable cause for the search, seizure and arrest of plaintiff.

Thereafter, defendants moved for a summary judgment and in support thereof each filed a declaration setting forth the circumstances under which the arrest was made and further reciting that they had never been presented by plaintiff, or by anyone purporting to act on his behalf, with claims for damages arising out of the facts alleged in plaintiff’s complaint. Additional supporting documents filed by defendants included the declaration of a deputy city clerk stating that no

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claim had been filed in the office of the city clerk by plaintiff or by anyone acting in his behalf, and a certified copy of the City of Los Angeles Ordinance No. 114,957. Plaintiff filed no affidavit or declaration in opposition to the motion.

Plaintiff admits he did not file a claim for damages as required by sections 363 and 376 of the Charter of the City of Los Angeles. The sole question raised in this appeal is whether failure to file the claim is in the nature of a defense in abatement which could be waived if not timely raised, or whether it is an integral part of plaintiff’s cause of action.