Opinion
Review Granted and Opinion Vacated
Oct 24, 1991.
Previously published at 233 Cal.App.3d 465
Kent A. Russell and Russell & Russell, for plaintiff and appellant.
John G. Barisone and Atchison & Anderson, for defendant and respondent.
BAMATTRE-MANOUKIAN, Associate Justice.
Ralph K. Thompson sued the City of Capitola upon the theory that the negligence of city police officers had led to his arrest for a crime he had not committed. The trial court granted the city's motion for summary judgment and ordered Thompson to pay $10,000 in attorney fees under Code of Civil Procedure sections 1021.7 and 1038. On Thompson's appeal we shall affirm the defense summary judgment and the order for attorney fees, but shall deny the city's application for attorney fees on appeal.
The facts are undisputed. Someone using Thompson's car assaulted an individual in Capitola. Police investigating the attack obtained a photograph of Thompson from the Department of Motor Vehicles and displayed it, in a photographic lineup, to the victim and to an eyewitness. The eyewitness positively identified Thompson as the perpetrator; the victim said that Thompson's photograph looked somewhat like the perpetrator, but the victim could not make a positive identification. Without following the city police department's unwritten policy of contacting a suspect to obtain his or her version of events, the investigating officers recommended to the district attorney that a warrant be issued for Thompson's arrest. The district attorney filed a misdemeanor complaint against Thompson but sent Thompson's notice to appear to the wrong address; when Thompson did not appear, an arrest warrant was issued. More than a year later Thompson was arrested on the warrant and briefly incarcerated. Then a friend of Thompson's came forward, recited that he had borrowed Thompson's car at the time of the attack, and confessed that he had been the perpetrator. The charges against Thompson were then dismissed and he obtained an affirmative adjudication, under Penal Code section 851.8, that he was factually innocent of the charge for which he had been arrested.
Thompson then filed California Tort Claims Act (Gov.Code, § 810 et seq.) claims against both the city and the county and, when the claims were rejected, brought this action against both the city and the county. Thereafter Thompson dismissed his action against the county. The city then moved for and obtained the summary judgment and the attorney-fee order which are the subjects of this appeal.
1. Summary Judgment
In the two counts of his complaint Thompson undertook to plead theories of failure to discharge a mandatory duty and false imprisonment, under Government Code sections 815.6 and 820.4 respectively. In support of its motion for summary judgment the city attacked both of Thompson's pleaded theories.
In response to the city's motion for summary judgment Thompson acknowledged that the false imprisonment theory of his second count was barred by statutory immunity. He also purported to amend his mandatory-duty theory, stating that "section [815.6] is no longer advanced here as a basis for liability. Rather, liability here is based on the principle that a public employee is liable for torts to the same degree as a private person ( [Gov.Code,] § 820, subd. (a)), and that the public entity is vicariously liable for any injury which its employee causes. ( [Id.] § 815.2.)" Thompson submitted a proposed "amendment to complaint to conform to proof" which would have stricken the entire second count and the reference to section 815.6 in the first count. The city objected to Thompson's change of position on procedural grounds. It also opposed Thompson's new position, on the primary ground that by virtue of Government Code section 821.6 its officers were immune from liability for their conduct of the criminal investigation.
For purposes of determining whether the city has successfully attacked, or defended against, Thompson's pleaded theory of liability (cf. Bell v. Industrial Vangas, Inc. (1981) 30 Cal.3d 268, 271, fn. 1, 179 Cal.Rptr. 30, 637 P.2d 266), we shall acknowledge that Thompson has abandoned the theories he initially pleaded and shall deem his complaint amended to plead the theory he articulated in response to the city's motion. We shall conclude that the city has established a complete defense of statutory immunity, under section 821.6, to Thompson's new theory. Therefore we need reach neither the city's procedural objections to Thompson's change of position nor its alternative contentions on the merits.
Thompson's new theory proceeded from the premise that by failing to contact him before recommending he be arrested the Capitola police officers had violated a common-law duty of care owed to him. In sum his argument was that private persons in the position of the officers whose investigation led to his arrest would have been liable to him, that by virtue of section 820 the officers were liable to the same extent the hypothetical private persons would have been, and that by virtue of section 815.2 the city was vicariously liable for the officers' acts.
Section 815.2 is subject to the qualification that "[e]xcept as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability." (Gov.Code, § 815.2, subd. (b).) Section 821.6 provides that "[a] public employee is not liable for injury caused by his [her] instituting or prosecuting any judicial or administrative proceeding within the scope of his [her] employment, even if he [she] acts maliciously and without probable cause." The city argues that in conducting their investigation the officers were "instituting" a judicial proceeding--a misdemeanor criminal prosecution--and therefore that they were immune from liability by virtue of section 821.6. Thompson disagrees, arguing that the officers were engaged only in preliminary investigation and were not "instituting" the misdemeanor prosecution, and that in light of its purpose section 821.6 can apply only to affirmative actions, and not to the sort of failure to act he alleged as the basis for his new theory of liability.
We agree with the city. Notwithstanding responsible arguments for a narrower construction of section 821.6 (cf., e.g., Johnson v. City of Pacifica (1970) 4 Cal.App.3d 82, 89, 84 Cal.Rptr. 246 (conc. opn. of Rattigan, J.)), it is now firmly established that the section's immunity provision is not limited to actions for malicious prosecution (cf. Randle v. City and County of San Francisco (1986) 186 Cal.App.3d 449, 456, 230 Cal.Rptr. 901; Kayfetz v. State of California (1984) 156 Cal.App.3d 491, 497, 203 Cal.Rptr. 33; cf. also Citizens Capital Corp. v. Spohn (1982) 133 Cal.App.3d 887, 889, 184 Cal.Rptr. 269) nor to acts to commence or to maintain (and thus in a narrow sense to "institute" or to "prosecute") a judicial or administrative proceeding, but extends to any of a variety of intentional or negligent acts of public employees in any of various connections with such proceedings. (E.g., Stearns v. County of Los Angeles (1969) 275 Cal.App.2d 134, 137, 79 Cal.Rptr. 757 [coroner's negligence leading to criminal prosecution]; Johnson v. City of Pacifica, supra, 4 Cal.App.3d at p. 85, 84 Cal.Rptr. 246 [police officers' negligent investigation of citizens' complaints leading to criminal prosecution]; Herndon v. County of Marin (1972) 25 Cal.App.3d 933, 935, 102 Cal.Rptr. 221 [false information negligently supplied by clerk leading to criminal prosecution], limited in Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 722, fn. 10, 117 Cal.Rptr. 241, 527 P.2d 865 [§ 821.6 does not apply to action for false imprisonment]; Blackburn v. County of Los Angeles (1974) 42 Cal.App.3d 175, 177-178, 116 Cal.Rptr. 622 [§ 821.6 applies to criminal investigation]; Novoa v. County of Ventura (1982) 133 Cal.App.3d 137, 142-143, 183 Cal.Rptr. 736 [failure to notify father of dependency proceedings was one of several acts "involved in prosecuting judicial actions for the benefit of the children"]; Citizens Capital Corp. v. Spohn, supra, 133 Cal.App.3d at p. 889, 184 Cal.Rptr. 269 [consumer protection employees charged plaintiffs with improprieties in "widespread newspaper publicity" and also instituted license revocation proceedings]; Kayfetz v. State of California, supra, 156 Cal.App.3d at pp. 497-499, 203 Cal.Rptr. 33 [after physician stipulated to drug rehabilitation in order to expunge record of completed disciplinary proceeding, state board publicized the charges and disposition]; Randle v. City and County of San Francisco, supra, 186 Cal.App.3d at pp. 455-458, 230 Cal.Rptr. 901 [failure of police detective and prosecutor to make exculpatory evidence available to defense]; Kemmerer v. County of Fresno (1988) 200 Cal.App.3d 1426, 1436-1437, 246 Cal.Rptr. 609 [investigation of charges of misconduct by another public employee "was an essential step to the institution of the disciplinary process"]; Cappuccio, Inc. v. Harmon (1989) 208 Cal.App.3d 1496, 1500, 1502, 257 Cal.Rptr. 4 [inaccurate public announcement, after the fact, of the details of a criminal conviction was "made during the prosecution process"]; Jenkins v. County of Orange (1989) 212 Cal.App.3d 278, 283, 260 Cal.Rptr. 645 [negligent investigation of child abuse reports and misrepresentation of information to juvenile court].)
In light of these decisions section 821.6 plainly applies to the investigative activities, preliminary as they may have been, of the city's police officers in this case. The application is wholly consistent with the rationale of the immunity, first stated by our Supreme Court before the Tort Claims Act was enacted but often quoted since in elucidation of the purpose of section 821.6: "At the outset, we are faced with an apparent conflict between the public policy of protecting individual citizens from oppressive official action and the equally well established policy of promoting the fearless and effective administration of the law for the whole people by protecting public officers from vindictive and retaliatory damage suits. However, we feel that both policies may at once be subserved by refusing to permit civil actions against the officer for alleged malicious prosecution and remanding the offended individual to his [her] remedy under the penal statutes.... [p] 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 [she] 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.... [p] ... [p] We are aware of the fact that in thus surrounding peace officers with immunity in cases of this sort, hardship may result to some individuals. However, experience has shown that the common good is best served by permitting law enforcement officers to perform their assigned tasks without fear of being called to account in a civil action for alleged malicious prosecution." (White v. Towers (1951) 37 Cal.2d 727, 729-730, 235 P.2d 209; cf., e.g., Randle v. City and County of San Francisco, supra, 186 Cal.App.3d at p. 457, 230 Cal.Rptr. 901; Scannell v. County of Riverside (1984) 152 Cal.App.3d 596, 604, 199 Cal.Rptr. 644; Collins v. City and County of San Francisco (1975) 50 Cal.App.3d 671, 678-679, 123 Cal.Rptr. 525; Johnson v. City of Pacifica, supra, 4 Cal.App.3d at p. 87, 84 Cal.Rptr. 246.)
We are not persuaded by Thompson's proposed distinction between acts of police officers in the institution of prosecution and the asserted inaction of the police officers in this case. Thompson's argument is that the perceived purpose of section 821.6 is, in relevant part, to encourage officers to act without fear of reprisal, and not to protect inaction. Conceivably this argument might have some force in a case in which police undertook a patently insufficient investigation or no investigation at all, but this is not that case. Upon the undisputed facts it is clear the officers did conduct an investigation which included photographic lineups and at least one positive (albeit mistaken) eyewitness identification of Thompson as the perpetrator. That the negligence of which Thompson complains consisted of the officers' failure to conduct further investigation would not, in the circumstances of record, remove their activities from the scope of section 821.6.
We conclude that the officers were immune. It follows that the city could not be vicariously liable for the officers' conduct and that summary judgment was properly granted.
2. Attorney Fees in the Trial Court
In the trial court the city asked, and the court ordered Thompson to pay, $10,000 in attorney fees as costs under Code of Civil Procedure sections 1021.7 and 1038, each of which authorizes such an order when the court finds, in specified circumstances, that the action has not been commenced or conducted "in good faith and with reasonable cause." The court's order embodied findings in the broad language of the statutes. On appeal Thompson argues that the trial court failed to make "specific findings as to the basis or rationale" for its order, and that the order was an abuse of the court's discretion.
We conclude the trial court was not required to make more specific findings, and that the court's conclusion that Thompson lacked reasonable cause for his lawsuit was correct.
To avoid an order to pay attorney fees under either section 1021.7 or section 1038, a plaintiff in an action to which either section applies must have pursued the action in good faith and with reasonable cause. (Cf. Carroll v. State of California (1990) 217 Cal.App.3d 134, 140, 141, 265 Cal.Rptr. 753.) Thus a defendant who can meet the other criteria of one section or the other need only show either that the plaintiff did not act in good faith or that the plaintiff lacked reasonable cause for the action. Good faith, or its absence, involves a factual inquiry into the plaintiff's subjective state of mind (cf. People v. Nunn (1956) 46 Cal.2d 460, 468, 296 P.2d 813; cf. People v. Lonergan (1990) 219 Cal.App.3d 82, 90, 267 Cal.Rptr. 887; Mueller v. MacBan (1976) 62 Cal.App.3d 258, 282, 132 Cal.Rptr. 222): Did he or she believe the action was valid? What was his or her intent or purpose in pursuing it? Reasonable cause, on the other hand, is to be determined objectively, as a matter of law, from specially-found, or undisputed, facts: Given the facts, would " 'any reasonable attorney ... have thought the claim tenable....' "? (Carroll v. State of California, supra, 217 Cal.App.3d at p. 141, 265 Cal.Rptr. 753, quoting from Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 886, 254 Cal.Rptr. 336, 765 P.2d 498.) Whether the plaintiff himself or herself "thought the claim tenable" might be relevant to good faith but would be essentially irrelevant to reasonable cause. (Carroll v. State of California, supra, 217 Cal.App.3d at p. 142, 265 Cal.Rptr. 753; cf. Sheldon Appel Co. v. Albert & Oliker, supra, 47 Cal.3d at pp. 877-882, 254 Cal.Rptr. 336, 765 P.2d 498.)
The trial court found that "this action was not filed or maintained in good faith and with reasonable cause as those terms are used in ... sections 1021.7 and 1038...." Thompson complains that this conclusionary statement gives him no focus for his arguments on appeal. The statutes did not require that the trial court make more specific findings. In their absence we must assume, as Thompson has, that the court found Thompson had proceeded without either good faith or reasonable cause, and must review the record upon that assumption.
We are not persuaded that the record supports the trial court's necessarily factual conclusion that Thompson had not proceeded in good faith. But to set aside that conclusion would not resolve the matter. Even were we to assume that Thompson acted in absolute good faith, he would be subject to the trial court's attorney-fee order if its legal conclusion that his action was not filed or maintained "with reasonable cause" was correct. Because the underlying facts are undisputed we examine the legal conclusion de novo.
We must agree with the trial court that Thompson lacked reasonable cause. Under the applicable objective test we are compelled to conclude that no reasonable attorney would have considered Thompson's claim against the city tenable. Thompson's own withdrawal of the theories of liability on which he originally proceeded substantiates our conclusion as to those theories. And our analysis of the Government Code section 821.6 immunity on which the city depended satisfies us that the immunity was applicable and would have been perceived by the hypothetical reasonable attorney to have been applicable. It will be of small comfort to Thompson to know that there are sound reasons of public policy for the rules on which his claim has foundered. In sum there was no reasonable cause for his action, and the trial court's order for attorney fees was authorized by both section 1021.7 and section 1038.
Thompson has not questioned the amount of the order, which will be affirmed as made.
3. Attorney Fees on Appeal
The city also asks that we order Thompson to pay its attorney fees on appeal, not as a sanction for an assertedly frivolous appeal (cf. Winick Corp. v. County Sanitation Dist. No. 2 (1986) 185 Cal.App.3d 1170, 1181-1183, 230 Cal.Rptr. 289) but rather by virtue of the same statutes--Code of Civil Procedure sections 1021.7 and 1038--under which it obtained its attorney-fee order in the trial court. The city argues that "[a]ppellate courts have consistently permitted a successful party to recover its attorney's fees incurred on appeal when that party has been awarded fees pursuant to statute at the trial court level," whether or not the statute expressly provides for fees on appeal.
The city cites several cases in support of its position; many more could be cited as examples of the broad proposition "that fees, if recoverable at all--pursuant either to statute or parties' agreement--are available for services at trial and on appeal." (Serrano v. Unruh (1982) 32 Cal.3d 621, 637, 186 Cal.Rptr. 754, 652 P.2d 985 [Code Civ.Proc., § 1021.5]; cf., e.g., Painter v. Estate of Painter (1889) 78 Cal. 625, 627, 21 P. 433 [former provision for fees for successful defense of suit on a claim against an estate]; Fed-Mart Corp. v. Pell Enterprises, Inc. (1980) 111 Cal.App.3d 215, 229, 168 Cal.Rptr. 525 [Corp.Code, § 317]; Board of Education v. Commission on Professional Competence (1980) 102 Cal.App.3d 555, 566, 162 Cal.Rptr. 590 [Ed.Code, § 44944]; Roberts v. Brian (1973) 30 Cal.App.3d 427, 429-430, 106 Cal.Rptr. 360 [Welf. & Inst.Code, § 10962]; Rio Vista Gas Assn. v. State of California (1961) 188 Cal.App.2d 555, 565-566, 10 Cal.Rptr. 559 [former provision for undertaking for costs, including fees, in action against the state]; cf. also Cont.Ed.Bar, Cal. Civil Appellate Practice (2d ed. 1985) § 19.11, pp. 514-515 ["[o]rdinarily, fee awards under statutory ... authority include fees for services on appeal as well as at trial"]; 9 Witkin, Cal.Procedure (3d ed. 1958) Appeal, § 673(2), p. 648.)
Common to most of the statutory provisions involved in the cases we have cited, as construed by the reviewing courts, has been a perceived legislative policy of providing a means by which a party who might otherwise be unable to do so may litigate specified issues to a final conclusion. And most of the provisions base eligibility for a fee award solely on success: The winner shall recover attorney fees from the loser. None of the statutes added the requirement, found in sections 1021.7 and 1038, that the prevailing party's adversary have proceeded in bad faith or without reasonable cause.
We consider the distinction significant. Although the determination of bad faith or of lack of reasonable cause will inevitably be influenced by the court's perception of the underlying merits, the determination is itself reviewable independent of the merits. The importance of such review is apparent . in light of the intended function of these sections, as limited but more expeditious alternatives to a new action for malicious prosecution: The loser in the trial court will not simply be asked, for reasons the Legislature deems sufficient, to bear some or all of the winner's cost of litigation, but will in essence be penalized for his or her perceived abuse of the adjudicative method of dispute resolution. We conclude the provisions of sections 1021.7 and 1038 do not authorize attorney fees on appeal based solely on the public entity's successful defense of the judgments and orders it obtained in the trial court.
In the first place, neither section provides for attorney fees based solely on success. That the plaintiff may have been found, in the trial court, to have proceeded in bad faith or without reasonable cause is by no means a certain indicator that his or her appeal will be similarly lacking in bona fides: The issues of good faith and reasonable cause will often be disputable, and their resolution may prompt an appeal which is wholly in good faith and supported by reasonable cause. Such an appeal cannot be brought within the meaning of sections 1021.7 and 1038 solely by virtue of success or failure in the reviewing court.
Nor should it be. We would be most reluctant to dissuade a plaintiff from pursuing a legitimate appeal by endorsing the position that he or she must succeed in order to avoid an attorney-fee order.
We have no occasion to consider whether attorney fees on appeal might be awarded, under either or both of sections 1021.7 or 1038, upon a sufficient showing that the appellant brought or maintained the appeal either in bad faith or without reasonable cause, because there is no such showing in this case. We note that an appeal prosecuted in bad faith, or without reasonable cause, often could be characterized and sanctioned, under well-established rules, as a frivolous appeal: An appeal that "is prosecuted for an improper motive--to harass the respondent or delay the effect of an adverse judgment--or [that] ... indisputably has no merit--when any reasonable attorney would agree that the appeal is totally and completely without merit. [Citation.]" (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650, 183 Cal.Rptr. 508, 646 P.2d 179.) Arguably these issues, whether or not raised under section 1021.7 or section 1038, should be raised and dealt with at the appellate level under established procedures designed to take account of the need "to avoid a serious chilling effect on the assertion of litigants' rights on appeal. Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win on appeal. An appeal that is simply without merit is not by definition frivolous and should not incur sanctions.... [T]he courts cannot be 'blind to the obvious: the borderline between a frivolous appeal and one which simply has no merit is vague indeed ... The difficulty of drawing the line simply points up an essential corollary to the power to dismiss frivolous appeals: that in all but the clearest cases it should not be used.' [Citation.] The same may be said about the power to punish attorneys for prosecuting frivolous appeals: the punishment should be used most sparingly to deter only the most egregious conduct." (Id. at pp. 650-651, 183 Cal.Rptr. 508, 646 P.2d 179.)
In sum, absent a showing of bad faith or lack of reasonable cause on appeal neither section 1021.7 nor section 1038 authorizes an award of attorney fees in this court. The city does not assert that this was a frivolous appeal. We shall deny the city's application for attorney fees on appeal.
The judgment for defendant City of Capitola, and the order that plaintiff Ralph K. Thompson shall pay $10,000 in attorney fees to the city under Code of Civil Procedure sections 1021.7 and 1038, are affirmed. The city's application for attorney fees on appeal is denied. The city shall recover its costs on appeal.
CAPACCIOLI, Acting P.J., and PREMO, J., concur.