Los Angeles Police Protective League v. City of Los Angeles

• Decision Date: 29 July 1994
• Docket Number: No. B073845,B073845
• Citation: 27 Cal.App.4th 168,32 Cal.Rptr.2d 574
• Court: California Court of Appeals Court of Appeals
• Parties: LOS ANGELES POLICE PROTECTIVE LEAGUE et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES, Defendant and Respondent.

Page 574

32 Cal.Rptr.2d 574

27 Cal.App.4th 168

LOS ANGELES POLICE PROTECTIVE LEAGUE et al., Plaintiffs and Appellants, v. CITY OF LOS ANGELES, Defendant and Respondent.

No. B073845.

Court of Appeal, Second District, Division 5, California.

July 29, 1994.

Gregory G. Petersen and Larry J. Roberts, Orange, for plaintiffs and appellants.

James K. Hahn, City Atty., Frederick N. Merkin, Sr. Asst. City Atty., and Robert Cramer, Asst. City Atty., for defendant and respondent.

GRIGNON, Associate Justice.

In this appeal, we consider whether a public entity is required to indemnify public employees for legal fees incurred in successfully defending themselves against criminal prosecutions arising from actions taken within the course and scope of their employment. We conclude that indemnification for such criminal defense costs is discretionary on the part of the public entity rather than mandatory. Accordingly, we affirm the judgment of the trial court in favor of the public entity.

PROCEDURAL BACKGROUND

On January 29, 1992, plaintiffs and appellants, police officers Thomas Elfmont, Charles Spicer, Charles Wilson and Todd Parrick, and their unions, Los Angeles Police Protective League and Los Angeles Police Command Officers Association, filed suit against defendant and respondent City of Los Angeles (City) seeking indemnity for legal fees incurred in their successful defense of criminal charges brought for actions taken within the scope of the officers' employment. ¹ Plaintiffs sought indemnity under Labor Code section 2802, which provides employees indemnity for expenditures necessarily incurred in connection with their employment. ² The City demurred to the complaint. The demurrer was overruled and the City answered. At the trial on October 30, 1992, the parties stipulated that the trial court should decide the case based on the proposed stipulated facts. The trial court took the matter under submission. On December 24, 1992, the trial court issued its memorandum of decision, rendering judgment in favor of the City and against plaintiffs. Judgment was entered on February 17, 1993, in favor of the City. Plaintiffs appeal. ³

FACTS

The stipulated facts upon which this case was tried are as follows: ⁴

"1. Plaintiffs Thomas Elfmont ('Elfmont'), Charles Spicer ('Spicer'), Charles Wilson ('Wilson'), and Todd Parrick ('Parrick') are each employed as police officers for and by the defendant City of Los Angeles ('City').

"2. On August 1, 1988, plaintiffs Elfmont, Spicer, Wilson, and Parrick participated in the planning and serving of court-authorized search warrants at several locations near the intersection of 39th Street and Dalton Avenue in the City of Los Angeles.

"3. Plaintiffs Elfmont, Spicer, Wilson, and Parrick on August 1, 1988 were planning and serving search warrants as part of their duties and functions as police officers for the City.

"4. The Los Angeles Police Department ('Department') had knowledge of, and gave consent to and acquiescence in, plaintiffs Elfmont, Spicer, Wilson, and Parrick planning and serving search warrants at several locations near the intersection of 39th Street and Dalton Avenue in the City of Los Angeles.

"5. As a result of various claims of improper conduct concerning the serving of search warrants at several locations near the intersection of 39th Street and Dalton Avenue on August 1, 1988, the Department brought administrative misconduct charges against several officers, including the plaintiffs Elfmont, Spicer, Wilson, and Parrick.

"6. Several civilians brought civil damages claims against the City and against certain of its employees, including the plaintiffs Elfmont, Spicer, Wilson, and Parrick, as a result of the service of the above warrants.

"7. The Los Angeles County District Attorney filed criminal charges of vandalism and conspiracy to commit vandalism against the individually-named plaintiffs Elfmont, Spicer, Wilson, and Parrick.

"8. At the time the plaintiffs Elfmont, Spicer, Wilson, and Parrick acted in serving the search warrants on several locations near the intersection of 39th Street and Dalton Avenue in the City of Los Angeles on August 1, 1988, they were in the course and scope of their duties, and were on duty, in uniform, and being paid their regular salary.

"9. Plaintiffs Elfmont, Spicer, Wilson, and Parrick in 1989 made a request of the City for a defense of the criminal charges.

"10. Following a lengthy jury trial, a verdict of not guilty was returned on June 19, 1991 on each of the criminal charges.

"11. The City advised the plaintiffs Elfmont, Spicer, Wilson, and Parrick on July 19, 1991 that the City would not indemnify the plaintiffs for the costs of the plaintiffs' legal defense in the criminal case.

"12. The legal fees incurred by the plaintiffs Elfmont, Spicer, Wilson, and Parrick in the criminal case arose out of the defense of allegedly criminal conduct which had occurred while the plaintiffs were on duty as police officers.

"13. The legal fees and charges in the criminal case were expended as a direct consequence of the filing of the criminal charges.

"14. The plaintiffs Elfmont, Spicer, Wilson, and Parrick did not believe their orders and instructions to plan and serve search warrants to have been unlawful at the time they were given or carried out on August 1, 1988."

DISCUSSION

Plaintiffs contend Labor Code section 2802 entitles them to be indemnified by the City for legal fees incurred in successfully defending themselves against criminal charges arising out of actions taken in the course and scope of their employment with the City. Plaintiffs further contend that the Labor Code provision prevails over an apparently conflicting provision of the California Tort Claims Act, Government Code section 995.8.

I. Government Code Section 995.8

Government Code section 995.8 provides in pertinent part:

"A public entity is not required to provide for the defense of a criminal action or proceeding ... brought against an employee or former employee, but a public entity may provide for the defense of a criminal action or proceeding ... brought against an employee or former employee if:

"(a) The criminal action or proceeding is brought on account of an act or omission in the scope of his employment as an employee of the public entity; and

"(b) The public entity determines that such defense would be in the best interests of the public entity and that the employee or former employee acted, or failed to act, in good faith, without actual malice and in the apparent interests of the public entity."

This section was enacted in 1963 as part of the California Tort Claims Act. The Tort Claims Act was enacted in order to provide a comprehensive codification of the law of governmental liability and immunity. Government Code section 995.8 is not a solitary statute standing alone, but an important part of an overall statutory scheme governing the relations between public entities and their employees when the employees have been charged with wrongdoing.

In 1957, the California Law Revision Commission was authorized by the Legislature to conduct a study to determine whether the common law doctrine of sovereign immunity should be abolished or revised. (Recommendations Relating to Sovereign Immunity, No. 1, Tort Liability of Public Entities and Public Employees (Jan. 1963) 4 Cal.Law Revision Com.Rep. (1963) p. 803.) However, before the Law Revision Commission completed its study and issued its recommendations, the California Supreme Court decided Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211, 213, 11 Cal.Rptr. 89, 359 P.2d 457, in which it "discarded as mistaken and unjust" the judicial doctrine of governmental immunity from tort liability. In response to this decision, the Legislature enacted a statute suspending the effect of the Supreme Court decision so as to give the Legislature, and the Law Revision Commission, time to revise the law of sovereign immunity. (Recommendations Relating to Sovereign Immunity, No. 1, Tort Liability of Public Entities and Public Employees, supra, at p. 803.) ⁵ In January 1963, the Law Revision Commission issued its recommendations, which the Legislature relied on in large part in enacting the Tort Claims Act.

The Tort Claims Act provides that in the usual civil case brought against a public employee, a public entity is required to defend the action against its employee (Gov.Code, § 995). ⁶ The public entity may provide the defense by its own counsel, by outside counsel or through insurance which includes a duty to defend provision. (Id. at § 996.) The public entity is also required to pay any judgment entered against the public employee in favor of the third party plaintiff. (Id. at § 825, subd. (a).) However, the public entity is not required to pay the defense costs or the judgment ⁷ if the act giving rise to the underlying action was not within the course and scope of public employment, nor is the entity required to provide a defense if the employee's act or failure to act was the result of actual fraud, corruption or malice. Former Government Code section 2001 required a defense to be provided to an employee sued because "of any action taken or work done by him in his official capacity, in good faith and without malice...." (Stats.1951, ch. 1087, § 1, p. 2822.) Under this statute, before a public entity was required to provide a defense, the employee had to prove good faith and lack of malice. It was unclear who was required to decide, and by what quantum of proof, that the employee was free from bad faith and malice. (Tracy v. County of Fresno (1954) 125 Cal.App.2d 52, 56-57, 270 P.2d 57.) In 1961, former Government Code section 2001 was revised. The new statute required the public entity to provide a defense when any claim was brought for acts within the course and scope of employment, but it could later recover the fees paid if "it is established that the public employee acted or failed to act...