Long v. City of Los Angeles

Opinion

ORTEGA, Acting P. J. Plaintiff Richard Long appeals from a summary judgment entered for defendant City of Los Angeles based on plaintiff’s failure to comply with the claims provisions of the Government Tort Claims Act. (Gov. Code, § 900 et seq.) We conclude, however, that this action for specific recovery of personal property (some 525 birds, their cages, and related items), is exempt from the Tort Claims Act. The exemption is not lost simply because half of plaintiff’s birds died while in defendant’s possession, thus forcing plaintiff to seek monetary damages in lieu of their return. (Holt v. Kelly (1978) 20 Cal.3d 560, 565 [143 Cal.Rptr. 625, 574 P.2d 441]; Minsky v. City of Los Angeles (1974) 11 Cal.3d 113, 121-122, fn. 14 [113 Cal.Rptr. 102, 520 P.2d 726].) We reverse the summary judgment.

Background

Plaintiff kept some 525 birds at his home. In August 1994, the city obtained a search warrant after one of plaintiff’s neighbors complained that the birds were being neglected. The city seized the birds.

In December 1994, the city informed plaintiff that he could redeem his birds by reimbursing the city $15,824 for their care and feeding. The city threatened to auction the birds if plaintiff did not redeem them by January 13, 1995.

On January 10, 1995, plaintiff sued the city “for possession of personal property, damages, temporary restraining order and preliminary injunction.” (Capitalization omitted.) The complaint alleged the original seizure of the birds was unlawful, and that some of the birds had died or been injured as a result of their wrongful detention.

On January 13, 1995, the trial court issued a temporary restraining order directing the city not to dispose of the remaining birds before the preliminary injunction hearing. On February 9, 1995, the trial court issued a preliminary injunction extending the prohibition until the time of trial. The city returned only about half of plaintiff’s birds and only some of the cages.

[785]In September 1995, the city moved for summary judgment, contending plaintiff had failed to comply with the claims requirement of the Government Tort Claims Act. The trial court found there was a triable issue of fact as to whether a claim had been filed.

In July 1997, the city renewed its motion. Again, both sides submitted evidence on whether a claim had been filed. This time, the trial court granted the motion after concluding no claim had been filed. The trial court entered summary judgment for the city. This appeal followed.