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

STORY CONTINUED FROM PART I..

We conclude, based on our independent review of the record, that the information provided by the accuser lacked sufficient indicia of reliability with respect to the alleged sexual molestation. Some of the accusations were generalized and not specific as to time, date, or other details, including claims of touching in the gym. Other accusations concerning more specific events either lacked sufficient detail or were inconsistent in the details provided. In her initial police interview on December 13, 2001, which was recorded, the accuser stated that the first incident of sexual harassment occurred during the summer in a hotel room in Palm Springs, where the team was participating in a tournament. She stated that while they were sitting on a bed discussing basketball, Gillan put his hand on her thigh and moved his hand up to her crotch, that she moved away, and that he then moved closer to her, stroked her hair, and kissed her neck. She stated that she told him, I gotta go. and left. Describing the same incident later in the same interview, however, she did not state that he touched her crotch, and when questioned about it stated, There were times where he actually did get down my gym shorts, you know. but Not this time.

She stated in the initial interview that the next incident occurred during the summer on the day before a game in which he berated her as worthless. She stated that after engaging her in small talk, Gillan touched her through her clothes as she stood against a wall inside a room. She could not recall which room it was: It could have been--in the big gym, that dressing room. His office maybe. Sorry, I cant give you the exact details. When Sergeant Street asked her to be more specific as to what occurred on that occasion, she reverted to generalizations: I mean its always kind of the same. He would always just touch me. In this instance--humm--I cant just be so specific. He always grabbed my breasts, always felt those, and then moved down and sometimes feel my butt. And I believe he went to my crotch that time. Umm--its just that--it was always the same.

She stated in the initial interview that Gillans first attempt to orally copulate her occurred during winter break after Christmas. She stated that she was sitting on a bench in the gym and asked Gillan for the key to the gym so she could practice. She stated that Gillan sat next to her and that when she told him of her anxiety on game days, he touched her as if to comfort her, removed the tip of his penis from his pants, and placed her hand on his penis. She stated that when she resisted, he pushed her head down toward his crotch, but that she managed to break away and leave. Sergeant Street asked if Gillan threatened her at that time not to tell anybody. She responded, Not at that particular time, no. Later in the same interview, however, when asked when Gillan first threatened her not to tell anybody, she stated, I think it was like after the first time he tried to get me to go down on him.

The accuser also stated in the initial interview that Gillan approached her in the girls locker room before Christmas, reached under her shorts from behind, and touched her vaginal area through her underwear. She then stated that the incident did not occur in the girls locker room but in a different room known as the team room. She stated that Gillans second attempt to orally copulate her occurred in January in the girls locker room after school. She stated that Gillan made her sit down, sat down next to her, put her hand on his thigh, unbuttoned his pants, and put her hand on his penis. She stated that he then forced her head down into his lap and that she turned her head away. She stated that when she managed to break away and got up to leave, he hit her with the back of his hand. She also described other alleged incidents of unwanted touching. She repeatedly expressed her strong antipathy toward Gillan based on his treatment of her as a player on the basketball team apart from the alleged sexual harassment.

The police did not audio record the second interview, but produced a written report describing the details of 10 purported incidents based on information obtained in both interviews. The information in the report differed from that provided in the initial interview in that the report stated that the second incident occurred on the day after the game in which Gillan berated the accuser, rather than the day before the game as stated in the initial interview. The report also stated that Gillans first attempt to orally copulate her occurred in the gym at the beginning of the season in October, rather than during winter break after Christmas as she had stated before. The report also stated that the Gillan placed his hand inside the accusers shorts in the girls locker room, rather than the team room.

Other information known to the police at the time of Gillans detention included the suspected child abuse report by the accusers psychiatrist, the recording of the conversation between Gillan and the accuser outside the gym, and the recording of their telephone conversation the following day. The suspected child abuse report of information provided by the accuser, although generally consistent with the information provided in the initial interview, provided few details. The two recordings did not suggest any consciousness of guilt or any attempt to silence the accuser, but only vehement denials and disbelief. Sergeant Street also received a phone call from a vice principal at the school who told him that she was skeptical of the accusations against Gillan and that the other coaches felt the same way.

We conclude, as did the jury, based on the totality of the circumstances, that the information known to the police at the time of Gillans detention was not sufficiently consistent, specific, or reliable to cause a reasonable person to believe the accusations of sexual molestation. This is true particularly in light of the exculpatory nature of Gillans statements in the recordings and the comments by the vice principal, and the accusers strong antipathy toward Gillan based on his treatment of her as a player on the team. We therefore conclude that there was no probable cause to detain Gillan based on the accusations.[1]

3. Government Code Section 821.6 Provides a Complete Defense to the

Counts for Defamation and Intentional Infliction of Emotional Distress

but Is Not a Defense to the Count for Violation of Civil Code Section 52.1

A public employee acting within the scope of employment is immune from liability for an injury caused by the employees instituting or prosecuting any judicial or administrative proceeding . . . even if he acts maliciously and without probable cause. (Gov. Code,  821.6.)[2] 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. (Ingram v. Flippo (1999) 74 Cal.App.4th 1280, 1293; Cappuccio, Inc. v. Harmon (1989) 208 Cal.App.3d 1496, 1500‑1501; Randle v. City and County of San Francisco (1986) 186 Cal.App.3d 449, 457.)

Government Code section 821.6 immunizes not only the act of filing or prosecuting a judicial or administrative complaint, but also extends to actions taken in preparation for such formal proceedings. (Amylou R. v. County of Riverside (1994) 28 Cal.App.4th 1205, 1209-1210.) An investigation before the institution of a judicial proceeding is part of the prosecution of a judicial proceeding for purposes of the statute, even if the authorities later decide not to file charges. (Ingram v. Flippo, supra, 74 Cal.App.4th at p. 1293; Amylou R., supra, at pp. 1209-1211.) Acts undertaken in the course of an investigation, including press releases reporting the progress or results of the investigation, cannot give rise to liability. (Ingram, supra, at p. 1293 [held that statements concerning an investigation that were made in a press release were part of the prosecution process and therefore immune]; Amylou R., supra, at pp. 1210‑1211 [held that statements made to the plaintiff in the course of an investigation were incidental to the investigation and therefore immune].) The immunity applies even if the officers abused their authority. (Randle v. City and County of San Francisco, supra, 186 Cal.App.3d at pp. 456‑457.)

Immunity under Government Code section 821.6 is not limited to claims for malicious prosecution, but also extends to other causes of action arising from conduct protected under the statute, including defamation and intentional infliction of emotional distress. (Kayfetz v. State of California (1984) 156 Cal.App.3d 491, 492 [defamation]; Kemmerer v. County of Fresno (1988) 200 Cal.App.3d 1426, 1435-1437 [intentional infliction of emotional distress].) Section 821.6, however, provides no immunity from liability for false arrest or false imprisonment.[3] (Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 719-722.) The California Supreme Court in Sullivan concluded based on the statutory language and legislative history that section 821.6 was not intended to change the common law rule, preserved in Government Code section 820.4, that a public employee can be liable for false imprisonment.[4] (Sullivan, supra, at pp. 719-722.)

Although a public employee, and his or her public entity employer (Gov. Code,  815, subd. (a)), can be liable for false imprisonment, the recoverable damages are limited to damages for injuries caused by conduct that occurred during the period of false imprisonment. Government Code section 821.6 precludes the recovery of damages for injuries caused by conduct that occurred after the false imprisonment had ended, even if that conduct was causally related to the false imprisonment. (Asgari v. City of Los Angeles, supra, 15 Cal.4th at pp. 754-758.)

The plaintiff in Asgari was falsely imprisoned for seven days until he was arraigned on a felony charge. He then remained in prison until he was acquitted at trial seven months later. (Asgari v. City of Los Angeles, supra, 15 Cal.4th at pp. 751, fn. 2 & 757) Asgari rejected the federal rule from Smiddy v. Varney (9th Cir. 1981) 665 F.2d 261 allowing the recovery of damages for injuries caused by incarceration after the time a false imprisonment ends and imprisonment under lawful process begins unless the institution of criminal charges breaks the chain of causation. (Asgari, supra, at pp. 754‑760.) Asgari distinguished false imprisonment, defined as the unlawful violation of the personal liberty of another . . .   . . .   without lawful privilege,   from malicious prosecution, which consists of initiating or procuring the arrest and prosecution of another under lawful process, but from malicious motives and without probable cause. . . .     (Asgari, supra, at p. 757, citations omitted.) Asgari concluded that the plaintiffs false imprisonment ended when he was arraigned on a felony charge because his confinement from that time forward was pursuant to lawful process. (Ibid.) Asgari concluded further that Government Code section 821.6 precluded the recovery of damages for injuries caused by the plaintiffs incarceration after his arraignment on formal charges. (Asgari, supra, at p. 758.) [P]ermitting an arrestee to recover damages arising from incarceration following his or her arraignment on formal charges effectively would nullify, in part, the statutory immunity for malicious prosecution. (Id. at p. 758, fn. 10.) Asgari stated that it would be absurd if an officer who falsely arrested a suspect and then knowingly provided false information to the prosecutor could be liable for damages arising from the entire period of incarceration, but the same officer providing the same false information would be absolutely immune from liability if he proceeded directly to the prosecutor and the malicious prosecution were not preceded by a false arrest. (Id. at pp. 758-759.) Thus, Asgari establishes that conduct that is immunized under section 821.6 cannot give rise to liability for damages due to a prior false arrest.

The evidence here shows that the press releases and other public statements by the individual defendants were made in the course of their investigation of a purported crime and in furtherance of the investigation. Regardless of whether those statements were reasonable and appropriate, on the one hand, or made maliciously as part of a baseless threatened prosecution, on the other hand, we conclude based on the authorities we have cited that the individual defendants are immune from liability for defamation or intentional infliction of emotional distress based on those statements pursuant to Government Code section 821.6.[5] The city also therefore is immune from liability on those counts arising from the acts of the individual defendants. (Id.,  815.2, subd. (b).)[6]

The count for violation of Civil Code section 52.1 is based on an arrest without probable cause, as we have stated. Because Government Code section 821.6 provides no immunity from liability for false arrest or false imprisonment (Sullivan v. County of Los Angeles, supra, 12 Cal.3d at pp. 719-722), section 821.6 provides no immunity from liability under Civil Code section 52.1 based on an arrest without probable cause. OToole v. Superior Court (2006) 140 Cal.App.4th 488, cited by the defendants, is not on point. The plaintiffs in that case alleged that the defendants violated Civil Code section 52.1 by enforcing a permit restriction that unduly restricted their right of free speech. (OToole, supra, at p. 497.) OToole held that Government Code section 820.6, which provides immunity for public employees acting in good faith under the apparent authority of an enactment that is unconstitutional, invalid, or inapplicable, applied. OToole explained that a statutory immunity generally overrides a statutory liability absent a clear indication of a legislative intent to the contrary, and found no indication that the Legislature intended to override or create an exception to the immunity provided by Government Code section 820.4. (OToole, supra, at p. 504.) Here, in contrast, the California Supreme Court has determined that Government Code section 821.6 was not intended to protect public employees from liability for false arrest or false imprisonment. (Sullivan, supra, at pp. 719-722.)

4. Government Code section 820.2 Provides No Defense to the Count for

Violation of Civil Code Section 52.1

Government Code section 820.2 states: Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused. The statute was intended to restate the common law immunity for discretionary acts within the scope of public employment. (Caldwell v. Montoya (1995) 10 Cal.4th 972, 980.) The immunity does not apply to all acts by public employees within the literal meaning of the term discretionary. Rather, the immunity is more limited. (Caldwell, supra, at p. 981.)

A workable definition of immune discretionary acts draws the line between planning and operational functions of government. (Johnson [v. State of California (1968)] 69 Cal.2d [782,] 793, 794.) Immunity is reserved for those basic policy decisions [which have] . . . been [expressly] committed to coordinate branches of government, and as to which judicial interference would thus be unseemly. (Id. at p. 793, italics in original.) Such areas of quasi-legislative policy-making . . . are sufficiently sensitive (id. at p. 794) to call for judicial abstention from interference that might even in the first instance affect the coordinate bodys decision-making process (id. at p. 793). (Caldwell v. Montoya, supra, 10 Cal.4th at p. 981, brackets added by Caldwell.)

The decision to arrest Gillan was not a basic policy decision, but only an operational decision by the police purporting to apply the law. The immunity provided by Government Code section 820.2 therefore does not apply.

5. The Defendants Are Entitled to a New Trial on Compensatory Damages

An error is prejudicial and results in a miscarriage of justice only if the reviewing court concludes, based on its review of the entire record, that it is reasonably probable that a result more favorable to the appellant would have been reached absent the error. (Cassim v. Allstate Ins. Co. (2004) 33 Cal.4th 780, 800.) The giving of a jury instruction not supported by the evidence is prejudicial only when it appears probable that the improper instruction misled the jury and affected the verdict. (Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1213.) The court here instructed the jury on defamation and intentional infliction of emotional distress, including the measure of damages for past and future losses, despite the statutory immunity provided by Government Code section 821.6. This was error. The defendants did not invite the error by proposing those instructions after their unsuccessful attempts to defeat those counts by demurrer and summary adjudication. (Mary M. v. City of Los Angeles (1991) 54 Cal.3d 202, 212‑213; Horsemens Benevolent & Protective Assn. v. Valley Racing Assn. (1992) 4 Cal.App.4th 1538, 1555.)

We conclude that the error was prejudicial because it appears likely that the jury based its award of damages for past and future losses in large part on injuries to Gillans reputation, earning capacity, and emotional well-being resulting from the statements made by the defendants after his release. Gillans counsel in closing argument emphasized the publicity following the detention, the resulting continuing injury to his reputation until his name was cleared at trial, and his past and future emotional distress resulting from the injury to his reputation.[7] Moreover, the substantial amounts awarded for past loss ($1,937,000) and future loss ($2,516,000) strongly suggest that the damages award was intended to compensate Gillan for injuries resulting from the statements made in the press conference and to the media after his release rather than only for his injuries resulting from his one-hour detention. Accordingly, the defendants are entitled to a new trial to determine the amount of compensatory damages resulting from the false arrest and violation of Civil Code section 52.1.[8] (Asgari, supra, 15 Cal.4th at p. 760.)

Courts have held in some circumstances that a defendant who fails to request a special verdict segregating the elements of damages forfeits the right to challenge a separate element of damages on appeal. (Greer v. Buzgheia (2006) 141 Cal.App.4th 1150, 1158; Heiner v. Kmart Corp. (2000) 84 Cal.App.4th 335, 346.) The reason for this rule is that a reviewing court ordinarily cannot determine what amount was awarded for each element of damages requested and therefore cannot determine whether any error with respect to a particular element of damages was prejudicial. (Greer, supra, at p. 1158; Heiner, supra, at p. 346.) Thus, the rule is based on the presumption that an appealed judgment is correct (Denham v. Superior Court (1970) 2 Cal.3d 557, 564) and the requirement that an appellant must present a record sufficient to overcome that presumption (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295; Hernandez v. California Hospital Medical Center (2000) 78 Cal.App.4th 498, 502). The only valid basis for liability here, however, is the count for violation of Civil Code section 52.1 based on a false arrest, so the presumption of correctness cannot justify an award of damages in excess of the amount properly recoverable on that count.

6. The Attorney Fee Award Must be Reversed

Our reversal of the judgment necessarily compels the reversal of the award of fees as costs to the prevailing party based on the judgment. (Allen v. Smith (2002) 94 Cal.App.4th 1270, 1284; Merced County Taxpayers Assn. v. Cardella (1990) 218 Cal.App.3d 396, 402.) After reversal of a judgment, the matter of trial costs [is] set at large. [Citation.] (Allen, supra, at p. 1284.)

DISPOSITION

The judgment is reversed with directions to the superior court to conduct a new trial limited to determining the amount of compensatory damages to be awarded on Gillans first count for violation of Civil Code section 52.1 based on a false arrest, the defendants liability on that count having been established. The order denying the motion for judgment notwithstanding the verdict is affirmed as to the first count and reversed as to the counts for defamation and intentional infliction of emotional distress, with directions to the superior court to enter a judgment in favor of the defendants on the latter two counts at the conclusion of the proceedings on remand. The superior court is further directed to award in that judgment the punitive damages previously awarded against Lieutenant Petersen and Sergeant Street. The order awarding attorney fees is reversed, and the court in its discretion may award fees at the conclusion of the proceedings on remand. Each party is to bear its own costs on appeal.

CROSKEY, J.

We Concur:

KLEIN, P. J. ALDRICH, J.

Filed 2/21/07

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE COURT:

It is ordered that the opinion filed herein on January 25, 2007, be modified as follows:

1. On page 26, the following is inserted at the end of the first paragraph:

Gillan may recover damages for all injuries caused by the false arrest and violation of Civil Code section 52.1, including emotional distress and loss of reputation that were caused by the false arrest but suffered after he was released, but may not recover damages for injuries caused by the defendants protected conduct after Gillans release. (Id. at pp. 756-758; County of Los Angeles v. Superior Court (2000) 78 Cal.App.4th 212, 222-224.)

2. On page 26, footnote 10, line 1, the first two words are deleted and replaced by Gillans so the first line of the footnote reads:

Gillans counsel stated in closing argument: So what we suggest is that

The opinion filed on January 25, 2007, was not certified for publication in the Official Reports. For good cause, the opinion is hereby certified for publication in the Official Reports.

There is no change in the judgment.

Respondents petition for a rehearing is denied.

Publication courtesy of San Diego pro bono legal advice.

Analysis and review provided by Poway Property line Lawyers.

[1] We need not decide whether the defendants acted properly under Penal Code section 849, subdivision (b)(1). Regardless of whether they acted properly under the statute, there was no probable cause to arrest Gillan.

[2] 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. (Gov. Code,  821.6.)

[3] [F]alse arrest and false imprisonment are not separate torts. False arrest is but one way of committing a false imprisonment . . . . [Citation.] (Asgari v. City of Los Angeles (1997) 15 Cal.4th 744, 752, fn. 3.)

[4] Government Code 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.

[5] We need not decide whether the defendants acted properly under Penal Code section 849, subdivision (b)(1). Regardless of whether they acted properly under the statute, the defendants are immune from liability for statements made in connection with the investigation. 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. (Gov. Code,  821.6; italics added.)

[6] Except as otherwise 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. (Gov. Code,  815.2, subd. (b).)

[7] The defendants counsel stated in closing argument: So what we suggest is that you pick a number for each of these million people who heard this, who coach Gillans reputation is living in their minds. And I would suggest a number between $1 million--I am sorry--between $1 and $5 per person. That is, its just $1 or $5 for each of these million people. And so from that, I came up with damage to reputation $1 million to $5 million dollars. And then I split it half in the past, half in the future. Counsel did not separately request damages for reduced earning capacity. Counsel also requested $300,000 to $750,000 in damages for emotional distress resulting from the arrest and publicity of the arrest, $110,00 to $275,000 for emotional distress suffered while Gillan waited 55 days for this public humiliation to finally come to an end with the district attorneys rejection of the charges, $100,000 to $150,000 for emotional distress suffered during the three years before trial while he lived with this stigma with a police department still to this day saying that he did these horrible things, and $388,000 to $1.1 million for future emotional distress resulting from the publicity. Counsel did not quantify the damages resulting from the false arrest alone, and requested only $10,000 for Gillans past out‑of‑pocket expenses for legal fees and therapists.

[8] The defendants do not mention the award of punitive damages in their argument challenging the award of damages and therefore have waived any claim of error with respect to punitive damages. (Tiernan v. Trustees of Cal. State University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4.)