Leon v. County of Riverside

• Court: California Court of Appeal
• Decided: May 27, 2021
• Docket: E073781
• Status: Published

Opinion

Filed 5/27/21 See concurring opinion

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

DORA LEON,

Plaintiff and Appellant, E073781

v. (Super.Ct.No. RIC1722990)

COUNTY OF RIVERSIDE, OPINION

Defendant and Respondent.

APPEAL from the Superior Court of Riverside County. Daniel A. Ottolia, Judge.

Affirmed.

Law Office of Steven Zwick, Steven Zwick and James Alquist for Plaintiff and

Appellant.

Lewis Brisbois Bisgaard & Smith, Arthur K. Cunningham, Jeffry A. Miller and

Lann G. McIntyre for Defendant and Respondent.

I. INTRODUCTION

Plaintiff and appellant Dora Leon’s husband, José Leon, was shot and killed by a

neighbor in a driveway of a mobilehome park in Cherry Valley, where Dora and José

1 lived.1 Riverside County Sheriff’s deputies unsuccessfully attempted to revive José but,

before doing so, one of the deputies dragged José’s body several feet and, in the process

of being dragged, José’s pants fell to his thighs, exposing his genitals. José’s body lay,

with his genitals exposed, for around eight hours while sheriff’s deputies and other law

enforcement officers evacuated the mobilehome park, located the shooter who had shot

himself dead, and continued investigating the shooting. José’s body was not removed

until shortly after the coroner arrived on the scene and completed processing the body.

In this action, Dora sued the County of Riverside, alleging a single cause of action

for negligence, sounding in negligent infliction of emotional distress, based on the failure

of Riverside County Sheriff’s deputies to promptly cover José’s exposed body, or remove

the body from the scene, while deputies evacuated the mobilehome park, searched for the

shooter, and investigated the shooting. The trial court granted the county’s motion for

summary judgment on Dora’s first amended complaint (FAC). In this appeal from the

judgment in favor of the county, Dora claims that the deputies who responded to the

shooting, and the county as the deputies’ employer, owed Dora a duty of care not to allow

José’s body to lie exposed while deputies and other law enforcement officers secured the

area and investigated the shooting. We affirm.

The county is immune from liability to Dora for any negligence or other tortious

conduct on the part of the deputies in failing to promptly cover José’s body, or promptly

remove José’s body from the crime scene. Undisputed evidence shows that the deputies’

1 For ease of reference, and with no disrespect intended for the informality, we refer to Dora and José Leon by their first names.

2 negligence, if any, occurred during the course of the deputies’ official investigation of the

shooting. For this reason, the deputies are immune from liability to Dora (§ 821.6),2 and,

the county, as the deputies’ public entity employer, is immune from vicarious liability for

the deputies’ negligence, if any. (Gov. Code, §§ 815.2, subd. (b), 821.6.)

II. FACTS AND PROCEDURE

A. The Allegations of the FAC

In her FAC, Dora alleges a single cause of action against the county for

negligence. She alleges that, after José was shot and killed, Riverside County Sheriff’s

deputies allowed his body to lie, with his genitals exposed, in full public view for

approximately eight hours. Dora suffered “extreme emotional distress” at seeing José’s

“dead and bloody body so clearly publicly exposed,” and seeks unspecified general

damages. She alleges that the deputies, and the county as their employer, had a duty

under Civil Code section 1714 and the factors enunciated in Rowland v. Christian (1968)

69 Cal.2d 108 (Rowland) not to allow José’s body to lie exposed to the public while the

deputies investigated the shooting.

B. The County’s Motion for Summary Judgment

The county moved for summary judgment on the FAC on two grounds: (1) the

county did not owe Dora a duty of care to cover José’s body; and (2) under Government

Code provisions, including sections 815, subdivision (a), 815.2, subdivision (b), and

821.6, the county was immune from liability to Dora for the deputies’ tortious conduct, if

2 Unspecified statutory references are to the Government Code

3 any, in failing to promptly cover or remove José’s exposed body. The county further

argued, in its defense, that the deputies had a statutory duty not to “disturb or move”

José’s body until the coroner had completed processing the body and gave the deputies

permission to disturb or remove it. (§§ 27491, 27491.2.)

In opposition, Dora argued that the deputies and the county owed her a duty to

cover José’s exposed body, and the public policy of protecting Dora’s

“emotional sensibilities” supported a cause of action for negligent infliction of emotional

distress. The trial court granted the county’s motion, reasoning that the county met its

initial burden of showing that it was immune from any liability to Dora under sections

815.2, subdivision (b), and 821.6, and that Dora did not raise a triable issue of material

fact because she did not cite any applicable authority to rebut the county’s immunity

argument.

C. Undisputed Facts3

On March 25, 2017, Dora was living in a mobilehome, space No. 98, in a

mobilehome park in Cherry Valley. Around 10:40 a.m., a man who lived across the

street from Dora, in space No. 97, shot Dora’s husband José in the chest near the

driveway of space No. 96. José fell, facedown, in the driveway of space No. 96.

Around 10 minutes later, a Riverside County Sheriff’s deputy (the first deputy)

arrived at the scene. The first deputy stepped out of his vehicle, drew his weapon, and

asked a crowd of people who had gathered in the street whether any of them had seen

3 The undisputed facts are based on the parties’ separate statements of undisputed and disputed material facts and the evidence adduced in support of those facts.

4 who had shot José, but none of the people answered. A man who lived in the

mobilehome in space No. 96 was kneeling near José and told the first deputy that he did

not know who had shot José, but the shooter ran away, leading the first deputy to believe

the shooter was no longer in the area.

When he first arrived on the scene, the first deputy believed that José was dead

because there was a large pool of blood around José’s upper torso, and José was neither

breathing nor actively bleeding. Still, the first deputy put on sterile gloves and retrieved a

trauma shooting kit from his vehicle to “make a showing” to the people who had gathered

that he was trying to help José. The first deputy had heard that other deputies had been

criticized for not trying to render aid to victims, and the people nearby were unable to see

that José was already dead. In any event, the first deputy was unable to render any aid to

José and did not even touch José because, just as he knelt down near José, three gunshots

rang out from the mobilehome in space No. 97.

After the gunshots were heard, the first deputy told the people who were nearby to

leave the area. Dora, one of her daughters, and her grandchildren were also in the area

and were told to leave. Dora protested that she was not going to leave her husband, but

she was told she would be arrested if she did not leave. Dora went to stay in a neighbor’s

mobilehome, in space No. 76, until she and others were evacuated to a local high school.

Another sheriff’s deputy (the second deputy) arrived just before 11:00 a.m. The

first deputy told the second deputy that he believed José was dead, then moved the

second deputy’s SUV between José’s body and space No. 97 to create cover between the

shooter, on one side, and José and the deputies, on the other. The second deputy then

5 turned José onto his back and dragged him, by his arms, behind the SUV—a distance of

approximately three feet. As José was being dragged, his pants moved down to his

thighs, exposing his genitals.

After attempting chest compressions, the second deputy pronounced José dead at

11:02 a.m. José’s body lay where it was dragged, with his genitals exposed, until around

6:20 p.m. At that point, the coroner had completed collecting evidence and had

processed the body, and the body was removed from the scene.

Shortly after José was pronounced dead at 11:02 a.m., several more deputies and

other law enforcement officers, including SWAT team members, arrived. Because the

shooter had not been located and it was still “an active [shooting] scene,” SWAT team

members set up a perimeter around the mobilehome park. The mobilehome park was

evacuated, and its residents were relocated to a local high school. Around the time the

first deputy arrived, an ambulance arrived outside the park, but law enforcement officers

would not allow the ambulance inside the park.

Around 2:40 p.m., SWAT team members entered the mobilehome in space No. 97,

where they found the shooter dead from a self-inflicted gunshot wound. A handgun was

found next to the shooter’s body. It was then apparent that the shooter had shot himself

around 11:00 a.m., when three gunshots were heard coming from inside the mobilehome

in space No. 97.

Around 3:00 p.m., law enforcement officers went to the local high school, where

Dora had been evacuated, and they told Dora that José was dead. As noted, after Dora

was told to leave the mobilehome park around 11:00 a.m., Dora and her family members

6 initially stayed in a neighbor’s mobilehome in space No. 76, before they were evacuated

to the local high school. The neighbor in space No. 76 could see José’s body from inside

her home. The neighbor went outside and asked the deputies to cover the body, but the

deputies did not do so.

The first deputy and the lead investigator explained that José’s body was not

covered, in part, because a sanitized blanket, cover, or tent was not readily available, and

the deputies did not want to contaminate José’s body by moving or covering it, although

the body had already been turned over and dragged several feet. José’s body was also not

covered due to the danger that the shooter posed to the deputies. The first deputy and the

lead investigator testified in deposition that they did not know why José’s body was not

covered after the shooter was found dead at 2:42 p.m. Around 11:00 p.m., the park’s

residents were allowed to return to their homes.

III. DISCUSSION

A. Standard of Review

A motion for summary judgment is required to be granted “if all the papers

submitted show that there is no triable issue as to any material fact and that the moving

party is entitled to a judgment as a matter of law.” (Code Civ. Proc., § 437c, subd. (c);

Nalwa v. Cedar Fair, L.P. (2012) 55 Cal.4th 1148, 1153-1154.) A defendant moving for

summary judgment bears an initial burden of showing that the plaintiff’s causes of action

have no merit, and the defendant meets this burden by making a prima facie showing that

one or more elements of each cause of action cannot be established, or that there is a

complete defense to each cause of action. If the defendant meets this burden, the burden

7 shifts to the plaintiff to produce evidence of a triable issue of material fact concerning the

challenged element or defense. (Code Civ. Proc., § 437c, subd. (p)(2); Aguilar v. Atlantic

Richfield Co. (2001) 25 Cal.4th 826, 849-851 (Aguilar).) “There is a triable issue of

material fact if, and only if, the evidence would allow a reasonable trier of fact to find the

underlying fact in favor of the party opposing the motion in accordance with the

applicable standard of proof.” (Aguilar, at p. 850.)

As an appellate court, we review an order granting summary judgment de novo.

(Aguilar, supra, 25 Cal.4th at p. 860.) In conducting our de novo or independent review,

we apply the same three-step analysis used by the trial court. We first identify the issues

framed by the pleadings; second, we determine whether the moving party has established

facts justifying judgment in its favor; and finally, if the moving party has carried its initial

burden, we decide whether the opposing party has demonstrated the existence of a triable

issue of material fact, justifying the denial of the motion. (Serri v. Santa Clara

University (2014) 226 Cal.App.4th 830, 858-859.) We liberally construe the evidence,

and resolve any doubts concerning the evidence, in favor of the opposing party.

(Zubillaga v. Allstate Indemnity Co. (2017) 12 Cal.App.5th 1017, 1021.)

As noted, Dora’s FAC alleges a single cause of action against the county for

negligence, sounding in negligent infliction of emotional distress and based on the

deputies’ act of leaving José’s body, with his genitals exposed, in public view for several

hours while the deputies and other law enforcement officers secured the area, looked for

the shooter, and investigated the shooting. (Christensen v. Superior Court (1991)

54 Cal.3d 868, 884 [negligence and negligent infliction of emotional distress are not

8 independent torts].) Thus, the issue framed by the FAC is whether the county is liable to

Dora for the deputies’ negligence, if any, or the county’s own negligence, if any, in

allowing José’s body to remain exposed for several hours.

B. The County Is Immune from Liability to Dora for the Deputies’ Negligence or the

County’s Negligence, if Any, in Leaving José’s Body Exposed (§§ 815, 815.2, 821.6)

Under the Government Claims Act (§§ 810 et seq.) (the Act), the liability of a

public entity for an injury is statutory. “The Act governs all public entities and their

employees (§§ 811.2, 811.4) and all noncontractual bases of compensable damage or

injury that might be actionable between private persons (§§ 810.8, 814). It establishes

the basic rules that public entities are immune from liability except as provided by statute

(§ 815, subd. (a)), . . . and that public entitles are immune where their employees are

immune, except as otherwise provided by statute. (§ 815.2, subd. (b).” (Caldwell v.

Montoya (1995) 10 Cal.4th 972, 980.)

Section 815, subdivision (a), the cornerstone of the Act, provides that, “ ‘Except as

otherwise provided by statute: (a) A public entity is not liable for an injury, whether such

injury arises out of an act or omission of the public entity or a public employee or any

other person.’ ” (Nestle v. Santa Monica (1972) 6 Cal.3d 920, 932.) An exception to the

general rule that public entities are not liable for the acts or omissions of themselves, their

employees, or other persons appears in section 815.2, subdivision (b), which provides, “A

public entity is liable for injury proximately caused by an act or omission of an employee

of the public entity within the scope of his employment if the act or omission would,

9 apart from this section, have given rise to a cause of action against that employee or his

personal representative.” (§ 815.2, subd. (a).)

1. The County’s Immunity for the Deputies’ Negligence, if Any (§§ 815.2, 821.6)

Our state Court of Appeal has consistently construed section 821.6 as immunizing

a public employee from liability for any injury-causing act or omission in the course of

the institution and prosecution of any judicial or administrative proceeding, including an

investigation that may precede the institution of any such proceeding. “Because

investigation is ‘an essential step’ toward the institution of formal proceedings, it ‘is also

cloaked with immunity.’ ” (Amylou R. v. County of Riverside (1994) 28 Cal.App.4th

1205, 1210 (Amylou R.); accord, Baughman v. State of California (1995) 38 Cal.App.4th

182, 191-193 (Baughman).)

The plaintiff in Amylou R., a 15-year-old girl, was sexually assaulted along with

another woman, and the other woman was murdered. During the official investigation of

the crimes, an antagonistic relationship developed between the plaintiff and the

investigating officers. The plaintiff sued the officers’ employer, the county, for torts that

the officers allegedly committed during the investigation. (Amylou R., supra,

28 Cal.App.4th at pp. 1207-1208.) Amylou R. determined that the county, as the officers’

employer, was immune from liability to the plaintiff under sections 815.2 and 821.6.

Amylou R. reasoned that the officers’ alleged tortious acts all occurred within the course

of their investigation of the crimes, and, because an investigation is an essential step

toward the institution of formal criminal proceedings, the officers were immune under

10 section 821.6. Accordingly, the county was immune from the officers’ alleged torts

under section 815.2. (Amylou R., supra, 28 Cal.App.4th at pp. 1209-1211.)

Based on “the public policy supporting immunity,” Amylou R. further held that

sections 815.2 and 821.6 immunize public employees and their employers from liability

for torts committed by public employees in the course their investigation concerning a

judicial or administrative proceeding, even if the plaintiff is not the target of the

investigation. (Amylou R., supra, 28 Cal.App.4th at pp. 1212-1214.) On this point,

Amylou R. reasoned that “our system of law enforcement depends upon ‘the investigation

of crime’ ” and the “[t]he impartiality of that system requires” that investigating officers

be “ ‘ “free to act in the exercise of honest judgment uninfluenced by fear of

consequences personal to themselves.” ’ ” (Amylou R., at pp. 1212-1213, quoting White

v. Towers (1951) 37 Cal.2d 727, 729-730, 732 (White), and Pearson v. Reed (1935)

6 Cal.App.2d 277, 288; Scannell v. County of Riverside (1984) 152 Cal.App.3d 596,

604.) “To eliminate that fear of litigation and to prevent the officers from being harassed

in the performance of their duties, law enforcement officers are granted immunity from

civil liability, even for the malicious abuse of their power.” (Amylou R., at p. 1213, citing

White, at p. 730.) “ ‘ “[I]n the end [it is] better to leave unredressed the wrongs done by

dishonest officers than to subject those who try to do their duty to the constant dread of

retaliation.” ’ ” (Amylou R., at p. 1213, quoting Hardy v. Vial (1957) 48 Cal.2d 577, 583

(Hardy).) Additionally, nothing in the language of section 821.6, its legislative history,

or the cases applying it suggested that its immunity did not extend to claims made by

nontargets of official investigations. (Amylou R., at pp. 1211-1214, fn.3.)

11 Amylou R.’s interpretation of section 821.6 as extending immunity to torts

committed by public employees during the course of official investigations was followed

in Baughman. (Baughman, supra, 38 Cal.App.4th at pp. 191-193.) In Baughman, the

plaintiff sued the State of California for its investigating officers’ destruction of the

plaintiff’s property during a search of the plaintiff’s rented premises pursuant to a search

warrant. (Id. at pp. 185-186.) In the course of the search, Cal Poly police officers

destroyed floppy computer disks containing the sole source of the plaintiff’s research

over many years. (Id. at p. 186.) Baughman reasoned that the officers acted within the

scope of their duties when the plaintiff’s disks were destroyed because the officers were

investigating a crime pursuant to a search warrant concerning such media. (Id. at p. 192.)

Thus, the officers, and therefore the State, were immune from liability to the plaintiff.

(§§ 815.2, 821.6.)

Here, too, the county is immune from liability to Dora for the deputies’

negligence, if any, in failing to promptly cover José’s exposed body or remove it from the

crime scene. All of the evidence adduced on the county’s motion for summary judgment

shows that the deputies’ negligence, if any, in failing to promptly cover or remove José’s

body from the scene, occurred during the course of the deputies’ performance of their

official duties to secure the area following the shooting and the deputies’ and other law

enforcement officers’ investigation of the shooting. Thus, the deputies and the county are

immune from liability to Dora for the deputies’ negligence, if any, in leaving José’s body

exposed while the deputies and other law enforcement officers investigated the shooting.

(§§ 815.2, subd. (b), 821.6.)

12 Dora argues that “continuing to leave José’s body exposed for hours after his

shooter was confirmed dead at 2:42 p.m. was not in furtherance of the investigation.”

She points out that, “in a display of candor,” the first deputy to arrive on the scene

testified in deposition that he did not know why José’s pants were not or could not have

been pulled back up once the shooter was found dead at 2:42 p.m. and was no longer a

threat. But the undisputed evidence shows that the official investigation of the shooting

continued for several hours after the shooter was found dead at 2:42 p.m. The coroner

did not finish collecting evidence, or processing José’s body, until around 5:44 p.m.

Around 6:20 p.m., José’s body was removed from the scene. Thus, the deputies’

negligence, if any, in leaving José’s body exposed for several hours occurred during the

course of the deputies’ and others’ official investigation of the shooting.

As the county points out, section 27491.2 also prohibited the deputies from

“disturbing or moving” José’s body until the coroner gave the deputies permission to do

so. The statute provides, in pertinent part, that “the body of one who is known to be dead

from any of the causes or any of the circumstances described in Section 27491 shall not

be disturbed or moved from the position or place of death without permission of the

coroner or the coroner’s appointed deputy.” (§ 27491.2, subd. (b).) The circumstances

described in section 27491 include “all violent, sudden or unusual deaths,” and deaths

from “known or suspected homicide.” Thus, after José was pronounced dead at

11:02 a.m., José’s body could not be “disturbed or moved” until the coroner or the

coroner’s appointed deputy gave permission to do so. This could not have occurred until

13 sometime after 5:44 p.m., when the coroner, or the coroner’s appointed deputy,

completed collecting evidence and processing José’s body.

Dora argues that section 27491.2, subdivision (b), “provides no defense” to her

negligence claim because the second deputy disturbed and moved José’s body when he

dragged it behind the SUV. But when José was dragged, José was not confirmed dead;

the first deputy only believed that José was dead. The second deputy ascertained and

declared that José was dead at 11:02 a.m., after the second deputy unsuccessfully

attempted to revive José by administering chest compressions.

Dora also argues that there was “no good reason” why a blanket or tent could not

have been obtained and used to shield José’s body from public view, at least after the

shooter was found dead inside his mobilehome. Dora maintains that using such a blanket

or tent to cover José’s body would not have violated section 27491.2, subdivision (b),

because it would not have required anyone to disturb or move José’s body. But even if

any of the deputies who were present in the mobilehome park or investigating the

shooting were negligent in failing to obtain such a blanket or tent, or to cover José’s body

with it, the county is immune from liability for this negligence. (§§ 815.2, subd. (b),

821.6.)

2. The County’s Immunity for Its Own Negligence, if Any (§ 815, subd. (a))

The county is also immune from liability for its own negligence, if any, in leaving

José’s body exposed because no statute imposes liability on the county for its own

negligence in a case such as this one. “[T]he rule in this state is that, unless otherwise

provided by statute, ‘[a] public entity is not liable for an injury, whether such injury

14 arises out of an act or omission of the public entity or a public employee or any other

person.’ (§ 815, subd. (a).) Accordingly, governmental immunity is the rule, and

liability is the exception.” (Amylou R., supra, 28 Cal.App.4th at p. 1213.) No statute

provides that the county is liable for its own negligence, if any, in failing to ensure that

José’s body was covered until the coroner arrived and processed José’s body, or until the

deputies and other officials completed their investigation of the shooting.

Dora suggests that Civil Code section 1714, subdivision (a), renders the county

liable for its own negligence in leaving José’s body exposed (Gov. Code, § 815,

subd. (a)), but we disagree. The statute provides, “[e]veryone is responsible, not only for

the result of his or her willful acts, but also for an injury occasioned to another by his or

her want of ordinary care . . . .” (Civ. Code, § 1714.) The statute imposes a general duty

of care on all persons, but it “is an insufficient statutory basis for imposing direct liability

on public agencies.” (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th

1175, 1180, 1183 (Eastburn). “[D]irect tort liability of public entities must be based on a

specific statute declaring them to be liable, or at least creating some specific duty of care,

and not on the general tort provisions of Civil Code section 1714. Otherwise, the general

rule of immunity for public entities would be largely eroded by the routine application of

15 general tort principles.” (Id. at p. 1183.)4

C. Dora’s Reliance on Catsouras5 Is Unavailing

Dora relies on Catsouras for the proposition that the deputies who responded to

the scene of the shooting, and the county in its own right, each owed Dora a duty of care

not to allow José’s body to lie, with his genitals exposed, while deputies and other law

enforcement officers investigated the shooting and waited for the coroner to arrive,

collect evidence, and process José’s body. As we explain, Catsouras is inapposite.

1. The Facts and Holdings of Catsouras

In Catsouras, surviving family members of an 18-year-old woman who was

tragically decapitated and killed in an automobile accident sued the California Highway

Patrol (CHP) and two CHP officers for various torts, including negligence. (Catsouras,

supra, 181 Cal.App.4th at pp. 863, 865-866.) As a Halloween prank, the two CHP

officers sent images of the decedent’s decapitated body to friends and family members of

4 Dora argues that the behavior of some sheriff’s deputies in searching her and other residents’ homes on the day of the shooting showed “disrespect, callousness and indifference that violates the underlying public policy of the immunity statutes, such that immunities do not apply here.” In opposing the county’s motion, Dora adduced evidence that deputies left Dora’s and other residents’ homes in disarray after searching the homes after the shooting. But as the trial court noted, Dora did not plead these allegations in the FAC as a basis for the county’s liability, and for that reason the trial court did not consider them. (See Bosetti v. The United States Life Ins. Co. in the City of New York (2009) 175 Cal.App.4th 1208, 1225 [The complaint delimits the scope of the issues before the court on a summary judgment motion, and a party cannot resist summary judgment on a theory not pleaded.].) We too, disregard these unpleaded claims as a basis for Dora’s opposition to the county’s motion.

5Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856 (Catsouras).

16 the CHP officers who were not involved in the official investigation of the accident. (Id.

at p. 865.) The images were then posted on more than 2,500 Internet Web sites, and the

decedent’s surviving family members—the plaintiffs in Catsouras—received e-mails

containing the images, along with malicious taunts concerning the decedent. (Ibid.) As a

result, the plaintiffs suffered severe emotional distress. (Ibid.)

The trial court in Casouras sustained the CHP officers’ demurrer to the plaintiffs’

complaint, without leave to amend, and entered judgment on the pleadings in favor of the

CHP, but the Catsouras court reversed. (Catsouras, supra, 181 Cal.App.4th at p. 863.)

In a thorough analysis, the court determined, among other things, that the plaintiffs stated

a negligence cause of action, sounding in negligent infliction of emotional distress,

against the CHP and the CHP officers. (Id. at pp. 864, 875-876, 881-886.) That is, the

defendants owed the plaintiffs, the decedent’s surviving family members, a duty “not to

place decedent’s death images on the Internet for the lurid titillation of persons unrelated

to official CHP business.” (Id. at p. 886.)6

Catsouras also addressed the separate questions of whether the CHP officers and

the CHP were immune from liability to the plaintiffs under the Act. (Catsouras, supra,

6 In determining that the CHP and the CHP officers owed the plaintiffs this duty of care, Catsouras analyzed the factors relevant to determining whether a duty of care exists, as articulated in Rowland, supra, 69 Cal.2d at page 113. (Catsouras, supra, 181 Cal.App.4th at pp. 864, 881-885.) Among these factors, the foreseeability of harm to the plaintiff, the moral blame attached to the defendants’ conduct, and the policy of preventing future harm were particularly significant. (Id. at pp. 864, 884-885.) The court also considered the factors relevant to determining whether a public agency has a duty of care, as articulated in Thompson v. County of Alameda (1980) 27 Cal.3d 741 at page 750 (Thompson), including the extent of the agency’s powers, the role imposed upon the agency by law, and the agency’s budgetary limitations. (Catsouras, at pp. 881, 885-886.)

17 181 Cal.App.4th at pp. 888-890.) In considering whether the CHP officers were immune,

the court questioned how immunizing the CHP officers would further the public policy

concerns underlying section 821.6, as articulated in Amylou R. (Catsouras, at p. 889.)

The court pointedly noted, “[i]t was not in furtherance of the investigation, the

preservation of evidence, or any other law enforcement purpose, to deliberately make a

mutilated corpse the subject of lurid gossip.” (Id. at p. 864) The court ultimately

concluded that it was inappropriate to resolve, in the context of the CHP officers’

demurrer, the factual question of whether the CHP officers’ dissemination of the images

was in furtherance of the investigation. (Id. at pp. 885, 889.)7 But the court indicated

that the complaint alleged sufficient facts to show that the CHP officers’ dissemination of

the decedent’s images was not in furtherance of the investigation of the automobile

accident. (See Id. at p. 889; Amylou R., supra, 28 Cal.App.4th at pp. 1209-1211;

§ 821.6.) Thus, the CHP officers were not immune from liability for their own

negligence in disseminating the decedent’s images, and the CHP officers’ demurrer to the

complaint was erroneously sustained.

Catsouras also determined that the CHP was not entitled to judgment on the

pleadings, essentially because the complaint alleged sufficient facts to show that the CHP

7 For purposes of its discussion of whether the CHP officers owed the plaintiffs a duty of care, the Catsouras court noted that the CHP officers had e-mailed the images of the decedent to the CHP officers’ friends and family members, but it assumed that the CHP officers did not “personally e-mail” the images “to thousands of Web sites worldwide.” (Catsouras, supra, 181 Cal.App.4th at p. 885.) Still, the court reasoned that it was “perfectly foreseeable” that the CHP officers’ e-mails of the images would be forwarded to others “for the purpose of grotesque sensationalism.” (Ibid.)

18 was also not immune from liability for the CHP officers’ negligence under section 815.2,

subdivision (a). (See Catsouras, supra, 181 Cal.App.4th at p. 890.) The court reasoned

that, if the CHP officers acted within the scope of their employment in disseminating the

images, then the CHP would be vicariously liable for the CHP officers’ negligent

dissemination of the images under section 815.2, subdivision (a), given that the CHP

officers had a duty of care not to disseminate the images as they did. (Catsouras, at p.

890.)

2. Analysis

Based on Catsouras, Dora argues the county and the deputies who responded to

the scene of the shooting each owed Dora a duty of care “not to needlessly leave” José’s

body, with his genitals exposed, “openly visible to the public” for nearly eight hours. It

is unnecessary, however, for this court to determine whether the deputies or the county

owed Dora such a duty of care. For the reasons explained, the county is immune from

liability for the deputies’ and the county’s own negligence, if any, in leaving José’s body

exposed.8 (§§ 815, subd. (a), 815.2, subd. (b), 821.6.)

8 The county points out that Dora has offered no analysis in her opening brief on appeal of how the Rowland or Thompson factors support her claims of duty on the part of the deputies or the county. Thus, the county argues that we should deem Dora’s claims of duty waived or forfeited in this appeal. (Roe v. McDonald’s Corp. (2005) 129 Cal.App.4th 1107, 1114 [“ ‘[A]n issue merely raised by a party without any argument or authority is deemed to be without foundation and requires no discussion.’ ”].) But even if Dora has not waived or forfeited her claims of duty, and either the deputies or the county owed Dora the duty of care that Dora claims they did, the undisputed evidence showed that the county is immune from liability to Dora for the county’s and the deputies’ negligence, if any, in leaving José’s body exposed.

19 Catsouras is also inapposite to, and does not assist, Dora’s claim that the county

should not be immune from its own or the deputies’ negligence in leaving José’s body

exposed. Catsouras involved negligent conduct by a public entity and its employees that,

at least allegedly, occurred well outside the course of the public entity’s and its

employees’ investigation. (Catsouras, supra, 181 Cal.App.4th at pp. 894, 889.) In

contrast, any negligence on the part of the county or the deputies in leaving José’s body

exposed for several hours occurred during the course of the deputies’ performance of

their official duties and their investigation of the shooting. (Amylou R., supra,

28 Cal.App.4th at pp. 1209-1214; Baughman, supra, 38 Cal.App.4th at pp. 191-193.)

D. Cases Interpreting Section 821.6 as Immunizing Public Employees from Liability for

Torts Committed During Official Investigations, Including Amylou R. and Baughman,

Were Not Wrongly Decided

Dora claims that Amylou R., Baughman, and other cases interpreting section 821.6

as immunizing public employees from liability for their tortious acts or omissions in the

course of official investigations were wrongly decided. Dora points out that, in Sullivan

v. County of Los Angeles (1974) 12 Cal.3d 710 (Sullivan), our Supreme Court narrowly

construed section 821.6 as protecting public employees from liability only for malicious

prosecution. (Sullivan, at p. 715.) She claims that an impermissible discrepancy has

arisen between Sullivan’s limited interpretation of section 821.6, and numerous

subsequent appellate court cases which, over time, have disregarded Sullivan and have

impermissibly broadened the scope of section 821.6’s immunity to torts committed by

20 public employees in the course of official investigations.9

We disagree that Amylou R., Baughman, and other cases expansively interpreting

the scope of section 821.6 ‘s immunity were wrongly decided. We begin by noting that

sections 815.2, subdivision (b), and 821.6 were enacted in 1963 as part of the government

claims statues formerly known collectively as the Tort Claims Act. (Asgari v. City of Los

Angeles (1997) 15 Cal.4th 744, 764 (Asgari). The statutes continue as part of the

subsequently renamed Government Claims Act. (See City of Stockton v. Superior Court

(2007) 42 Cal.4th 730, 734 [adopting practice of referring to the government tort claims

statutes as the “Government Claims Act,” rather than the informal, “Tort Claims Act”].)

The 1963 enactment of sections 815.2, subdivision (b), and 821.6 codified a

common law rule which had immunized both public entities and their public employees

from liability for injury caused by an employee’s institution or prosecution of any judicial

or administrative proceeding, even if the employee acted maliciously and without

9 Although Dora did not raise this claim in opposition to the county’s motion in the trial court, we exercise our discretion to consider the claim in this appeal. (Francies v. Kapla (2005) 127 Cal.App.4th 1381, 1386.) The county has had an opportunity to respond to the claim in their respondent’s brief, and the claim “ ‘involves purely a legal question which rests on an uncontroverted record which could not have been altered by the presentation of additional evidence.’ ” (Noe v. Superior Court (2015) 237 Cal.App.4th 316, 335.) The argument that section 821.6 does not immunize public employees from liability for torts they commit in the course of official investigations was the subject of a 2009 law review article by former appellate court attorney and current member of this court, Frank J. Menetrez: Frank J Menetrez, Lawless Law Enforcement: The Judicial Invention of Absolute Immunity for Police and Prosecutors in California (2009) 49 Santa Clara L. Rev. 393. Dora quotes extensively from the article, in arguing that Sullivan means that Amylou R., Baughman, and other cases interpreting section 821.6 as immunizing public employees from liability for torts committed during official investigations were wrongly decided.

21 probable cause. (Asgari, supra, 15 Cal.4th at pp. 763-764.) Sullivan expressly

recognized that “section 821.6 codified the recognized common law immunity of

prosecutors and other law enforcement officers from malicious prosecution actions, in

order to prevent interference with their discretionary and quasi-judicial responsibility for

institution and prosecution of enforcement proceedings.” (Sullivan, supra, 12 Cal.3d at

p. 722 (dis. opn. of Mosk, J.).)

In Sullivan, our Supreme Court specifically addressed whether section 821.6’s

immunity applied to claims for false imprisonment in addition to claims for malicious

prosecution. (Sullivan, supra, 12 Cal.3d at pp. 713, 719-720.) In holding that section

821.6 did not immunize public employees from claims for false imprisonment, the court

reasoned that section 821.6 could not be interpreted to defeat another common law rule,

preserved in section 820.4, that public employees are not immune from liability for false

arrest or false imprisonment. (Sullivan, at pp. 720-722.) Sullivan was not concerned

with, and did not address, whether section 821.6’s immunity for malicious prosecution

extended to torts committed by public employees during the course of official

investigations related to judicial or administrative proceedings. (See § 821.6.)

In the years following Sullivan, the Court of Appeal has expanded the scope of

section 821.6’s immunity. For example, the appellate courts have consistently interpreted

section 821.6 as not being limited to claims for malicious prosecution, but as extending to

other torts, including defamation and intentional infliction of emotional distress. (See,

e.g., Kayfetz v. Cal. (1984) 156 Cal.App.3d 491, 497 [defamation]; Kemmerer v. County

of Fresno (1988) 200 Cal.App.3d 1426, 1435-1437 (Kemmerer) [intentional infliction of

22 emotional distress], disapproved on other grounds in Quigley v. Garden Valley Fire

Protection Dist. (2019) 7 Cal.5th 798, 815, fn. 8 (Quigley); Gillan v. City of San Marino

(2007) 147 Cal.App.4th 1033, 1047-1048 [defamation and intentional infliction of

emotional distress].)

As noted in Amylou R., the “notion that the immunity provided by section 821.6 is

limited to claims for malicious prosecution has been repeatedly rejected.” (Amylou R.,

supra, 28 Cal.App.4th at p. 1211, citing Jenkins v. County of Orange (1989)

212 Cal.App.3d 278, 283 [social worker immune from liability for negligent investigation

of reports of child abuse].) Indeed, because section 821.6 specifies that an employee is

immune “even if he acts maliciously,” the immunity under the statute “clearly extends to

proceedings which were not initiated out of a malicious intent, and thus would not

constitute malicious prosecution.” (Amylou R., at p. 1211, citing Johnson v. City of

Pacifica (1970) 4 Cal.App.3d 82, 86-87 [in case predating Sullivan, interpreting section

821.6 immunity as encompassing negligence claims].)

Our state appellate courts have also consistently recognized that “investigations

are considered to be part of judicial and administrative proceedings for purposes of

section 821.6 immunity[,] . . . —even if there is a later decision not to institute

administrative proceedings or to initiate a prosecution.” (See, e.g., Richardson-Tunnell v.

Schools Ins. Program for Employees (SIPE) (2007) 157 Cal.App.4th 1056, 1062

(Richardson-Tunnell), and cases cited, disapproved on other grounds in Quigley, supra,

7 Cal.5th at p. 815, fn. 8; Amylou R., supra, 28 Cal.App.4th at p. 1209-1214; Baughman,

supra, 38 Cal.App.4th at pp. 191-193.) As discussed, Amylou R. extended section

23 821.6’s immunity to injury caused by a public employee during the course of an official

investigation, “even if the person suffering the injury is not the target of that

prosecution.” (Amylou R., supra, 28 Cal.App.4th at p. 1211.)

In reaching that conclusion, Amylou R. relied on the absence of legislative history

limiting the scope of section 821.6, and on the public policy supporting construing the

statute’s immunity as applying to torts committed by law enforcement officers in the

course of their official investigations. (Amylou R., supra, 28 Cal.App.4th at pp. 1212-

1213.) That public policy was recognized in California Supreme Court cases predating

Sullivan, including White, supra, 37 Cal.3d 727 and Hardy, supra, 48 Cal.2d 577. (See

Amylou R., supra, at p. 1213.)

As White observed: “When the duty to investigate crime and to institute criminal

proceedings is lodged with any public officer, it is for the best interests of the community

as a whole that he be protected from harassment in the performance of that duty. The

efficient functioning of our system of law enforcement is dependent largely upon the

investigation of crime and the accusation of offenders by properly trained officers. A

breakdown of this system at the investigative or accusatory level would wreak untold

harm.” (White, supra, 37 Cal.2d at pp. 729-730.)

In sum, Sullivan was not concerned with and does not preclude an interpretation of

section 821.6’s express immunity for malicious prosecution as encompassing immunity

for any tortious injury caused by public employees, including law enforcement officers,

in the course of official investigations. “Because investigation is ‘an essential step’

toward the institution of formal proceedings, it ‘is also cloaked with immunity.’ ”

24 (Amylou R., supra, 28 Cal.App.4th at p. 1210, quoting Kemmerer, supra, 200 Cal.App.3d

at pp. 1436-1437.)

Moreover, in White, our Supreme Court indicated that the public policy of

allowing law enforcement officers to perform their official duties free of “fear of

consequences personal to themselves” was inherent in the common law rule immunizing

public employees from liability for malicious prosecution. (White, supra, 37 Cal.2d at

pp. 731-732.) This public policy supports construing section 821.6 as encompassing

immunity for for injury caused by law enforcement officers and other public employees

during the course of their official investigations. (Amylou R., supra, 28 Cal.App.4th at

pp. 1212-1213; Baughman, supra, 38 Cal.App.4th at pp. 191-193.)

IV. DISPOSITION

The judgment is affirmed. The county shall recover its costs on appeal. (Cal.

Rules of Court, rule 8.278.)

FIELDS J. We concur:

MILLER Acting P.J.

RAPHAEL J.

25 [Dora Leon v. County of Riverside, E073781]

RAPHAEL, J., Concurring.

The federal courts have identified an astonishing situation regarding the absolute

immunity afforded by Government Code section 821.6: our Supreme Court and the

Court of Appeal have interpreted the provision differently.

Although our Supreme Court has not addressed the matter in nearly a quarter

century, it has construed section 821.6 to provide immunity against only malicious

prosecution claims. In contrast, today’s opinion faithfully follows Court of Appeal cases

that broadly apply section 821.6 to immunize the police against any claim involving

conduct within their duties. I write separately primarily to explain the conflict, where

each view would lead to a different outcome in this case. Because the federal courts are

following our Supreme Court’s reasoning, the same issue of California law likely would

be decided differently in a federal courthouse.

I can see the merit to the federal cases that apply our Supreme Court’s reasoning.

I join our opinion because I conclude that the Court of Appeal’s longstanding

circumscribing of our Supreme Court’s opinions is currently state law.

I. The Two Interpretations of Government Code 821.6 Immunity

The question in this case is whether sheriff’s deputies have absolute immunity

under Government Code section 821.6 (section 821.6) when sued for negligence based on

their alleged mistreatment of the body of a shooting victim at a crime scene.

Section 821.6 provides absolute immunity by stating: “A public employee is not

liable for injury caused by his instituting or prosecuting any judicial or administrative

1 proceeding within the scope of his employment, even if he acts maliciously and without

probable cause.” As discussed below, our Supreme Court has interpreted section 821.6 to

provide immunity against only malicious prosecution causes of action, that is, conduct

occurring after a legal proceeding exists. The Court of Appeal, in contrast, holds that

section 821.6 immunity covers any actions in the course of a police investigation, such as

the conduct here. Recent federal court opinions have followed our Supreme Court, not

the Court of Appeal.

A. The California Supreme Court’s Sullivan and Asgari Opinions

Our Supreme Court in 1974 articulated a “narrow interpretation of section 821.6’s

immunity, confining its reach to malicious prosecution actions.” (Sullivan v. County of

Los Angeles (1974) 12 Cal.3d 710, 721 (Sullivan); see also id. at p. 719 (“the history of

section 821.6 demonstrates that the Legislature intended the section to protect public

employees from liability only for malicious prosecution”), id. at p. 722 (“section 821.6

codified the recognized common law immunity of prosecutors and other law enforcement

officers from malicious prosecution actions” [quoting Van Alstyne, Cal. Government

Tort Liability Supp. (Cont.Ed.Bar 1969)].)

In 1997, the only other time our Supreme Court has addressed the scope of section

821.6, it reaffirmed Sullivan’s interpretation that “a police officer is granted statutory

immunity from liability for malicious prosecution but not for false arrest and

imprisonment.” (Asgari v. City of Los Angeles (1997) 15 Cal.4th 744, 752 (Asgari).)

Repeatedly through Asgari, the court yoked section 821.6 to the tort of malicious

2 prosecution, referring to the statute, for instance, as a “grant of immunity for malicious

prosecution.” (Asgari, supra, 15 Cal.4th. at p. 753.)1

Asgari did not (like Sullivan) expressly use a word such as “only” to delineate that

section 821.6 applies exclusively to malicious prosecution. But, despite section 821.6,

Asgari allowed damages against officers for claims of both false arrest and intentional

infliction of emotional distress (IIED) that preceded formal charges. (Asgari, supra, 15

Cal.4th at p. 760.) Asgari simply sharpened the distinction between malicious

prosecution and these two other torts, because malicious prosecution requires the

initiation of a valid or lawful process where the other torts do not require the existence of

a lawful process. (Id. at p. 757.) Thus, Asgari cut off the damages available for false

imprisonment and IIED at “the initiation of lawful process (malicious prosecution).” (Id.

at p. 758.) Section 821.6, Asgari reasoned, “evidences a legislative intent to shield police

officers from liability for damages that are attributable to a suspect’s incarceration after

the institution of lawful process.” (Asgari, supra, 15 Cal.4th. at p. 758.) In Asgari, that

1 (See also Asgari, supra, 15 Cal.4th. at p. 753 [“the Legislature’s purpose in immunizing public employees from damages for malicious prosecution”]; id. at 753, fn.7 [“the Legislature’s decision to immunize public employees and their employers from liability for malicious prosecution” was not made precipitously]; ibid. [Legislature “granted absolute immunity to public entities and their employees for malicious prosecution”]; id. at p. 754 [Legislature “provid[ed] immunity for malicious prosecution (§ 821.6)”]; ibid. [“the statutory immunity for malicious prosecution”]; ibid. [“the legislative decision to grant immunity to all public employees for malicious prosecution”]; id. at p. 756 [“California law grants immunity to any ‘public employee’ for damages arising from malicious prosecution (§ 821.6)”]; id. at 758, fn. 10 [“the statutory immunity for malicious prosecution”]; id. at p. 759 [“Such conduct would constitute malicious prosecution, and the officer would enjoy absolute immunity from liability under § 821.6”].) 3 meant a plaintiff could receive damages from officers’ conduct that constituted false

imprisonment and IIED, but those damages stopped when the defendant was arraigned in

court, seven days after his arrest. (Id. at p. 757.)

B. The Court of Appeal Case Law

Today’s opinion correctly observes that Court of Appeal case law has extended

section 821.6’s absolute immunity to acts during “an investigation that may precede the

institution” of a lawful legal proceeding, such as a criminal prosecution. (Maj. opn., ante,

at p. 10.) Thus, we hold that the deputies have absolute immunity from liability under

section 821.6, even though their conduct occurred at the scene of a shooting, rather than

after a prosecution began. Consequently, we hold, the County has derivative immunity

under Government Code section 815.2, which absolves an entity such as a County from

liability whenever its employees are immune.

The broad proposition today’s opinion states is that Government Code “sections

815.2 and 821.6 immunize public employees and their employers from liability for torts

committed by public employees in the course [of] their investigation concerning a

judicial or administrative proceeding, even if the plaintiff is not the target of the

investigation.” (Maj. opn., ante, at p. 11.) All that matters for absolute immunity under

section 821.6 is that the deputies were acting “during the course of . . . their official

duties” in an investigation of a crime. (Maj. opn., ante, at p. 12.) Our opinion allows that

actions by officers that occur “well outside” the course of an investigation may be

actionable as not covered by section 821.6 immunity (maj. opn., ante, at p. 20), but no

such actions are at issue here.

4 Today’s opinion correctly reads Court of Appeal case law. The cases have

expanded section 821.6’s absolute immunity to actions by law enforcement in the course

of an investigation, even if no “judicial or administrative proceeding” has been instituted

so no malicious prosecution action might cover the conduct.

C. The Federal Courts Following Sullivan

In three published opinions in the past five years, the United States Court of

Appeals for the Ninth Circuit has followed our Supreme Court’s interpretation of section

821.6, rejecting the Court of Appeal approach. Garmon v. County of Los Angeles (9th

Cir. 2016) 828 F.3d 837, 847, recognized that in Sullivan our Supreme Court had

confined the reach of section 821.6 to malicious prosecution actions, but that the Court of

Appeal had “interpreted section 821.6 more expansively.” The court noted that several

federal district courts had nevertheless followed our Supreme Court in applying section

821.6 to only malicious prosecution claims. (Garmon v. County of Los Angeles, supra,

828 F.3d. at p. 847.) The federal courts are charged with determining what meaning a

state’s highest court would give to a statute, and, based on Sullivan’s reasoning, Garmon

concluded that our Supreme Court “would adhere to Sullivan even though California

Courts of Appeal have strayed from it.” (Id. at p. 847.) Thus, the Ninth Circuit held that

a trial court erred in dismissing claims that were not malicious prosecution claims. (Ibid.)

In another published opinion, the Ninth Circuit held that section 821.6 did not

apply to several state law claims based on conduct arising out of an arrest, stating that

“because California’s highest court has not extended § 821.6 immunity to actions outside

of malicious prosecution, this immunity does not apply here.” (Sharp v. County of

5 Orange (9th Cir. 2017) 871 F.3d 901, 920-921.) And in Mendez v. County of Los

Angeles (9th Cir. 2018) 897 F.3d 1067, 1083, the Ninth Circuit held that section 821.6

does not provide officers with immunity against a negligence claim arising out of their

conduct while performing an investigation, stating that the statute does not “protect

officers engaged in investigations leading up to formal proceedings.” (See also Winger v.

City of Garden Grove (9th Cir. 2017) 690 Fed.Appx. 561, 563 [reversing trial court that

granted summary judgment to officers under section 821.6, as against a negligence claim

based on their conduct during traffic stop]; Advanced Building & Fabrication, Inc. v.

California Highway Patrol (9th Cir. 2019) 781 Fed.Appx. 608, 611 [“Absent any claim

of malicious prosecution, section 821.6 does not apply”].)

Consequently, the current law in California federal courts is that section 821.6

provides absolute immunity only against malicious prosecution claims, in accord with our

Supreme Court in Sullivan. The Ninth Circuit is charged with predicting what a state

supreme court would hold as to state law, and it has decided not only that our Supreme

Court’s law conflicts with our Court of Appeal’s law, but that our Supreme Court would

stick to its holding in Sullivan. If the negligence claim in this case were adjudicated in

our federal district court, it appears that section 821.6 would permit it. (See Ordonez v.

Stanley (C.D. Cal. 2020) 495 F.Supp.3d 855, 867-868 [2020 U.S. Dist. Lexis 245918 at

p. 23] [“Because Plaintiff’s claims under state law are not for malicious prosecution,

Section 821.6 does not apply”].)

6 II. The Court of Appeal’s Limiting of Sullivan

How can Court of Appeal cases hold that section 821.6’s absolute immunity

applies to police conduct in investigations, despite Sullivan, our Supreme Court’s case

that the Ninth Circuit believes limited the immunity to only malicious prosecution cases?

We are bound by holdings of our Supreme Court. (Auto Equity Sales, Inc. v. Superior

Court (1962) 57 Cal.2d 450, 455.) Yet the Court of Appeal has justified applying section

821.6 absolute immunity to torts other than malicious prosecution, including where, as

here, the conduct occurred when there was no court proceeding at all.

Our opinion provides the longstanding justification in Court of Appeal cases for

distinguishing Sullivan, which is that Sullivan decided only that section 821.6 malicious

prosecution immunity did not extend to the tort claim at issue there, false imprisonment,

and was “not concerned” with whether it extended to any other tort claim. (Maj. opn.,

ante, at p. 22.) The view is that in Sullivan the Supreme Court did not hold that section

821.6 immunity was limited to malicious prosecution. Instead, by describing Sullivan as

holding that section 821.6 immunity does not apply only to the false imprisonment tort,

the cases have confined that case to the narrowest description of its holding.

The Court of Appeal has read Sullivan this way for decades. Our division first

articulated this view over 26 years ago. (Amylou R. v. County of Riverside (1994) 28

Cal.App.4th 1205, 1211 & fn.2 [immunizing acts “incidental to the investigation of the

7 crimes” and stating that Sullivan held that section 821.6 “does not provide immunity for

claims for false imprisonment”].) Some other cases said as much even earlier.2

But it is not surprising that the Ninth Circuit does not read Sullivan this way. The

Court of Appeal’s reading does not come from Sullivan itself. The reason our Supreme

Court gave for not applying section 821.6 immunity to false imprisonment was that the

statute’s ambit was limited to malicious prosecution. It did not reason that the

Legislature intended to uniquely exempt false imprisonment from the section’s immunity.

The Court did recognize that false imprisonment is identified in a different section

(Government Code §820.4) as one for which public employees can be liable.3 But it did

so by explaining that its “narrow interpretation of section 821.6 immunity, confining its

reach to malicious prosecution actions, finds corroboration in another governmental

immunity provision, [Government Code] section 820.4.” (Sullivan, supra, 12 Cal.3d at p.

2 (See, e.g., Jenkins v. County of Orange (1989) 212 Cal.App.3d 278, 283 [applying section 821.6 to afford absolute immunity as to a claim of negligence during an investigation and claiming that Sullivan “limited its holding and discussion to the lack of immunity for false imprisonment”]; Kayfetz v. California (1984) 156 Cal.App.3d 491, 495, 498 [applying section 821.6 immunity in libel case and noting with a “cf.” citation that Sullivan refused to apply section 821.6 in a false imprisonment case].) A law review article, whose author has since become a justice of this Court, traced the Court of Appeal departure from Sullivan’s interpretation of section 821.6 to three cases decided between 1982 and 1984 that do not even cite Sullivan. (Frank J. Menetrez, Lawless Law Enforcement: The Judicial Invention of Absolute Immunity for Police and Prosecutors in California (2009) 49 Santa Clara L. Rev. 393, 401-405.)

3 Government Code section 820.4, the qualified immunity provided to government officials when enforcing the law, states: “A public employee is not liable for his act or omission, exercising due care, in the execution or enforcement of any law. Nothing in this section exonerates a public employee from liability for false arrest or false imprisonment.” 8 721 [italics added].) In other words, the court held section 821.6 immunity was limited to

malicious prosecution actions, and it recognized that one of the reasons that approach was

correct was that a broader view of section 821.6 would clash with Government Code

section 820.4.

The Court of Appeal reading also does not come from Asgari, in which the

Supreme Court allowed liability not just for false imprisonment, but also IIED. The

officers’ conduct there occurred before a prosecution, and the court held that the damages

for that conduct stopped when the legal process began, as later damages would be

covered by a malicious prosecution claim. (Asgari, supra, 15 Cal.4th at p. 757.) This

reasoning assumed that section 821.6 provided immunity against only a malicious

prosecution charge, allowing damages before such a charge was available but not after

that time.

Nevertheless, the Court of Appeal for decades has limited Sullivan to false

imprisonment claims, and that view has never been repudiated by our Supreme Court or

the Legislature. The Ninth Circuit is applying a straightforward reading of Sullivan, and

while we have some latitude to disregard our own decisions and agree with it, we should

not lightly do so. (See Lucent Technologies, Inc. v. Board of Equalization (2015) 241

Cal.App.4th 19, 35 [noting that discretion to depart from prior Court of Appeal cases is

only exercised when there is “‘good reason’” to do so, and that “[c]ourts are especially

hesitant to overturn prior decisions where, as here, the issue is a statutory one that our

Legislature has the power to alter”].) With some reluctance, therefore, I join our opinion

today, concluding that the body of Court of Appeal precedent that reads our Supreme

9 Court’s Sullivan opinion narrowly, as addressing only false imprisonment claims, states

the current law in the courts of this state.

III. The Court of Appeal’s Reasons for Expanding Section 821.6 Immunity

My primary reason for writing separately today is (as discussed) to illuminate the

interpretations of section 821.6 immunity and the reasoning through which the Court of

Appeal has limited our Supreme Court’s Sullivan opinion but the Ninth Circuit has not.

It is of only secondary concern whether the Court of Appeal, after limiting

Sullivan to its facts, was correct to expand section 821.6’s absolute immunity beyond

malicious prosecution. Today’s opinion alludes to some of the reasons in Court of

Appeal cases supporting the expansive view of section 821.6 immunity. These, too, are

embedded in our jurisprudence, though I do not find them especially compelling.

For instance, our opinion correctly finds important the Supreme Court’s 1951

opinion in White v. Towers (1951) 37 Cal.2d 727 (White), which articulated the common

law about a decade before section 821.6 was enacted in 1963. (Maj. opn., ante, at p. 25.)

But White was a malicious prosecution action. It held that common law immunity for

malicious prosecution extended to not just prosecutors but also to police officers. (White,

supra, 37 Cal.2d at pp. 729-733.) White was important because it was, as Sullivan noted,

one of several malicious prosecution cases that the Legislature expressly relied upon in

fashioning section 821.6, showing that (in our Supreme Court’s view) the section was

meant to protect public employees from “only” malicious prosecution suits. (Sullivan,

supra, 12 Cal.3d at pp. 719-720.)

10 Our opinion suggests that White’s public policy rationale for immunizing officers

from malicious prosecution claims also counsels for shielding their conduct in police

investigations. That is an arguable policy view, but it does not show that the Legislature

had that view in enacting section 821.6. Another view, reflected by the common law at

the time of White, might have considered the need for civil liability to protect the public

from police conduct. (See, e.g., Davis v. Kendrick (1959) 52 Cal.2d 517, 518-519

[“Under common law policemen and other police officers are not immune from liability

for wrongful acts causing personal injury or death”].) In fact, in 1963, when it enacted

section 821.6, the Legislature provided public employees engaged in the “execution or

enforcement” of the law not with absolute immunity but with a statutory qualified

immunity, protecting them from liability so long as they exercise due care. (Gov. Code,

§ 820.4.) Absent our precedent, a straightforward reading of the statutes might apply

Government Code section 820.4 qualified immunity to officers enforcing the law and

section 821.6’s absolute immunity once a legal proceeding is initiated.

Our opinion also alludes to a textual argument purporting to support an expansive

reading of section 821.6. The argument is that the term “even if he acts maliciously” in

section 821.6 indicates that some acts that are not “malicious,” such as a negligence

claim, must be covered. A relatively early case, however, explained that the wording was

meant to cover those who act negligently as part of the prosecution of an action, and thus

are even less culpable than those who act maliciously; still, the section is limited to

covering a person who “institutes or takes part in criminal actions.” (Johnson v. City of

Pacifica (1970) 4 Cal.App.3d 82, 86-87.)

11 In fact, the text of section 821.6 is problematic for the expansive Court of Appeal

view that we apply. The text of the statute provides immunity where injuries are

“caused” by “instituting or prosecuting any judicial or administrative proceeding.”

(§ 821.6.) In accord with Court of Appeal case law, we interpret those words as covering

conduct “in the course of” instituting or prosecuting a proceeding, including an

investigation that “may precede the institution of any such proceeding.” (Maj. opn., ante,

at p. 10.) That is, despite the causation requirement of the provision, there apparently

need not even ever be such a proceeding at all. Elsewhere, we describe the immunity as

covering conduct during official investigations “related to” judicial or administrative

proceedings. (Maj. opn., ante, at p. 22.) This also is different than the textual

requirement of an injury “caused” by instituting or prosecuting a proceeding, which (as

construed by Asgari) would seem to mean harm occurring after a proceeding has

commenced.

Once again, however, today’s opinion correctly articulates the reasoning of

decades of opinions that not only have cabined the Supreme Court’s Sullivan opinion to

its facts, but also have expanded section 821.6’s absolute immunity to police officer

conduct in investigations. Working on a blank slate, I would not constrict our Supreme

Court’s opinion to its barest holding, and I would follow the text of section 821.6. But 36

years of precedent is persuasive when you sit on the court that issued it.

The Ninth Circuit has predicted that our Supreme Court instead would stick to its

47-year-old approach in Sullivan limiting section 821.6 absolute immunity to the

malicious prosecution tort. I do not know what, if anything, our Supreme Court will do

12 in this area. But at this point, I believe that any correction to the Court of Appeal’s

decades-old, expansive application of section 821.6 will have to come from our Supreme

Court, rather than from us.