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Belcher v. City of Long Beach11/21/2002
n and intentional failure to train, supervise, and discipline. In holding that the causes of action should not be dismissed, the court of appeal stated that they "merely sought to show direct responsibility" of the City for the officer's intentional conduct. (Id. at p. 1511.) The causes of action did not "shift fundamental facts" about plaintiff's injury, and, instead, the claim and complaint identified the police officer as the principal actor. (Ibid.)
White does not support Belcher's negligence cause of action. In White, the court merely held that the negligence supervision cause of action could be stated against the City for its officer's intentional conduct. There was no allegation-in either the government claim or the complaint in White-that the officer committed anything other than intentional conduct. Here, Belcher, in her government claim, only identified an intentional act in which Carroll allegedly engaged. She did not allege a negligent act. Belcher's government claim stated: "Claimant was viciously assaulted and battered by Long Beach Police Officer G. Carroll . . . . Long Beach Police Officer G. Carroll was on duty and acting under color of the law and capacity as a police officer."
The claim that Carroll "viciously assaulted and battered" Belcher did not put the City on notice of another theory (as alleged in the complaint) that Carroll, "negligently, carelessly and unlawfully touched, struck, and hit plaintiff about the body, . . ." A "vicious" assault and battery claim is factually and fundamentally different from a negligent hitting claim. The City thus had no opportunity to consider the merits of a negligence claim for settlement purposes-a primary purpose of the claim presentation requirement. (See Donohue v. State of California (1986) 178 Cal.App.3d 795, 804.) Belcher's narrow government claim, therefore, did not serve the purpose for which the government claim requirement is designed-timely investigation and prelawsuit settlement of claims.
Although White does suggest that Belcher should have been permitted to proceed with her negligent employment cause of action, the trial court's dismissal of that cause of action, even if error, was harmless based on the jury's verdict. (People v. Watson (1956) 46 Cal.2d 818, 836; see also Warner Constr. Corp. v. City of Los Angeles (1970) 2 Cal.3d 285, 300.) In her negligent employment cause of action, Belcher alleged that, on June 6, 1997, Carroll "wrongfully, unlawfully, intentionally, and violently threatened to strike and hit, and in fact did strike and hit, plaintiff about the face and body, . . . ." The jury found that Carroll did not "intentionally and unlawfully assault or batter" Belcher. The jury thus found that the incident-an assault and battery-upon which Belcher premised her negligent employment cause of action did not happen. Therefore, even if Belcher should have been permitted to maintain her negligent employment cause of action, its dismissal was not prejudicial.
We affirm the judgment against Belcher on her complaint.
DISPOSITION
The award of $250,000 in punitive damages is reversed, and the issue is remanded to the trial court for a retrial on the punitive damages issue. The order awarding costs is modified by deleting expert witness fees for Anthony Pellicano in the amount of $5,000, resulting in a modified cost award of $6,813. The judgment is otherwise affirmed. The parties are to bear their own costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
We concur:
GRIGNON, Acting P.J.
ARMSTRONG, J.
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