Jacobs v. Swalwell CA4/1

Filed 9/18/20 Jacobs v. Swalwell CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
HARVEY BARRY JACOBS, D075535
Plaintiff and Appellant,
v.
(Super. Ct. No. 37-2018-
CHRISTOPHER SWALWELL, 00022730- CU-PN-CTL)
Defendant and Respondent.
APPEAL from a judgment of the Superior Court of San Diego County,
Joel R. Wohlfeil, Judge. Affirmed.
Harvey Barry Jacobs, in pro. per., for Plaintiff and Appellant.
Thomas E. Montgomery, County Counsel, Jeffrey P. Michalowski and
Ronald Lenert, Deputy County Counsel, for Defendant and Respondent.
In March 2000, plaintiff and appellant Harvey Jacobs was sentenced to
15 years to life in prison for fatally strangling his wife, Nadine Jacobs (Wife).
Over 18 years later, Jacobs sued the deputy medical examiner who conducted
Wife’s autopsy, defendant and respondent Christopher Swalwell. Jacobs
alleged Swalwell’s professional negligence in conducting the autopsy caused
Jacobs to be wrongfully convicted of murder and imprisoned for more than 17
years. Swalwell demurred on grounds that (1) Jacobs failed to comply with
the claim-presentation requirements of the Government Claims Act (Gov.
Code, § 810 et seq.; hereafter, the Act);1 (2) Swalwell was immune from
liability under the Act; and (3) Jacobs’s criminal conviction collaterally
estopped him from contesting in a civil lawsuit Wife’s cause of death. The
trial court sustained the demurrer without leave to amend on all three
grounds, and entered judgment in Swalwell’s favor. On appeal, Jacobs
challenges the three grounds on which the trial court relied. For reasons we
will explain, we affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
In January 2000, Jacobs was convicted of the second degree murder of
Wife. In March 2000, he was sentenced to prison for 15 years to life, with the
possibility of parole. We affirmed Jacobs’s conviction in a nonpublished
opinion. (People v. Jacobs (Sept. 4, 2001, D035406) [nonpub. opn.]
(Jacobs I).)2 Jacobs served 17 years in prison before being granted parole in
2017.
1 Undesignated statutory references are to the Government Code.
2 On our own motion, we take judicial notice of our prior nonpublished
opinion in Jacobs I. (Evid. Code, § 452, subd. (d); In re W.R. (2018) 22
Cal. App. 5th 284, 286, fn. 2; Cal. Rules of Court, rule 8.1115(b)(1) [“An
unpublished opinion may be cited or relied on [¶] . . .[w]hen the opinion is
relevant under the doctrines of law of the case, res judicata, or collateral
estoppel.”].)
2
On May 8, 2018, Jacobs filed a lawsuit against Swalwell and several
other defendants.3 Jacobs checked boxes on his Judicial Council form
complaint indicating he was “required to comply” and had “complied with the
applicable claims statutes,” but he did not elaborate on how he had done so.
The complaint asserted a single cause of action for “Professional
Negligence” arising from the manner in which Swalwell performed an
autopsy on Wife in 1999. Jacobs alleged the autopsy report contained “strong
evidence” indicating Swalwell performed “a standard autopsy,” even though
“an authoritative text on” conducting autopsies recommends using different
techniques when strangulation is suspected. Jacobs alleged Swalwell
“committed professional negligence by failing to take normal precautions
when he suspected strangulation in order to avoid the manufacture of
evidence resembling strangulation which were caused by the inappropriate
autopsy technique being utilized.” Jacobs further alleged that “[a]s a result
of th[is] professional negligence . . . , [he] was made to suffer loss of his liberty
for more than seventeen (17) years,” thereby implying he was wrongfully
convicted of, and imprisoned for, Wife’s murder. Jacobs sought $15 million in
compensatory damages, and unspecified punitive damages.
Swalwell demurred to the complaint on two grounds. First, he asserted
Jacobs failed to comply with the Act’s claim-presentation requirements,
which generally require that claims for money damages against public
employees first be presented to the appropriate public entity within six
months or one year of the claim’s accrual. (§§ 905, 911.2, 915.) Swalwell
3 Jacobs’s lawsuit also named Swalwell’s employer (San Diego County
Office of Medical Examiner (hereafter, County)), the medical examiner, and
several other deputy medical examiners. Only Jacobs’s claim against
Swalwell is currently before us.
3
asserted that County’s records showed Jacobs never presented such a claim,
“and it is far too late to do so.”
Second, Swalwell maintained the Act immunized him from liability.
Among other authorities, he cited Stearns v. County of Los Angeles (1969)
275 Cal. App. 2d 134 (Stearns), which held that the Act immunizes coroners
from liability for negligently performed autopsies. (Id. at p. 137.)
Jacobs opposed the demurrer. He maintained he had complied with the
Act by “fil[ing] a claim with the Government Codeent [sic] Claims
Department” on October 5, 2017. He insisted the claim was timely either
because it was based on a “continuous injury” that ended only when he was
released from prison, or because the filing deadline was tolled by his
“disability” of imprisonment. He did not cite any authority to support either
claim.
Jacobs also argued Swalwell was not immune because (among other
reasons) performing an autopsy does not fall within the scope of investigative
activity immunized by the Act.
For reasons not made clear in the appellate record, Jacobs filed a first
amended complaint substantively identical to his original complaint, except
that he increased his prayer for damages to $32 million (a $17 million
increase for lost income of $1 million per year for each of the 17 years he was
incarcerated).
Swalwell demurred to the first amended complaint on the same
grounds as before, but he added one additional ground—that “[t]he doctrine
of collateral estoppel bars this action” because Jacobs’s criminal conviction
conclusively established Jacobs murdered Wife.
Jacobs opposed the new demurrer on virtually identical grounds as the
original. Indeed, it appears he merely refiled his original opposition.
4
Consequently, Jacobs did not address Swalwell’s new collateral estoppel
argument.
After a hearing, the trial court sustained Swalwell’s demurrer on all
the grounds he asserted. First, the court found the first amended complaint
did “not include any allegations regarding whether . . . a claim was filed”
under the Act. Second, citing Stearns, supra, 275 Cal. App. 2d 134, the court
found that the Act immunized Swalwell against Jacobs’s claim for
professional negligence. Finally, the court found that Jacobs’s “claim is
collaterally estopped . . . because he was afforded a full opportunity to litigate
his case in criminal court and was convicted of a felony as a result.” The
court denied leave to amend because Jacobs “alleged wrongdoing dating back
to 1999,” and “the Court questions how possible, if at all, it is for [Jacobs] to
plead a cause of action, which survives another legal challenge.”
The trial court entered a judgment of dismissal in favor of Swalwell.
Jacobs appeals.
DISCUSSION
I. Demurrer Principles
“A demurrer tests the legal sufficiency of the factual allegations in a
complaint. We independently review the superior court’s ruling on a
demurrer and determine de novo whether the complaint alleges facts
sufficient to state a cause of action or discloses a complete defense.”
(Redfearn v. Trader Joe’s Co. (2018) 20 Cal. App. 5th 989, 996; see Loeffler v.
Target Corp. (2014) 58 Cal. 4th 1081, 1100.) “We assume the truth of the
properly pleaded factual allegations, facts that reasonably can be inferred
from those expressly pleaded and matters of which judicial notice has been
taken.” (Redfearn, at p. 996; see Zelig v. County of Los Angeles (2002)
27 Cal. 4th 1112, 1126.) “However, we are not required to accept the truth of
5
the legal conclusions pleaded in the complaint.” (Redfearn, at p. 996; see
Zelig, at p. 1126.) “We give the complaint a reasonable interpretation,
reading it as a whole and its parts in context.” (Mendoza v. Town of Ross
(2005) 128 Cal. App. 4th 625, 631.)
“We review the trial court’s result for error, not its legal reasoning.
[Citation.] If a proper ground exists for sustaining the demurrer, we affirm
‘even if the trial court relied on an improper ground, whether or not the
defendants asserted the proper ground in the trial court.’ [Citation.] On the
other hand, ‘[i]f the complaint shows entitlement to relief under any possible
legal theory, the trial court erred in dismissing the action.’ [Citation.] We
also may consider new legal theories presented on appeal.” (Fonteno v. Wells
Fargo Bank, N.A. (2014) 228 Cal. App. 4th 1358, 1365 (Fonteno).)
“In order to prevail on appeal from an order sustaining a demurrer, the
appellant must affirmatively demonstrate error. Specifically, the appellant
must show that the facts pleaded are sufficient to establish every element of
a cause of action and overcome all legal grounds on which the trial court
sustained the demurrer.” (Scott v. JPMorgan Chase Bank, N.A. (2013)
214 Cal. App. 4th 743, 752.)
“[W]hen [a demurrer] is sustained without leave to amend, we decide
whether there is a reasonable possibility that the defect can be cured by
amendment: if it can be, the trial court has abused its discretion and we
reverse; if not, there has been no abuse of discretion and we affirm.
[Citations.] The burden of proving such reasonable possibility is squarely on
the plaintiff.” (Blank v. Kirwan (1985) 39 Cal. 3d 311, 318.) “To satisfy that
burden on appeal, a plaintiff ‘must show in what manner he can amend his
complaint and how that amendment will change the legal effect of his
pleading.’ [Citation.] The assertion of an abstract right to amend does not
6
satisfy this burden.” (Rakestraw v. California Physicians’ Service (2000)
81 Cal. App. 4th 39, 43 (Rakestraw).) “Where the appellant offers no
allegations to support the possibility of amendment and no legal authority
showing the viability of new causes of action, there is no basis for finding the
trial court abused its discretion when it sustained the demurrer without
leave to amend.” (Id. at p. 44.)
II. Collateral Estoppel Bars Jacobs’s Claim
Swalwell asserted collateral estoppel in his demurrer to the first
amended complaint, yet Jacobs did not address the issue in his opposition.
The trial court sustained Swalwell’s demurrer on collateral estoppel grounds.
Still, Jacobs did not address the issue in his opening brief on appeal. It was
only in his reply brief on appeal that Jacobs finally argued he is not
collaterally estopped from asserting his claim. Unless good cause is shown
for failing to raise it sooner, “ ‘obvious reasons of fairness’ ” to the respondent
dictate that we not consider an argument raised for the first time in a reply
brief. (Reichardt v. Hoffman (1997) 52 Cal. App. 4th 754, 764; Feitelberg v.
Credit Suisse First Boston, LLC (2005) 134 Cal. App. 4th 997, 1004, 1022
[applying rule to appeal from judgment of dismissal following demurrer]; Las
Lomas Land Co., LLC v. City of Los Angeles (2009) 177 Cal. App. 4th 837, 855
[same].) Jacobs’s only explanation for not addressing collateral estoppel
sooner is that his opening brief charged the trial court with “committ[ing]
plain error.” This was insufficient to inform Swalwell before he filed his
respondent’s brief that Jacobs was contesting the trial court’s collateral
estoppel ruling. Accordingly, we will not consider Jacobs’s belated response
regarding collateral estoppel, and he has not met his burden of establishing
the trial court erred in sustaining Swalwell’s demurrer on this ground.
7
Even if we were to consider Jacobs’s belated arguments, we would find
them unpersuasive for several reasons. First, even in his reply brief, Jacobs
failed to address the legal authority Swalwell cited in his respondent’s brief,
Higginbotham v. King (1997) 54 Cal. App. 4th 1040 (Higginbotham). The
Higginbotham plaintiff—“a prominent eye surgeon” arrested for cultivating
marijuana—sued one of the arresting officers for making allegedly false
statements to a local newspaper that “created an immediate impression of
guilt for the crime . . . .” (Id. at pp. 1042-1043.) The trial court granted
summary judgment for the defense on the basis the plaintiff’s subsequent
criminal conviction collaterally estopped his civil claim. (Id. at p. 1043.) The
Court of Appeal affirmed, explaining:
“The doctrine of collateral estoppel bars appellant’s claim
that the pretrial publicity denied him a fair trial.
Appellant ‘was afforded a full opportunity to litigate the
issue of his guilt with all the safeguards afforded the
criminal defendant, and since he was charged with felonies
punishable in the state prison [citation], he had every
motive to make as vigorous and effective a defense as
possible. Under these circumstances, we hold that any
issue necessarily decided in a prior criminal proceeding is
conclusively determined as to the parties if it is involved in
a subsequent civil action.’ ” (Higginbotham, supra, 54
Cal.App.4th at p. 1044.)
Like the Higginbotham appellant, Jacobs “had every motive to make as
vigorous and effective a defense as possible” in his criminal case.
(Higginbotham, supra, 54 Cal.App.4th at p. 1044.) Indeed, as our prior
opinion in Jacobs I makes clear, Wife’s cause of death was vigorously
8
litigated in Jacobs’s criminal trial. (See Jacobs I, D035406;4 see also Jacobs
v. Cate (9th Cir. 2009) 313 Fed. Appx. 42, 45-46 (rejecting Jacobs’s habeas
corpus claim that his defense counsel performed ineffectively by “fail[ing] to
use certain articles and to challenge certain aspects of Dr. Swalwell’s autopsy
methodology”].)5 Collateral estoppel precludes Jacobs from now relitigating
under the preponderance-of-the-evidence standard the very same issue
(Wife’s cause of death) a jury previously rejected under the higher beyond-a-
reasonable-doubt standard.
Second, Jacobs fails to adequately explain how Brady v. Maryland
(1963) 373 U.S. 83 and other cases regarding criminal defendants’ procedural
rights in criminal cases have any bearing on the preclusive effect of a
criminal judgment in subsequent civil cases.
Finally, Jacobs misses the mark when he argues “the question of
liability and direct injury to [Jacobs] by [Swalwell] is a claim never before
presented.” This is not the issue Jacobs is collaterally estopped from
relitigating—Wife’s cause of death is. As the record and judicially noticeable
materials discussed above show, that issue was actually litigated in Jacobs’s
criminal case.
Thus, even if Jacobs had timely addressed collateral estoppel, we would
find his contentions unpersuasive.
4 For example, at pages 4, 10, and 23 through 26 of our opinion in
Jacobs I, we discuss some of the competing expert testimony regarding Wife’s
cause of death.
5 We deny Swalwell’s request that we take judicial notice of Jacobs’s
federal habeas corpus petition. It is unnecessary to our disposition of this
appeal.
9
III. Jacobs’s Claim is Barred by His Untimely Presentation of it Under the Act
The trial court sustained Swalwell’s demurrer on the additional basis
Jacobs’s first amended complaint did “not include any allegations regarding
whether . . . a claim was filed” under the Act. Although this specific finding
is technically incorrect—Jacobs checked boxes alleging he was “required to
comply” and had “complied with the applicable claims statutes”6—Jacobs’s
admissions in his opposition to the demurrer conclusively establish he failed
to timely present a claim. Thus, the trial court properly sustained Swalwell’s
demurrer. (See Fonteno, supra, 228 Cal.App.4th at p. 1365 [“If a proper
ground exists for sustaining the demurrer, we affirm ‘even if the trial court
relied on an improper ground, whether or not the defendants asserted the
proper ground in the trial court.’ ”].)7
Subject to exceptions not relevant here, “[s]uits for money or damages
filed against a public entity are regulated by [the Act].” (DiCampli-Mintz,
supra, 55 Cal.4th at p. 989; see § 905.) The Act likewise applies to claims
against “a public employee . . . for injury resulting from an act or omission in
the scope of his employment as a public employee . . . .” (§ 950.2.)
“Claims for personal injury and property damage must be presented
within six months after accrual; all other claims must be presented within a
6 “A plaintiff may allege compliance with the claims requirements by
including a general allegation that he or she timely complied with the claims
statute.” (Gong v. City of Rosemead (2014) 226 Cal. App. 4th 363, 374.)
7 Because we conclude Jacobs failed to timely present a claim under the
Act, we need not address the contested issue of whether he presented his
claim to the proper public entity. (See DiCampli-Mintz v. County of Santa
Clara (2012) 55 Cal. 4th 983, 991 (DiCampli-Mintz) [“The claimant bears the
burden of ensuring that the claim is presented to the appropriate public
entity.”].)
10
year.” (City of Stockton v. Superior Court (2007) 42 Cal. 4th 730, 738 (City of
Stockton); see § 911.2.) “ ‘[N]o suit for money or damages may be brought
against a public entity on a cause of action for which a claim is required to be
presented . . . until a written claim therefor has been presented to the public
entity and has been acted upon . . . or has been deemed to have been
rejected . . . .’ ” (City of Stockton, at p. 738, quoting § 945.4.) “The
legislature’s intent to require the presentation of claims before suit is filed
could not be clearer.” (City of Stockton, at p. 746.) Thus, “ ‘failure to timely
present a claim for money or damages to a public entity bars a plaintiff from
filing a lawsuit against that entity.’ ” (Id. at p. 738.)
Jacobs alleged in his first amended complaint that Swalwell performed
the challenged autopsy in 1999, and the record shows Jacobs was convicted of
Wife’s murder and sentenced to prison in early 2000. Thus, Jacobs’s claim
accrued no later than 2000, and the Act required him to present a pre-lawsuit
claim to County no later than 2001.8 Yet, Jacobs admitted in his opposition
to Swalwell’s demurrer that he first presented his claim in October 2017—
16 years too late. Accordingly, the Act precluded Jacob from bringing this
lawsuit, and the trial court properly sustained Swalwell’s demurrer.
As he did in the trial court, Jacobs argues on appeal that his deadline
for presenting his claim was tolled by his disability of imprisonment.9
8 We need not determine whether Jacobs’s claim is subject to the six-
month or one-year presentation deadline because his claim is obviously
untimely under either.
9 Jacobs does not raise on appeal the continuing-injury theory he
advanced in the trial court. We therefore do not consider it. (See Allen v.
City of Sacramento (2015) 234 Cal. App. 4th 41, 52 [“It is the responsibility of
the appellant, here plaintiffs, to support claims of error with meaningful
argument and citation to authority. [Citations.] When legal argument with
11
Specifically, he cites Code of Civil Procedure section 352.1, which provides for
limited tolling when a plaintiff’s claim accrues while he or she is in prison.10
Jacobs’s reliance on this statute is misplaced for several reasons.
First, by its own terms, Code of Civil Procedure section 352.1 “does not
apply to an action against a public entity or public employee upon a cause of
action for which a claim is required to be presented in accordance with [the
Act].” (Code Civ. Proc., § 352.1, subd. (b); see Moore v. Twomey (2004)
120 Cal. App. 4th 910, 914 [“The statute of limitations for commencing a
government tort claim action is not tolled by virtue of a plaintiff’s
imprisonment.”]; Rose v. Hudson (2007) 153 Cal. App. 4th 641, 656 [Code Civ.
Proc. § 352.1, subd. (b) “stat[es] the statute does not apply to actions for
which a governmental claim is required”].) As Jacobs acknowledges, his
claim is governed by the Act. Thus, Code of Civil Procedure section 352.1,
subdivision (a)’s tolling provision “does not apply.” (Code Civ. Proc., § 352.1,
subd. (b).)
Second, even if Jacobs were entitled to tolling under Code of Civil
Procedure section 352.1, the statute expressly provides that any such tolling
is “not to exceed two years.” (Code Civ. Proc., § 352.1, subd. (a), italics added.)
The cases Jacobs cites to support the proposition that tolling applies for the
entire period of imprisonment are inapposite because they were decided
citation to authority is not furnished on a particular point, we may treat the
point as forfeited and pass it without consideration.”].)
10 Code of Civil Procedure section 352.1, subdivision (a) states: “If a
person entitled to bring an action . . . is, at the time the cause of action
accrued, imprisoned on a criminal charge, or in execution under the sentence
of a criminal court for a term less than for life, the time of that disability is
not a part of the time limited for the commencement of the action, not to
exceed two years.”
12
under a predecessor statute that did not include the two-year limit. (See
Carlson v. Blatt (2001) 87 Cal. App. 4th 646, 649 [“Effective January 1, 1995,
the Legislature amended [Code of Civil Procedure] section 352 to delete the
tolling provision and added [Code Civ. Proc.] section 352.1 to limit the tolling
period to two years.”]; Ellis v. City of San Diego (9th Cir. 1999) 176 F.3d
1183, 1189 [although prior law “provided for unlimited tolling during
incarceration,” the “law was subsequently changed effective January 1, 1995,
to limit the period of tolling”]; Stats. 1994, ch. 1083 [“Existing law [provides
that] periods of limitation are tolled during the time that the person entitled
to bring [an] action is imprisoned on a criminal charge for a term less than
life. [¶] This bill would limit the tolling provision for prisoners to 2 years,”
italics added].)11 Thus, even with the limited tolling available under Code of
Civil Procedure section 352.1, Jacobs’s claim would still be at least 14 years
too late.
Because Jacobs failed to timely present his claim under the Act, he is
precluded from bringing this lawsuit. Accordingly, the trial court properly
sustained Swalwell’s demurrer on the basis Jacobs failed to comply with the
Act.
11 The following cases cited by Jacobs were decided under the predecessor
to Code of Civil Procedures section 352.1 (Code Civ. Proc., former § 352):
Martinez v. Gomez (9th Cir.1998) 137 F.3d 1124, 1125-1126; Grasso v.
McDonough Power Equipment, Inc. (1968) 264 Cal. App. 2d 597, 598;
Meraviglia v. Bovee (1931) 113 Cal. App. 752, 753; and Leeper v. Beltrami
(1959) 53 Cal. 2d 195, 208.
The only case Jacobs cited that was decided under Code of Civil
Procedure section 352.1 actually acknowledges the statute “does not apply to
negligence claims against public entities or public employees.” (Pimentel v.
County of Fresno (E.D.Cal. Feb. 1, 2011, No. 1:10-cv-01736-OWW-DLB) 2011
U.S. Dist.LEXIS 10117, at *20-21 [deciding the case under federal law].)
13
IV. The Act Immunizes Swalwell Against Jacobs’s Claim
Jacobs contends the trial court erred by sustaining the demurrer on the
additional ground that the Act immunizes Swalwell against Jacobs’s claim.
This contention lacks merit.
Section 821.6 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.” “Section 821.6 is not limited to the act of filing
a criminal complaint. Instead, it also extends to actions taken in preparation
for formal proceedings. Because investigation is ‘an essential step’ toward
the institution of formal proceedings, it ‘is also cloaked with immunity.’ ”
(Amylou R. v. County of Riverside (1994) 28 Cal. App. 4th 1205, 1209-1210.)
On remarkably similar facts, the court in Stearns, supra, 275
Cal. App. 2d 134 held that section 821.6 immunized a county coroner against
the plaintiff’s claim that a negligently performed autopsy led to the plaintiff
being wrongfully charged with his wife’s murder. (Stearns, at p. 136.) The
court reasoned the coroner’s performance of the autopsy “ ‘can be considered
as “instituting or prosecuting” a “judicial proceeding,” in that [his] behavior
provide[d] the first steps towards plaintiff’s arrest and incarceration and
clearly [was a] step[] involved in the “prosecution” of that proceeding.’ ” (Id.
at p. 137.)
We find the Stearns court’s reasoning persuasive. Accordingly, because
Jacobs alleges Swalwell’s negligent performance of Wife’s autopsy led to
Jacobs being wrongfully prosecuted for, and convicted of, Wife’s murder,
section 821.6 immunizes Swalwell against Jacobs’s claim.
Jacobs argues Stearns does not apply here because the Stearns plaintiff
sued for negligence and malicious prosecution, whereas Jacobs claims he
14
sued Swalwell for “false imprisonment,” which is expressly excepted from
immunity by section 820.4.12 Jacobs’s argument fails for several reasons.
First, like the plaintiff in Stearns, Jacobs did sue Swalwell for
negligence. Indeed, Jacobs’s lone cause of action in the first amended
complaint is denominated “Professional Negligence,” and the phrase is
repeated no fewer than seven times throughout the short pleading.
Second, beyond the mere label, the substance of Jacobs’s claim is more
consistent with the negligence and malicious prosecution immunized by
section 826.1 than it is with the false imprisonment excepted by section
820.4. This is borne out by Asgari v. City of Los Angeles (1997) 15 Cal. 4th
744 (Asgari), on which Jacobs heavily relies in attempting to distinguish
Stearns.
In Asgari, the plaintiff sued a police officer for false arrest,13 seeking
damages for the entire seven-month incarceration period from arrest to
acquittal. (Asgari, supra, 15 Cal.4th at pp. 748-749.) After the plaintiff
prevailed in his civil case, the California Supreme Court granted review to
clarify the boundaries between false arrest/imprisonment and malicious
prosecution. (Id. at p. 748.) The high court explained that because “ ‘[f]alse
arrest or imprisonment and malicious prosecution are mutually inconsistent
concepts’ ” (id. at p. 757), and because police officers can be held liable for the
12 Section 820.4 states: “A public employee is not liable for his act or
omission, exercising due care, in the execution or enforcement of any law.
Nothing in this section exonerates a public employee from liability for false
arrest or false imprisonment.” (Italics added.)
13 “ ‘ “[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.)
15
former but not the latter (id. at p. 752), the natural delineating point between
the doctrines is the commencement of legal proceedings (id. at p. 748).
Thus, under Asgari, a police officer can be held liable for false arrest for
making an unlawful arrest (e.g., one without a warrant or probable cause).
(Asgari, supra, 15 Cal.4th at p. 757.) “But the officer would enjoy absolute
immunity if, instead of arresting the suspect, the officer proceeded directly to
the prosecutor and maliciously and knowingly provided false information
that led to the filing of criminal charges. Such conduct would constitute
malicious prosecution, and the officer would enjoy absolute immunity from
liability under section 821.6.” (Id. at p. 759.) “A police officer also would be
immune from liability if the officer lawfully arrested a suspect, but thereafter
maliciously and knowingly provided the prosecutor with false information
that led to the filing of criminal charges against the suspect.” (Ibid.) In
essence, false-arrest liability arises from participation in the arrest, whereas
malicious-prosecution immunity arises from participation in the subsequent
criminal prosecution.
The gravamen of Jacobs’s claim against Swalwell is not false arrest (for
which Swalwell could be held liable), but malicious prosecution (from which
Swalwell is immune). That is, Jacobs does not allege that his arrest was
unlawful or that Swalwell participated in it in any manner. Instead, Jacobs
complains about Swalwell’s participation in Jacobs’s subsequent criminal
prosecution. For example, in his appellant’s reply brief, Jacobs describes his
claim against Swalwell as “stemming from . . . Swalwell manufacturing
evidence of strangulation” and “proffer[ing] testimony at the trial . . .
affirming or validating the false evidence.” Jacobs further asserts “the
prosecutor’s decision [to pursue Jacobs] was based largely, if not exclusively,
on the false evidence created by [Swalwell.]” Stated differently, Jacobs
16
maintains “the proximate cause of [his] false imprisonment . . . was the
creation and presentation of the false evidence by [Swalwell].” This alleged
conduct constitutes malicious prosecution, from which Swalwell is immune
under section 826.1. (See Asgari, supra, 15 Cal.4th at p. 759 [officer would be
immune for “maliciously and knowingly provid[ing] false information that led
to the filing of criminal charges”].)
Accordingly, the trial court properly sustained Swalwell’s demurrer on
immunity grounds under the Act.
V. No Abuse of Discretion in Denying Leave to Amend
When the trial court sustained Swalwell’s demurrer without leave to
amend, the court observed that because Jacobs’s claim “alleged wrongdoing
dating back to 1999, . . . the Court questions how possible, if at all, it is for
[Jacobs] to plead a cause of action, which survives another legal challenge.”
Jacobs has not shown this was an abuse of discretion. For example, he offers
no explanation of how he would overcome the fact that his claim was
untimely by 14 to 16 years. Nor does he explain how he would overcome
Swalwell’s statutory immunity under the Act. It is insufficient for Jacobs to
merely assert he can state a claim without addressing these specific
deficiencies. (Rakestraw, supra, 81 Cal.App.4th at p. 43 [“[A] plaintiff ‘must
show in what manner he can amend his complaint and how that amendment
will change the legal effect of his pleading.’ [Citation.] The assertion of an
abstract right to amend does not satisfy this burden.”].) Accordingly, the trial
court did not abuse its discretion in denying Jacobs leave to amend.
17
DISPOSITION
The judgment is affirmed. Jacobs to pay Swalwell’s costs on appeal.
HALLER, Acting P. J.
WE CONCUR:
O’ROURKE, J.
IRION, J.
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