City of Long Beach v. Bozek

• Court: California Court of Appeals
• Writing for the Court: KAUFMAN; GARDNER, P. J., and McDANIEL
• Citation: City of Long Beach v. Bozek, 173 Cal.Rptr. 611, 118 Cal.App.3d 847 (Cal. App. 1981)
• Decision Date: 05 May 1981
• Parties: CITY OF LONG BEACH, Plaintiff and Appellant, v. Richard BOZEK, Defendant and Respondent. Civ. 23317.

Page 611

173 Cal.Rptr. 611

118 Cal.App.3d 847

CITY OF LONG BEACH, Plaintiff and Appellant, v. Richard BOZEK, Defendant and Respondent.

Civ. 23317.

Court of Appeal, Fourth District, Division 2, California.

May 5, 1981.

Robert W. Parkin, City Atty., Robert E. Shannon, Senior Deputy City Atty., and Thomas A. Vyse, Deputy City Atty., for plaintiff and appellant.

Philip A. Zywiciel, Los Angeles, for defendant and respondent.

Ronald R. Talmo, Santa Ana, and ACLU Foundation of Southern California by Fred C. Okrand, Los Angeles, for amicus curiae in support of respondent.

OPINION

KAUFMAN, Associate Justice.

This appeal presents a question of apparent first impression in California, whether a municipality may maintain an action for malicious prosecution against a person who unsuccessfully sued the city for false arrest and related torts based on a complaint stating facts known by him to be false. Respondent, joined by amicus curiae as to the second, makes two contentions which frame the issues: (1) as a matter of tort law, the remedy of malicious prosecution does not extend to a municipality; and (2) an action against a municipality for false arrest and related torts is absolutely privileged under the First Amendment to the United States Constitution and article I, section 3, of the California Constitution as a petition for redress of grievances. We conclude that the tort of malicious prosecution or malicious civil litigation serves purposes important to the sound administration of justice: (1) discouraging the institution and prosecution of lawsuits maliciously and without probable cause and (2) indemnifying for the cost of defense those required to defend themselves in such litigation; that those purposes are at least as significant in the case of a municipality as a private litigant; and that, therefore, a municipality may in a proper case maintain a cause of action for malicious prosecution of civil litigation. We further conclude that the constitutional right to petition for redress of grievances does privilege a citizen to file a lawsuit in appropriate circumstances against a governmental agency such as a municipality but that the privilege is qualified, not absolute, and that the institution and maintenance of a suit for false arrest and related torts against a municipality with actual malice and without probable cause is not privileged.

Facts

Respondent Richard Bozek filed an action against the City of Long Beach and two Long Beach police officers for false arrest, assault, battery, false imprisonment and negligent hiring, praying inter alia for general damages of $100,000 and punitive damages of $1,000,000. After a jury trial, judgment was for the defendants. ¹

Bozek's suit having been determined in their favor, City and the officers instituted this action for malicious prosecution. ² Bozek generally demurred to the complaint, and his demurrer was sustained without leave to amend as to the City of Long Beach (City). City appeals. ³

DISCUSSION OF CONTENTIONS AND ISSUES

Historically, the recognition of a tort remedy for malicious prosecution of a civil action was the outgrowth of decisions permitting the recovery of damages by an individual for the institution of criminal proceedings against him maliciously and without probable cause. (See Prosser, Law of Torts (4th ed. 1971) § 120, pp. 850-853.) To the extent the tort had its origins in cases involving the wrongful initiation of criminal prosecutions, respondent is certainly correct that recovery by a municipal corporation could not have been contemplated originally. However, we do not agree with respondent that the law still contemplates recovery for malicious prosecution of civil litigation only by an individual.

In support of his argument respondent relies on a portion of the following quotation from the decision in Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50-51, 18 Cal.Rptr. 184, 529 P.2d 608: "The malicious commencement of a civil proceeding is actionable because it harms the individual against whom the claim is made, and also because it threatens the efficient administration of justice. The individual is harmed because he is compelled to defend against a fabricated claim which not only subjects him to the panoply of psychological pressures most civil defendants suffer, but also to the additional stress of attempting to resist a suit commenced out of spite or ill will, often magnified by slanderous allegations in the pleadings. In recognition of the wrong done the victim of such a tort, settled law permits him to recover the cost of defending the prior action including reasonable attorney's fees (citations), compensation for injury to his reputation or impairment of his social and business standing in the community (citations), and for mental or emotional distress (citation). (P) The judicial process is adversely affected by a maliciously prosecuted cause not only by the clogging of already crowded dockets, but by the unscrupulous use of the courts by individuals ' as instruments with which to maliciously injure their fellow men.' (Citation.)"

Respondent points to the numerous instances in which the court referred to injury to an "individual" and its statement that recoverable damages include compensation for injury to reputation or impairment of "his social and business standing" and for "mental or emotional distress" as indications by the court that recovery may be had only by an individual. We believe not. The court's use of the word "individual" is undoubtedly explained by the fact that the plaintiff in the case under consideration was an individual, as we suppose is most often the case. Nevertheless, actually the quotation from Bertero supports the position of City that a municipality may maintain an action for malicious prosecution of civil litigation.

As pointed out by the court in the quoted language, one of the principal items of damages recoverable in such an action is the plaintiff's reasonable attorney fees in successfully defending the prior action. Indeed, we think there is little question but that in the earliest cases permitting recovery for malicious prosecution of civil litigation, that item of damages was perceived as the real justification for allowing recovery. (See, e. g., Eastin v. Bank of Stockton (1884) 66 Cal. 123, 126-127, 4 P. 1106; 4 Witkin, Summary of Cal. Law (8th ed. 1974) Torts, § 255, pp. 2531-2532; 1 Harper & James, The Law of Torts (1956) § 4.8, p. 327.) While a municipality is incapable of suffering emotional distress and while its legally protected interest in reputation may arguably be very limited or even nonexistent, its right to recoup the public funds expended in defending against suits prosecuted against it maliciously and without probable cause is as important to it, its taxpayers and the public fisc as the right to indemnity for expenses of defense is to an individual or a private corporation. ⁴

Moreover, in the wake of the law explosion, and attendant congested court calendars and in view of the public demand for efficiency and reduction in the cost of government and public concern about the administration of the justice system, deterrence of the initiation and prosecution of wholly groundless lawsuits, identified in Bertero as one purpose of the tort of malicious prosecution of civil litigation, is increasingly important. It is our observation that the incidence of suits against municipalities for unlawful arrest and/or the use of excessive force by police officers has increased substantially in recent years. While undoubtedly many such suits are well founded, we think it also true that some are instituted without any real belief in their merit but in the hope of attracting publicity and pressuring the municipality, which may be self-insured as is Long Beach, into paying a sum in settlement irrespective of the real merits of the claim. It may well be, therefore, that the deterrent effect inherent in a rule permitting the maintenance of an action for malicious prosecution of civil litigation would be of special significance in the case of municipalities.

We conclude that important purposes served by the tort are fully applicable in the case of a municipality sued for wrongful arrest and related torts maliciously and without probable cause and that such a municipality ought to have the right to maintain an action for malicious prosecution of civil litigation unless constitutional considerations mandate a contrary result.

Respondent and amicus urge that Bozek's suit against the City constituted a petition for redress of grievances protected by the First Amendment to the United States Constitution ⁵ and article I, section 3 of the California Constitution. ⁶ We shall assume for purposes of this decision, without deciding the question, that that is so. (Cf. Matossian v. Fahmie (1980) 101 Cal.App.3d 128, 134-137, 161 Cal.Rptr. 532; Board of Ed. of Miami Trace Local Sch. Dist. v. Marting (1966) 7 Ohio Misc. 64, 217 N.E.2d 712, 717; also cf. Stern v. United States Gypsum, Inc. (7th Cir. 1977) 547 F.2d 1329, 1342-1343, cert. den., 434 U.S. 975, 98 S.Ct. 533, 54 L.Ed.2d 467.)

Next, respondent and amicus point out that the right to petition government for redress of grievances is among the most precious of the liberties guaranteed by the Constitution and shares the preferred place accorded First Amendment freedoms. That is correct. (Mine Workers v. Illinois Bar Ass'n. (1967) 389 U.S. 217, 222, 88 S.Ct. 353, 356, 19 L.Ed.2d 426, 430; Thomas v. Collins (1945) 323 U.S. 516, 530, 65 S.Ct. 315, 322, 89 L.Ed. 430, 440; American Civil Liberties Union v. Board of Education (1961) 55 Cal.2d 167, 178, 10 Cal.Rptr. 647, 359 P.2d 45; Stern v. United States Gypsum, Inc., supra, 547 F.2d at p. 1342; see also United States v. Cruikshank (1876) 92 U.S. 542, 552, 23 L.Ed. 588, 591.)

Building, respondent and amicus next contend that the institution and prosecution of an action against a...