Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC344647. Elihu M. Berle, Judge.
Law Offices of Richard A. Love, Richard A. Love and Beth A. Shenfeld for Plaintiff and Appellant.
Michele Beal Bagneris, City Attorney and Hugh Halford, Assistant City Attorney for Defendants and Appellants.
CHAVEZ, J.
Karin White (White) appeals from a judgment following a jury trial on her claims against the City of Pasadena and City of Pasadena Police Department (collectively “the city”) for disability discrimination, disability harassment, and invasion of privacy in violation of Penal Code section 631. The jury returned a verdict in favor of the city on White’s claims of disability discrimination and harassment. However, the jury found in White’s favor on her cause of action for invasion of privacy, awarding her damages of $1 million. Pursuant to Penal Code section 637.2, the trial court trebled the award to $3 million.
Following the verdict, the city filed a motion for judgment notwithstanding the verdict and a motion for a new trial as to the judgment on White’s invasion of privacy claim. The trial court denied the city’s motion for judgment notwithstanding the verdict. However, the trial court granted the city’s motion for a new trial as to damages, subject to White’s acceptance of a remittitur reducing the award to $150,000, to be trebled under Penal Code section 637.2. The city cross-appeals from this judgment in favor of White on her invasion of privacy cause of action.
We reverse trial court’s denial of the city’s motion for judgment notwithstanding the verdict on the statutory invasion of privacy cause of action. The judgment is otherwise affirmed.
WHITE’S CONTENTIONS
White appeals from the new trial order, arguing that the order was defective and the jury verdict must be reinstated. She also appeals from the judgment, arguing that the trial court erred by: (1) admitting testimony derived from recorded telephone conversations; (2) excluding an advisory opinion resulting from an arbitration of White’s grievance against the city; (3) admitting time rolls showing White’s hours worked; and (4) refusing White’s proposed jury instruction on discriminatory intent.
White initially appealed the judgment as to her claims of disability discrimination and disability harassment. However, she has since withdrawn her challenge to the verdict on the claim of harassment. Thus, her appeal involves only her disability discrimination claim.
THE CITY’S CONTENTIONS
The city also appeals from the judgment. The city contends that the trial court erred in denying the city’s motion for judgment notwithstanding the verdict because: (1) Penal Code section 631 does not apply to the authorized interception of communication; (2) Penal Code section 629.86 provides a complete defense from liability for the disclosure of an authorized interception; and (3) the city was immune from liability under Government Code sections 821.6 and 820.2. The city further contends that the trial court improperly instructed the jury on the elements of invasion of privacy under Penal Code section 631 and that the special verdict form did not reflect the elements necessary to sustain a cause of action for violation of section 631. In addition, the city contends that it was error for the trial court to deny the city’s motion to file a first amended answer.
As to the damage award under Penal Code section 637.2, the city argues that the award was improper because no violation of Penal Code section 631 occurred. Even if a violation had occurred, the city argues, the $1 million jury award was not supported by the evidence at trial. The city further argues that the imposition of damages against the city is barred by Civil Code section 47; the one-year statute of limitations found in Code of Civil Procedure section 340, subdivision (a); and that even if an award of damages was proper, an award of treble damages cannot stand against a government entity.
FACTUAL BACKGROUND
At the time of trial in 2007, White was a 43-year-old single mother who had been employed as a patrol officer with the Pasadena Police Department (the Department) since 1996. Before she began her career in law enforcement, White was briefly involved in a relationship with Anthony Williams (Williams). Williams, who is the father of White’s son, Kameron, was convicted in 1987 on drug related charges and sentenced to prison. White raised Kameron on her own and had virtually no contact with Williams until 2002. When White applied for employment with the city, she disclosed her relationship with Williams and his status as a convicted felon.
Kameron was born on December 23, 1987.
In 1999, White was diagnosed with relapsing and remitting multiple sclerosis (MS). Since 1999, White’s symptoms have been controlled and her medical condition did not interfere with her ability to perform her job.
Relapsing and remitting MS is controllable with regular medication. Occasional flare-ups require additional treatment. In the eight years between her initial diagnosis and trial, plaintiff only had eight mild flare-ups.
Requests that White modify her employment
White presented evidence that, following her diagnosis, various employees of the city attempted to convince her to resign her position as a patrol officer and accept employment as a jailer. Commander Rick Law was one such employee. White had informed Law of her diagnosis of MS shortly after she received it. She testified that on three separate occasions, Law asked her to take a jailer position because it would be less stressful. Commander Marilyn Dian (Diaz) also asked White about her diagnosis, and suggested that White become a jailer. Two months later, Diaz made the same suggestion at a lunch meeting with White. Lieutenant Riddle also asked White to consider the jailer position because of her health.
Conflicting testimony was presented by the city. Law denied ever suggesting that White accept a jailer position and denied that anyone had discussed that possibility at the command level. Diaz recalled a discussion in which she had discussed White’s “options,” but could not recall when. According to Diaz, shortly after she was promoted to commander, she was ordered by Deputy Chief Wayne Hiltz (Hiltz) to inquire whether White would accept the jailer position; Diaz invited White out to lunch to discuss the matter. Hiltz denied any knowledge of the lunch meeting, and did not recall initiating any such meeting between Diaz and White.
Diaz testified that, during the lunch conversation, White expressed concern that she might get hurt again, was afraid of getting into a fight, and asked whether she could be paired up with another officer when she returned to patrol. Diaz was concerned by White’s comments, and reported back to Hiltz that White was not interested in the jailer position but had concerns about getting back in a patrol car. Hiltz decided to initiate a fitness for duty psychological exam for White, because White’s comments suggested that she “lacked the confidence to go out and handle field duty in a city like Pasadena.” The fitness for duty exam took place in September 2001. The police psychologist, Susan Saxe-Clifford, determined that White was not fit for duty.
At the time, White was on light duty following knee surgery.
White initiated a grievance proceeding, and paid for a psychologist to re-evaluate her. After this separate testing was done, White was reinstated. By the beginning of 2002, White was back at work.
In April 2002, the Department initiated what White refers to as “forced medical retirement.” White testified that she was told to go to City Hall and fill out some paperwork, which turned out to be paperwork connected with the retirement process. According to Chief Bernard Melekian (Melekian), when White was reinstated in 2001, she presented documents to the Department from a medical examiner listing “restrictions on her ability to perform the work of a police officer, including things like not being able to stand for extended periods, not being able to walk, not being able to lift.... It was very clear that if those restrictions stood, she could not be a police officer.” When White failed to submit a retirement request, “the Department submitted a request for retirement for her.” After White challenged the forced retirement, and came back with a medical exam that lifted most of the restrictions, the process was halted and she was reinstated.
The city’s first internal investigation
In 2003, Williams was under investigation for his involvement in a drug trafficking ring. Pursuant to a court order, the Bureau of Narcotic Enforcement (BNE) recorded conversations between Williams and others. In July 2003, BNE Agent Randy Sipes (Sipes) contacted Lieutenant Keith Jones (Jones) of the Department and informed him that, during the course of the investigation of Williams, BNE had discovered that Williams was making phone calls to a number with a prefix that they believed was associated with the city. Lieutenant Jones investigated the matter and determined that the telephone number in question was assigned to White.
Williams was subsequently convicted and is serving a life sentence without parole for narcotics trafficking.
BNE requested that the city refrain from taking any action until BNE’s investigation was complete. Jones discussed the matter with Hiltz, and they concluded that the Department would proceed with an internal investigation after BNE’s investigation concluded.
Several weeks later, Sipes informed Jones that the BNE investigation was over and Williams had been arrested. Sipes disclosed the existence of wiretaps of conversations between White and Williams, and Jones requested copies of those recordings. Some of the conversations involved the exchange of sums of money and vehicles. Upon receiving the recordings, Hiltz forwarded them to Lieutenant Rich Sandoval of the Professional Standards Unit for a determination as to whether or not a formal investigation should be initiated. An affirmative decision was made, and a formal investigation to determine whether White was involved in criminal or administrative misconduct was subsequently initiated.
Sergeant Tracey Ibarra was assigned to the investigation. It was ultimately determined that there was insufficient evidence to support a charge that White was receiving ill-gotten money from a felon. However, the following charges were sustained: associating with a known felon and fugitive; concealing the whereabouts of a known felon and fugitive; and making false statements during an investigation. The results of the investigation were forwarded up the chain of command at the Department, and were ultimately reviewed by Melekian. Melekian sustained the charges against White regarding false and misleading statements, and terminated her employment.
The grievance and advisory arbitration proceedings
White was placed on administrative leave on August 17, 2004, and was notified of the proposed disciplinary action on September 10, 2004. The next step in the process was a Skelly hearing, during which White had the opportunity to come to Melekian with her attorney and make her case. The Skelly hearing took place on October 11, 2004, and lasted over an hour. White was terminated effective November 1, 2004.
See Skelly v. State Personnel Board (1975) 15 Cal.3d 194, discussing the preremoval rights of public employees.
Pursuant to the Memorandum of Understanding between the city and the Pasadena Police Officers Association, dated April 25, 2004 through April 24, 2006 (MOU), White filed a grievance and appealed her termination to an advisory arbitration hearing. The arbitrator advised that White should be reinstated with back pay. One of the grounds for reinstatement cited by the arbitrator was that the Department had failed to complete its internal investigation within the one-year statute of limitations found in Government Code section 3304, subdivision (d). White asserts that the arbitrator also found that the tape recordings of White’s conversations were illegally used and must be suppressed.
The trial court sustained the city’s objection to admission into evidence of the arbitrator’s advisory opinion. White contests this evidentiary ruling.
The City Manager is authorized to make the final decision on matters of discipline for the city. The advisory opinion was forwarded to the City Manager, who accepted the arbitrator’s advisory opinion. In a letter to White dated June 28, 2005, the City Manager offered White reinstatement “based upon the fact that it does not appear the City complied with the statute of limitations.” White was subsequently reinstated with back pay.
White returned to a patrol position in July 2005 because her previous position in community services had been filled during her absence. She was assigned to the mid-shift, 12:30 p.m. to 10:30 p.m. White asked for, but was denied, a shift change to be at home with her son more. Her son was having a hard time dealing with the absence of Williams, was acting out in school, and had been experiencing anxiety attacks. In addition to being denied the accommodation of a shift change, White’s request to be placed back in community services was denied.In addition, White was subject to monthly evaluations, in which she was criticized for her lack of investigative skills and her failure to make sufficient arrests.
The city’s second internal investigation
On June 25, 2006, White was shot in the head by her son Kameron. Kameron was the only witness to the shooting, and the evidence is in conflict as to the series of events leading to the shooting.
According to White, after she had returned home at around 10:30 p.m. that evening, her son came into her bedroom as she was getting ready for bed. He began apologizing, then started raising his hand toward his head. He had White’s gun in his hand. White lunged toward him, and the gun went off. A bullet hit White in the face, just beneath her right nostril. Kameron began screaming and apologizing, and White crawled toward the gun and covered it with her body to prevent Kameron from hurting himself. White was able to call 911 before losing consciousness. White insisted she was never trying to hurt herself, only to prevent Kameron from hurting himself.
The Department instituted an investigation and reached a different conclusion as to the events of that night. Initially Kameron informed the Los Angeles County sheriff’s deputies who responded to the 911 call that White had attempted suicide. The Los Angeles County Sheriff’s Department (LASD) ultimately classified the shooting as an attempted suicide. White never attempted to “clear up the investigation.”
Melekian explained that, while the initial report from the LASD indicated that the shooting was a suicide attempt, that report was “contradicted by Officer White in statements that she made to a couple of different employees to the effect that it was her son who had shot her and she had not attempted to shoot herself.” Melekian made calls to the LASD to attempt to get them to reopen the investigation, however “Officer White essentially refused to cooperate with the [LASD] and essentially refused to make her son available for statements.” Ultimately, the Department determined that it had to open its own investigation to determine what happened. That investigation concluded that the shooting probably was an attempted suicide. As a result, White was sent for another fitness for duty exam. The exam revealed that White was not fit for duty.
White testified at trial that she had received a letter in February 2007, just before trial, indicating that she was going to be fired. However, Lieutenant Darryl Qualls of the administrative services section of the Department testified that the internal investigation was still pending at the time of trial.
PROCEDURAL HISTORY
White filed this action against the city on December 15, 2005, alleging disability discrimination in violation of the Fair Employment and Housing Act (FEHA) (Gov. Code, §§ 12926, subd. (k), 12926.1, 12940, subds. (j) & (l)); disability harassment in violation of FEHA (§§ 12926, subd. (k), 12926.1, 12940, subds. (j) & (l)); and invasion of privacy in violation of Penal Code section 631. Defendants City of Pasadena and City of Pasadena Police Department filed separate answers.
A jury trial on White’s causes of action against the city began on March 15, 2007. The jury was instructed on March 28, 2007, and returned a verdict on April 2, 2007, finding defendants liable for violation of Penal Code section 631 and awarding White $1 million in damages. The jury found in favor of the city on the discrimination claim and the harassment claim. Following a hearing, the trial court trebled the damage award and, on April 25, 2007, entered judgment in the amount of $3 million.
On the special verdict form, the jury indicated its findings that White had a disability, but that the city did not take adverse action or harass White based on that disability.
The city filed a motion for judgment notwithstanding the verdict, arguing that White could not, as a matter of law, establish a violation of Penal Code section 631, and that the city was immune from civil liability for the acts in question. The motion was denied. The city also filed a motion for a new trial. On June 14, 2007, the trial court granted the motion for new trial as to damages. However, if within 30 days White consented to a reduction of damages to $150,000, to be trebled under Penal Code section 637.2, the motion for new trial would be denied. The judgment entered April 25, 2007, was vacated.
On July 11, 2007, the city filed its notice of appeal from the court’s order denying its motion for judgment notwithstanding the verdict; the court’s order conditionally granting its motion for new trial; and the judgment as to the Penal Code section 631 violation. On July 12, 2007, White filed her notice of appeal from the order granting a new trial on the issue of damages and those portions of the judgment entered April 25, 2007, which were adverse to White.
DISCUSSION
We begin the discussion with an issue raised in the city’s cross-appeal. As set forth below, we find that the trial court erred in denying the city’s motion for judgment notwithstanding the verdict (JNOV motion) on the issue of governmental immunity. Because the issue of governmental immunity is dispositive of White’s claim for invasion of privacy, we do not address the remaining issues raised by the parties as to that cause of action. Our decision on governmental immunity also renders moot the court’s new trial order, therefore we do not discuss it.
As to White’s claims of evidentiary and instructional error concerning her disability discrimination cause of action, we find no error.
I. The city’s cross-appeal: governmental immunity
Following the verdict against the city on White’s invasion of privacy cause of action, the city filed a motion for judgment notwithstanding the verdict. One of the issues raised therein was the question of the city’s immunity from tort liability under Government Code sections 821.6 and 820.2. As set forth below, we find that the city is immune from this claim, therefore the trial court erred in denying the city’s JNOV motion.
A. Standard of review
The trial court’s power to grant a judgment notwithstanding the verdict is identical to its power to grant a directed verdict. (Clemmer v. Hartford Ins. Co. (1978) 22 Cal.3d 865, 877.) “A motion for judgment notwithstanding the verdict of a jury may properly be granted only if it appears from the evidence, viewed in the light most favorable to the party securing the verdict, that there is no substantial evidence to support the verdict.” (Id. at p. 878.) Where, as here, the motion for judgment notwithstanding the verdict raises a legal issue, we review the trial court’s ruling under a de novo standard of review. (Sweatman v. Department of Veterans Affairs (2001) 25 Cal.4th 62, 68.)
B. Government Code sections 821.6 and 820.2
A public entity is not liable for any injury “[e]xcept as otherwise provided by statute.” (Gov. Code, § 815, subd. (a); Richardson-Tunnell v. Schools Ins. Program for Employees (SIPE) (2007) 157 Cal.App.4th 1056, 1061 (Richardson).) Liability of a public entity is also “subject to any immunity of the public entity provided by statute.” (Gov. Code, § 815, subd. (b).) Further, “a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the public entity is immune from liability.” (Gov. Code, § 815.2, subd. (b).)
Under Government Code section 821.6, “[a] public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.” Investigations are considered to be part of judicial and administrative proceedings for the purposes of section 821.6 immunity. (Kemmerer v. County of Fresno (1988) 200 Cal.App.3d 1426, 1436-1437 (Kemmerer); see also Richardson, supra, 157 Cal.App.4th at p. 1062 [“Investigations are considered to be part of judicial and administrative proceedings for purposes of section 821.6 immunity [citation].... An investigation is cloaked in immunity because it is an essential step to instituting administrative proceedings”].) California courts construe section 821.6 broadly in furtherance of its purpose to protect public employees in the performance of their prosecutorial duties from the threat of harassment through civil suits. (Ingram v. Filippo (1999) 74 Cal.App.4th 1280, 1292-1293.)
In Kemmerer, a civil service employee was dismissed from employment following an investigation of his actions involving a recipient of social services. Following his dismissal, the employee filed a notice of appeal with the county civil service commission. (Kemmerer, supra, 200 Cal.App.3d at pp. 1430-1431.) As a result of the appeal, the employee’s discipline was reduced from termination of employment to a letter of reprimand. Following his reinstatement, the employee sued his employer, the County of Fresno, alleging breach of contract, intentional infliction of emotional distress, and intentional inducement of breach of contract. (Id. at p. 1432.) While not raised by the parties, the Court of Appeal requested supplemental briefing on Government Code section 821.6 as well as section 820.2, which provides immunity to a public employee for an injury resulting from an act or omission which was “the result of the exercise of discretion vested in him, whether or not such discretion be abused.” Because the acts for which the county had been sued involved an investigation and formal disciplinary proceedings against an employee, the Court of Appeal concluded that the entire process was “cloaked with immunity.” (Kemmerer, at pp. 1436-1437.)
More recently, in Richardson, a teacher sued her public employer for videotaping her at her wedding, reception, and honeymoon during the course of an investigation of her worker’s compensation claim. (Richardson, supra, 157 Cal.App.4th at p. 1059.) The Court of Appeal affirmed the trial court’s grant of judgment on the pleadings in favor of the employer on the basis of governmental investigatory immunity under Government Code section 821.6. The court affirmed that “[a]n investigation is cloaked in immunity because it is an essential step to instituting administrative proceedings.” (Richardson, at p. 1062.)
C. The trial court erred in denying the city’s motion for judgment notwithstanding the verdict based on the city’s assertion of immunity under Government Code sections 821.6 and 820.2
White’s claim against the city for invasion of privacy is a tort claim for damages based on the city’s use of information obtained from an authorized wiretap conducted by the BNE. The city is a public entity, and the information was used in determining whether to initiate a formal investigation against White, and later, in investigating White for possible criminal activity.
Government Code section 821.6’s immunity for injury caused by acts undertaken by a public employee in “instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause,” applies to internal investigations such as the one instituted against White.
In Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033, 1048, the Court of Appeal noted that “[Government Code] section 821.6 immunizes not only the act of filing or prosecuting a judicial or administrative complaint, but also extends to actions taken in preparation for such formal proceedings. [Citation].” Thus, applying section 821.6 broadly, as we must, we find that it applies to any actions taken prior to the initiation of the formal investigation against White. As the Gillan court explained, acts taking place “before the institution of a judicial [or administrative] proceeding [are] part of the prosecution of a judicial [or administrative] proceeding for the purposes of this statute, even if authorities later decide not to file charges. [Citations.]” (Gillian, at p. 1048.) Because the city’s use of the recorded conversations between White and Williams was limited to its decision to initiate a formal investigation of White and its subsequent formal investigation of her, Government Code section 821.6 applies to immunize the city from White’s invasion of privacy claim.
Further, the decision of Hiltz to initiate a formal investigation against White is immune under Government Code section 820.2. Section 820.2 provides that, “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” A decision to initiate disciplinary proceedings against an employee involves the exercise of discretion and thus entitles the decision maker to immunity under section 820.2. (Kemmerer, supra, 200 Cal.App.3d at p. 1438.) Insofar as the acts and conduct of the city’s employees who implemented this discretionary decision may have involved ministerial acts, those employees are shielded from liability under the immunity established by Government Code section 821.6, discussed above. (See Kemmerer, at p. 1439.)
Because the conduct of the city employees is immunized, the city is also immune from liability. (Gov. Code, § 815.2, subd. (b) [“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”].)
White puts forth several arguments as to why the immunity set forth in Government Code sections 820.2 and 821.6 should not apply in this case. We address each argument below.
1. Government Code section 815.6 is inapplicable
White’s first argument against immunity is based on Government Code section 815.6. That section provides:
“Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty.”
White argues that Penal Code sections 631 and 629.50 impose on public entities a mandatory duty not to engage in the prohibited conduct; that the statutes were clearly intended to protect against the kind of injury suffered by White -- i.e., privacy invasion through use of wiretap information; and that the city’s use of that information was a proximate cause of White’s injury. Thus, White argues, the city is directly liable for its failure to discharge its mandatory duty under these statutes, and governmental immunity does not relieve the city of this liability.
Section 631 states, in pertinent part:
“(a) Any person who, by means of any machine, instrument, or contrivance, or in any other manner, intentionally taps, or makes any unauthorized connection... with any telegraph or telephone wire... or who willfully and without the consent of all parties to the communication, or in any unauthorized manner, reads, or attempts to read, or to learn the contents or meaning of any message, report, or communication while the same is in transit or passing over any wire, line, or cable,... or who uses, or attempts to use, in any manner, or for any purpose, or to communicate in any way, any information so obtained, or who aids, agrees with, employs, or conspires with any person or persons to unlawfully do, or permit, or cause to be done any of the acts or things mentioned above in this section, is punishable by a fine... or by imprisonment....”
Penal Code section 637.2, subdivision (a), permits civil damages for any person injured by a violation of Penal Code section 631. Such damages may be for the greater of (1) five thousand dollars, or (2) three times the amount of actual damages sustained by the plaintiff.
White has cited no case law in support of her position that Penal Code section 631 imposes upon the city the type of mandatory duty contemplated in Government Code section 815.6. Our analysis of the statute leads us to conclude that it does not. First, section 631 is not directed at a public entity. (See Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 498 [“application of section 815.6 requires that the enactment at issue be obligatory... in its directions to the public entity”].) Further, the type of “enactment” contemplated in Government Code section 815.6 must “require... that a particular action be taken or not taken.” (Ibid.) Penal Code section 631 is not a directive to the city or any other public entity to take any action; it is a general enactment prohibiting invasion of privacy and is applicable to “[a]ny person” except those entities specified in subdivision (b).
White also raises Penal Code section 629.50 as a basis for her claim that the city is liable for a direct violation of Government Code section 815.6. Penal Code section 629.50 sets forth the process through which a law enforcement agency may obtain an order authorizing the interception of a wire. White has never claimed that the city violated this statute or that a violation of this statute led to her injury, therefore we need not discuss whether it imposes the type of mandatory duty contemplated by Government Code section 815.6.
We therefore reject White’s assertion that the governmental immunity found in Government Code sections 821.6 and 820.2 does not absolve the city from direct liability under section 815.6.
2. The city may raise the defense of immunity at any time
White’s next argument is based on the city’s failure to plead governmental immunity under Government Code sections 821.6 or 820.2 as an affirmative defense or otherwise raise these statutes until the city filed its posttrial motions. White asserts that the city forfeited this defense by failing to raise it at trial.
White is incorrect. “Though these sections were not originally raised by the parties, governmental immunity is a jurisdictional question and may be raised on appeal even though not used... in the lower court. [Citation.]” (Kemmerer, supra, 200 Cal.App.3d at p. 1435.) As explained above, in Kemmerer, the parties never raised the question of governmental immunity -- instead, it was first raised by the Court of Appeal, which requested supplemental briefing from the parties on the applicability of Government Code sections 820.2 and 821.6. (Kemmerer, at p. 1435.) The Richardson court also noted that “Government tort immunity is jurisdictional and may be raised for the first time on appeal” and that the defendant “timely asserted immunity as a defense” by raising it as a ground for a motion for judgment on the pleadings. (Richardson, supra, 157 Cal.App.4th at p. 1061.) The Supreme Court denied review of Richardson (S160094, Feb. 27, 2008).
The cases cited by White in support of her argument to the contrary are distinguishable. McMahan’s of Santa Monica v. City of Santa Monica (1983) 146 Cal.App.3d 683 involved a claim of immunity in situations where private property is damaged by fire protection equipment or facilities under Government Code section 850.4 and is therefore inapplicable. Similarly, Hilts v. County of Solano (1968) 265 Cal.App.2d 161 involved belated assertions of immunity under Government Code sections 830.4 (immunity for failure to provide regulatory traffic control signals or signs); 830.6 (immunity for a plan, design, or improvement to public property); and 830.8 (immunity for failure to provide warning signals or signs). Decisional law involving these irrelevant statutes cannot supersede direct authority showing that Government Code sections 821.6 and 820.2 may be raised at any time, including for the first time on appeal.
Citing Hata v. L.A. County Harbor/UCLA Medical Ctr. (1995) 31 Cal.App.4th 1791, White invites us to analyze the nature of the immunity defense raised and conclude that the immunity provisions asserted here require an affirmative factual showing that the government employee conduct falls within the statute, and thus are subject to forfeiture if not raised before trial. The Hata court concluded that jurisdictional immunity under Government Code section 854.8, which provides statutory immunity to the county for an injury to a patient of a mental institution, is a jurisdictional issue that may be raised at any time. (Hata, at pp. 1795-1796.) In rejecting the plaintiff’s arguments to the contrary, the Hata court discussed McMahan’s, supra, 146 Cal.App.3d 683, and De La Rosa v. City of San Bernardino (1971) 16 Cal.App.3d 739, both of which involved dangerous conditions of public property. The Hata court rejected the plaintiff’s argument that the rationale in those cases required that the court assert Government Code section 854.8 as an affirmative defense before trial. The Hata court noted that the trial court “should have relied on existing case law regarding section 854.8 immunity.” (Hata, supra, at p. 1802.) Similarly, here, the trial court should have relied on existing case law concluding that the statutory immunity found in Government Code sections 821.6 and 820.2 may be raised at any time.
3. The acts undertaken in initiation and prosecution of the investigation were discretionary; any ministerial acts are immune under Government Code section 821.6
White’s next argument focuses on Government Code section 820.2, which provides immunity to public employees for acts which are “the result of the exercise of discretion” vested in the employee. White argues that, although the statute may limit liability for discretionary acts such as an agency’s decision to investigate, subsequent actions taken in the course of carrying out that discretionary decision -- such as the decision to use the recorded conversations -- are not similarly shielded.
In support of this argument, White cites two federal cases. First, White cites Rattray v. City of National City (9th Cir. 1994) 51 F.3d 793 for the proposition that a police department’s secret recording of an officer’s conversation as part of an investigation of a complaint of sexual harassment is not subject to discretionary immunity. However, the Rattray court did not discuss Government Code section 821.6, which provides broad immunity for all acts undertaken in prosecuting an administrative proceeding. In 2007, the Gillan court determined that this immunity applies to acts taking place “before the institution of a judicial [or administrative] proceeding,” including a criminal investigation such as the one at issue here. (Gillan v. City of San Marino, supra, 147 Cal.App.4th at p. 1048.) The immunity found in Government Code section 821.6 is not restricted to discretionary acts, and covers all actions taken in furtherance of the investigation of White, whether discretionary or ministerial.
Decisions of lower federal courts are not binding on state courts. (Williamson v. Mazda Motor of America, Inc. (2008) 167 Cal.App.4th 905, 919.) However, we discuss these cases in order to fully address White’s arguments.
Trujillo v. City of Ontario (C. D. Cal. 2006) 428 F.Supp.2d 1094 (Trujillo), also cited by White, supports a broad application of Government Code section 821.6 in the context of an internal investigation. In Trujillo, the city placed a surveillance camera inside the men’s locker room at the Ontario Police Department following reports of thefts taking place inside the locker room. (Id. at pp. 1098-1099.) As a defense to the plaintiffs’ invasion of privacy claim, the city asserted immunity under Government Code sections 820.2 and 821.6. While the Trujillo court concluded that the city had not satisfied its burden of showing that the decision to install the surveillance camera was discretionary (Trujillo, at p. 1123), it further concluded that “the search was part of the overall investigation concerning the theft... and is protected by the broad immunity of [Government Code] section 821.6.” (Id. at p. 1125.) Similarly, here, any actions taken following the decision of Hiltz to initiate the investigation were part of the overall investigation and were therefore subject to section 821.6’s broad immunity.
4. Penal Code section 631 does not reveal a legislative intent to usurp Government Code section 821.6
White next argues that the immunity found in Government Code section 821.6 does not apply where the statutory scheme evinces a legislative intent to impose liability on a public entity. Such a legislative intent, White posits, is found in Penal Code section 631 and related statutes regarding court authorized wiretaps.
Penal Code section 631 is outside of the Tort Claims Act (Gov. Code, § 810 et seq.). “‘[T]he general rule is that the governmental immunity will override a liability created by a statute outside of the Tort Claims Act.’ [Citation.]” (Richardson, supra, 157 Cal.App.4th at p. 163.) Thus, Government Code section 821.6 will override Penal Code section 631 absent an expression of legislative intent to the contrary. (Richardson, at p. 163.) Penal Code section 631 conveys no such intent. It provides a general prohibition on unauthorized wiretaps, and contains no express declaration of a legislative intent to override the governmental immunity found in Government Code section 821.6.
White relies on Shoemaker v. Myers (1992) 2 Cal.App.4th 1407 (Shoemaker) in support of her argument that the Legislature intended to hold public entities liable for violations of Penal Code section 631. Shoemaker involved a claim of wrongful termination brought by an employee who alleged that he was harassed and terminated in violation of the whistle-blower statute found at Government Code section 19683. The plaintiff argued that section 19683 preempted the immunity found in Government Code section 821.6 because it was enacted later, is the more specific of the two statutes, and to hold otherwise would lead to absurd results. (Shoemaker, supra, at p. 1423.) Preliminarily, the Shoemaker court determined that the subject matter of Government Code section 19683, involving the reporting of information relating to an actual or suspected violation of the law, and section 821.6, relating to the initiation or prosecution of judicial or administrative proceedings, overlapped. (Shoemaker, at p. 1423.) It then noted that when two statutes deal with the same subject matter, the more specific controls. (Ibid.) The court then concluded that the scope and purposes of section 19683 are more narrow than those of section 821.6, therefore the former controls where the two are in conflict. (Shoemaker,at p. 1424.) The court pointed out that a party violating section 19683 is likely to be a public employee, thus permitting immunity would “immunize the most egregious conduct undertaken to discourage whistle-blowing.” (Ibid.) Because “[r]ecognition of section 821.6 immunity for cases falling within section 19683 would largely emasculate the latter section and thereby frustrate the legislative purpose behind its enactment,” the court concluded that section 821.6 immunity did not apply. (Shoemaker,at pp. 1424-1425.)
The Shoemaker court’s analysis does not apply when making a comparison of Government Code section 821.6 and Penal Code section 631. Preliminarily, the two statutes do not overlap. Section 631 is a general Penal Code section applying to “any person.” It has no specific relevance to public employees or the institution or prosecution of judicial or administrative proceedings. Thus, application of Government Code section 821.6 immunity in circumstances where such actions are undertaken by a public employee in furtherance of a judicial or administrative proceeding does not “emasculate” the purposes of Penal Code section 631. Therefore, in contrast to the whistle-blower statute at issue in Shoemaker, there is no reason to perform an analysis of conflicting laws. Even if such an analysis were performed, the more specific provisions of Government Code section 821.6, immunizing public employees for acts undertaken in specific circumstances, would supersede the more general provisions of Penal Code section 631. (Creason v. Dep’t of Health Servs. (1998) 18 Cal.4th 623, 635 [“If a specific immunity statute applies, it ‘cannot be abrogated by a statute which simply imposes a general legal duty or liability....’”].)
Given our conclusion as to the city’s immunity from White’s statutory invasion of privacy cause of action, it is unnecessary for us to determine whether the city’s actions in using the recorded telephone conversations violated Penal Code section 631. (See, e.g., Randle v. City and County of San Francisco (1986) 186 Cal.App.3d 449, 458, fn. 11 [determination of immunity rendered unnecessary a determination as to whether complaint stated a cause of action]; Gillan v. City of San Marino, supra, 147 Cal.App.4th at p. 1050, fn. 8 [“We need not decide whether the defendants acted properly under Penal Code section 849, subdivision (b)(1). Regardless of whether they acted properly..., defendants are immune from liability... in connection with the investigation”].) We therefore do not address the parties’ lengthy arguments regarding the interpretation of Penal Code section 631. Our decision also renders moot the city’s arguments regarding privilege under Civil Code section 47, the propriety of the court’s jury instruction on Penal Code section 631, and the propriety of the damages award under Penal Code section 637.2.
Having determined that Government Code sections 821.6 and 820.2 apply to immunize the actions of the city against White’s invasion of privacy cause of action, we turn to the issues raised on White’s direct appeal of the jury’s verdict against her on her FEHA claims.
II. White’s direct appeal: evidentiary and instructional rulings
White appeals from the jury verdict against her on her cause of action for disability discrimination in violation of Government Code section 12940, subdivision (a). White’s appeal is based upon evidentiary and instructional rulings by the trial court which, she argues, were prejudicial.
A. Standards of review
The trial court’s evidentiary rulings are reviewed for abuse of discretion. Under this standard, we are deferential to the trial court’s ruling, upholding it unless it “‘falls outside the bounds of reason’ under the applicable law and the relevant facts [citations].” (People v. Williams (1998) 17 Cal.4th 148, 162.)
When reviewing a claim of instructional error, we apply the prejudicial error standard. Under this standard, we analyze whether the instruction was erroneous, and, if so, whether the error was so prejudicial as to result in a miscarriage of justice. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 574.)
B. Admission of testimony derived from wiretaps
White’s first challenge to the trial court’s evidentiary rulings is the court’s decision to admit evidence “derived from the summaries and transcripts of the wiretapped conversations.” White cites Penal Code section 631, subdivision (c), which states that “[e]xcept as proof in an action or prosecution for violation of this section, no evidence obtained in violation of this section shall be admissible in any judicial, administrative, legislative, or other proceeding.” Despite this provision, White argues, the trial court denied her request for a ruling excluding any testimony as to the content of the recorded conversations.
The court’s rationale for admitting testimony concerning the content of the recorded conversations was based on its position that White had waived this objection by testifying directly to the content of those conversations herself. In response, White claimed that she was a percipient witness to the conversations, therefore she was entitled to present direct evidence as to their contents. The trial court disagreed, stating “it’s one thing if you excluded all conversations about that subject matter. It’s something else to say that well, one party can testify to everything about that conversation and the other party cannot cross-examine by using the tapes.”
In response, White argues that her own testimony as a percipient witness was immaterial to the determination as to whether the recordings should be excluded under Penal Code section 631. White argues that, pursuant to relevant case law, a party may testify as a percipient witness to the content of improperly recorded conversations and still benefit from the evidentiary prohibition found in section 631, subdivision (c).
The cases cited by White involve Penal Code section 632, subdivision (d), which is a nearly identical prohibition to that found in section 631, subdivision (c). Section 632, subdivision (d) states: “Except as proof in an action or prosecution for violation of this section, no evidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section shall be admissible in any judicial, administrative, legislative, or other proceeding.” The cases cited by White stand for the proposition that an evidentiary sanction such as this may not apply to a witness’s independent recollection of illegally recorded conversations. (See Frio v. Superior Court (1988) 203 Cal.App.3d 1480 [holding that the evidentiary sanction of section 632, subdivision (d), cannot operate to exclude the present recollection of a recording participant]; Feldman v. Allstate Ins. Co. (9th Cir. 2003) 322 F.3d 660 [same].) However, the cases do not directly address the question at issue here: whether White’s own direct testimony regarding the content of the taped conversations estops her from objecting to the opposing party’s introduction of similar evidence.
Preliminarily, the prohibition found in Penal Code section 631, subdivision (c), applies only to “evidence obtained in violation of this section.” As noted above, we do not reach the issue of whether the city’s conduct violated section 631. However, even assuming, for the purposes of this discussion only, that the city’s conduct violated section 631, we find that the trial court’s decision to admit the evidence in question was not an abuse of discretion. The prohibition on the admission of evidence obtained in violation of section 631 is subject to waiver if the recorded party seeks to introduce it. The following passage from Frio notes that, where a party to the recording has an independent recollection of the conversation, the protections of an applicable evidentiary sanction may be forfeited:
“the taping participant... might attempt to use the evidentiary sanction of [Penal Code] section 632, subdivision (d), to prevent an adverse party from introducing portions of the [illegally obtained information]. However, by seeking to introduce evidence obtained as a result of a violation of section 632, the tape-recorded party thereby waives its protection.”
(Frio v. Superior Court, supra,203 Cal.App.3d at p. 1493, fn. 5.)
There is further legal support for the trial court’s determination that White’s own testimony as to the contents of the recorded conversations constituted a waiver of her objection to its admission into evidence pursuant to Penal Code section 631, subdivision (c). Under the doctrine of invited error, when one party “opens the door” by introducing evidence at trial, that party may not seek reversal based on erroneous admission of that evidence. (Morris v. Frudenfeld (1982) 135 Cal.App.3d 23, 32; see also Gjurich v. Fieg (1913) 164 Cal. 429, 433 [“the appellant, having offered the evidence himself, cannot complain of its admission”].) Because the trial court’s evidentiary decision was within the bounds of reason under applicable law and the relevant facts, we decline to find an abuse of discretion.
C. Exclusion of opinion of advisory arbitrator
White next challenges the trial court’s exclusion of the opinion of the advisory arbitrator who arbitrated her grievance against the city following her termination in 2004. The trial court granted the city’s motion in limine to exclude the advisory opinion, stating its position that the advisory opinion was hearsay.
White argued to the trial court that the advisory opinion was an “operative fact” which “prompted the City Manager’s decision” to reinstate White. The court rejected this argument, explaining that the City Manager “will testify why she acted, and if she acted based on some third person’s opinion, so be the testimony.” However, the court concluded that the arbitrator’s advisory opinion itself would not be admitted into evidence.
White raised the issue again later in trial. She argued that, pursuant to the language of the MOU between the city and the officer’s union, the advisory opinion became final 15 days after the date of the arbitrator’s decision (May 20, 2005). Thus, White again offered the advisory opinion into evidence on the ground that it was a final opinion. The trial court denied the motion, stating “[t]he previous decision of the court stands with regard to the arbitrator’s opinion, that it is as set forth in the MOU, an advisory opinion, and not to be admitted into evidence.”
White argues that the trial court was wrong, and presents this court with both of the arguments she made at trial.
White’s argument that the opinion constituted an exception to the hearsay rule because of its effect on the City Manager’s decision to reinstate her is based on Evidence Code section 356. That section provides:
“Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.”
We find no abuse of discretion in the trial court’s decision to exclude the advisory opinion. The court made it clear that White would be permitted to cross-examine the City Manager as to the basis for her decision, and made the decision “without prejudice to [White] laying a foundation and making a further offer of proof as to the admissibility of that document.” Regardless of whether the opinion was advisory or final, the court acted well within its discretion in ruling that the document was inadmissible hearsay. No error occurred.
We agree with the trial court’s conclusion that the language of the MOU does not support White’s position that the opinion had become final on May 20, 2005. Further, the cases cited by White in support of her claim that the advisory opinion had become final for the purposes of collateral estoppel do not support her position. All are distinguishable because the administrative decisions in question were not specifically labeled “advisory,” as was the decision at issue here. (See People v. Sims (1982) 32 Cal.3d 468, overruled on other grounds; Johnson v. City of Loma Linda (2000) 24 Cal.4th 61, 69-70; Westlake Community Hospital v. Superior Court (1976) 17 Cal.3d 465, 484.) Even if her position were correct, White has cited no exception to the hearsay rule rendering the opinion admissible at trial on this basis.
D. Admission of “time rolls”
White’s final evidentiary argument concerns the trial court’s decision to permit the city to introduce Department “time rolls,” which record hours worked by an employee, into evidence. White’s merit as an employee was not at issue at trial. Therefore, White argues, the time rolls were wholly irrelevant to the issues in the case.
Preliminarily, we note that White’s objections at trial to the admission of the time rolls were based on lack of foundation. These objections were overruled by the court, and White has not appealed them.
White now argues that the time rolls were irrelevant. White points to the court’s own expression of concern regarding relevance. In response to this concern, the city’s counsel argued that the time rolls were relevant “because there is a dispute what happened to her and when.” The time rolls showed when events occurred according to the “official financial records of the city.” In response to the court’s suggestion that the city was trying to show whether White was a “good employee or bad employee,” the city argued that the time records were relevant to show that the city was not “out to get” White because of her MS. The court accepted this explanation of the documents’ relevance, and White has cited no further objection or discussion of the relevance of the documents.
White forfeited a relevance objection by failing to object to admission of the time rolls on this ground at trial. (Evid. Code, § 353 [in order for a verdict or order to be set aside the record must show an objection “timely made and so stated as to make clear the specific ground of the objection”].) Further, even if she had properly preserved a relevance objection, the trial court’s decision that the time rolls were relevant to show “what happened to her and when” was not an abuse of discretion.
E. Instructional ruling
Finally, we turn to White’s argument that the trial court erred in rejecting her proposed Special Instruction No. 1 on the issue of pretext. White’s proposed instruction read:
“Illegal motive or causation may be inferred, and a finding of discriminatory intent upheld, where the alleged reasons given by the employer for the termination or attempted termination are false, unbelievable and not reliable.”
White argues that a party is entitled to request correct, nonargumentative instructions on every theory of the case advanced by that party. (Soule v. General Motors Corp., supra, 8 Cal.4th 548.) White states that her proposed instruction was based on Reeves v. Sanderson Plumbing Prods. (2000) 530 U.S. 133, 147-148 (Reeves) and thus was a correct statement of the law.
White notes that in Guz v. Bechtel (2000) 24 Cal.4th 317, 356, the Supreme Court cited Reeves in support of its statement that “[i]n an appropriate case, evidence of dishonest reasons, considered together with the elements of the prima facie case, may permit a finding of prohibited bias.”
We find that even if the trial court erred in refusing White’s proposed instruction, such error was harmless. In assessing prejudice from an erroneous instruction, we consider, among other things “‘the degree of conflict in the evidence on critical issues[;]... the closeness of the jury’s verdict[;]... [and] the effect of other instructions in remedying the error [citations.]’ [Citations.]” (Soule v. General Motors Corp., supra, 8 Cal.4th at pp. 570-571.) While there was conflict in the evidence as to the city’s discriminatory intent, and the jury’s verdict was not unanimous, we decline to find error in the court’s failure to give White’s specific proposed instruction. Instead, we find that the effect of the instructions actually given by the court remedied any purported error.
The jury was given CACI No. 2540, which instructed the jury that White was required to show that her disability “was a motivating reason for the discharge.” “Motivating reason” was defined for the jury. The jury was also instructed that it could choose to believe or disbelieve any witness’s testimony, and was instructed on the definitions of direct and circumstantial evidence. These instructions adequately remedied any effect from the court’s decision to decline White’s proposed Special Instruction No. 1.
In addition, we note that White’s counsel was permitted to argue to the jury that the city’s stated reason for White’s termination was false, and that the real reason was disability discrimination. White also testified to her belief as to the motivations behind the city’s actions.
We find that the instructions and argument presented to the jury delivered the same message as White’s Special Instruction No. 1. Therefore, no error occurred. (See People v. Cook (2007) 40 Cal.4th 1334, 1365 [trial court did not err in declining to give proposed instruction where other instruction “adequately covered the point”]; Hilliard v. A.H. Robins Co. (1983) 148 Cal.App.3d 374, 403-404 [where given instruction and rejected instruction cover same topics, assertion of instructional error is without merit].)
DISPOSITION
The trial court’s denial of the city’s motion for judgment notwithstanding the verdict on the statutory invasion of privacy cause of action is reversed. The judgment is affirmed as to the disability discrimination cause of action. Each party will bear its own costs of appeal.
We concur: BOREN, P. J., DOI TODD, J.