Metropolitan News-Enterprise


Tuesday, March 11, 2008


Page 1


County Not Liable for Tracking Device That Burned Car—C.A.


By STEVEN M. ELLIS, Staff Writer


A former Hawthorne School Board member cannot hold the county liable for surreptitiously installing a tracking device on his car that caught fire and destroyed the vehicle, this district’s Court of Appeal ruled yesterday.

Affirming the decision of Los Angeles Superior Court Judge Conrad Aragon, Div. Seven held in an unpublished opinion that the county and District Attorney Steve Cooley are immune from liability in a suit by Frank DeSimone over the device’s installation because the county employees who placed the device were acting within the scope of their employment and in connection with a judicial proceeding.

Investigators from the district attorney’s office’s public integrity division placed the device in DeSimone’s vehicle in January of 2006 in order to determine his true residence as part of an investigation into a complaint that he violated state election law by residing in Cypress while claiming to reside 25 miles away in Hawthorne for the purpose of holding elected office. The complaint also alleged that DeSimone had voted in Hawthorne using a false address.

Pursuant to Order

The investigators were acting pursuant to an order issued Jan. 26, 2006 authorizing them to trespass and surreptitiously enter any location where DeSimone’s vehicle was parked for the purpose of installing or maintaining the device. The order also authorized them to enter and move the vehicle for the same purpose.

However, on Jan. 29, 2006, the vehicle burst into flames while parked in the garage attached to DeSimone’s home. DeSimone, who was at the home with his wife and infant son, was unsuccessful in his attempt to extinguish the flames, but was able to roll the car out of the garage before it became completely engulfed in flames.

The fire department contained the blaze after 20 minutes, but DeSimone and his family suffered smoke inhalation, damage to the home, and total loss of the vehicle.

The cause of the fire was later determined to be the ST 801 Guardian GPS tracking device manufactured by Orion Electronics Ltd. that the investigators had placed in the vehicle.

DeSimone and his family filed an action for products liability against Orion, which was ultimately settled, and also asserted counts of negligence and intentional tort against the county and Cooley.

The negligence claim alleged that the investigators had negligently installed the device by failing to follow the manufacturer’s installation instructions, while the tort claim alleged that they installed the device intending to cause the vehicle to ignite and catch fire.

The county and Cooley demurred on the grounds that the complaint failed to provide a statutory basis for liability against them. They also argued that they were immune from liability under state law, in particular under Government Code Sec. 821.6, because the installation of the device was incidental to the investigation of a crime and part of the prosecution of a judicial proceeding.

Statutory Immunity

Sec. 821.6 provides that 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.”

DeSimone argued that the law did not apply because the action was for damages arising from property and bodily injury, and not malicious prosecution. He further argued that the Government Claims Act provided the statutory basis for his complaint because he had timely filed a claim with the County.

However, Aragon applied Sec. 821.6 to find the county and Cooley immune from liability on both counts, and the Court of Appeal affirmed his decision.

Writing for the court, Justice Laurie D. Zelon noted that two statutes were relevant to the matter: Sec. 821.6, and Government Code Sec. 820.4, which states that a “public employee is not liable for his act or omission, exercising due care, in the execution or enforcement of any law,” but provides that “[n]othing in this section exonerates a public employee from liability for false arrest or false imprisonment.”

Relying on Amylou R. v. County of Riverside (1994) 28 Cal.App.4th 1205, and Shoemaker v. Myers (1992) 2 Cal.App.4th 1407, Zelon wrote that “government conduct occurring during an investigation resulting in personal injury or injury to property is entitled to immunity,” and said that “where, as here, two statutes apply to the same object, the more specific controls.”

She continued:

“Although defendants were potentially liable for their failure to exercise due care under section 820.4, we apply the provisions of section 821.6, which cover the more particularized situation of prosecutions and investigations preliminary thereto. Under section 821.6, defendants are immune from liability for plaintiffs’ negligence claim, as the [device] was installed in the course of and for the purpose of the County’s investigation of Frank DeSimone’s alleged violation of election laws.”

Zelon similarly concluded that the county and Cooley were entitled to immunity on DeSimone’s intentional court claim, writing that “the factual allegations of the complaint do not support a finding of intentional conduct causing injury.”

Presiding Justice Dennis M. Perluss and Justice Fred Woods joined Zelon in her opinion.

Attorney Douglas Fee of Collins, Collins, Muir & Stewart, who represented the county and the district attorney, said that his clients were pleased with the decision and that the ruling was important in defining the issue of prosecutorial immunity.

However DeSimone’s attorney, Mark M. Hathaway of the Law Office of Mark J. Werksman, told the MetNews that his client, who has since left the Hawthorne School Board, would appeal the ruling.

Hathaway contended that the court’s interpretation of Sec. 821.6 “swallows” any liability that could potentially be imposed under Sec. 820.4, and said that the practical effect of the decision was that “police can never be held liable for negligence or personal injury, whether it be to a target of an investigation or an innocent bystander.”

Noting further that Cooley’s investigation of DeSimone—which began in 2005—currently remains ongoing, Hathaway also opined that it was “difficult not to conclude” that the investigation was political in nature.

The case is DeSimone v. County of Los Angeles, B194896.


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