Nelson v. Santa Barbara County Sheriff's Office CA2/6 ( 2021 )

Filed 12/14/21 Nelson v. Santa Barbara County Sheriff’s Office CA2/6
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
WANDA NELSON, 2d Civil No. B308778
(Super. Ct. No. 19CV06081)
Plaintiff and Appellant, (Santa Barbara County)
v.
SANTA BARBARA COUNTY
SHERIFF’S OFFICE et al.,
Defendants and Respondents.
Wanda Nelson purports to appeal from an order sustaining
a demurrer to her first amended complaint (complaint) without
leave to amend. This is the third appeal involving appellant. In
the first appeal, we reversed her conviction of involuntary
manslaughter. (People v. Nelson (Nov. 6, 2017, B271618)
[nonpub. opn].) The conviction was based on the theory that
appellant had been criminally negligent in leaving unattended a
paralyzed patient (Heidi Good) who was under her care.
According to this theory, appellant was absent when Good’s
ventilator became disconnected. Since no one was present to
reconnect the ventilator, Good died from asphyxiation.
The jury acquitted appellant of first and second degree
murder. It rejected the People’s theory that she had intentionally
disconnected the ventilator. We concluded that the evidence was
insufficient to support her conviction of involuntary
manslaughter because there was no substantial evidence of
criminal negligence.
In the second appeal, we reversed the trial court’s order
finding appellant factually innocent of the murder of Heidi Good.
(People v. Nelson (May 22, 2019, B290806) [nonpub. opn.].) We
held: “Reasonable cause exists to believe that [appellant]
intentionally killed Heidi by disconnecting the ventilator.” (Id. at
p. 13.)
Appellant subsequently filed a complaint against the Santa
Barbara County Sheriff’s Office (sheriff), District Attorney’s
Office (district attorney), and three employees of these offices.
The present appeal arises from this action. The defendants are
hereafter collectively referred to as respondents. The complaint
alleged five causes of action: malicious prosecution, intentional
infliction of emotional distress, negligence, false arrest/false
imprisonment, and violation of the Bane Act (Civil Code § 52.1).
Appellant sought general and punitive damages.
After the trial court ordered that respondents’ demurrer be
sustained without leave to amend, a judgment of dismissal was
not entered. We construe the order as incorporating a judgment
of dismissal, treat the appeal as taken from that judgment, and
affirm.1
1 In the notice of appeal, appellant placed an “x” in a box
indicating that she was appealing from a “[j]udgment of dismissal
2
Factual Background
The underlying facts are complex. They are set forth at
length in our two prior unpublished opinions. There is no need to
repeat them here.
Prior Federal Action
Before filing the present action, appellant filed an action
against respondents in the United States District Court for the
Central District of California. Appellant’s federal complaint
alleged a violation of her civil rights under section 1983 of Title
42 of the United States Code (section 1983). It also alleged
claims under California law. In October 2019 the district court
granted respondents’ motion for summary judgment as to the
section 1983 cause of action. The court declined to exercise
jurisdiction over appellant’s state claims. It dismissed the state
claims without prejudice. Appellant asserts, “The Ninth Circuit
Court of Appeal[s] affirmed the Order of the District Court on
February 12, 2021.”
Standard of Review
“A demurrer tests the legal sufficiency of factual allegations
in a complaint. [Citation.] A trial court’s ruling sustaining a
after an order sustaining a demurrer.” But the record on appeal
does not contain a judgment of dismissal, and the register of
actions shows that no such judgment was entered. “An order
sustaining a demurrer is not appealable absent an order
dismissing the complaint. Although there is no order dismissing
the . . . complaint, [respondents have] not requested dismissal of
this appeal. Because the case has been fully briefed . . . , we
deem the order sustaining the demurrer[] to incorporate a
judgment of dismissal . . . .” (Lucas v. Santa Maria Public
Airport Dist. (1995) 39 Cal.App.4th 1017, 1022.)
3
demurrer is erroneous if the facts alleged by the plaintiff state a
cause of action under any possible legal theory. [Citations.]” (Lee
Newman, M.D., Inc. v. Wells Fargo Bank (2001) 87 Cal.App.4th
73, 78.)
“[W]e apply the de novo standard of review in an appeal
following the sustaining of a demurrer . . . .” (California
Logistics, Inc. v. State of California (2008) 161 Cal.App.4th 242,
247.) “[W]e assume the truth of all facts properly pleaded in the
complaint and its exhibits or attachments, as well as those facts
that may fairly be implied or inferred from the express
allegations. [Citation.] ‘We do not, however, assume the truth of
contentions, deductions, or conclusions of fact or law.’ [Citation.]”
(Cobb v. O’Connell (2005) 134 Cal.App.4th 91, 95.) “We . . .
consider matters that may be judicially noticed . . . .” (Brown v.
Deutsche Bank National Trust Co. (2016) 247 Cal.App.4th 275,
279.)
When “a demurrer has been sustained without leave to
amend, unless failure to grant leave to amend was an abuse of
discretion, the appellate court must affirm the judgment if it is
correct on any theory. [Citations.] If there is a reasonable
possibility that the defect in a complaint can be cured by
amendment, it is an abuse of discretion to sustain a demurrer
without leave to amend. [Citation.] The burden is on the
plaintiff . . . to demonstrate the manner in which the complaint
might be amended.” (Hendy v. Losse (1991) 54 Cal.3d 723, 742.)
Plaintiff’s Burden on Appeal
On appeal “[t]he plaintiff has the burden of showing that
the facts pleaded are sufficient to establish every element of the
cause of action and overcoming all of the legal grounds on which
the trial court sustained the demurrer, and if the defendant
4
negates any essential element, we will affirm the order
sustaining the demurrer as to the cause of action. [Citation.]”
(Martin v. Bridgeport Community Assoc., Inc. (2009) 173
Cal.App.4th 1024, 1031 (Martin); see also Cantu v. Resolution
Trust Corp. (1992) 4 Cal.App.4th 857, 880 [“Cantu bears the
burden of overcoming all of the legal grounds on which the trial
court sustained the demurrers”].)
First Cause of Action for Malicious Prosecution
“A plaintiff must plead and prove three elements to
establish the tort of malicious prosecution: a lawsuit ‘(1) was
commenced by or at the direction of the defendant and was
pursued to a legal termination favorable to the plaintiff; (2) was
brought without probable cause; and (3) was initiated with
malice.’” (Nunez v. Pennisi (2015) 241 Cal.App.4th 861, 872-873.)
The first cause of action for malicious prosecution is against
two deputy sheriffs – Charlie Bosma and Matthew Fenske – and
Deputy District Attorney Cynthia Gresser. The complaint
alleged that they had “intentionally fabricated evidence and
produced false and misleading evidence,” ignored and suppressed
exculpatory evidence, and “intentionally and deliberately
exhibited racial bias in their enforcement of the law to further
their personal agendas against low-income, persons of color, such
[as] this African-American plaintiff . . . .”
The trial court ruled, “The cause of action for malicious
prosecution is barred by the absolute immunity set forth in
Government Code section 821.6” (section 821.6), which provides,
“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.”
5
The immunity granted by section 821.6 applies to a public
prosecutor. (Miller v. Filter (2007) 150 Cal.App.4th 652, 666
(Miller).) “The immunity is absolute, applying even if
the prosecutor ‘acts maliciously and without probable cause’
[citations], such as by concealing exculpatory evidence [citation].”
(Ibid.) “Persons appointed as deputy district attorneys must be
free to vigorously enforce the law without concerns over the
possibility of subsequent damage claims against them.” (Id. at
p. 668.) The immunity also applies to a police officer or deputy
sheriff. (Asgari v. City of Los Angeles (1997) 15 Cal.4th 744, 752
(Asgari) [“Under California law, a police officer is granted
statutory immunity from liability for malicious prosecution”].)
“California courts construe section 821.6 broadly in furtherance
of its purpose to protect public employees in the performance of
their prosecutorial duties from the threat of harassment through
civil suits.” (Gillan v. City of San Marino (2007) 147 Cal.App.4th
1033, 1048 (Gillan).)
Appellant “characterizes this case [as] an ‘intentional
violation of her state constitutional and statutory civil rights to
be free from racial and ethnic discrimination.’” She contends,
“[T]o the extent that [her] malicious prosecution claim is based on
her contention that she was targeted . . . based upon her race,
[respondents] cannot be immune.” In support of her contention,
appellant cites a dissenting opinion in which Justice Grignon
said, “Defendants [senior commanders in the Los Angeles Police
Department] owe a duty to plaintiffs to refrain from racial and
ethnic discrimination and are not immune from liability for such
discrimination.” (Gates v. Superior Court (1995) 32 Cal.App.4th
481, 526 (dis. opn. of Grignon, J.).) But the case in which Justice
Grignon wrote her dissenting opinion did not involve a charge of
6
malicious prosecution or the interpretation of section 821.6. The
statute in question was Government Code section 845, which
immunizes a public entity or a public employee from the payment
of monetary damages for failure to provide adequate police
protection. Contrary to Justice Grignon’s dissent, the majority
opinion held that, despite the complaint’s allegation of “an
ongoing deliberate racially based misallocation of police
resources,” the “[d]efendants are immune from civil liability for
money damages for failing to provide adequate police protection
against participants in criminal conduct during a riot.” (Gates,
supra, at p. 494.) The majority concluded that the application of
section 845 to plaintiffs did not violate their equal protection
rights.2 (Gates, supra, at pp. 513-516.)
Accordingly, appellant has failed to carry her burden of
“overcoming . . . the legal ground[] on which the trial court
2 For the first time in her reply brief, appellant contends
that “Government Code § 821.6 is unconstitutional” to the extent
it grants “absolute immunity to prosecutors and law enforcement
officers who commit bad acts with malice.” The contention is
forfeited because it is not supported by meaningful argument
with citation to authority. (Allen v. City of Sacramento (2015)
234 Cal.App.4th 41, 52.) It is also forfeited because appellant has
not shown good cause for failing to raise the issue in her opening
brief. “[W]e do not consider points raised for the first time in the
reply brief absent a showing of good cause for the failure to
present them earlier. [Citations.] This rule is based on
considerations of fairness—withholding a point until the closing
brief deprives the opposing party of the opportunity to file a
written response unless supplemental briefing is ordered.”
(Ibid.)
7
sustained the demurrer” on the first cause of action for malicious
prosecution. (Martin, supra, 173 Cal.App.4th at p. 1031.)
Fourth Cause of Action for False Arrest/False Imprisonment
Appellant claims that the trial court “erred in sustaining
[her] cause of action for false arrest/false imprisonment without
leave to amend.” (Capitalization and bold omitted.) “‘“[F]alse
arrest” and “false imprisonment” are not separate torts. False
arrest is but one way of committing a false imprisonment . . . .’”
(Asgari, supra, 15 Cal.4th at p. 752, fn. 3.) “The tort of false
imprisonment is the nonconsensual, intentional confinement of a
person, without lawful privilege, for an appreciable length of
time, however short. . . . In California a cause of action for false
imprisonment will lie . . . where there has been an unlawful
arrest followed by imprisonment . . . .” (City of Newport Beach v.
Sasse (1970) 9 Cal.App.3d 803, 810.) “Under California law, a
police officer is granted statutory immunity from liability for
malicious prosecution [§ 821.6], but not for false arrest and
imprisonment.” (Asgari, supra, at p. 752.)
In the fourth cause of action for false arrest/false
imprisonment, appellant alleged that Fenske, Bosma and Gresser
had “deprived [her] of her liberty without justification” because
they had “detained [her] without reasonable suspicion and
arrested her[] without probable cause.” Appellant further alleged
that the sheriff and district attorney “are vicariously liable for
the wrongful acts of Fenske, Bosma and Gresser.”
The grand jury returned an indictment charging appellant
with premeditated murder. Based on the indictment, the court
issued a bench warrant for appellant’s arrest. (Pen. Code, §§ 945,
979, 981.) The warrant “commanded” law enforcement officers to
8
“forthwith” arrest appellant. (Id., § 981.) They did not have
discretion to disobey this command.
In its ruling sustaining the demurrer, the trial court stated:
“[Fenske’s, Bosma’s and Gresser’s] involvement in obtaining
[appellant’s] arrest was limited to their actions in presenting
evidence to the Grand Jury; none of them were physically
involved in [appellant’s] actual arrest pursuant to the warrant,
which was effectuated by law enforcement officers of the State of
New York.” The court concluded, “Under these circumstances, it
appears clear that no false arrest/false imprisonment cause of
action can legally be stated against defendants, and that the true
cause of action which the allegations support is malicious
prosecution, which is barred by the absolute immunity provided
by Government Code section 821.6.”
At the hearing on respondents’ demurrer, appellant’s
counsel stated: “Detective Fenske and Bosma did actually travel
to New York to arrest [appellant].” Counsel requested
permission to amend the complaint to allege this fact. Counsel
did not explain why the result would be different if Fenske and
Bosma had arrested appellant. The warrant commanded any law
enforcement officer to make the arrest. (Pen. Code, § 981.)
The trial court did not abuse its discretion in denying
permission to amend the complaint. Because the arrest was
made pursuant to a valid arrest warrant based on a grand jury
indictment, respondents cannot be liable for false imprisonment.
“‘“The distinction between [malicious prosecution and false
imprisonment] lies in the existence of valid legal authority for the
restraint imposed. If the defendant complies with the formal
requirements of the law, as by swearing out a valid warrant, so
that the arrest of the plaintiff is legally authorized, . . . [h]e is . . .
9
liable, if at all, only for a misuse of legal process to effect a valid
arrest for an improper purpose. The action must be for malicious
prosecution, upon proof of malice and want of probable
cause . . . .” . . .’” (Collins v. City and County of San Francisco
(1975) 50 Cal.App.3d 671, 677 (Collins); see also Scannell v.
County of Riverside (1984) 152 Cal.App.3d 596, 608 [“Because the
claim of false imprisonment rests upon the allegedly invalid
obtaining of an arrest warrant and subsequent detention, the
offense is malicious prosecution, not false imprisonment.
[Citation to Collins.] Hence, we conclude that the county’s
demurrer for failure to state a cause of action for false
imprisonment was properly sustained without leave to amend”].)
Third Cause of Action for Negligence
The third cause of action for negligence is against all
respondents. It alleged that they had negligently investigated
Heidi Good’s death and negligently prosecuted appellant. It also
alleged that the district attorney and sheriff had “breach[ed]
duties imposed by California Government Code § 815.6 [section
815.6] by not properly screening, hiring, training, testing,
monitoring, supervising, disciplining or investigating potential
misdeeds of” deputy district attorneys and deputy sheriffs.
Negligence Based on Violation of
Mandatory Duty under Section 815.6
The trial court ruled that appellant had failed to state a
cause of action for negligence against the district attorney and
sheriff based on the violation of a mandatory duty under section
815.6, which provides, “Where a public entity is under a
mandatory duty imposed by an enactment that is designed to
protect against the risk of a particular kind of injury, the public
entity is liable for an injury of that kind proximately caused by
10
its failure to discharge the duty unless the public entity
establishes that it exercised reasonable diligence to discharge the
duty.” (Italics added.) In explaining its ruling on the section
815.6 issue, the trial court said: “[Appellant] has failed to
establish any enactment which is sufficient to support a claim for
mandatory duty liability . . . .”
“[S]ection 815.6 has three elements that must be satisfied
to impose public entity liability: (1) a mandatory duty was
imposed on the public entity by an enactment; (2) the enactment
was designed to protect against the particular kind of injury
allegedly suffered; and (3) the breach of the mandatory statutory
duty proximately caused the injury.” (B.H. v. County of San
Bernardino (2015) 62 Cal.4th 168, 179.) Appellant has not shown
that the three elements of section 815.6 were satisfied. The trial
court therefore did not err in sustaining the demurrer on the
third cause of action’s claim of negligence based on the district
attorney’s and sheriff’s failure to discharge a mandatory duty
under section 815.6.
Negligence Based on Acts of Gressor, Fenske, and Bosma
As to the alleged negligence of Gressor, Fenske, and
Bosma, the trial court ruled, “Courts have repeatedly held that
[section 821.6] bars actions for negligence arising from the same
alleged acts as those supporting a malicious prosecution claim, as
is present here, requiring a finding that they are immune from
such liability.” The court did not err. (Johnson v. City of Pacifica
(1970) 4 Cal.App.3d 82, 86-88 [section 821.6 grants immunity to
law enforcement officers accused of negligently investigating
criminal charges].) It follows that the district attorney and
sheriff are not vicariously liable for the alleged negligence of their
employees. (Gov. Code, § 815.2, subd. (b) [“Except as otherwise
11
provided by statute, a public entity is not liable for an injury
resulting from an act or omission of an employee of the public
entity where the employee is immune from liability”]. In Leon v.
County of Riverside (2021) 64 Cal.App.5th 837, 848 (Leon), the
court held that under sections 815.2 and 821.6 “the deputies and
the county are immune from liability to [victim’s wife] for the
deputies’ negligence, if any, in leaving [victim’s] body exposed
while the deputies . . . investigated the shooting [of victim].”
Immunity applied because “[u]ndisputed evidence shows that the
deputies’ negligence, if any, occurred during the course of the
deputies’ official investigation of the shooting.” (Leon, supra, at
p. 842.)
Interpretation of Section 821.6: Conflict between
Ninth Circuit and California Court of Appeal
On August 18, 2021, our Supreme Court granted review in
Leon, supra, 64 Cal.App.5th 837 (S269672). According to the
Supreme Court’s news release dated August 20, 2021, Leon
“presents the following issue: Is immunity under Government
Code section 821.6 limited to actions for malicious prosecution?
(See Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710[(Sullivan)].)”3 In the order granting review, the Supreme Court
stated: “Pending review, the opinion of the Court of Appeal . . .
may be cited, not only for its persuasive value, but also for the
limited purpose of establishing the existence of a conflict in
authority that would in turn allow trial courts to exercise
discretion under Auto Equity Sales, Inc. v. Superior Court (1962)
57 Cal.2d 450, 456, . . . to choose between sides of any such
3 [as
of Sept. 23, 2021], archived at .
12
conflict.” (Leon v. County of Riverside (2021) __ Cal.5th __ [2021
Cal.LEXIS 5829].)
In a concurring opinion in Leon, Court of Appeal Justice
Raphael explained the conflict referred to by the Supreme Court.
Justice Raphael noted that there are two different
interpretations of section 821.6 immunity. “[T]he current law in
California [Ninth Circuit] federal courts is that section 821.6
provides absolute immunity only against malicious prosecution
claims . . . .” (Leon, supra, 64 Cal.App.5th at p. 860 (conc. opn. of
Raphael, J.).) The Ninth Circuit’s interpretation of section 821.6
is based on Sullivan, supra, 12 Cal.3d 710. (See Sharp v. County
of Orange (9th Cir. 2017) 871 F.3d 901, 920-921 [in Sullivan “the
California Supreme Court held that § 821.6 immunity does not
extend beyond malicious-prosecution claims”]; Garmon v. County
of Los Angeles (9th Cir. 2016) 828 F.3d 837, 847 [“Because the
California Supreme Court has already spoken on this issue, we
follow Sullivan and we reverse and hold that the district court
erred in dismissing the state law claims against County
Defendants because the claims against them are not malicious
prosecution claims”].) The Ninth Circuit’s narrow reading of
Sullivan is based on the following passages from that opinion:
“[T]he history of section 821.6 demonstrates that the Legislature
intended the section to protect public employees from liability
only for malicious prosecution and not for false imprisonment.”
(Sullivan, supra, 12 Cal.3d at p. 719, italics added, other italics
omitted.) “Our narrow interpretation of section 821.6's
immunity, confining its reach to malicious prosecution actions,
finds corroboration in another governmental immunity provision,
[Government Code] section 820.4.” (Id. at p. 721, italics added.)
13
The California Court of Appeal has not adopted the Ninth
Circuit’s interpretation of Sullivan. It “has justified applying
section 821.6 absolute immunity to torts other than malicious
prosecution.” (Leon, supra, 64 Cal.App.5th at p. 860 (conc. opn. of
Raphael, J.).) The majority opinion in Leon concluded: “In
Sullivan, our Supreme Court specifically addressed whether
section 821.6’s immunity applied to claims for false
imprisonment in addition to claims for malicious prosecution.
[Citation.] In holding that section 821.6 did not immunize public
employees from claims for false imprisonment, the court reasoned
that section 821.6 could not be interpreted to defeat another
common law rule, preserved in [Government Code] section 820.4,
that public employees are not immune from liability for false
arrest or false imprisonment. [Citation.] Sullivan was not
concerned with, and did not address, whether section 821.6's
immunity for malicious prosecution extended to torts committed
by public employees during the course of official investigations
related to judicial or administrative proceedings.” (Id. at p. 854.)
“With some reluctance,” Justice Raphael joined the
majority opinion. (Leon, supra, 64 Cal.App.5th at p. 862 (conc.
opn. of Raphael, J.).) He reasoned: “[T]he body of Court of Appeal
precedent . . . states the current law in the courts of this state.”
(Ibid.) The majority opinion “correctly articulates the reasoning
of decades of [California Court of Appeal] opinions that . . . have
expanded section 821.6’s absolute immunity to police officer
conduct in investigations.” (Id. at p. 863.) “I believe that any
correction to the Court of Appeal’s decades-old, expansive
application of section 821.6 will have to come from our Supreme
Court, rather than from us.” (Id. at p. 864.) We agree and note
that the text of section 821.6 contain no words of limitation.
14
We also agree with the majority in Leon that our Supreme
Court in Sullivan held only that section 821.6’s grant of
immunity does not apply to actions for false imprisonment. (See
Sullivan, supra, 12 Cal.3d at p. 722 [“Since section 821.6 cannot
be interpreted to defeat the common law liability for false
imprisonment preserved in section 820.4, the county sheriff
remains liable for his alleged knowing imprisonment of
appellant”].)
Second Cause of Action for Intentional
Infliction of Emotional Distress
In the second cause of action, appellant alleged that
Fenske, Bosma and Gresser had “willfully and intentionally
caused [her] emotional distress” by committing the same acts
alleged in the first cause of action for malicious prosecution and
the fourth cause of action for false imprisonment. As explained
above in the section on the cause of action for false imprisonment,
ante at pp. 8-9, the acts underlying that cause of action constitute
malicious prosecution, not false imprisonment. Thus, the trial
court correctly ruled that section 821.6 immunized respondents
from liability on the second cause of action for intentional
infliction of emotional distress. (See Miller, supra, 150
Cal.App.4th at p. 670 [section 821.6 “immunity applies to every
cause of action alleged in plaintiffs’ complaint, because all arose
out of the individual defendants’ charging decisions and
prosecution of the criminal action against [plaintiffs]”]; Leon,
supra, 64 Cal.App.5th at p. 854 [“the appellate courts have
consistently interpreted section 821.6 as not being limited to
claims for malicious prosecution, but as extending to other torts,
including . . . intentional infliction of emotional distress”]; Gillan,
supra, 147 Cal.App.4th at p. 1050 [“defendants are immune from
15
liability for . . . intentional infliction of emotional distress . . .
pursuant to Government Code section 821.6”].)
Fifth Cause of Action for Violation of the Bane Act
The fifth cause of action is against all respondents. It is
based on alleged violations of Civil Code section 52.1 (section
52.1), known as “the Tom Bane Civil Rights Act” (Bane Act).
(§ 52.1, subd. (a).) Section 52.1, subdivision (c) provides, “Any
individual whose exercise or enjoyment of rights secured by the
Constitution or laws of the United States, or of rights secured by
the Constitution or laws of this state, has been interfered with, or
attempted to be interfered with, . . . may institute and prosecute
in his or her own name and on his or her own behalf a civil action
for damages . . . .” The proscribed interference encompasses
“interfere[nce] by threat, intimidation, or coercion, or attempts to
interfere by threat, intimidation, or coercion.” (Id., subd. (b).)
“[S]ection 52.1 . . . require[s] an attempted or completed act of
interference with a legal right, accompanied by a form of
coercion.” (Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 334.) The
fifth cause of action lists multiple rights with which respondents
allegedly interfered.
Appellant claims that respondents are not entitled to
immunity on the Bane Act cause of action because “[t]his case
involves more than a simple false arrest. Appellant has also
alleged that her arrest was in violation of her Fourteenth
Amendment rights because it follows a pattern of conduct by the
Respondents[] of racial profiling.”
Because the Bane Act cause of action “is based on statute,
the general rule that statutory causes of action must be pleaded
with particularity is applicable.” (Lopez v. Southern Cal. Rapid
Transit Dist. (1985) 40 Cal.3d 780, 795.) “‘[T]he plaintiff must set
16
forth facts in his complaint sufficiently detailed and specific to
support an inference that each of the statutory elements of
liability is satisfied. General allegations are regarded as
inadequate. [Citations.]’” (Shields v. County of San Diego (1984)
155 Cal.App.3d 103, 112.) Appellant’s claim of racial profiling is
a general, conclusory allegation. She does not allege facts from
which racial profiling may be inferred. It may not be inferred
from the mere fact that, as she states in her opening brief, she
was “the only African-American in the scenario.” (See Blank v.
Kirwan (1985) 39 Cal.3d 311, 318, italics added [“‘We treat the
demurrer as admitting all material facts properly pleaded, but
not contentions, deductions or conclusions of fact or law . . .’”];
Maystruk v. Infinity Ins. Co. (2009) 175 Cal.App.4th 881,
888 [“the complaint alleges conclusions but no facts to support
[them] . . . . This factual omission is fatal to the complaint”].)
In sustaining the demurrer to the Bane Act cause of action,
the trial court did not rule that the cause of action was fatally
flawed because it consisted of conclusory allegations devoid of
factual support. The court ruled: “With respect to [appellant’s]
Bane Act claim based upon the alleged violation of her
Fourteenth Amendment rights, those relate to the acts taken to
institute and prosecute the criminal action against [her]. . . .
[A]ll such claims made under the Bane Act . . . are . . . barred by
the absolute immunity set forth in Section 821.6.”
Appellant has not carried her burden of showing that the
trial court erred. In County of Los Angeles v. Superior Court
(2009) 181 Cal.App.4th 218, 231, the court “reject[ed] plaintiffs’
contention that Civil Code section 52.1 prevails over the
Government Code section 821.6 immunity.” The rejection was
based on O'Toole v. Superior Court (2006) 140 Cal.App.4th 488.
17
There, the appellate court reasoned: “[U]nder California law ‘[i]t
is generally recognized that a statutory governmental immunity
overrides a statute imposing liability.’ [Citations.] Thus, absent
‘a clear indication of legislative intent that statutory immunity
is withheld or withdrawn,’ a specific statutory immunity [such as
section 821.6] applies to shield a public employee from liability
imposed by a particular statute. [Citations.] On our examination
of Civil Code section 52.1, we have found no indication the
Legislature intended to create an exception to the general rule.
Civil Code section 52.1 contains no indicia reflecting an intent
that public employees may be sued despite a statutory immunity
that would otherwise apply.” (Id. at p. 504.)
“Here, all of the acts of which [appellant] complain[s] were
triggered by allegations of criminal activity and were part of the
investigation and prosecution process, . . . and so they are
immunized by Government Code section 821.6.” (County of Los
Angeles v. Superior Court, supra, 181 Cal.App.4th at 230.)
“Stated otherwise, [appellant] allege[s] violations of [her] civil
rights by malicious prosecution, i.e., initiating prosecution of
another under lawful process but from malicious motives and
without probable cause. [Citation.] That is, the specific conduct
[appellant] alleges is exactly that which Government Code
section 821.6 was designed to immunize.” (Id. at pp. 231-232.)
Disposition
The judgment of dismissal is affirmed. Respondents shall
recover their costs on appeal.
18
NOT TO BE PUBLISHED.
YEGAN, Acting P. J.
We concur:
PERREN, J.
TANGEMAN, J.
19
Colleen K. Sterne, Judge
Superior Court County of Santa Barbara
______________________________
Law Offices of Michael J. Curls, Michael J. Curls and
Nichelle D. Jordan, for Plaintiff and Appellant.
Rachel Van Mullem, County Counsel, Mary Pat Barry, Snr.
Deputy, for Defendants and Respondents.