Metropolitan News-Enterprise


Friday, February 23, 2007


Page 1


C.A. Orders New Trial in Coach’s Suit Against San Marino Police

Justices Uphold False Arrest Verdict, but Rule That $4 Million Damage Award Was Excessive




The Court of Appeal for this district has upheld a jury’s conclusion that a high school basketball coach was falsely arrested on charges of molesting a player, but has ordered a new trial as to damages.

 Div. Three Wednesday modified, and ordered publication of, its Jan. 25 opinion partially reversing a judgment awarding Patrick Gillan $4.45 million in damages and more than $1 million in attorney fees for false arrest, defamation, and intentional infliction of emotional distress. The judgment was against the City of San Marino and three members of its police department, and included $16,000 in punitive damages against two of the police officers, which the appellate court upheld.

Gillan, then the girls varsity basketball coach basketball coach at San Marino High School, was accused in 2001 by a former player of having molested her on several occasions. The player had graduated five months earlier, and Gillan’s attorney suggested during the ensuing litigation that she blamed her former coach for her inability to succeed at college basketball.

No Additional Accusers

Police arrested Gillan on Dec. 17, 2001, and held a news conference the following day, displaying his booking photo. Police Lt. Christopher Petersen told reporters the department was hoping for “the assistance of the media” to determine whether there were additional victims and that there was “an ongoing investigation.”

No additional accusers came forth, and prosecutors declined to prosecute due to “lack of sufficient corroboration.” Gillan, who was suspended with pay following the arrest, returned to work in February 2002 and remained at San Marino until last year.

Following the trial, the city moved for judgment notwithstanding the verdict, arguing that there was probable cause for arrest and that the entire action was barred by sovereign immunity. Retired Los Angeles Superior Court Judge Robert H. O’Brien, sitting on assignment, denied the motion.

The Court of Appeal, however, held that the absolute statutory immunity against liability for “instituting or prosecuting any judicial or administrative proceeding” applies to Gillan’s defamation claim and his related claim for intentional infliction or emotional distress.

Justice Walter Croskey, writing for the Court of Appeal, said the statements at the press conference, and similar assertions in press releases, were part of the police investigation and thus privileged.

“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...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,” the justice wrote. “The city also therefore is immune from liability on those counts arising from the acts of the individual defendants.”

Damages Award Reversed

The justice, however, cited California precedent holding that prosecutorial immunity does not bar an action for false arrest and false imprisonment. He also said there was enough evidence for the jury to reasonably conclude that the police lacked probable cause for the arrest.

He noted that just before the arrest, the former student confronted Gillan about the alleged “touching and the other things” and that Gillan, who did not know that the student had reported him to the police and that the conversation was being recorded, vehemently denied that he had done anything like that and suggested the student seek psychiatric help.

In addition, Croskey said, the evidence showed that not only did the police investigation fail to turn up any other accusers or independent corroboration of the girl’s story, but the police had spoken to the vice principal of the school and had been told that those at the school who knew Gillan did not believe the accusations.

Because the jury verdict on compensatory damages covered all three causes of action, however, the defendants are entitled to a new trial as to damages, the justice said. Given the emphasis on the impact of the defamatory statements in the plaintiff’s closing argument and the size of the verdict, Croskey wrote, the court had to conclude that the erroneous submission of the defamation and emotional distress claims to the jury were prejudicial.

Croskey said the attorney fee award—based on Civil Code Sec. 52.1, which permits such an award when rights protected by state or federal law are violated through “threats, intimidation, or coercion”—must be reversed along with the damage award.

He rejected the contention that the defense had waived its objections to the size of the award by not asking for a separate verdict on each cause of action, saying there is no such waiver when the size of the verdict is more than the jury could possibly have awarded on the one cause of action as to which it was properly instructed.

In its modified opinion, the panel clarified that on retrial, “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 Gillan’s release.”

The plaintiff was represented by Pasadena sole practitioner John Burton. The city was represented by the firms of Cihigoyenetche, Grossberg & Clouse in Rancho Cucomonga and Pollak, Vida & Fisher in Los Angeles.

The case is Gillan v. City of San Marino, 07 S.O.S. 909.


Copyright 2007, Metropolitan News Company