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District Court of Appeal, Second District, Division 1, California.


Civ. 17580.

Decided: July 12, 1950

John G. Oppenheimer, in pro per. Harry A. Keithly, Los Angeles, for respondents.

This is an action for false imprisonment. Following the sustaining of general and special demurrers to the third amended complaint without leave to amend, judgment was entered for the defendants whereupon plaintiff instituted the present appeal.

The gravamen of the action, according to appellant's brief, is contained in Paragraph VI of the third amended complaint which alleges:

‘That on the said 12th day of November, 1948, and during the nighttime, and while the said plaintiff was in said cafeteria so procuring food to be eaten therein, the defendants and each of them, who were then and there acting within the scope of their agency and employment, summoned police officers of the City of Los Angeles * * * and caused and instigated plaintiff's arrest on an alleged misdemeanor charge, without a warrant, and that by reason thereof, plaintiff was incarcerated and deprived of his liberty for a period of five days, all to his damage in the sum of $50,000.’

Appellant's original complaint, after alleging that defendants ‘caused to have plaintiff arrested’, avers,

‘That by reason of such acts caused, without any overt act by plaintiff, he (plaintiff) was tried in Division 19 of the Municipal Court * * * on or about January 10, 1949, whereon the basis of false testimony, deceit, perjury, trickery, and other means, used by said Defendants, * * * plaintiff was adjudged guilty of violating Section 242 P.D., (Battery), and the charge of violating Section 415 P.C. (Disturbing the Peace) was dismissed on motion of the Court’.

It is argued in appellant's brief that the allegations contained in the third amended complaint state facts sufficient to constitute a cause of action; that therefore the court erred in sustaining the demurrer without leave to amend.

The respondents' brief, however, submits that the demurrer was properly sustained, and that the third amended complaint, ‘When taken in connection with the admissions of the original complaint, shows that (1) the arrest was justified and lawful, and (2) that defendants were not responsible for plaintiff's further detention’. Respondents then cite Wennerholm v. Stanford, University School of Medicine, 20 Cal.2d 713, 716, 128 P.2d 522, 524, 141 A.L.R. 1358, and Zakaessian v. Zakaessian, 70 Cal.App.2d 721, 724, 161 P.2d 677, holding in the language of the Wennerholm case that ‘If any verified pleading contains an allegation which renders a complaint vulnerable, the defect cannot be cured simply by omitting the allegation, without explanation, in a later pleading’. Applying this principle to the present case it is submitted that since ‘It thus appears beyond cavil that on such occasion plaintiff committed a misdemeanor for which he was then arrested and thereafter tried and convicted * * * he cannot now escape the effect of such admission in his original complaint’.

It is further argued by respondents that ‘the third amended complaint was insufficient because of its failure to negative circumstances justifying the arrest’. On this point is cited Dillon v. Haskell, 78 Cal.App.2d 814, 816, 178 P.2d 462, 463, where the reviewing court said: ‘A complaint for unlawful imprisonment which fails to allege facts under which the arrest would be unlawful is insufficient. The present complaint did not negative all or any of the named factual situations in which plaintiff's arrest would have been lawful’. The respondents' brief also avers that ‘Defendants were not responsible for the alleged circumstances of plaintiff's detention or the alleged failure to take him before a magistrate following his lawful arrest’.

As hereinbefore noted, the original complaint admits that appellant was duly convicted of the offense for which appellant alleges a wrongful arrest and imprisonment. Moreover, appellant ‘is perfectly willing to be bound by the allegations of the original complaint (and they may be ‘read into’ his third amended complaint, if that suit defendants' fancy and abuse)'. In view of this situation it is not an unreasonable assumption, as respondents' brief suggests, that the admitted battery for which appellant was convicted, was committed in respondents' presence; that the latter then lawfully made the arrest as provided for in Section 837 of the Penal Code and delivered appellant ‘to a peace-officer’ as required by Section 847. And if this is all that occurred, there was no false imprisonment.

Under these circumstances and the apparent lawfulness of the arrest, it was incumbent on the appellant by way of amendment, to incorporate some proper explanation or negation which would clarify the situation and indicate that a cause of action existed. This was not done, and after appellant's several attempts at amendment, it must be assumed that it could not be done. There is no reason to believe that, had appellant been granted a fourth amendment, any improvement could or would have been accomplished in this respect.

Nothing is presented in appellant's briefs which will justify a reversal of the judgment rendered. Appellant was extended ample opportunity to present a sufficient complaint; two different judges have passed on and ruled against the pleadings offered, with the final result that the demurrer to the third amended complaint was sustained without leave to amend. While as noted in the appellant's brief, ‘The rules for demurrer were not designed to permit defendants to evade the natural consequences of their unlawful actions', it is likewise true that a plaintiff assumes the responsibility of stating a cause of action, and that a demurrer is the proper remedy to test the sufficiency of a complaint. The cases cited by appellant are inapplicable to the present situation and do not support the contentions made.

The judgment is affirmed.

DORAN, Justice.

WHITE, P. J., and DRAPEAU, J., concur.

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