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

George H. ARMSTRONG, Plaintiff and Appellant, v. CITY OF BELMONT, a municipal corporation, Wallace Benson, Charles H. Cook, lido Rosellini, Donnel B. McCarthy and F. Nason O'Hara, individually and as members of the City Council of the City of Belmont, a municipal corporation, Fred J. Nelson, as City Administrator, and Pacific Gas and Electric Company, a corporation, Defendants and Respondents.

No. 17332.

Decided: March 25, 1958

Norman S. Menifee, Redwood City, for appellant. Paul A. McCarthy, City Atty., City of Belmont, Redwood City, and Kirkbride, Wilson, Harzfeld & Wallace, San Mateo, for respondents.

Judgment was rendered in favor of the city, its councilmen and its city administrator, after sustaining a general demurrer to the second amended complaint, without leave to amend.

Plaintiff alleges he built a house in Belmont. Final inspection disclosed full compliance with the city's electrical code, entitling plaintiff to be furnished with electrical service. All electrical wiring was approved by the electrical inspector. Defendants and each of them ‘arbitrarily, wilfully, maliciously and unlawfully refused to cause or permit to be energized the electrical service for the residence’ despite plaintiff's demands that they do so. By reason of said conduct of the defendants plaintiff was compelled to file a complaint before the state Public Utilities Commission against defendant Pacific Gas and Electric Company. The commission ordered the company to install an electric meter and furnish electric service. By reason of defendants' conduct, plaintiff was deprived of electric service for some seven months, to his damage in the sum of $50,000.

No cause of action against the city has been stated, nor can there be. The granting, denial or revocation of a permit such as that here involved is, obviously, the exercise of the police power. It bears no relation to any activity that might be carried on by a private enterpriser. It is a governmental function in the performance of which the city is not liable for the misconduct of its officers in the absence of a constitutional or statutory provision imposing liability. We are aware of no such provision.

However, we think the complaint does state a cause of action against the officers in their individual capacities. The gist of the complaint is that these persons wrongfully and intentionally prevented plaintiff from getting electric service at his residence for a considerable period of time. If plaintiff proves that, will he not have shown a violation by each individual defendant of his duty ‘to abstain from injuring the person or property of another, or infringing upon any of his rights'? Civ.Code, § 1708. Here we find alleged a willful breach, no mere negligent breach of that duty. If authority be needed, it is furnished by Doeg v. Cook, 126 Cal. 213, 216, 58 P. 707; Mock v. City of Santa Rosa, 126 Cal. 330, 344, 58 P. 826; Payne v. Baehr, 153 Cal. 441, 444, 95 P. 895; Fernelius v. Pierce, 22 Cal.2d 226, 138 P.2d 12; Dillwood v. Riecks, 42 Cal.App. 602, 610, 184 P. 35; Ham v. County of Los Angeles, 46 Cal.App. 148, 161, 189 P. 462; People v. Standard Accident Ins. Co., 42 Cal.App.2d 409, 411, 108 P.2d 923; Bettencourt v. State of California, 139 Cal.App.2d 255, 257, 293 P.2d 472; Collenburg v. County of Los Angeles, 150 Cal.App.2d 795, 802 310 P.2d 989. Stang v. City of Mill Valley, 38 Cal.2d 486, 488, 240 P.2d 980, is inapplicable. The court there held that the alleged aggravation of property damage by fire resulting from negligent maintenance of a fire hydrant was the denial of a benefit owing to the community as a whole. There was no such duty owing to the individual property owner as would furnish a basis for redress in the form of compensatory relief for property injured. That, obviously, is not the situation here.

Defendants urge that upon the basis of the facts alleged in the complaint, if proven, plaintiff was entitled to a writ of mandamus to compel issuance of the permit and, therefore, should not be allowed to stand by, augment his damages instead of mitigating them, and then be given compensatory relief. A similar contention was overruled in Payne v. Baehr, supra, 153 Cal. 441, 444, 95 P. 895.

Nor are we persuaded by defendant's argument that the electric company's refusal to furnish electric energy (until ordered so to do by the state commission) was an unforeseeable, independent, intervening cause; hence, the sole cause of plaintiff's injury. The fallacy of such a line of reasoning is too obvious to require elaboration.

The doctrine of respondeat superior is not here involved. The complaint speaks of the personal conduct of each councilman and the city administrator. It alleges an intentional (not merely negligent) failure and refusal to perform a nondiscretionary duty imposed by law. It invokes the officers' common-law liability as individuals. We observe that the caption of the complaint gives the names of the defendant council members followed by the designation ‘individually and as members of the City Council’ but refers to defendant Fred J. Nelson simply ‘as City Administrator.’ The latter designation can and should be regarded as descriptio personae, upon the authority of Mock v. City of Santa Rosa, supra, 126 Cal. 330, 343–344, 58 P. 826.

The judgment is reversed as to respondents Wallace Benson, Charles H. Cook, Ildo L. Rosellini, Donnell B. McCarthy, F. Nation O'Hara and Fred J. Nelson in their individual capacities, with instructions to the trial court to overrule the general demurrer of said respondents to the second amended complaint; in all other respects the judgment is affirmed. The respondent city will recover its costs upon this appeal from the appellant and the appellant will recover his costs from the other respondents.

FRED B. WOOD, Justice.

PETERS, P. J., and BRAY, J., concur.

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