Court of Appeal:
S.C. Decision Doesn’t Alter Conclusion That Immunity Applies
Panel Says Nothing in 2023 High Court Opinion, Pointed Out in Remand Order, Warrants Deviation From 2021 Decision That Defendants in an Action by Woman Who Was Unsuccessfully Prosecuted for Murder Are Shielded From Liability
By a MetNews Staff Writer
The Court of Appeal for this district has, for the second time, upheld the scuttling of a wrongful-prosecution action against Santa Barbara County’s District Attorney’s Office and its Sheriff’s Office, along with three individuals, holding, following a remand by the California Supreme Court for reconsideration in light of the high court’s June 22 decision curbing governmental immunity, that the referenced case does not require reviving the lawsuit.
Div. Seven’s initial opinion was filed Dec. 14, 2021. Treating an appeal from an order sustaining a demurrer without leave to amend, which is nonappeable, as if it were an appeal from a judgment of dismissal, the court affirmed in an unpublished opinion by Acting Presiding Justice Kenneth Yegan.
The California Supreme Court last Aug. 23 granted review, transferring the case back to Div. Seven for a fresh decision in light of Leon v. County of Riverside. In Leon, Justice Leondra Kruger said in an opinion for a unanimous court that while Government Code §821.6 creates immunity from suits for wrongful prosecutions, it does not provide immunity “from claims based on other injuries inflicted in the course of law enforcement investigations.”
In that case, the plaintiff’s husband had been fatally shot on a driveway and, while sheriff’s deputies searched for the assailant, the unclothed body remained exposed for about eight hours. Kruger’s opinion reverses the Court of Appeal’s affirmance of a summary judgment in favor of the defendants, granted based on §821.6.
That section 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.”
Inquiry on Remand
On remand, Div. Six had the task of determining whether Leon dictates a different result than that reached before. Yegan found that the decision is, in part, inapposite and, where relevant, supports the conclusion reached in 2021.
Suing Santa Barbara authorities for malicious prosecution, intentional infliction of emotional distress, negligence, false arrest/false imprisonment, and violation of the Bane Act was Wanda Nelson, a caregiver who had been prosecuted for the alleged March 25, 2013, murder of Heidi Good, an elderly quadriplegic suffering from the always-fatal, and progressively debilitating disease, amyotrophic lateral sclerosis.
Good died while left unattended by Nelson by virtue of a ventilator that pumped oxygen to her lungs becoming disconnected either accidentally, while Nelson was away fetching medicine, or, as the prosecution contended, through a deliberate act by the defendant before leaving. In what was possibly a mercy-killing, Good’s 89-year-old mother was also charged, but not convicted.
On Nov. 6, 2017, Div. Six reversed Nelson’s conviction of involuntary manslaughter and on May 22, 2019, it reversed an order finding her factually innocent of murder. Neither opinion was certified for publication.
Leon Found Inapplicable
Yegan said, in an unpublished opinion filed Tuesday, that a cause of action against Chief Deputy District Attorney Cynthia Gresser and Sheriff’s Deputies Charlie Bosma and Matthew Fenske for malicious prosecution is barred because “[t]he immunity granted by section 821.6 applies to a public prosecutor” and “also applies to a police officer or deputy sheriff.” He declared: “The holding of Leon is inapplicable because respondents’ actions were not merely investigatory. Their actions led to appellant’s criminal prosecution.”
Although false arrest/false imprisonment, alleged by Nelson, is not subject to §821.6 immunity, Yegan said that because the three individual defendants’ only connection with the arrest was presenting evidence to a grand jury, the actual cause of action was for malicious prosecution, and immunity attaches to that claim against them, as well as to their employers. He also pointed out that an arrest pursuant to a warrant, which had been issued, cannot constitute a false arrest, being a ministerial act.
Nelson’s cause of action against Gresser, Bosma and Fenske for intentional infliction of emotional distress fails because it is predicated upon alleged conduct which, if true, would be derived from malicious prosecution, to which immunity attaches, the jurist wrote.
A cause of action was stated against all defendants for negligent failure to carry out a mandatory duty: properly screening and training employees. Yegan said that Leon “is directly on point.”
In that decision, Kruger quoted Government Code §821.6 conferring immunity on a government employee “even if he acts maliciously and without probable cause.” She said:
“Although this language is certainly broad enough to include traditional malicious prosecution claims alleging malice and a lack of probable cause, the inclusive phrase ‘even if’ makes clear that the statute is not limited to traditional malicious prosecution claims; suits for damages arising from a negligent prosecution are covered too.”
Tom Bane Act
The Tom Bane Civil Rights Act—Civil Code §52.1—creates a cause of action in favor of a person “whose exercise or enjoyment of rights secured by the Constitution or laws of the United States, or of rights secured by the Constitution or laws of this state, has been interfered with, or attempted to be interfered with.” Unlike the federal civil rights statute 42 U.S.C. §1983, it applies to persons “not acting under color of law” and requires an interference “by threat, intimidation, or coercion, or attempts to interfere by threat, intimidation, or coercion.”
“Appellant cannot premise a Bane Act violation on a lawful arrest where the coercion was no greater than that involved in any lawful arrest.”
In a concurring opinion, Yegan wrote:
“The lynchpin of appellant’s entire complaint is that she was ‘targeted’ by law enforcement because she is African-American. Viewed objectively, this is questionable even at the demurrer stage. She was ‘targeted’ by law enforcement because Heidi Good died at a time when appellant was supposed to be caring for her safety and well-being. Appellant was indicted by the grand jury for murder. She was arrested pursuant to a valid arrest warrant. She was acquitted of murder. This was a significant victory. But the jury found her guilty of involuntary manslaughter. We reversed. This was also a significant victory. “Frankly, I do not know what actually happened on the day Heidi Good died. This was a major consideration in our reversal of her involuntary manslaughter conviction. But as we explain in the majority opinion, we do know that appellant cannot reach a jury in a civil action by just saying that she was ‘targeted’ because she is African-American.”
Good’s 89-year-old mother was also charged
The case is Nelson v. Santa Barbara County Sheriff’s Office, B308778.
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