Metropolitan News-Enterprise


Wednesday, June 30, 2004


Page 3


C.A. Rules Litigation Privilege No Protection in Case of False Arrest


By a MetNews Staff Writer


The litigation privilege does not protect a citizen from liability for making a false arrest, the Court of Appeal for this district has ruled.

Div. Seven Monday affirmed a $32,500 judgment in favor of a West Hollywood man who sued his neighbors after they arrested him and claimed he was a “peeping Tom.”

Steven Kesmodel’s arrest in 2001 came after a series of clashes with Marcia Rand and her son Michael. The Rands live in a three-bedroom, ground floor unit in a five-unit apartment building; Kesmodel lives with his wife and young son in a two-bedroom unit on the second floor.

Marcia Rand, who underwent chemotherapy treatments for cancer, complained to police and to her landlord several times about the Kesmodels. She claimed their dog barked too loudly, that young Matthew Kesmodel played too noisily in the stairway leading to his family’s apartment, that the family left laundry in the communal laundry room for days, that they left trash in the stairwell, and that they deliberately tried to irritate her and disturb her peace.

Steven Kesmodel denied the allegations and offered to mediate with the Rands through the West Hollywood Neighborhood Dispute Resolution Program, but the Rands did not appear.

In July 2001, Marcia Rand called the West Hollywood sheriff’s station and claimed that Kesmodel had peered through her bedroom window and observed her lying naked on her bed while he was watering plants. She demanded that he be arrested.

A sheriff’s deputy, according to later testimony, told her he could not make an arrest because the alleged offense was a misdemeanor occurring outside his presence. He told the Rands they could make a citizen’s arrest.

When the Rands said they would do so, the deputy produced an arrest form, which Michael Rand signed. The form included the admonition that a person who makes a citizen’s arrest “may be liable for any false arrest action or civil liability that the person arrested may initiate.”

Acting under since-revised guidelines requiring that the subject of a citizen’s arrest be taken into custody rather than merely cited, deputies took Kesmodel to jail, where was booked and held for 12 hours before being released. As he was being handcuffed, one of the deputies testified, Michael Rand came out with a camera, took photographs, and yelled out “Matthew’s teacher is going to love to see this.”

Kesmodel sued the Rands after prosecutors declined to file charges. He explained that the entire incident had been videotaped, first by him and then by his wife, because the police had earlier advised the couple to create a videotape record of any confrontations with the Rands.

The videotape, which was shown to the jury, did not show Kesmodel peering into the window.

Jurors found the Rands liable for false arrest and false imprisonment, awarding $30,500 in compensatory damages and $2,000 in punitive damages against Marcia Rand only.

In concluding that the verdict was authorized by law, Justice Earl Johnson Jr. rejected the Rands’ claim that Civil Code Sec. 47(b), which codifies the litigation privilege, precludes liability for making a citizen’s arrest.

A citizen’s arrest is conduct, not communication in an official proceeding, the justice explained. While the privilege protects a citizen who notifies the police of suspected criminal activity, Johnson reasoned, a citizen who takes upon himself or herself the authority to make an arrest that the police cannot or will not make commits a “noncommunicative act” not protected by the privilege.

Johnson also rejected the contentions that Marcia Rand could not be held liable because she did not sign the arrest form, and that the court erred in holding the Rands jointly and severally liable for the compensatory damages.

Marcia Rand is liable for her son’s conduct, the justice explained, because she was a co-conspirator who “instigated, encouraged, aided, and assisted the wrongful act by summoning the deputies, falsely asserting Kesmodel had peered into her bedroom, and by making it clear she wanted him arrested when the officers declined to do so themselves.”

The justice went on to explain that while Proposition 51 eliminated joint-and-several liability of joint tortfeasors for non-economic damages, it did not alter the traditional rule that every co-conspirator is liable for all damages resulting from the conspiracy.

Attorneys on appeal were T. Joshua Ritz for the Rands and Gary S. Lincenberg and Amanda R. Touchton of Bird, Marella, Boxer & Wolpert for Kesmodel.

The case is Kesmodel v. Rand, 04 S.O.S. 3309.


Copyright 2004, Metropolitan News Company