Randle v. City and County of San Francisco

• Citation: 186 Cal.App.3d 449,230 Cal.Rptr. 901
• Court: California Court of Appeals Court of Appeals
• Decision Date: 16 October 1986
• Parties: Raymond RANDLE, Jr., Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants and Respondents. A024177.

Page 901

230 Cal.Rptr. 901

186 Cal.App.3d 449

Raymond RANDLE, Jr., Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants and Respondents.

A024177.

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

Oct. 16, 1986.

Thomas M. Meyer, Point Richmond, for plaintiff and appellant

George Agnost, City Atty., Kenneth J. Harrington, Philip S. Ward, Deputies, San Francisco, for defendants and respondents.

KLINE, Presiding Justice.

Raymond Randle, Jr. brought a civil action against respondents City and County of San Francisco (hereinafter "City"), Assistant District Attorney William Fazio, and Police Inspector Martin Bastiani, seeking damages for injuries resulting from respondents' alleged suppression of exculpatory evidence during appellant's prosecution for rape. The trial court sustained without leave to amend respondents' demurrer to appellant's amended complaint, except as to a single cause of action against the City, and this appeal followed.

STATEMENT OF FACTS

A demurrer admits all material and issuable facts properly pleaded. (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713, 63 Cal.Rptr. 724, 433 P.2d 732; 5 Witkin, California Procedure (3d ed. 1985) Pleading, § 898, p. 338.) According to the amended complaint, appellant was convicted on July 28, 1980, of committing forcible oral copulation (Pen.Code, § 288a, subd. (c)) against Susan Elizabeth Bird. Bird testified at trial that she was forced by appellant to engage in sex; appellant testified that Bird offered him sexual favors in exchange for money and that they engaged in consensual sex. Appellant's conviction was overturned because of newly discovered and excluded evidence discrediting Bird's testimony. (People v. Randle (1982) 130 Cal.App.3d 286, 294, 296, 181 Cal.Rptr. 745.) ¹ Appellant was not reprosecuted.

The amended complaint alleges that on or about May 2, 1980, during the time the preliminary hearing was being conducted in the Randle case, San Francisco police officer Jay Smoot investigated an incident in a San Francisco parking lot in which a woman identifying herself as "Elizabeth" reported having been raped, beaten and robbed at gun point by two black men whose vehicle she had voluntarily entered in order to smoke marijuana. She refused to give her last name or address, telling Officer Smoot that she did not want to reveal her identity because she did not want to jeopardize a San Francisco rape case in which she was testifying on May 1 and 2.

Officer Smoot wrote an Incident Report which he forwarded to the San Francisco Police Department Record Room, and made telephone calls from which he ascertained that there was a pending rape case in which "Elizabeth" was testifying, and that "Elizabeth" was Bird, the witness in the Randle case. He is alleged to have brought this information to the attention of employees of the City, including Bastiani, "the officer in charge of" the pending Randle case. Shortly thereafter, a San Francisco police officer came to Officer Smoot's residence with a photograph of Bird, which Smoot identified as the person about whom his Incident Report had been written.

The complaint alleges that the information in Smoot's report was clearly exculpatory in that it supported appellant's defense theory and cast doubt on the credibility of Bird's allegations. The report was never made known to appellant, despite a standing discovery order which required the district attorney and his agents, such as members of the police department, to make available to appellant all exculpatory information, including that which would potentially impeach a witness. Appellant first learned of the Incident Report in a phone call from Officer Smoot on or about March 3, 1982. He filed claims for damages under Government Code sections 911.2 and 915 which were rejected by the City.

Appellant's civil complaint contains four state and one federal cause of action, all based on respondents' failure to provide him with the allegedly exculpatory evidence. ² The trial court sustained without leave to amend defendants' demurrers except that of the City to the fifth (federal) cause of action.

DISCUSSION

I. Appealability

Initially, we address respondents' argument that this appeal should be dismissed because it was taken from the nonappealable order on respondents' demurrer. An order sustaining a demurrer is not an appealable order. (Molien v. Kaiser Foundation Hospitals (1980) 27 Cal.3d 916, 920, 167 Cal.Rptr. 831, 616 P.2d 813; Berri v. Superior Court (1955) 43 Cal.2d 856, 860, 279 P.2d 8.) In some circumstances, however, an appeal taken from such an order will be entertained in the interests of justice and prevention of delay. (Beazell v. Schrader (1963) 59 Cal.2d 577, 579-580, 30 Cal.Rptr. 534, 381 P.2d 390; Reyna v. City and County of San Francisco (1977) 69 Cal.App.3d 876, 879, 138 Cal.Rptr. 504.)

Rules established in somewhat different contexts militate in favor of hearing the present appeal. Where a judgment fails to dispose of a cause of action to which a demurrer has been sustained, the appellate court may amend the judgment to include a dismissal of the cause of action when " 'the trial court's failure to dispose of all causes of action results from inadvertence or mistake rather than an intention to retain the remaining causes of action for trial.' " (Molien v. Kaiser Foundation Hospitals, supra, 27 Cal.3d at p. 921, 167 Cal.Rptr. 831, 616 P.2d 813, quoting Tenhet v. Boswell (1976) 18 Cal.3d 150, 154, 133 Cal.Rptr. 10, 554 P.2d 330.) When a judgment fails to dispose of all causes of action set forth in the complaint, an appeal need not be dismissed if the judgment resolves all issues as to the appealing party. (Justus v. Atchison (1977) 19 Cal.3d 564, 568, 139 Cal.Rptr. 97, 565 P.2d 122.) Finally, orders denying leave to amend a complaint, denying substitution of parties, and granting motions to strike parts of a pleading, although ordinarily not appealable, are appealable where the orders "have the effect of eliminating issues between a plaintiff and defendant so that nothing is left to be determined...." (Ingram v. Superior Court (1979) 98 Cal.App.3d 483, 489, 159 Cal.Rptr. 557; Wilson v. Sharp (1954) 42 Cal.2d 675, 677, 268 P.2d 1062; Dominguez v. City of Alhambra (1981) 118 Cal.App.3d 237, 241, 173 Cal.Rptr. 345.)

In the present case, the fact that the trial court sustained respondents' demurrer without leave to amend reveals a clear intention to make a final ruling. (Wilson v. Household Finance Corp. (1982) 131 Cal.App.3d 649, 651, 182 Cal.Rptr. 590.) The order fully resolved all issues concerning respondents Fazio and Bastiani. The sole remaining cause of action alleges a pattern and practice by the City which violated appellant's rights under 42 U.S.C. § 1983. That claim is independent of those involved in this appeal; it requires different proof and cannot result in liability of the individual respondents. The case being fully briefed, there appears no reason to delay decision and we therefore amend the order to include a judgment of dismissal as to causes of action one through four and six. ³ (Wilson v. Household Finance Corp., supra, 131 Cal.App.3d at [186 Cal.App.3d 455] pp. 651-652, 182 Cal.Rptr. 590; Varjabedian v. City of Madera (1977) 20 Cal.3d 285, 289 n. 1, 142 Cal.Rptr. 429, 572 P.2d 43.)

II. State Causes of Action

The amended complaint contains two state causes of action based on the conduct of respondent Bastiani and two based on that of respondent Fazio. (The causes of action involving Bastiani assume he did not convey the information in question to Fazio; the causes of action involving Fazio, which are stated in the alternative, proceed upon the opposite assumption.) The first cause of action, against the City and Bastiani, alleges negligent performance of a ministerial duty under a superior court discovery order to bring the information in Officer Smoot's report to the attention of the district attorney's office. The third cause of action, against the City and Fazio, similarly alleges negligent performance of a ministerial duty to provide appellant with exculpatory evidence. The second cause of action, against the City and Bastiani, and the fourth cause of action, against the City and Fazio, each attempt to state causes of action under Government Code section 815.6, ⁴ alleging respondents' failure to use reasonable diligence in discharging mandatory duties imposed upon them by applicable laws and regulations. ⁵

As we will explain, appellant's recovery on these state causes of action is precluded by the immunity provision in 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." This section applies to police officers as well as public prosecutors since both are public employees within the meaning of the Government Code. ⁶ (Johnson v. City of Pacifica (1970) 4 Cal.App.3d 82, 85, 84 Cal.Rptr. 246.)

Appellant suggests that section 821.6 immunizes only conduct analogous to the tort of malicious prosecution. Although the section is principally used for suits for damages for malicious prosecution, however, it is not limited to that use. (Kayfetz v. State of California (1984) 156 Cal.App.3d 491, 497, 203 Cal.Rptr. 33 [libel suit concerning publication of disciplinary action against physician after institution of proceedings and before dismissal of the action]; Brown v. City of Los Angeles (1968) 267 Cal.App.2d 849, 850-851 [suit for damages from erroneous notice of zoning violations causing plaintiff to close business].)

The cases which appellant discusses as limiting the immunity under section 821.6 do so in the specific context of distinguishing actions for malicious prosecution from ones for false arrest or false imprisonment. (Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, ...