Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC397017 Mel Red Recana, Judge.
Darold M. Shirwo for Plantiffs and Appellants.
Wesierski & Zurek, Frank J. D’Oro, Paul J. Lipman, and Christian C. H. Counts for Defendants and Respondents.
BIGELOW, P. J.
Plaintiffs filed an action against numerous government-related defendants alleging causes of action labeled false imprisonment and violation of civil rights. Two defendants filed a demurrer arguing governmental immunity. The trial court sustained the demurrer without leave to amend and dismissed the action as to the two defendants. We affirm the judgment of dismissal.
In accord with the usual standard of review on appeal from a demurrer, we deem all facts alleged in the operative pleading to be admitted, and we do not consider plaintiffs’ possible inability to prove their claims at trial. (Desai v. Farmers Ins. Exchange (1996) 47 Cal.App.4th 1110, 1115.)
On July 16, 2007, a fire burned Peter Fong’s commercial “strip-mall” property on Valley Boulevard in Alhambra. Following the fire, two parallel lines of events occurred: (1) Fong began publicly voicing his view that the Alhambra Fire Department negligently or willfully failed to prevent his property from burning, and that the department’s failure had resulted in a tenant’s death; and (2) the “San Gabriel [Valley] Arson Explosives Task Force” (SGVAETF), a cooperative arson investigation and law enforcement group, began investigating the cause of the fire.
On August 30, 2007, Scott Burnside, an arson investigator employed by the City of Alhambra presented an affidavit to obtain a search warrant for a residence in which Fong and Irina Barnes were living. At the time he presented the affidavit, Burnside was “acting on behalf” of Alhambra and the SGVAETF. Unknown to the magistrate, the facts in Burnside’s affidavit were false, and a search warrant issued commanding authorities to search for ownership and business records (both paper and computer) related to Fong’s commercial property on Valley Boulevard.
Later the same day, Burnside and other officials with the SGVAETF executed the search warrant at Fong and Barnes’s residence. The others included Robert Kabala and “Captain Hartshorn” (also of the City of Alhambra and the SGVAETF), “Fire Marshall Johnson” and “Investigator Chrisp” (of the City of Montebello and the SGVAETF), and Robert Jones (of the City of South Pasadena and the SGVAETF). During the search, Burnside, Kabala, Hartshorn, Johnson, Chrisp and Jones restrained Fong and Barnes at gunpoint, and handcuffed Fong and Barnes, without any justification or reason, and took possession of personal property belonging to Fong and Barnes, including a computer and papers. In acting as they did, Burnside, Kabala, Hartshorn, Johnson, Chrisp and Jones acted “in consort with each other, ” with the intent to “silence” Fong from speaking about the Alhambra Fire Department’s failure to prevent Fong’s property from burning.
DISCUSSION
In August 2008, Fong and Barnes (collectively “Fong”) filed their current action. In May 2009, Fong filed his operative second amended complaint (SAC). As relevant to this appeal, Fong’s SAC alleged two causes of action against the City of South Pasadena and its employee, Robert Jones. Fong labeled his first cause of action as a claim for false imprisonment and his third cause of action alleged a claim for violation of his civil rights under Civil Code section 52.1 and title 42 of the Unites States Code section 1983. Both causes of action incorporated the facts summarized above. In June 2009, Jones and South Pasadena filed a joint demurrer in which Jones argued that he was immune from liability under Government Code section 821.6, and the City of South Pasadena argued that it was immune from liability under Government Code section 815.2, subdivision (b), because Jones was immune from any liability.
All further section references are to the Government Code.
The trial court entered an order sustaining the demurrer without leave to amend for the following stated reason: “Defendant Jones demurrer to the 1st c/a for False Imprisonment and 3rd c/a for Civil Rights Violations is sustained without leave to amend pursuant to [section] 821.6 and Javor v. Taggart (2002) 98 [Cal.App.4th] 795 [and] Baughman v. State of California (1995) 38 [Cal.App.4th] 182 which hold defendant Jones immune[] from... liability even if [his] actions were negligent, malicious or without probable cause.”
The trial court’s order incorporated a formal dismissal of Fong’s SAC as to South Pasadena and Jones. Fong filed a timely notice of appeal.
1. The First Cause of Action
Fong contends the trial court erred when it applied the immunity afforded under section 821.6 to sustain Jones’s demurrer to the false imprisonment cause of action. We disagree. Although Fong is abstractly correct that section 821.6 does not apply to a cause of action for “false imprisonment, ” his argument fails because the “false imprisonment” label that he affixed to his first cause of action did not shield the cause of action against section 821.6’s grant of immunity.
Under sections 820.4 and 821.6, a public official may be held liable for false arrest and false imprisonment, but not for malicious prosecution. (Asgari v. City of Los Angeles (1997) 15 Cal.4th 744, 757.) The tort of false imprisonment contemplates an “unlawful” violation of another person’s personal liberty, meaning that the restraint is “without lawful privilege.” (Ibid.) In contrast, the tort of malicious prosecution involves initiating or procuring the arrest of another person under lawful process, with malice and without actual probable cause. False imprisonment and malicious prosecution are distinct and mutually exclusive torts. (Ibid.)
When a public official restrains a person by using a facially valid, but improperly obtained, warrant, a cause of action arising from the wrongful restraint inherently and necessarily embodies a claim for malicious prosecution, and thus precludes a cause of action for the mutually exclusive tort of false arrest. (Asgari v. City of Los Angeles, supra, 15 Cal.4th at p. 757; see also Collins v. City and County of San Francisco (1975) 50 Cal.App.3d 671, 676; Jackson v. City of San Diego (1981) 121 Cal.App.3d 579, 585.) A variation on these principles exists when the same public official both presents a false affidavit and executes an ensuing warrant. (McKay v. County of San Diego (1980) 111 Cal.App.3d 251, 254-256.) In those circumstances, the official may be liable for false imprisonment (on the ground that he or she could not rely on a warrant obtained with his or her own falsely sworn affidavit) and for malicious prosecution for any ensuing criminal litigation (ibid.), but damages for the claim of false imprisonment may be cut-off at the time the person was arraigned, at which point damages would be attributable to malicious prosecution. (Asgari v. City of Los Angeles, supra, 15 Cal.4th at pp. 759-760.) In summary, when a wrongful restraint case does not involve a facially valid warrant, there may be a claim for false imprisonment, but, when a wrongful restraint case does involve a warrant issued by a magistrate, the only cognizable claim – as a matter of law – is a claim for malicious prosecution. In Fong’s current case a warrant issued and as a result, the only cognizable claim against persons not involved in its issuance, i.e., solely in connection with its execution, is a malicious prosecution claim.
Section 821.6 provides that a public employee “is not liable for injury caused by his [or her] instituting or prosecuting any judicial or administrative proceeding within the scope of his [or her] employment, even if he [or she] acts maliciously and without probable cause.” The section applies to immunize a public employee from liability for a malicious prosecution claim. (Asgari v. City of Los Angeles, supra, 15 Cal.4th at p. 757.) Inasmuch as Fong’s claim against Jones must be construed as a claim for malicious prosecution as a matter of law (ibid.), section 821.6 ends Fong’s first cause of action against Jones. (See Javor v. Taggart, supra, 98 Cal.App.4th at pp. 808-809; Baughman v. State of California, supra, 38 Cal.App.4th at pp. 191-192.) And, because Jones is immune from liability on Fong’s malicious prosecution claim under section 821.6, South Pasadena is also immune from liability. (§ 815.2, subd. (b).)
We find Fong’s allegation that “all of the defendants” acted “in consort” with each other to be insufficient to overcome the immunity afforded under section 821.6. Even in the light of the rule of liberal construction, Fong’s SAC does little more than allege that Jones was present when the search warrant obtained based on Burnside’s affidavit was executed. The SAC alleges no facts that Jones provided any information, false or other-wise, to Burnside or the magistrate. The SAC alleges no facts that Jones knew the search warrant was issued without probable cause or that Jones knew Burnside had lied to the magistrate. We recognize that application of section 821.6’s immunity effectively leaves Fong without a remedy against Jones for execution of an allegedly ill-gotten search warrant, but find this circumstance does not justify disregarding section 821.6. The criminal justice system requires that police officers, when involved in criminal proceedings, should be free to act uninfluenced by the fear of litigation, even when this may leave some wrongs unredressed. (See Amylou R. v. County of Riverside (1994) 28 Cal.App.4th 1205, 1213.)
2. The Third Cause of Action
Fong’s third cause of action mixes a claim under Civil Code section 52.1 and title 42 of the United States Code section 1983. We separately examine each claim.
Fong’s third cause of action for violation of his civil rights pursuant to Civil Code section 52.1 alleges a theory of liability distinct from his cause of action for malicious prosecution. Broadly summarized, Fong alleges the various public official defendants acted to deter him from exercising his right of free speech. On appeal, Fong’s opening brief appears to argue that such a claim should have survived Jones’ demurrer because the immunity afforded under Government Code section 821.6 does not apply to a cause of action under Civil Code section 52.1. We conclude that Government Code section 821.6’s immunity does apply.
Under Civil Code section 52.1, subdivisions (a) and (b), an individual may file and prosecute a civil action for damages against any person who by threats, intimidation, or coercion, interferes or attempts to interfere, with the individual’s exercise or enjoyment of any individual rights secured by the federal or state Constitutions, or by federal or state laws. The cause of action exists whether or not the defendant acted under “color of law.” Although not a model pleading, Fong’s third cause of action basically alleges that Jones wrongly executed a search warrant with the motive to intimidate Fong into silence from speaking out on the Alhambra Fire Department’s negligent or deliberate failure to save his building from burning. For purposes of our discussion, we assume these alleged facts are sufficient to state a “speech-related” cause of action for violation of civil rights under Civil Code section 52.1. This then brings us back to the immunity defense under Government Code section 821.6 interposed by Jones’s demurrer.
None of the cases cited by either Fong or Jones is directly on point with the issue presented, which is whether Government Code section 821.6 provides immunity to a “speech-related” cause of action for violation of civil rights under Civil Code section 52.1. However, we find O’Toole v. Superior Court (2006) 140 Cal.App.4th 488 (O’Toole) instructive.
In O’Toole, plaintiffs sued college police officers under Civil Code section 52.1 for enforcing a permit regulation which allegedly restricted plaintiffs’ free speech rights. The issue in the case, addressed in the context of competing summary judgment motions, was whether the campus police officers were immune from liability under Government Code section 820.6, which applies when a public official acts in “good faith” and under “apparent authority” of law. Starting with the assumed predicate that the regulation was unconstitutional, and the undisputed fact that the officers had acted in good faith when enforcing the regulation (i.e., they acted without knowing the regulation was invalid), the Court of Appeal ruled that Government Code section 820.6’s immunity applied. The court based its decision on the long-followed rule that a statute granting governmental immunity overrides a statute imposing liability, absent an indication of legislative intent that the statutory immunity is withheld or is withdrawn. (O’Toole, supra, 140 Cal.App.4th at p. 504.) Looking at the language of Civil Code section 52.1, the court found “no indicia” reflecting a legislative intent that public employees may be sued under the section despite a previously existing statutory immunity that would otherwise apply. (O’Toole, at p. 504.)
We find O’Toole’s reasoning under Government Code section 820.6 equally compelling in Fong’s current case implicating Government Code section 821.6. We see no indicia in the language of Civil Code section 52.1 suggesting to us that the Legislature, in enacting Civil Code section 52.1, intended a public employee to be liable under its reach notwithstanding the immunity afforded under Government Code section 821.6. For this reason, we find that Fong’s third cause of action for a civil rights violation under Civil Code section 52.1 –– which is predicated on his malicious prosecution claim –– cannot be the basis for liability in light of Government Code section 821.6. Fong’s arguments on appeal fail to persuade us that he should be allowed to sue Jones indirectly by an action under Civil Code section 52.1, when he may not sue Jones directly by way of a cause of action for malicious prosecution.
In his reply brief on appeal, Fong belatedly attempts to avoid this conclusion by offering that he “no longer assert[s]” his Civil Code section 52.1 claim against Jones in his “official capacity, ” but will maintain the claim against Jones only in his “individual capacity.” However, Fong’s SAC is rife with allegations that Jones acted in his role as a public official, and Fong cannot avoid Jones’s demurrer by now alleging facts that contradict his existing pleading. (See Hendy v. Losse (1991) 54 Cal.3d 723, 742-743.) Given Fong’s SAC, and its “government conspiracy” allegations, Fong cannot now avoid governmental immunity by claiming that Jones really was just an everyday person who happened to enter Fong’s residence, handcuff him, and restrain him at gunpoint point to silence him from speaking out on a matter of public interest.
b. Title 42 of the United States Code Section 1983
The requirements for pleading for a cause of action under title 42 of the United States Code section 1983 are limited: a plaintiff must allege a deprivation of a right secured by the Constitution of the United States or federal law, and that the deprivation was committed by a person who was acting under color of state law. (West v. Atkins (1998) 487 U.S. 42, 48.) At the same time, however, the decisional law recognizes a “qualified immunity” that protects against the concern that officers may be chilled in their daily pursuit of investigations and arrests. Otherwise, any person could bring an officer into a lawsuit to extract vengeance for arrest. This qualified immunity protects officers not only against trial and judgment, but also the chilling effect that would be caused by the expense of litigation. (Harlow v. Fitzgerald (1982) 457 U.S. 800, 816-819.) For these reasons, and “[c]onsistent[] with the balance [implicated in an action under title 42 of the United States Code section 1983], bare allegations of malice should not suffice to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery.” (Harlow, supra, at pp. 817-818.) Moreover, the qualified immunity issue should be determined “at the earliest possible moment” to spare a defendant the expense of litigating an insubstantial claims. (Id. at pp. 814-817.)
In the context of an action involving an allegedly invalid warrant, the qualified immunity shield is lost only when the warrant application is so lacking an indicia of probable cause that it renders official reliance on the warrant unreasonable. (Wood v. Emmerson (2007) 155 Cal.App.4th 1506, 1515.)
In Fong’s current case, despite having been afforded three attempts to file an adequate pleading, he still has provided no more than bare allegations, without any specific facts, that Jones violated Fong’s civil rights by participating in the execution of the search warrant. As we noted above, even when liberally construed, Fong’s SAC does little more than allege that Jones was present at the scene of the execution of the search warrant obtained by Burnside. There are no facts alleged that Jones provided any false information to the magistrate, either directly or through Burnside. There are no alleged facts that Jones knew that the search warrant was issued without probable cause or that Jones knew Burnside had lied to the magistrate. We are satisfied the trial court properly ruled that qualified immunity applied, at least insofar as Jones is involved. And, again, because Jones is immune from liability, so too is South Pasadena.
3. Leave to Amend
Fong contends the trial court abused its discretion when it denied leave to file yet a fourth pleading (third amended complaint) against the City of South Pasadena and Jones. We disagree.
Because Fong’s first and third causes of action are based on a search warrant, and thus must be viewed as embodying claims for malicious prosecution, and because such malicious prosecution claims are subject to governmental immunity under section 821.6, there is no reasonable possibility that Fong can amend his pleading to survive a demurrer.
DISPOSITION
The judgment is affirmed. The parties are to bear their own costs on appeal.
We concur: RUBIN, J., GRIMES, J