Silva vs Langford 2022 – No 821.6 immunity FAILED
Plaintiffs appeal from a judgment of dismissal entered as to Defendants State of California, acting by and through the California Highway Patrol (CHP), and CHP Sergeant (together, the CHP defendants), after the trial court sustained without leave to amend the CHP defendants’ demurrers to the Plaintiffs’ first amended complaint. Plaintiffs asserted on behalf of their deceased son claims for negligence and wrongful death after CHP Sergeant’s patrol car struck and killed Plaintiffs’ son while Langford was responding to an emergency call concerning an altercation on the freeway. The trial court found the claims against the CHP defendants were barred by investigative immunity conferred under California Government Code section 821.6 (section 821.6).
The Second Appellate Division affirmed the trial court’s sustaining the Sergeant’s demurrer based on Plaintiffs’ concession at oral argument that the Sergeant is entitled to immunity as an emergency responder under California Vehicle Code section 17004. However, because California Vehicle Code section 17001 provides an independent statutory basis for CHP’s liability based on the Sergeant’s alleged negligence, the court did not reach the scope and application of section 821.6 immunity, and the court reversed the judgment as to CHP and remand for further proceedings.
Silva vs Langford
14an action fornegligent infliction of emotional distress against the county based on the failure of the responding sheriff’s deputies to cover the body of her husband, which lay in full public view on the driveway for more than eight hours with the husband’s genitals exposed as the deputies investigated the shooting. (Leon, at p. 841.) In affirming the grant of summary judgment for the county, Division Two of the Fourth Appellate District broadly applied section 821.6, concluding “[a]ll of the evidence adduced on the county’s motion for summary judgment shows that the deputies’negligence, if any, in failing to promptly cover or remove [the victim’s]body from the scene, occurred during the course of the deputies’performance of their official duties to secure the area following the shooting and the deputies’and other law enforcement officers’investigation of the shooting.” (Id.at p. 848.)The Court of Appeal inLeon rejected argumentssimilarto those advanced by the Silvasthat Sullivanexpressly limited section 821.6 immunity to claims for malicious prosecutionandthatAmylou, Baughman, and other cases broadly interpreting section 821.6 werewrongly decided. (Leon, supra, 64 Cal.App.5th at pp. 853-855, review granted.)In a concurring opinion in Leon, Justice Raphael observed that the Ninth Circuit and federal district courts in California have interpreted Sullivan to limit section 821.6 immunity to claims for malicious prosecution. (Leon, supra, 64 Cal.App.5th at p. 859, review granted[conc. opn. of Raphael, J.]; see Sharp v. County of Orange(9th Cir. 2017) 871 F.3d 901, 920-921; Garmon v. County of Los Angeles(9th Cir. 2016) 828 F.3d 837,847.) actions for malicious prosecution?(See Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710.)”(Leon, supra, S269672.)
15Justice Raphael questioned whether the text of section 821.6 supported personal injury tort immunity, noting the statute refers to injuries “caused by [a public employee] instituting or prosecuting any judicial or administrative proceeding” butobservedthe Courts of Appeal had broadly applied the immunity to tortsthat preceded the institution of proceedings and were “related to” but not “caused by” the institution of proceedings. (Leon, at p. 863[conc. opn. of Raphael, J.].) Notwithstanding these concerns, Justice Raphael concluded the court’s opinion “correctly articulates the reasoning of decades of opinions that not only have cabined the Supreme Court’s Sullivanopinion to its facts, but have also expanded section 821.6’s absolute immunity to police officer conduct in investigations.” (Id. at pp.863-864.)On appeal, the Silvas contend that section821.6 immunity does not cover personal injury torts committed in the course of an investigation, and even if it did, the first amended complaint only alleged that Langford was on his wayto investigate acall of a vehicle stopped on the freewaywhen he struck Danuka, not that the investigation had commenced. We agree this case raises significant questions concerning both the scope and application of section 821.6 immunity. However, we need not decide these issues because Langford is immune from suit under Vehicle Code section 17004,andas to CHP, it may be liable under Vehicle Code section 17001. (See Aubry v. Tri-City Hospital Dist.(1992) 2 Cal.4th 962, 970, fn.7[because trial court properly sustained demurrer on grounds that complaint failed to state a claim, Supreme Court didnot need to consider alternative bases for sustaining demurrer, including public entity immunities].)
162.The trial court erred in sustaining CHP’s demurrer without considering CHP’sliability under Vehicle Code section 17001Even ifLangford wasimmune from suit under section821.6 (in addition to his immunity under Vehicle Code section 17004), it does not follow that CHP is immune. Section821.6 immunity, like Vehicle Code section 17004immunity,expressly appliesonly to a “public employee.” Government Code section 815.2, subdivision (b), extends anemployee’s immunity to the public entity in certain circumstances: “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.” In many cases the Courts of Appeal have applied section 821.6 to public entities through application of Government Code section 815.2, subdivision (b).(See, e.g., Leon, supra, 64Cal.App.5th at p. 846, review granted; Strong v. State of California, supra, 201 Cal.App.4th at p.1449; Baughman, supra, 38 Cal.App.4th at p. 191; Amylou, supra, 28Cal.App.4th at pp.1208-1209.)However, this case differsfrom those applying section 821.6 immunity to public entities in that it involves a vehicular injury. The Silvas contend,and we agree,CHP’simmunity does not necessarily flow from any investigative immunityLangford may have under section 821.6 because the language in Government Code section 815.2, subdivision (b), limiting immunity where “otherwise provided by statute” applies here. Specifically, Vehicle Code section 17001 provides aseparate statutory basis for CHP liability:“A public entity is liable for death or injury to person or property proximately caused by a negligent or wrongful
17act or omission in the operation of anymotor vehicle by an employee of the public entity acting within the scope of his employment.”In closely analogous circumstances, the Supreme Court in Brummett v. County of Sacramento(1978) 21 Cal.3d 880, at pages 885through 886 (Brummett) rejected a public entity’s argument that Government Code section 815.2, subdivision (b), immunized the entityfromliability under Vehicle Code section 17001 for injuries caused by its police officers during a high-speed chase,even thoughthe police officers enjoyed first-responder immunity under Vehicle Code section 17004.The court explained that in considering whether Government Code section 815.2, subdivision(b), applies, “[t]he question … is whether liability is ‘otherwise provided by statute.’ It must be answered in the affirmative. Vehicle Code section 17001 makes a public entity liable for its employee’s negligence in the operation of a motor vehicle.”8(Brummett, at p. 883;accord,City of Sacramento v. Superior Court(1982) 131 Cal.App.3d 395, 400[city was not immune from suit under Government Code section 815.2, subdivision (b), for police officers’ alleged negligence in vehicle pursuit, explaining “[t]he specific provision for public entity liability in Vehicle Code section17001 overrides the general derivativeimmunity provided by Government Code section 815.2”].)In reaching this conclusion, the Supreme Courtconsideredthe legislative history of the GovernmentClaims Act 8The Brummettcourt observed that the determination whether the police officers were negligent in the operation of their vehicles depended on whether they exercised due care, a question of fact for the jury. (Brummett, supra, 21 Cal.3d at p.887.)
18and observedthat the Senate Judiciary Committeecommented as to Government Code section 815.2, “‘The exception appears in subdivision (b) because under certain circumstances it appears to be desirable to provide by statute that a public entity is liable even when the employee is immune….’” (Brummett, at p. 885, quotingSen. Com. on Judiciary, Rep. on Senate Bill No. 42,2Sen. J. (1963 Reg. Sess.)pp. 1887-1888.)Further, as the Brummett court explained, the Judiciary Committee specifically referred to liability of public entities under both Government Code section 815 (enacted at the same time asGovernment Code section 815.2) and Vehicle Code section 17001.(Brummett,at p.885[“‘In other codes there are a few provisions providing for the liability of governmental entities, e.g., Vehicle Code section17001, et seq.’”], quoting Sen. Com. on Judiciary, Rep. on Senate Bill No. 42,2 Sen. J. (1963 Reg. Sess.) pp. 1886-1887; see Thomas v. City of Richmond(1995) 9 Cal.4th 1154, 1165 [observing in context of liability for injuries caused by a police car chasing a fleeing suspect, that Government Code section845.8’s immunity provisionapplicable topublic employees and entities (for injuries resulting from a person escaping custody or resisting arrest)“does not provide immunity to public entities for liability that is predicated on Vehicle Code section 17001”].)CHP argues Brummettdid not decide whether a public entity’s liability under Vehicle Code section 17001 supersedes theentity’s immunity derived from thepublic employee’s immunity under section 821.6, instead focusing on the public employee’s immunity under Vehicle Code section 17004. CHP urges us instead to follow Varshock v. Departmentof Forestry & Fire Protection(2011) 194 Cal.App.4th 635, 643, in which the Court of Appeal held that the Department of Forestry and Fire Protection
19was immune from tort liability under Government Code section 850.4—which immunizespublic entities and employees fromliability “‘for any injury caused in fighting fires,’” “‘except as provided in’” Vehicle Code section 17000 et sequitur—where the plaintiffs were engulfedin a wildfire after their vehicle broke down and the firefighters placed them inside the firefighter’sfire truck. The court reasoned there was a “latent ambiguity” in Government Code section 850.4 because “a literal interpretation of statute would… produce absurd consequences the Legislature did not intend”and “eliminate a very large portion of the immunity the Legislature intended to confer under section850.4.” (Varshock, at p. 644.)The Supreme Court’sdecisionin Brummettis directly on point;Varshockis not. Varshockinvolved immunity under the Government Code provision applicable to firefighters and their public employers, not derivative immunity underGovernment Codesection 815.2, subdivision (b), and the casewas atypicalin that the plaintiffs’ injuries did not arise from a vehicular tort as generally envisionedunder Vehicle Code section 17001. (See Varshockv. Dept. of Forestry & Fire Prot., supra,194 Cal.App.4th at pp. 649-650 [Government Code section 850.4 immunity exists “when a firefighter operates a motor vehicle at the scene of a fire as part of efforts to rescue persons or property from the fire or otherwise combat the fire,” but “immunity under section 850.4 does not apply, and potential liability under the Vehicle Code section 17001 exception exists, if injury results from a firefighter’s tortious act or omission in the operation of a motor vehicle while proceeding from another location to a fire in response to an emergency call”].)By contrast,Brummett instructsthat derivative entity immunity under Government
20Code section 815.2, subdivision (b),does not overcome the entity’sliability under Vehicle Code section 17001. We see no reason why the nature of the employee’sunderlying immunity—whether the employee is responding to an emergency (Veh. Code,§ 17004) or investigating a crime (§ 821.6)—would support a different result.Here, thefirst amended complaint specifically alleged CHPwas liableunder Vehicle Code section 17001. Thus, itwas CHP’s burdenin its demurrerto establish itsaffirmative defense of governmental immunity. (Heshejin v. Rostami, supra, 54Cal.App.5th at p. 992; Ivanoff v. Bank of America, N.A.(2017) 9 Cal.App.5th 719, 726; Casterson v. Superior Court(2002) 101Cal.App.4th 177, 183.)YetCHP’s only argument in its demurrer with respect to Vehicle Code section17001was that it was shielded by the investigatory immunityapplicable to Langford under section 821.6 and public entity immunityunder Government Code section815.2, subdivision (b).Because Government Code section 815.2, subdivision (b), does not immunizeCHPfromliability under Vehicle Code section 17001,the trial court erred in sustaining CHP’s demurrer as to the Silvas’ fourth cause of action for public entity liability for injuries causedby its employees.
21DISPOSITIONThe judgment is affirmed as to Langford and reversed as to CHP. The matter is remanded for the trial court to vacate its order sustaining the demurrers of Langford and CHP and to enter a new order sustaining Langford’s demurrer and overrulingCHP’s demurrer, and to enter a new judgment in favor of only Langford. The parties are to bear theirown costs on appeal.FEUER, J.We concur:PERLUSS, P. J.SEGAL, J.
Filed 6/9/22CERTIFIED FORPUBLICATIONIN THE COURT OF APPEAL OF THE STATE OF CALIFORNIASECOND APPELLATE DISTRICTDIVISION SEVENMARAKKALAGE THARAL D. SILVA et al.,Plaintiffsand Appellants,v.RICHARD SCOTT LANGFORD et al.,Defendantsand Respondents.B312660(Los Angeles CountySuper. Ct. No.20STCV04867)ORDER CERTIFYING OPINION FOR PUBLICATION [NO CHANGE IN APPELLATE JUDGMENT]THE COURT:The opinion in this case filed on May 24, 2022 was not certified for publication. It appearing the opinion meets the standards for publication specified in California Rules of Court, rule 8.1105(c), appellants’requestfor publicationpursuant to California Rules of Court, rule8.1120(a) isgranted.IT IS HEREBY CERTIFIED that the opinion meets the standards for publication specified in California Rules of Court, rule 8.1105(c); and
C.A. Applicability of Immunity Statute in Jeopardy –
Now police might have to behave!
Opinion Points to Possibility That Courts of Appeal Have Routinely oppose to Adhering to a grossly old and outdated 1974 Decision
Of California Supreme Court Confining Government Code §821.6 to Malicious Prosecution Suits. Back then police were better police, the military aspect of their behavior was non existant and they were kind members of society that took the time to secure a decent civil society for us civilians. Now they are the problem as well!
The Court of Appeal for this district yesterday reinstated an action against a law enforcement agency based on an officer, driving at high speed without the siren and red lights on, fatally striking a pedestrian, with the justices hinting, but not deciding, that other panels have applied an immunity statute outside the context of malicious prosecution in defiance of a 1974 decision by the California Supreme Court.
Div. Seven, in an unpublished opinion by Justice Gail Ruderman Feuer, affirmed in part and reversed in part a judgment of dismissal by Los Angeles Superior Court Judge Huey P. Cotton. The May 12, 2021 judgment followed his sustaining of demurrers without leave to amend in a wrongful death suit against the California Highway Patrol (“CHP”) and CHP Sergeant Richard Scott Langford.
The action was brought by Marakkalage and Shirin Silva based on the death of their son, Danuka Neshantha Silva, in the early hours of Oct. 14, 2019.
Basis of Ruling
Cotton pegged his ruling on Government Code §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.”
The judge, in his April 15, 2021 order sustaining demurrers, said:
“Plaintiffs suggest that the immunity statute applies only to malicious prosecution actions. It is true that malicious prosecution has been the primary use of the statute. However, Section 821.6 is construed broadly.”
He cited County of Los Angeles v. Superior Court (West), decided Dec. 23, 2009 (and modified on Jan. 22, 2010) by this district’s Div. Three. In that case, it was held that no liability attached to the allegedly wrongful search of a house by investigators for the District Attorney’s Office.
Cotton noted that §821.6 “has been applied to a variety of torts by public employees,” citing the Fifth District Court of Appeal’s May 5, 1988 decision in Kemmerer v. County of Fresno (disapproved on other grounds by the California Supreme Court in 2019 in Quigley v. Garden Valley Fire Protection District). There, immunity under §821.6 was held to shield the county in an action based on two officials of the county Department of Social Services causing the plaintiffs’ dismissal, and consequent emotional distress, through allegedly false statements about him.
In yesterday’s opinion, Feuer resolved the issues on the basis of Vehicle Code sections, not §821.6.
Sec. 821.6, she pointed out, was interpreted by the California Supreme Court in Sullivan v. County of Los Angeles. In his Nov. 4, 1974 opinion for a 4-3 majority, Justice Matthew Tobriner embraced a “narrow interpretation of section 821.6’s immunity, confining its reach to malicious prosecution actions.”
Notwithstanding that pronouncement, Feuer noted, “[i]n the decades since Sullivan was decided, the Courts of Appeal have consistently interpreted section 821.6 to provide immunity beyond the tort of malicious prosecution,” pointing to five such decisions.
One of the cases she cited was Strong v. State of California, decided on Nov. 30, 2011, by the division on which she now sits. The CHP was held to be immune under §821.6 in an action brought by the victim of an accident in which he was identified by an officer as having caused the mishap, doing so because he lost or destroyed his notes containing an identification of the other driver.
That opinion was authored by then-Justice Frank Jackson and concurred in by Presiding Justice Dennis M. Perluss and then-Justice Fred Woods.
Perluss, as well as Justice John L. Segal, concurred in yesterday’s opinion which, inferentially, repudiates Strong.
Cases Not Disavowed
However, Feuer stopped short of declaring the string of Court of Appeal opinions which seemingly depart from the high court’s ruling in Sullivan to have been wrongly decided.
“The Supreme Court will again consider section 821.6 immunity in its pending review of Leon v. County of Riverside,” she noted.
In that case, Div. Two of the Fourth District Court of Appeal found, in a majority opinion by Justice Richard T. Fields that §821.6 applies in an action by a widow based on sheriffs’ deputies leaving the dead body of her husband on the ground, exposed, for about eight hours.
In a concurring opinion in Leon, Justice Michael J. Raphael, noting that federal courts, in applying California law, adhere to Sullivan, wrote:
“I can see the merit to the federal cases that apply our Supreme Court/s reasoning. I join our opinion because 1 conclude that the Court of Appeal’s longstanding circumscribing of our Supreme Court’s opinions is currently state law.”
He explained that “the body of Court of Appeal precedent that reads our Supreme Court’s Sullivan opinion narrowly, as addressing only false imprisonment claims, states the current law in the courts of this state.”
Vehicle Code Sections
Feuer resolved the appeal before the court by declaring:
“We affirm the trial court’s order sustaining Langford’s demurrer based on the Silvas’ concession at oral argument that Langford is entitled to immunity as an emergency responder under Vehicle Code section 17004. However, because Vehicle Code section 17001 provides an independent statutory basis for CHP’s liability based on Langford’s alleged negligence, we do not reach the scope and application of section 821.6 immunity, and we reverse the judgment as to CHP and remand for further proceedings.”
Vehicle Code §17004 provides:
“A public employee is not liable for civil damages on account of personal injury to or death of any person or damage to property resulting from the operation, in the line of duty, of an authorized emergency vehicle while responding to an emergency call…, or when responding to but not upon returning from a fire alarm or other emergency call.”
Langford had been responding to an emergency call concerning an altercation on the freeway. The person he hit had been a passenger in an Uber vehicle but exited that vehicle, while stopped on the freeway, upon an order of the driver.
The case is Silva v. Langford, B312660.
Woodland Hills attorney Ali Taheripour and Encino practitioner Les T. Zador represented the Silvas. Deputy Attorney General Richard Scott Langford acted for the CHP.
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