Scannell v. County of Riverside

• Decision Date: 29 February 1984
• Citation: 199 Cal.Rptr. 644,152 Cal.App.3d 596
• Court: California Court of Appeals Court of Appeals
• Parties: Rick Raymond SCANNELL, Plaintiff and Appellant, v. COUNTY OF RIVERSIDE, et al., Defendants and Respondents. Civ. 29916.

Page 644

199 Cal.Rptr. 644

152 Cal.App.3d 596

Rick Raymond SCANNELL, Plaintiff and Appellant, v. COUNTY OF RIVERSIDE, et al., Defendants and Respondents.

Civ. 29916.

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

Feb. 29, 1984.

As Modified on Denial of Rehearing March 30, 1984.

[152 Cal.App.3d 602] Bostwick & Rowe, Inc., and Gerald W. Dimicelli, San Jose, for plaintiff and appellant.

Thompson & Colegate and Sharon J. Waters, Riverside, for defendant and respondent County of Riverside.

William E. Still, David Kyle, Stephen W. Travers and Roy C. Wilson, Jr., Los Angeles, for defendant and respondent Southern Pacific Transp. Co.

OPINION

HALDORSEN, Associate Justice ^*.

The demurrers of defendants County of Riverside and Southern Pacific Transportation Company to the first amended complaint based upon alleged failures to state causes of action and the bar of the statute of limitations were sustained in the trial court without leave to amend. Plaintiff Rick Raymond Scannell appeals from the judgments of dismissal thereafter entered.

Plaintiff's amended complaint alleged causes of action for intentional infliction of emotional distress, false imprisonment and malicious prosecution against the County of Riverside, Riverside County Sheriff's Detective James Bowen, the Southern Pacific Transportation Company and William G. Peoples, an alleged agent of the latter company who was not served with process.

In substance, the amended complaint asserts that on September 28, 1979, plaintiff was granted immunity from prosecution of alleged violations of Penal Code sections 211 and 459 by Detective Bowen, who, in so doing, was acting within the course and scope of his employment and with the consent of the Riverside County District Attorney that plaintiff performed his duties under that immunity agreement; that nevertheless and contrary to the agreement a felony complaint charging plaintiff herein with violations of Penal Code sections 211 and 459 was filed on October 11, 1979; that the complaint was executed by the sheriff and district attorney of Riverside County acting within the scope of their respective authorities and that they were aided and abetted by and used information supplied by defendants Peoples and Southern Pacific Transportation Company; and that plaintiff was then arrested and jailed until released on bail; that after the preliminary hearing, plaintiff was tried in the superior court, which trial ended in a hung jury on April 10, 1980; that on June 16, 1980, the superior court granted plaintiff's motion to dismiss the information based on the previous grant of immunity.

Plaintiff further charged that the criminal proceedings against him were instituted with the full knowledge of all defendants that he had previously been granted immunity from prosecution for the charged offenses.

The amended complaint also alleges that plaintiff duly presented his claim based on the foregoing events to the Clerk of the County of Riverside on September 2, 1980, which claim was deemed rejected pursuant to Government Code section 912.4 on October 18, 1980.

The amended complaint does not set forth the date of plaintiff's release on bail, but does assert that his imprisonment ended on June 16, 1980, the dismissal date, in that he was then "no longer compelled to be where he did not voluntarily want to be."

Predicated upon these assertions, plaintiff filed his initial complaint for intentional infliction of emotional distress and false imprisonment on April 20, 1981, against Detective Bowen, the County of Riverside and certain Doe defendants. Southern Pacific Transportation Company was subsequently served as a Doe defendant on November 23, 1982, and the complaint was amended to name Peoples and Southern Pacific Transportation Company as defendants on March 3, 1983. That amendment added the third cause of action against all defendants for malicious prosecution.

We will first consider the demurrer of the County of Riverside.

Malicious Prosecution

In 1963 Government Code section 821.6 was enacted. It states as follows:

"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 represents a codification of prior case law. In Dawson v. Martin (1957) 150 Cal.App.2d 379, the court stated at pp. 381-382, 309 P.2d 915: "So far as the county is concerned it enjoys absolute immunity from suits for malicious prosecution and the defense need not be pleaded by answer, but may be taken advantage of by demurrer. [Citations.] Immunity from suit also extends to and protects the respondent Martin [county building inspector] in the instant case in view of the affirmative allegations that in all that he did he acted as agent of the county and of its governing board of supervisors. [Citations.]"

The public policy mandating this immunity is best articulated by the court in White v. Towers (1951) 37 Cal.2d 727, 729-730, 235 P.2d 209, in this language: "When the duty to investigate crime and to institute criminal proceedings is lodged with any public officer, it is for the best interests of the community as a whole that he be protected from harassment in the performance of that duty. The efficient functioning of our system of law enforcement is dependent largely upon the investigation of crime and the accusation of offenders by properly trained officers. A breakdown of this system at the investigative or accusatory level would wreak untold harm. 'Criminal law does not enforce itself. It demands the assistance of valid evidence and fearless officials to put it in execution. Because of their tendency to obstruct the administration of justice, it is the policy of the law to discourage actions for malicious prosecution.' [Citation]."

Here Detective Bowen was, according to the amended complaint, acting within the scope of his employment when he allegedly undertook the instant criminal prosecution and is therefore the beneficiary of the protection accorded him by Government Code section 821.6 regardless of alleged malice.

Likewise, if he is immune, so is the entity employing him, except as otherwise provided by statute. (Gov.Code, § 815.2, subd. (b); Blackburn v. County of Los Angeles (1974) 42 Cal.App.3d 175, 116 Cal.Rptr. 622.) Plaintiff has not, however, cited any such exception.

The county's demurrer to this cause of action was therefore properly sustained without leave to amend.

False Imprisonment

There is no similar immunity given to public employees for false imprisonment. (Gov.Code, § 820.4; Civ.Code, § 43.5(a); McKay v. County of San Diego (1980) 111 Cal.App.3d 251, 168 Cal.Rptr. 442; Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 117 Cal.Rptr. 241, 527 P.2d 865.)

It follows that under the concept of respondent superior, a public employer is responsible for the tort of false imprisonment by the conduct of a public employee acting within the course and scope of his employment. (McKay v. County of San Diego, supra, 111 Cal.App.3d 251, 254, 168 Cal.Rptr. 442.)

The County's attack on this cause of action, however, focuses on the bar of the statute of limitations.

Government Code section 911.2 requires that a claim relating to a cause of action for injury to the person shall be presented not later than the 100th day after the accrual of the cause of action.

This claims statute is subject to the rule of strict compliance which requires that a late claim be disregarded. (Collins v. County of Los Angeles (1966) 241 Cal.App.2d 451, 460, 50 Cal.Rptr. 586.)

Plaintiff's amended complaint alleges that the criminal complaint against him was filed on October 11, 1979, that he was arrested and imprisoned and that he was forced to post bail to obtain his release from jail. No dates are specified for the last two events. It is further pleaded that his false imprisonment ended on June 16, 1980, because on that date "he was no longer compelled to be where he did not voluntarily want to be." He therefore contends that his claim presentation on September 2, 1980 was timely.

The county's response to this rather ambiguous pleading was to request the court to take judicial notice of the municipal court record of the criminal case against plaintiff which showed that plaintiff's bail bond had been filed with the court on October 25, 1979, for his appearance in court on October 26, 1979. The trial court was also requested to and did take judicial notice of the booking sheet of the Riverside County Sheriff's Department which showed plaintiff's release on bail on October 19, 1979. Nothing in the court record showed any subsequent incarceration.

Such judicial notice of a court record and an executive act was entirely proper. (Evid.Code, § 452, subd. (c) and (d).)

A complaint otherwise good on its face is nevertheless subject to demurrer when facts judicially noticed render it defective. (Watson v. Los Altos School Dist. (1957) 149 Cal.App.2d 768, 771, 308 P.2d 872.)

Hence, it is manifest that plaintiff was actually released from imprisonment no later than October 19, 1979 (the date the bond was posted at the jail as opposed to the date it was filed with the court). Plaintiff's allegations concerning his being required to be at places other than where he wanted to be must then necessarily only relate to the requirement of Penal Code section 1043 that he personally attend the criminal proceedings against him. Plaintiff's actual release from custody occurred over ten months before he filed his claim against the county.

Whether Government Code section 911.2 acts as a bar to this complaint therefore depends upon when plaintiff's cause of action accrued, i.e., on his release from custody or at the time of dismissal of the criminal proceedings.

When faced with that decision the court in Collins v. County of Los Angeles, supra, 241 Cal.App.2d 451, 455-456, 50...