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C.A. Won’t Decide Applicability of Immunity Statute
Opinion Points to Possibility That Courts of Appeal Have Routinely Failed to Adhere to 1974 Decision
Of California Supreme Court Confining Government Code §821.6 to Malicious Prosecution Suits
By a MetNews Staff Writer
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 Seven, in an unpublished opinion by Justice Gail Ruderman Feuer, affirmed in part and reversed in part a judgment of dismissal by Los Angeles Superior Court Judge Huey P. Cotton.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.
Feuer’s Decision
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.
Raphael’s Opinion
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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