GILLAN v.CITY OF SAN MARINO

Filed 1/25/07 Modified and certified for publication 2/21/07 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEALS from a judgment and orders of the Superior Court of Los Angeles County, Robert H. OBrien, Judge. Judgment reversed with directions, order denying motion for judgment notwithstanding the verdict affirmed in part and reversed in part, and order awarding attorney fees reversed.

Cihigoyenetche, Grossberg & Clouse, Scott J. Grossberg, Richard R. Clouse, Amy von Kelsch-Berk, Angelica Arias; Pollak, Vida & Fisher, Girard Fisher, Michael M. Pollak and Daniel P. Barer for Defendants and Appellants.

Law Offices of John Burton and John Burton for Plaintiff and Respondent.

The City of San Marino and three current or former police officials appeal a judgment after a jury trial, the denial of their motion for judgment notwithstanding the verdict, and a postjudgment order awarding attorney fees.[1] The judgment holds them liable for depriving Patrick Gillan of his rights in violation of Civil Code section 52.1, defamation, and intentional infliction of emotional distress, all in connection with Gillans detention for the alleged sexual molestation of a minor. The defendants contend there was probable cause to arrest Gillan and contend they are immune from liability for defamation and intentional infliction of emotional distress in these circumstances. We conclude that there was no probable cause to arrest Gillan and thus he may recover on his Civil Code section 52.1 claim. Defendants, however, are immune from liability for defamation and intentional infliction of emotional distress, but they are not immune from liability for violation of Civil Code section 52.1 based on a false arrest. We conclude further that the defendants are entitled to a new trial to determine the amount of compensatory damages.

FACTUAL AND PROCEDURAL BACKGROUND

1. Accusation and Arrest

A former member of the high school girls basketball team told her psychiatrist in the autumn after her graduation that Gillan, the team coach, had sexually harassed her during her senior year. She also told her mother and her college basketball coach at about the same time. The psychiatrist immediately called the child protection hotline of the Los Angeles County Department of Children and Family Services and then called the City of San Marino police department. The psychiatrist later filed a report of suspected child abuse with the Department of Children and Family Services. After learning that the matter had been reported to the police, the accusers mother called Sergeant Street, whose daughter had played on the same high school basketball team and whom both the accuser and her mother knew, and arranged for the accuser to make her statement to Sergeant Street.

Sergeant Street and another officer interviewed the accuser at the police station on December 13, 2001. The police recorded the interview. The accuser described several incidents of groping and other unwanted sexual contact in or about the high school gym and one incident in a hotel room in Palm Springs where the team was attending a tournament. Sergeant Street arranged for the accuser to wear a listening device and confront Gillan with her accusations.

The accuser approached Gillan the next day in the high school gym after a game and asked to talk with him in private outside. She stated that she needed to come to terms with the touching and things like that that allegedly had occurred the prior year. Gillan stated, Touching? What do you mean? After further discussion, Gillan asked for a specific example of what she was talking about. She stated, Like one time Im at practice and you come from behind me and you put your hand down my shorts. Gillan responded by addressing her by name and stating, Im not even going to respond to that. He stated further: You made that up. You made that up. I have never done that. The police recorded the conversation.

The police also recorded a telephone call from the accuser to Gillan later that evening, on December 14, 2001. The accuser stated that she need[ed] help in order to get some solutions, some closure. Gillan responded: Ive already called people at San Marino. Ive warned them whats going on. Because youre obviously going after me. The accuser stated that she wanted to discuss what had happened, and Gillan responded, It didnt happen. Gillan asked her to tell him what specifically had happened. She provided some specifics, and he denied them.

Gillan called an attorney, David Pierce, whose children attended the same high school and who also coached at the school. Gillan met with Pierce at the school on December 15, 2001, and Sergeant Street happened upon Pierce as he was leaving the meeting. Sergeant Street spoke with Pierce about the accusations and asked if Gillan would voluntarily submit to a police interview. Pierce stated that he was a civil attorney and would refer Gillan to a criminal attorney before responding to Sergeant Streets request. Meanwhile, the police interviewed the accuser again at her home on December 15 and concluded that her story was consistent. Pierce informed Sergeant Street on December 17, 2001, that Gillan would not submit to an interview.

Sergeant Street and the accuser met with a deputy district attorney on December 17, 2001. The deputy district attorney interviewed the accuser, but was not provided with the recordings. Sergeant Street also spoke with the supervisor of the deputy district attorney and informed the supervisor that the police intended to arrest Gillan later that day and immediately release him pursuant to Penal Code section 849, subdivision (b)(1).[2] The purposes of detaining Gillan in that manner were to publicize the arrest and invite any additional accusers to step forward, and to obtain his fingerprints and photograph to assist in the investigation. The high school principal informed Gillan that he was suspended with pay pending the investigation and relayed a request from the police for Gillan to turn himself in at the police station.

Gillan arrived at the police station at 2:00 p.m. on Monday, December 17, 2001, as requested. Pierce met him there. Gillan was booked, fingerprinted, and photographed. The police did not attempt to interview him. After one hour, the police provided Gillan with a document entitled Detention Certificate and released him. The detention certificate stated that he was released pursuant to Penal Code section 849, subdivision (b)(1) and that his taking into custody was only a detention, and not an arrest.

2. Press Release and News Briefing

The police department prepared a press release and provided it to a news service after Gillan was released. The press release stated: The San Marino Police Department has arrested a school employee on sexual molestation charges alleged to have occurred against a student. [] The investigation has widened to include a second school district in Los Angeles County. [] The assistance of the media is greatly appreciated in the event there are additional victims yet to be identified. The press release also announced a press briefing to take place on December 18, 2001.

Lieutenant Petersen read a prepared statement at the press briefing. The statement identified Gillan by name and stated that he had been arrested and booked for violation of Penal Code section 220, assault with intent to commit a felony. It stated that it was alleged that Gillan had sexually molested a member of last years girls basketball team on several occasions, that the alleged victim was 17 years old at the time, that Gillan had previously coached at another high school, and that this is an ongoing investigation during which time we are trying to determine weather [sic] or not we have any additional victims. It stated further that Gillan was released from custody while we continue to investigate this matter. Petersen also stated to a reporter that the police had supporting evidence, and the Los Angeles Times reported that statement. Other local newspapers also printed stories on the accusations.

3. Further Investigation and Decision Not to Prosecute

Further investigation revealed no additional accusers, witnesses, or significant corroborating evidence. On or about February 8, 2002, the district attorney declined to prosecute citing lack of sufficient corroboration. The high school principal informed Gillan that he could return to work in a few days. Gillan returned to his job coaching the girls basketball team on February 14, 2002, which was after the season but during the playoffs.

4. Trial Court Proceedings

Gillan filed a complaint against the city, police chief Farris, Lieutenant Petersen, Sergeant Street, and others in May 2002.[3] The operative second amended complaint filed in September 2002 alleges that Gillans accuser and her mother fabricated the accusations against him, that the uncorroborated accusations were not reasonably believable, that the police arrested him without probable cause before conducting a reasonable investigation, and that the defendants made false and defamatory statements about him to the press. The complaint alleges counts against the city and police officials for violation of Civil Code section 52.1, defamation, invasion of privacy, and intentional infliction of emotional distress.

The city and the individual defendants demurred to each count alleged against them in the second amended complaint based on the immunity provided by Government Code section 821.6. The court overruled the demurrer. The same defendants moved for summary judgment or summary adjudication, arguing with respect to the count for violation of Civil Code section 52.1 that there was probable cause for the arrest, and arguing that they were immune from liability for the other counts under Government Code section 821.6. The court denied the motion. The defendants challenged the denial of their motion for summary judgment or summary adjudication by petitioning this court for an extraordinary writ. We denied the petition in April 2004 (case No. B174330).

Gillan dismissed his count for invasion of privacy before opening statements. The court instructed the jury on the counts for violation of Civil Code section 52.1, defamation, and intentional infliction of emotional distress. The court also instructed that the court would determine whether there was probable cause to arrest Gillan.

The jury returned a special verdict on January 20, 2005, finding with respect to the first count that (1) the individual defendants did not reasonably believe [the accusers] statements before the arrest; (2) the individual defendants did not reasonably disbelieve Gillans denials of those accusations as expressed by Gillan in the recordings; (3) the individual defendants did not reasonably believe there were sufficient grounds to file a criminal complaint with the District Attorneys office before they arrested plaintiff; (4) the individual defendants did not reasonably believe there were sufficient grounds to file a criminal complaint with the District Attorneys office at the time they released plaintiff; (5) the individual defendants did not intend, prior to the arrest, to release plaintiff without arresting him if he talked to them about [the accusers] statements; (6) the individual defendants did not reasonably believe plaintiff would talk to them if he were arrested; (7) Gillan was harmed by the arrest; (8) the acts of each of the three individual defendants were a substantial factor in causing the harm; (9) each of the individual defendants violated plaintiffs rights secured by the Constitution or laws of the United States or California; (10) Gillan was harmed by the violation; and (11) the acts of each of the individual defendants was a substantial factor in causing the harm. The jury also found that each of the defendants had defamed Gillan and intentionally inflicted emotional distress upon him and that Lieutenant Petersen and Sergeant Street acted with malice or oppression. The jury found that Gillans total compensatory damages, undifferentiated by count, were $4,453,000, including $1,937,000 for [p]ast loss and $2,516,000 for [f]uture loss.

The court in a written ruling filed on January 20, 2005, found that the defendants had no probable cause to arrest Gillan at the time of the arrest. The court reasoned that if the defendants believed at the time of the arrest that there was insufficient evidence to make a criminal complaint against Gillan, as stated in the detention certificate, they could not have believed that there was probable cause to arrest him. The court concluded that the defendants misused Penal Code section 849 by arresting Gillan for purposes other than instituting a proper criminal complaint or chargeit was used as an investigative tool without a good faith belief there were sufficient grounds to file a criminal complaint. The court concluded that the defendants arrested Gillan for an improper purpose and stated: The improper reasons for the arrest at the time it was made before the investigation was completed, far outweigh the general rule that law enforcement officers may rely on a victims statements in making an arrest. . . . Had defendants simply concluded that [the accusers] statements were credible without going through their improper 849 process, a different result might have been reached. But, they tainted the arrest by their 849 actions and contradicted themselves as to their belief of whether there was sufficient grounds to make a criminal complaint. The court stated further: Defendants had no compelling reason to arrest before they did a thorough investigation. There was no threat of flight, no imminent harm, no exigent circumstances and no other information on plaintiff compelling the arrest at that time.

The jury awarded a total of $16,430 in punitive damages against Lieutenant Petersen and Sergeant Street in the second phase of trial. The court entered a judgment on January 25, 2005, awarding Gillan $4,453,000 in compensatory damages against the four defendants jointly and severally, and awarding a total of $16,430 in punitive damages against Lieutenant Petersen and Sergeant Street.

The defendants moved for judgment notwithstanding the verdict arguing with respect to the first count that the information known to them at the time of the arrest, considered objectively, created probable cause regardless of their subjective motive in making the arrest. They also argued with respect to the counts for defamation and intentional infliction of emotional distress that they were immune from liability under Government Code sections 821.6 and 820.2. The court denied the motion. In its ruling, the court acknowledged that an arresting officers state of mind ordinarily is irrelevant to the determination of probable cause to arrest, but stated that in this case an analysis of probable cause in its purest sense was inappropriate because the abusive application of [Penal Code]  849 . . . taints the entire arrest procedure. The court stated with respect to Government Code section 821.6: The press release was part of the planned effort against plaintiff without probable cause and was done solely for the purpose of exposing plaintiff to public scrutiny in hopes of obtaining victims of his alleged proclivities to come forward. The press conference was conducted after defendants had certified that there were insufficient grounds to hold him under arrest or make a criminal complaint.  821.6 is designed to protect public employees from entities malicious prosecution actions--that is, it provides immunity when a public employee initiates or procures an arrest and prosecution under lawful process but with malicious motive and without probable cause. The court has determined that the  849 process was not lawful and that process was the foundation for the planned publicity event the following day. Thus, once again defendants abuse of  849 taints their entire planned efforts against plaintiff and their further abuse of the press conference is unprotected by any of the asserted immunities.

The court also denied the defendants motion for a new trial based on excessive damages and other grounds. The court awarded Gillan $1,042,456.50 in attorney fees under Civil Code section 52.1, subdivision (h) in a minute order dated May 12, 2005. The defendants appealed the judgment and the order denying their motion for judgment notwithstanding the verdict (case No. 182979) and separately appealed the order awarding attorney fees (case No. 183592). We have consolidated the two appeals.

CONTENTIONS

The defendants contend (1) they had probable cause to arrest Gillan based on the accusers statements and reports by others who interviewed her; (2) Government Code sections 821.6 and 820.2 immunize them from liability for violation of Civil Code section 52.1, defamation, and intentional infliction of emotional distress; (3) if the immunity applies to only the counts for defamation and intentional infliction of emotional distress, the defendants are entitled to a new trial on damages caused by the false arrest; and (4) we must reverse the attorney fee award if we reverse the judgment.

DISCUSSION

1. Standard of Review

A party is entitled to a judgment notwithstanding the verdict on a timely motion if there is no substantial evidence to support the verdict and the evidence compels a judgment for the moving party as a matter of law. (Code Civ. Proc.,  629; Clemmer v. Hartford Insurance Co. (1978) 22 Cal.3d 865, 877-878.) If the motion challenges the sufficiency of the evidence to support the verdict, we review the ruling under the substantial evidence standard. (Clemmer, supra, at pp. 877-878; Shapirov.Prudential Property & Casualty Co. (1997) 52 Cal.App.4th 722, 730.) If the motion presents a legal question based on undisputed facts, however, we review the ruling de novo. (Trujillo v. North County Transit Dist. (1998) 63 Cal.App.4th 280, 284.) If we determine that the trial court denied a motion for judgment notwithstanding the verdict that should have been granted, we must order the entry of judgment in favor of the moving party. (Code Civ. Proc.,  629.)

2. There Was No Probable Cause to Arrest Gillan

The first count in the second amended complaint is labeled violation of Civil Code section 52.1, commonly known as the Bane Act. Section 52.1 establishes a private right of action for damages and other relief against a person who interferes by threats, intimidation, or coercion, or attempts to so interfere, with the exercise or enjoyment of a individuals constitutional or other legal right. (Id., subds. (a), (b).) The court instructed the jury that the three counts against the defendants were for violation of Civil Code section 52.1, defamation, and intentional infliction of emotional distress, and instructed on the elements of Civil Code section 52.1 (BAJI No. 7.90). The court also separately instructed on the elements of false arrest (CACI No. 1401) and indicated that the basis for the alleged Bane Act violation was an arrest without probable cause. The special verdict form included questions as to what the defendants reasonably believe[d] at the time of the arrest, as we have stated, but the court reserved for itself the question whether there was probable cause for the arrest. The essential basis for the first count is an arrest without probable cause.

 Probable cause exists when the facts known to the arresting officer would persuade someone of reasonable caution that the person to be arrested has committed a crime. [Citation.] [P]robable cause is a fluid conceptturning on the assessment of probabilities in particular factual contexts . . . . (Illinois v. Gates (1983) 462 U.S. 213, 232 [76 L.Ed.2d 527, 103 S.Ct. 2317].) It is incapable of precise definition. (Maryland v. Pringle (2003) 540 U.S. 366, 371 [157 L.Ed.2d 769, 124 S.Ct. 795].)  The substance of all the definitions of probable cause is a reasonable ground for belief of guilt,  and that belief must be particularized with respect to the person to be . . . seized. (Ibid.) [Citation.] (People v. Thompson (2006) 38 Cal.4th 811, 818.)   [S]ufficient probability, not certainty, is the touchstone of reasonableness under the Fourth Amendment.  (Maryland v. Garrison (1987) 480 U.S. 79, 87 [94 L.Ed.2d 72, 107 S.Ct. 1013].) (Id. at p. 820.) Upon proof that an arrest and confinement occurred without process and that the plaintiff was damaged, the defendant has the burden of persuasion to prove that the arrest was justified. (Cervantez v. J. C. Penney Co. (1979) 24 Cal.3d 579, 592 & fn. 7.)

Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis. (Whren v. U.S. (1996) 517 U.S. 806, 813.) Probable cause is measured by an objective standard based on the information known to the arresting officer, rather than a subjective standard that would take into account the arresting officers actual motivations or beliefs. (Johnson v. Lewis (2004) 120 Cal.App.4th 443, 454.) The arresting officers actual motivations or beliefs should play no role in the courts determination of probable cause. (Ibid.)

California courts generally distinguish police informers, who may be implicated in criminal activity and may expect to receive a personal benefit as a result of providing information, from victims and chance witnesses of crimes who volunteer information. (Humphrey v. Appellate Division (2002) 29 Cal.4th 569, 575-576; People v. Ramey (1976) 16 Cal.3d 263, 269.) It may . . . be stated as a general proposition that private citizens who are witnesses to or victims of a criminal act, absent some circumstance that would cast doubt upon their information, should be considered reliable. (Ramey, supra, at p. 269.) Information provided by a crime victim or chance witness alone can establish probable cause if the information is sufficiently specific to cause a reasonable person to believe that a crime was committed and that the named suspect was the perpetrator. (Ibid.) [N]either a previous demonstration of reliability nor subsequent corroboration is ordinarily necessary when witnesses to or victims of criminal activities report their observations in detail to the authorities. (Ibid.)

TO BE CONTINUED AS PART II.

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[1] The individual appellants are police chief Arl Farris, former Lieutenant Christopher Petersen, and former Sergeant Eugene Street.

[2] Penal Code section 849, subdivision (b) states: Any peace officer may release from custody, instead of taking such person before a magistrate, any person arrested without a warrant whenever: [] (1) He or she is satisfied that there are insufficient grounds for making a criminal complaint against the person arrested. Section 849.5 states: In any case in which a person is arrested and released and no accusatory pleading is filed charging him with an offense, any record of arrest of the person shall include a record of release. Thereafter, the arrest shall not be deemed an arrest, but a detention only.

[3] Gillan dismissed the defendants other than the appellants herein, including the accuser and her mother, before trial.