Baughman v. State of California

• Decision Date: 12 September 1995
• Docket Number: No. B073544,B073544
• Citation: 45 Cal.Rptr.2d 82,38 Cal.App.4th 182
• Court: California Court of Appeals Court of Appeals
• Parties: , 103 Ed. Law Rep. 325, 95 Cal. Daily Op. Serv. 7239, 95 Daily Journal D.A.R. 12,313 Alan BAUGHMAN, Plaintiff and Appellant, v. STATE OF CALIFORNIA, et al., Defendants and Respondents.

Page 82

45 Cal.Rptr.2d 82

38 Cal.App.4th 182, 103 Ed. Law Rep. 325,

95 Cal. Daily Op. Serv. 7239,

95 Daily Journal D.A.R. 12,313

Alan BAUGHMAN, Plaintiff and Appellant, v. STATE OF CALIFORNIA, et al., Defendants and Respondents.

No. B073544.

Court of Appeal, Second District, Division 6, California.

Sept. 12, 1995.

Review Denied Dec. 14, 1995.

Baltaxe & Baltaxe, and George Baltaxe, Encino, for plaintiff and appellant.

Daniel E. Lungren, Attorney General; and Felix E. Leatherwood, Deputy Attorney General, for defendants and respondents.

GILBERT, Associate Justice.

Alan Baughman appeals from the judgment after jury verdict in favor of respondents, the State of California, et al. ¹ Baughman's suit states that respondents wrongfully destroyed floppy computer disks containing his research while they searched premises in which he rented space pursuant to a search warrant describing various computer hardware and software. The warrant did not describe the subject disks.

Baughman contends the trial court erred in granting judgment on the pleadings and dismissing his causes of action for invasion of his privacy and for violation of his civil rights under Title 42 United States Code section 1983. ² He also challenges the trial court's ruling that a statutory privilege precluded prosecution of his cause of action for conversion. Although his loss is unfortunate, we must affirm.

FACTS

Baughman rented space from Terminal Technician, Inc. (Terminal Tech), to engage in the business of designing computer hardware and software. An investigation revealed that computer hardware and software had been stolen from California Polytechnic State University at San Luis Obispo (Cal Poly). The police obtained a search warrant to search, inter alia, "all rooms and buildings, ... garages, ... storage areas and containers used ... within the curtilage of said premises...." The warrant described certain computer hardware and software which it stated "could be stored on ... 1. Tape, 2. Computer Memory, 3. Disk, 4. Paper." Among the premises to be searched was Terminal Tech.

On November 24, 1986, pursuant to the search warrant, various Cal Poly police officers and other staff entered Terminal Tech and removed material and equipment over a three day period. During the course of this search, the respondents destroyed floppy computer disks containing the sole source of Baughman's research over many years. These disks were not described in the search warrant.

On November 20, 1987, Baughman filed a complaint alleging various causes of action regarding the search. After the trial court granted judgment on the pleadings as to his civil rights cause of action under section 1983, Baughman filed an amended complaint alleging causes of action for invasion of privacy, conversion, and intentional and negligent infliction of emotional distress.

The amended complaint asserted that respondents unreasonably executed the search warrant by remaining an unreasonable length of time, by exceeding the scope of the warrant and by exceeding the scope of their authority pursuant to Education Code section 89560, among other things. Respondents answered this complaint and trial commenced.

After an in limine hearing regarding the search warrant and the search, the trial court granted respondents' motion for judgment on the pleadings and dismissed Baughman's claims for invasion of privacy and emotional distress. Baughman proceeded on the sole remaining cause for conversion.

After Baughman completed his case in chief, the trial court expressed its belief that there is a privilege protecting public employees from liability for instituting or prosecuting such proceedings within the scope of their employment. (See Gov.Code, § 821.6.) Nevertheless, the trial court never ruled on the privilege. Baughman voluntarily dismissed his claim for conversion, and the trial court permitted him to amend his pleadings to conform to proof of negligence. The jury returned a defense verdict on the remaining claim for negligence and this appeal ensued.

DISCUSSION

Standard of Review

Because a motion for judgment on the pleadings is similar to a general demurrer, the standard of review is the same. (Ramirez v. USAA Casualty Ins. Co. (1991) 234 Cal.App.3d 391, 397, 285 Cal.Rptr. 757.) We treat the pleadings as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. When leave to amend is not given, we determine whether the complaint states a cause of action and whether the defect can reasonably be cured by amendment. If it can be cured, the trial court has committed reversible error. Otherwise, we affirm. The burden of proof is squarely on the plaintiff. (See Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.) The judgment of dismissal will be affirmed if it is proper on any grounds stated in the motion, whether or not the trial court relied on any of those grounds. (Carman v. Alvord (1982) 31 Cal.3d 318, 324, 182 Cal.Rptr. 506, 644 P.2d 192.)

We independently construe statutes as a matter of law according to their purpose and intent. (Jones v. California Interscholastic Federation (1988) 197 Cal.App.3d 751, 756, 243 Cal.Rptr. 271.) If there is no liability as a matter of law, leave to amend should not be granted. (Ramirez, supra, at p. 397, 285 Cal.Rptr. 757.) We consider evidence outside the pleadings which the trial court considered without objection. (O'Neil v. General Security Corp. (1992) 4 Cal.App.4th 587, 594, fn. 1, 5 Cal.Rptr.2d 712.)

SECTION 1983 ACTION IS BARRED BECAUSE POLICE ACTED IN OFFICIAL CAPACITY

Baughman asserts that the trial court improperly dismissed his section 1983 cause of action because campus police had no authority to conduct the search at a location more than one mile from the campus.

Section 1983 provides, in pertinent part, that "[e]very person who, under color of any statute, ... of any State ..., subjects, or causes to be subjected, any citizen of the United States ... to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable...." (Italics added.)

We look to federal law to interpret the language of section 1983. (Williams v. Horvath (1976) 16 Cal.3d 834, 840-841, 129 Cal.Rptr. 453, 548 P.2d 1125.) In Will v. Michigan Department of State Police (1989) 491 U.S. 58, 71, 109 S.Ct. 2304, 2312, 105 L.Ed.2d 45, 58, the United States Supreme Court held that neither a State nor its officials acting in their official capacities are "persons" within the meaning of section 1983. The High Court reasoned that although state officials are people, a suit against a state official in his official capacity constitutes a suit against the official's office and not against the person. (Ibid.)

The instant complaint states that Barrett and Carmack "are members of the California Polytechnic Police Section and acted as policemen in the City of San Luis Obispo...." Baughman sued Pollack and Grimes as being "on the staff of the defendants Trustees of the California State University and California Polytechnic State University ... (Cal Poly)." Although Pollack and Grimes were "sometimes hereinafter ... referred to as 'individual defendants,' " Baughman sued these defendants in the capacity of "acting as agents of the entity defendants...." Respondents were sued in their official capacity as state officers and not as individuals. (Will v. Michigan Department of State Police, supra, 491 U.S. at p. 71, 109 S.Ct. at p. 2312, 105 L.Ed.2d at p. 58; see also Hafer v. Melo (1991) 502 U.S. 21, 112 S.Ct. 358, 116 L.Ed.2d 301.) Accordingly, the trial court properly barred the cause of action under section 1983. The allegations of this cause cannot be cured to state a cause of action.

Baughman asserts the officers were not acting in their official capacity because they had no right to serve the warrant. Education Code section 89560 states, in pertinent part, that campus police "shall not exercise their powers or authority except ... in an area within one mile of the exterior boundaries of each campus ... and ... as provided "........................

in Section 830.2 of the Penal Code." (Italics added.) Section 830.2 of the Penal Code provides, in pertinent part, that "[t]he following persons are peace officers whose authority extends to any place in the state:

"(d) A member of the California State University Police Departments ... provided that the primary duty of the peace officer shall be the enforcement of the law within the area specified in Section 89560 of the Education Code." (Italics added.)

There are no cases delineating the authority of campus police under these statutes. Education Code section 89560 does not absolutely limit the exercise of the powers or authority of campus police to within one mile of campus. It expressly provides that such officers shall exercise such powers and authority within one mile and as provided by Penal Code section 830.2. Penal Code section 830.2 states that the authority of such officers extends throughout the state, even though the primary duty of such officers is within one mile of campus.

Here, the various alleged crimes which led to this investigation occurred on campus and other places. The purpose of Education Code section 89560 and Penal Code section 830.2, when read together, is to ensure that campus police may fulfill their duties as peace officers when the need extends beyond a one mile radius of a campus. Under the facts here, the purpose of these statutes would be thwarted if campus police were precluded from continuing an investigation which began on campus.

INVASION OF PRIVACY

Baughman contends that the trial court erred by granting respondents' motion for judgment on the pleadings as to his cause of action for invasion of privacy. We disagree. One may be liable for intruding into the private affairs of another only if the intrusion is " '... highly offensive to a reasonable person.' ...