IN THE SUPREME COURT OF
CALIFORNIA
DORA LEON,
Plaintiff and Appellant,
v.
COUNTY OF RIVERSIDE,
Defendant and Respondent.
S269672
Fourth Appellate District, Division Two
E073781
Riverside County Superior Court
RIC1722990
June 22, 2023
Justice Kruger authored the opinion of the Court, in which
Chief Justice Guerrero and Justices Corrigan, Liu, Groban,
Jenkins, and Evans concurred.
LEON v. COUNTY OF RIVERSIDE
S269672
Opinion of the Court by Kruger, J.
A provision of the Government Claims Act immunizes
public employees from liability for “instituting or prosecuting
any judicial or administrative proceeding” within the scope of
their employment, “even if” the employees act “maliciously and
without probable cause.” (Gov. Code, § 821.6 (section 821.6).
This provision immunizes public employees from claims of
injury caused by wrongful prosecution. The question before us
is whether, as several Courts of Appeal have held, it also confers
immunity from claims based on other injuries inflicted in the
course of law enforcement investigations. The answer is no.
While other provisions of the Government Claims Act may
confer immunity for certain investigatory actions, section 821.6
does not broadly immunize police officers or other public
employees for any and all harmful actions they may take in the
course of investigating crime.
I.
Plaintiff Dora Leon’s husband, José Leon, was shot and
killed in the driveway of a mobile home lot near his home.1
When Riverside County Sheriff’s deputies arrived on the scene,
they heard additional shots. They dragged José behind a
vehicle, where they unsuccessfully attempted to revive him. The
1
For clarity, we refer to Dora and José Leon by their first
names.
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LEON v. COUNTY OF RIVERSIDE
Opinion of the Court by Kruger, J.
movement had caused José’s pants to slide down to his ankles,
exposing his naked body. His body remained in that uncovered
state for approximately eight hours while officers searched for
the shooter and investigated the shooting. The officers
ultimately determined that the shooter had killed himself
shortly after killing José. No charges were filed.
Dora sued, asserting a single cause of action for negligent
infliction of emotional distress. The complaint alleged that the
deputies and the public entity that employed them failed to
exercise reasonable care when they left José’s body exposed and
uncovered for hours, in view of both Dora and the general public.
The County of Riverside (County) moved for summary
judgment. Under the Government Claims Act (sometimes the
Act), a public entity like the County is ordinarily immune from
liability when its employees are immune. (Gov. Code, § 815.2,
subd. (b); see Caldwell v. Montoya (1995) 10 Cal.4th 972, 980.
As relevant here, the County argued that its employees were
immune under section 821.6 for “all conduct related to the
investigation and filing of charges.” Because the suit arose from
steps taken while investigating José’s homicide, the County
argued, both the employees and their employer were immune
from liability. (See Gov. Code, §§ 815.2, 821.6.) The trial court
agreed and entered judgment for the County.
The Court of Appeal affirmed. (Leon v. County of Riverside
(2021) 64 Cal.App.5th 837 (Leon).) As it explained, a line of
appellate cases “ha[s] consistently construed section 821.6 as
immunizing a public employee from liability for any injury-
causing act or omission in the course of the institution and
prosecution of any judicial or administrative proceeding,
including an investigation that may precede the institution of
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LEON v. COUNTY OF RIVERSIDE
Opinion of the Court by Kruger, J.
any such proceeding.” (Id. at p. 846, italics added.) Because “the
deputies’ negligence, if any, in failing to promptly cover or
remove José’s body from the scene, occurred during the course
of the deputies’ performance of their official duties [and their]
investigation of the shooting,” the deputies, and thus the
County, were immune. (Id. at p. 848.
Justice Raphael joined the majority opinion but wrote
separately to observe that this court, addressing other fact
patterns, had construed section 821.6 more narrowly to
“provide[] absolute immunity only against malicious
prosecution claims.” (Leon, supra, 64 Cal.App.5th at p. 860
(conc. opn. of Raphael, J.), citing Sullivan v. County of Los
Angeles (1974) 12 Cal.3d 710.) “Working on a blank slate,”
Justice Raphael would have adopted the narrower
interpretation. (Leon, at p. 863 (conc. opn. of Raphael, J.).) But
he concluded, “[A]ny correction to the Court of Appeal’s decades-
old, expansive application of section 821.6 will have to come
from our Supreme Court, rather than from us.” (Id. at p. 864
(conc. opn. of Raphael, J.).
We granted review.
II.
A.
For many years before the Government Claims Act was
enacted in 1963, California courts had applied a common law
doctrine of governmental immunity that generally barred tort
suits against public entities. (Muskopf v. Corning Hospital Dist.
(1961) 55 Cal.2d 211, 214–215.) Over time, however, this
common law immunity became “riddled with exceptions” that
“operate[d] so illogically as to cause serious inequality.” (Id. at
p. 216.) As scholarly criticism mounted, other jurisdictions
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LEON v. COUNTY OF RIVERSIDE
Opinion of the Court by Kruger, J.
judicially abolished governmental tort immunity. (Ibid., citing,
e.g., Molitor v. Kaneland Community Unit District No. 302
(1959) 18 Ill.2d 11, 14–25 [163 N.E.2d 89, 90–96]; Colorado
Racing Com’n v. Brush Racing Ass’n (1957) 136 Colo. 279, 284–
285 [316 P.2d 582, 585–586]; Hargrove v. Town of Cocoa Beach
(Fla. 1957) 96 So.2d 130, 132–134.) In 1961, this court joined
those jurisdictions and abrogated the common law rule of
governmental tort immunity. (Muskopf, at p. 216.
Presented with the abrupt discontinuation of
governmental immunity from tort suits, the Legislature
temporarily restored the status quo ante pending further study.
(Civ. Code, former § 22.3, enacted by Stats 1961, ch. 1404, § 1,
pp. 3209–3210; see Corning Hospital Dist. v. Superior Court
(1962) 57 Cal.2d 488, 492–495.) The California Law Revision
Commission
(sometimes Commission
completed a
comprehensive review of governmental immunity and
submitted to the Legislature a series of proposed statutes
governing the tort liability of public entities and employees.
(Recommendation Relating to Sovereign Immunity, Number 1 –
Tort Liability of Public Entities and Public Employees (Jan.
1963) 4 Cal. Law Revision Com. Rep. (1963) p. 801
(Recommendation).) In 1963, the Legislature enacted the
Commission’s proposed scheme, with minor modifications, as
the California Tort Claims Act (Stats. 1963, ch. 1681, § 1,
pp. 3266–3284), which has since been retitled the Government
Claims Act (see Quigley v. Garden Valley Fire Protection Dist.
(2019) 7 Cal.5th 798, 803, fn. 1 (Quigley)).
The Government Claims Act abolished common law tort
liability and immunity for public entities, replacing it with “a
comprehensive statutory scheme governing the liabilities and
immunities of public entities and public employees for torts.”
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LEON v. COUNTY OF RIVERSIDE
Opinion of the Court by Kruger, J.
(Quigley, supra, 7 Cal.5th at p. 803; see Gov. Code, § 815.) As a
general rule, the Act makes public entities liable for injuries
proximately caused by their employees in the course of
employment but immunizes the public entity from liability
when the employee is immune. (Gov. Code, § 815.2, subds. (a),
(b).) The Act contains numerous provisions conferring
immunity on employees, including for acts or omissions
resulting from an exercise of discretion vested with the
employee (id., § 820.2); for the execution of enactments when
carried out with due care (id., § 820.4); and for the failure to
adopt or enforce an enactment (id., § 821). The immunity
provision at issue in this case, section 821.6, provides in full: “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.”
B.
This is not our first encounter with section 821.6. In
Sullivan v. County of Los Angeles, supra, 12 Cal.3d 710
(Sullivan), this court considered whether section 821.6
immunized a county and its officials from a false imprisonment
suit for failing to discharge an inmate once his lawful term
expired. Based on examination of the text and legislative
history, we concluded section 821.6 afforded no such immunity.
“[T]he Legislature,” we explained, “intended the section to
protect public employees from liability only for malicious
prosecution and not for false imprisonment.” (Sullivan, at
p. 719.
We reiterated and expanded on this conclusion in Asgari
v. City of Los Angeles (1997) 15 Cal.4th 744, which involved a
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LEON v. COUNTY OF RIVERSIDE
Opinion of the Court by Kruger, J.
claim against police officers and their employer for false arrest
and imprisonment before a trial at which Asgari was ultimately
acquitted. As in Sullivan, the defendants invoked section 821.6.
We explained in Asgari that police officers are not, by virtue of
their job title alone, outside the scope of section 821.6. Because
section 821.6 “focus[es] upon the nature of the alleged tort,
rather than the nature of the governmental duties performed by
the defendant” (Asgari, at p. 756), the immunity it confers can
extend beyond “ ‘prosecuting attorneys and other similar
individuals’ . . . ‘to police officers as well’ ” (id. at pp. 756–757,
citation omitted). But immunity under section 821.6 “ ‘is
dependent on how the injury is caused.’ ” (Asgari, at p. 757.) We
went on to explain that “[u]nder California law, a police officer
may be held liable for false arrest and false imprisonment, but
not for malicious prosecution.” (Ibid.) These are “ ‘mutually
inconsistent concepts, the former relating to conduct that is
without valid legal authority and the latter to conduct where
there is valid process or due authority.’ ” (Ibid.) We thus
concluded that the defendants in the case were not immune from
liability for false arrest and imprisonment that occurred before
the plaintiff’s arraignment. Once he was arraigned, however,
his continued incarceration was a result of the institution of
judicial proceedings against him, and the officers were immune
under section 821.6 for any role they played in bringing about
that result. (Asgari, at p. 758.
While Sullivan and Asgari both described section 821.6 as
conferring immunity against what they termed “malicious
prosecution” claims, the Courts of Appeal to address section
821.6 have ventured in different directions. Some appellate
decisions have hewed to the same course as Sullivan and Asgari,
granting immunity to officers and their employers for their role
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LEON v. COUNTY OF RIVERSIDE
Opinion of the Court by Kruger, J.
in initiating prosecutions. (See, e.g., Collins v. City and County
of San Francisco (1975) 50 Cal.App.3d 671, 676–678; Johnson v.
City of Pacifica (1970) 4 Cal.App.3d 82, 85–87; see Ogborn v.
City of Lancaster (2002) 101 Cal.App.4th 448, 463 [§ 821.6 “is
intended to prevent malicious prosecution actions against
government officials”]; Sharp v. County of Orange (9th Cir.
2017) 871 F.3d 901, 920–921 [following Sullivan: § 821.6
protection limited to malicious prosecution claims].) But many
Courts of Appeal have charted a different path, extending
section 821.6 to claims for injuries caused by official conduct
other than the initiation or prosecution of a proceeding. (See,
e.g., Amylou R. v. County of Riverside (1994) 28 Cal.App.4th
1205, 1211–1214 (Amylou R.) [police officers investigating a
rape immune for inflicting emotional distress on victim through
comments they made to and about her]; Citizens Capital Corp.
v. Spohn (1982) 133 Cal.App.3d 887, 888 [officials immune for
publicizing allegations of improper conduct].) These courts
either understood Sullivan as limited to its facts (e.g., Jenkins
v. County of Orange (1989) 212 Cal.App.3d 278, 283 [reading
Sullivan as limited to false imprisonment claims]) or ignored it
altogether (e.g., Citizens Capital Corp., supra, 133 Cal.App.3d
887).
As particularly relevant here, the 1994 decision in Amylou
R. concluded that section 821.6 applied to the tort claims of
plaintiffs allegedly harmed by police misconduct or negligence
in the course of investigating crimes, even where the plaintiffs’
injuries did not result from the initiation or prosecution of an
official proceeding. Since then, a number of appellate courts
have followed Amylou R.’s lead in applying section 821.6
immunity against claims of harm stemming from police
investigations. (See, e.g., Baughman v. State of California
7
LEON v. COUNTY OF RIVERSIDE
Opinion of the Court by Kruger, J.
(1995) 38 Cal.App.4th 182, 191–193 [police immune for
destruction of data storage discs in the course of executing a
search warrant]; Strong v. State of California (2011) 201
Cal.App.4th 1439, 1443–1445, 1461 [California Highway Patrol
officer immune from liability for negligently losing or destroying
identification information during investigation of accident].
In this case, the Court of Appeal relied on Amylou R. and
similar decisions to conclude that section 821.6 immunity for, in
the statutory language, “instituting or prosecuting any judicial
or administrative proceeding,” applies to a claim for negligent
infliction of emotional distress resulting from the conduct of a
police investigation. The court so held even though the claim
was brought by a plaintiff who claimed no harm resulting from
the institution or prosecution of judicial or administrative
proceedings — and who could not conceivably have claimed such
harm, because no proceedings were ever instituted. (Leon,
supra, 64 Cal.App.5th at pp. 846–848.
We conclude this was error. The Court of Appeal’s
conclusion is inconsistent with section 821.6’s text and history,
as well as our precedent construing the same.
III.
A.
To understand the intended scope of section 821.6, we
begin with the text. (Villanueva v. Fidelity National Title Co.
(2021) 11 Cal.5th 104, 114.) Section 821.6 immunizes public
employees from liability “for injury caused by . . . instituting or
prosecuting any judicial or administrative proceeding,” provided
those actions occur “within the scope of . . . employment,” and
“even if” those actions are taken “maliciously and without
probable cause.” We described the dictionary meaning of the
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LEON v. COUNTY OF RIVERSIDE
Opinion of the Court by Kruger, J.
relevant terms in Sullivan: “According to Webster’s Third New
International Dictionary (1961) ‘institute’ means ‘to originate
and get established . . . [to] initiate,’ and ‘prosecute’ means ‘to
institute legal proceedings against; esp: to accuse of some crime
or breach of law or to pursue for redress or punishment of a
crime or violation of law in due legal form before a legal
tribunal.’ ” (Sullivan, supra, 12 Cal.3d at p. 719.) Other
contemporaneous sources further explain that “[t]o ‘prosecute’
an action is not merely to commence it, but includes following it
to an ultimate conclusion.” (Black’s Law Dict. (4th ed. 1951
p. 1385, col. 1; see 12 Oxford English Dict. (2d ed. 1989) p. 662
[tracing historical definition].) We explained in Sullivan that,
“viewed literally,” this language “does not reach the act of
holding a person in jail beyond his term,” which was the act
challenged in that case. (Sullivan, at p. 719.) The language
likewise does not reach the investigatory acts challenged in this
case, none of which constitute the initiation or continued
prosecution of official proceedings.
What we had described in Sullivan as the “literal,”
dictionary-derived meaning of the language of section 821.6
echoes the common law usage of the same operative terms to
describe the tort of malicious prosecution — a tort generally
defined as “improperly instituting or maintaining” a legal
action. (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss
& Karma, Inc. (1986) 42 Cal.3d 1157, 1169; see Sullivan, supra,
12 Cal.3d at p. 720 [“Malicious prosecution ‘consists of initiating
or procuring the arrest and prosecution of another under lawful
process, but from malicious motives and without probable
cause’ ” (italics omitted)].) We generally presume that when the
Legislature uses common law terms in its enactments, it intends
to incorporate their settled common law meanings. (E.g., People
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LEON v. COUNTY OF RIVERSIDE
Opinion of the Court by Kruger, J.
v. Lopez (2003) 31 Cal.4th 1051, 1060; People v. Tufunga (1999
21 Cal.4th 935, 946.) This presumption is particularly
appropriate here, in a case concerning the meaning of the
Government Claims Act — a statute consciously enacted
against the backdrop of the common law for the purpose of
governing common law tort claims against public entities and
employees. (See Recommendation, supra, 4 Cal. Law Revision
Com. Rep. at pp. 807–813.
Consideration of common law meaning reinforces our
conclusion that section 821.6 immunity does not reach the
officer’s conduct in this case. Under the common law governing
the malicious prosecution tort, the conduct of an investigation,
without more, is not an actionable institution or prosecution of
a legal action. (E.g., Van Audenhove v. Perry (2017) 11
Cal.App.5th 915, 924 [“Before charges are filed, the actions of
the police and the prosecutor are merely investigatory,” and no
malicious prosecution claim will lie]; Brody v. Montalbano
(1978) 87 Cal.App.3d 725, 736–737; Imig v. Ferrar (1977) 70
Cal.App.3d 48, 58–60.) While a claim of malicious prosecution
may lie against a defendant other than the public prosecutor
who filed the relevant charges, the claim still must be based on
the defendant’s role in bringing the proceedings about.
(Sullivan, supra, 12 Cal.3d at p. 720 [“ ‘The test is whether the
defendant was actively instrumental in causing the
prosecution’ ”].)2 We presume that when the Legislature crafted
an immunity provision using language largely tracking the
2
Because Dora does not allege her injuries arose from any
official proceeding, this case provides no occasion for further
delineating the causal connection between a defendant’s conduct
and the initiation of a proceeding that Sullivan identified as
necessary for a malicious prosecution action.
10
LEON v. COUNTY OF RIVERSIDE
Opinion of the Court by Kruger, J.
definition of the common law tort of malicious prosecution, it
intended for courts to respect the traditional distinction between
mere investigation and the prosecution of a legal action.
The language of section 821.6 does deviate from the
malicious prosecution tort in one regard. The malicious
prosecution tort requires proof that the defendant acted with
malice and without probable cause. (Sullivan, supra, 12 Cal.3d
at p. 720; see also, e.g., Brennan v. Tremco Inc. (2001) 25 Cal.4th
310, 313.) But the statutory immunity applies to a public
employee who commits covered acts “even if he acts maliciously
and without probable cause.” (§ 821.6, italics added.) 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. (See Johnson v. City of Pacifica, supra, 4
Cal.App.3d at pp. 86–87 (lead opn. of Christian, J.) [“If the
Legislature had inexplicably intended to deny immunity to an
officer who merely acts negligently while protecting one who,
more culpably, is guilty of malicious prosecution, it would have
been superfluous to use the word ‘even’ ”].)3
3
Johnson v. City of Pacifica, supra, 4 Cal.App.3d 82 is an
example of a court upholding section 821.6 immunity in a case
involving allegations of negligence rather than malice. For
other examples, see Jenkins v. County of Orange, supra, 212
Cal.App.3d at page 283 (social worker’s negligence allegedly
leading to baseless child welfare proceeding); Randle v. City and
County of San Francisco (1986) 186 Cal.App.3d 449, 455–457
(police negligence in the course of a prosecution). We cite these
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LEON v. COUNTY OF RIVERSIDE
Opinion of the Court by Kruger, J.
For this reason, although our prior decisions have loosely
described section 821.6 as conferring immunity against
malicious prosecution claims (e.g., Sullivan, supra, 12 Cal.3d at
p. 721), section 821.6 is more aptly characterized as providing
immunity against liability for claims of injury based on tortious
or wrongful prosecution. The immunity is narrow in the sense
that it applies only if the conduct that allegedly caused the
plaintiff’s injuries was the institution or prosecution of an
official proceeding. But this immunity is broad in the sense that
it applies to every such tort claim, whether formally labeled as
a claim for malicious prosecution or not. And where it applies,
it is absolute, meaning that “the immunity is not conditioned on
a showing that the defendant acted in a reasonable or
procedurally proper manner, or any similar requirement.”
(Quigley, supra, 7 Cal.5th at p. 809; cf., e.g., Gov. Code, § 820.4
[qualified immunity for execution or enforcement of laws with
“due care”]; id., § 820.6 [qualified immunity for actions under
apparent authority of unconstitutional, invalid, or inapplicable
enactments, taken “in good faith, without malice”].
The County does not dispute that section 821.6 covers only
injuries caused by the institution or prosecution of official
proceedings. It argues, however, that injuries caused by police
investigations qualify because of the close relationship between
investigations and prosecutions. The County leans heavily on
the Court of Appeal’s opinion in Amylou R., supra, 28
Cal.App.4th 1205, which held that section 821.6 applied to a
decisions only for the principle that claims of negligence can
come within section 821.6, not for what they may say on other
points, such as when a public employee other than the public
prosecutor may be considered to have initiated or prosecuted an
official proceeding.
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LEON v. COUNTY OF RIVERSIDE
Opinion of the Court by Kruger, J.
crime victim’s claims related to the mishandling of a police
investigation because “investigation is part of the prosecution of
a judicial proceeding.” (Amylou R., at p. 1211.) Amylou R.
elsewhere reasoned that “[b]ecause investigation is ‘an essential
step’ toward the institution of formal proceedings, it ‘is also
cloaked with immunity.’ ” (Id. at p. 1210, quoting Kemmerer v.
County of Fresno (1988) 200 Cal.App.3d 1426, 1436–1437 and
citing Jenkins v. County of Orange, supra, 212 Cal.App.3d at
pp. 283–284, Johnson v. City of Pacifica, supra, 4 Cal.App.3d 82
and Stearns v. County of Los Angeles (1969) 275 Cal.App.2d 134,
136–137.
In the wake of Amylou R., numerous Courts of Appeal
have extended section 821.6’s immunity for “instituting or
prosecuting” an official proceeding to cases in which the
plaintiff’s alleged injuries arose from investigative or law
enforcement conduct other than the prosecution of an official
proceeding. (See Leon, supra, 64 Cal.App.5th at p. 855; Doe v.
State of California (2017) 8 Cal.App.5th 832, 844; Strong v. State
of California, supra, 201 Cal.App.4th at p. 1461; County of Los
Angeles v. Superior Court (2009) 181 Cal.App.4th 218, 229;
Richardson-Tunnell v. Schools Ins. Program for Employees
(SIPE) (2007) 157 Cal.App.4th 1056, 1062; Gillan v. City of San
Marino (2007) 147 Cal.App.4th 1033, 1048; Ingram v. Flippo
(1999) 74 Cal.App.4th 1280, 1293; Baughman v. State of
California, supra, 38 Cal.App.4th at p. 192.
Following in the same vein, the County argues that
because an investigation can be described as a precursor to a
criminal prosecution, investigation qualifies as “prosecuting any
judicial . . . proceeding” (§ 821.6) — even in a case like this one,
where no charges are ever filed and no judicial proceeding is
ever prosecuted. This argument is at odds with the plain
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LEON v. COUNTY OF RIVERSIDE
Opinion of the Court by Kruger, J.
meaning of the statutory language, not to mention this court’s
explication of that very same language in Sullivan and the
substantial body of common law distinguishing the
investigation of crime from the wrongful prosecution of a legal
action. It likewise ignores the simple reality that investigations
need not, and often do not, lead to the institution or prosecution
of any proceedings — a fact that ought to serve as a tipoff that
the two things are not the same and cannot plausibly be treated
as though they were.
To be sure, the facts surrounding the conduct of an
investigation and the initiation or conduct of prosecution may
sometimes overlap. But the potential for factual overlap
between investigations and prosecutions does not justify
treating them as one and the same, as the County asks us to do.
If a law enforcement officer has initiated an official proceeding,
the officer will enjoy immunity for that conduct under section
821.6, regardless of whether the officer’s conduct may include
certain acts described as investigatory. Where, however, the
plaintiff’s claim of injury does not stem from the initiation or
prosecution of proceedings, section 821.6 immunity does not
apply.
B.
To the extent the text leaves any room for debate, the
legislative history confirms our reading of the statute. (National
Lawyers Guild v. City of Hayward (2020) 9 Cal.5th 488, 498.
The history shows that section 821.6 was primarily designed to
codify a preexisting common law immunity against malicious
prosecution claims. The history contains no suggestion that the
statute was also designed to create a new and much broader
immunity for police officers engaged in investigation.
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Opinion of the Court by Kruger, J.
Before the Government Claims Act was enacted, police
officers were generally immune from civil liability for malicious
prosecution, but not for other negligent or wrongful acts
committed in the course of their duties. (Sullivan, supra, 12
Cal.3d at p. 720; Davis v. Kendrick (1959) 52 Cal.2d 517, 518–
519; A Study Relating to Sovereign Immunity (Jan. 1963) 5 Cal.
Law Revision Com. Rep. (1963) pp. 415–416, 433.) As noted, after
this court abolished the common law doctrine of governmental
immunity in Muskopf, the Legislature charged the California
Law Review Commission with recommending appropriate
statutory provisions to govern governmental tort liability.
Section 821.6 was one of several provisions proposed by the
Commission. (See Recommendation, supra, 4 Cal. Law Revision
Com. Rep. at p. 845 [proposed § 821.6]; Sen. Bill No. 42 (1963
Reg. Sess.) as introduced Jan. 10, 1963, § 1 [identical text].) The
Legislature enacted the Commission’s proposed section 821.6
without change. (See Stats. 1963, ch. 1681, § 1, p. 3270.
In its report to the Legislature, the Commission
commented on the understanding behind each proposed
provision, including section 821.6. The Senate Committee on
Judiciary made minor revisions to the Commission’s comment
on section 821.6 and issued the modified comment as reflective
of its own intent in approving the statute: “The California courts
have repeatedly held public entities and public employees
immune from liability for [the conduct immunized by the
proposed statute]. Dawson v. Martin, 150 Cal.App.2d 379, 309
P.2d 915 (1957) (public entities). White v. Towers, 37 Cal.2d 727,
235 P.2d 209 (1951); Coverstone v. Davies, 38 Cal.2d 315, 239
P.2d 876 (1952); Hardy v. Vial, 48 Cal.2d 577, 311 P.2d 494
(1957) (public employees). This section continues the existing
immunity of public employees; and, because no statute imposes
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Opinion of the Court by Kruger, J.
liability on public entities for malicious prosecution, public
entities likewise are immune from liability.” (Sen. Com. on
Judiciary, Rep. on Sen. Bill No. 42 (1963 Reg. Sess.) 2 Sen. J.
(1963 Reg. Sess.) p. 1890.)4
As we explained in Sullivan, the comment indicates that
section 821.6 was designed to continue preexisting law
immunizing public employees against liability for malicious
prosecution. (Sullivan, supra, 12 Cal.3d at pp. 719–720.) The
common law immunity cases cited in the comment “all involve
the government employees’ acts in filing charges or swearing out
affidavits of criminal activity against the plaintiff” — that is,
acts that would support a finding the defendant played a
sufficient role in bringing about the prosecution, as a malicious
prosecution claim requires. (Id. at p. 720; see id. at p. 720, fn. 9
[discussing common law cases].) The same cases demonstrate
that claims predicated on conduct other than the prosecution of
official proceedings fell outside the common law immunity and
were dealt with on the merits. (See Coverstone v. Davies, supra,
38 Cal.2d at pp. 319–322 [rejecting malicious prosecution claim
based on immunity but dealing with trespass, assault and
battery, conspiracy, and false arrest and imprisonment claims
on the merits]; Dawson v. Martin, supra, 150 Cal.App.2d at
p. 381 [rejecting malicious prosecution claim based on immunity
4
The Assembly Committee on Ways and Means thereafter
reviewed both the Commission’s comments and the Senate
Committee on Judiciary’s modifications to those comments. It
offered its own revisions to some comments — none affecting
any provision at issue here — and otherwise endorsed the
Commission’s and Senate Committee’s views as reflective of its
own “intent . . . in approving the various provisions of Senate
Bill No. 42.” (Assem. Com. on Ways & Means, Rep. on Sen. Bill
No. 42 (1963 Reg. Sess.) 3 Assem. J. (1963 Reg. Sess.) p. 5439.
16
LEON v. COUNTY OF RIVERSIDE
Opinion of the Court by Kruger, J.
but dealing with false arrest and imprisonment claims on the
merits].
Other available legislative history underscores the point
that section 821.6 was principally directed to malicious
prosecution claims and not other types of tort claims. In the
Commission’s proposal to the Legislature, section 821.6, which
conferred prosecution immunity on public employees, would
have been accompanied by a separate provision, proposed
Government Code section 816, which would have imposed
liability on public entities if an employee, “acting within the
scope of his employment, instituted or prosecuted a judicial or
administrative proceeding without probable cause and with
actual malice.” (Recommendation, supra, 4 Cal. Law Revision
Com. Rep. at p. 841.) In explaining the proposal, the
Commission described it entirely in terms of its effect on the
liability of public employees and employers for malicious
prosecution: “The immunity from liability for malicious
prosecution that public employees now enjoy should be
continued so that public officials will not be subject to
harassment by ‘crank’ suits. However, where public employees
have acted maliciously in using their official powers, the injured
person should not be totally without remedy.” (Id. at p. 817.
The Commission went on: “Under the previous law, public
employees were not liable for malicious prosecution. White v.
Towers[, supra, 37 Cal.2d 727]. This immunity is continued by
Section 821.6. But under . . . Section 816, the public entity
employing the particular employee may be held liable.” (Id. at
p. 841.) The Legislature did not, however, enact the
Commission’s proposed section 816 establishing malicious
prosecution liability for public entities. The Senate Committee
on Judiciary explained that the provision was deleted from the
17
LEON v. COUNTY OF RIVERSIDE
Opinion of the Court by Kruger, J.
bill to restore “pre-Muskopf law, and both public entities
(Sections 815 and 815.2) and public employees (Section 821.6
are immune from liability for malicious prosecution.” (Sen.
Com. on Judiciary, Rep. on Sen. Bill No. 42, supra, 2 Sen. J.
(1963 Reg. Sess.) p. 1888.
The available history, in short, indicates that section 821.6
was designed primarily to preserve the existing common law
immunity for conduct that might otherwise support a malicious
prosecution action. This immunity, we observed in Sullivan, did
not extend to the act challenged there, consisting of “holding of
a person in jail beyond his term,” which had never before given
rise to a malicious prosecution finding. (Sullivan, supra, 12
Cal.3d at p. 720.) Neither has the conduct challenged here —
the investigation of a potential crime, unconnected to the filing
of any charges — ever formed the basis of a malicious
prosecution finding. Section 821.6 does expand the scope of
immunity to include any claim of injury caused by wrongful
prosecution, even if the prosecution is merely negligent and not
malicious. But neither text nor legislative history lends support
to the County’s argument that section 821.6 covers claims of
injury caused by acts that are merely investigatory and
unconnected to the prosecution of any official proceeding.
C.
The County argues that policy considerations favor a
broader reading of section 821.6. We are unpersuaded.
The County’s arguments invoke language from cases
discussing the common law immunity of public employees from
claims of malicious prosecution. In White v. Towers, supra, 37
Cal.2d 727, the defendant, a Fish and Game Commission
investigator, swore out affidavits that caused state and federal
18
LEON v. COUNTY OF RIVERSIDE
Opinion of the Court by Kruger, J.
prosecutions of the plaintiff; after all charges were dismissed,
the plaintiff sued for malicious prosecution. (Id. at pp. 728–
729.) We held that common law immunity extends to peace
officers sued for injuries arising from an alleged malicious
prosecution, explaining: “When the duty to investigate crime
and to institute criminal proceedings is lodged with any public
officer, it is for the best interests of the community as a whole
that he be protected from harassment in the performance of that
duty. The efficient functioning of our system of law enforcement
is dependent largely upon the investigation of crime and the
accusation of offenders by properly trained officers. A
breakdown of this system at the investigative or accusatory level
would wreak untold harm.” (Id. at pp. 729–730.) To avoid such
a breakdown, “experience has shown that the common good is
best served by permitting law enforcement officers to perform
their assigned tasks without fear of being called to account in a
civil action for alleged malicious prosecution.” (Id. at p. 730.
Such immunity “ ‘is for the benefit of all to whom it applies, that
they may be free to act in the exercise of honest judgment
uninfluenced by fear of consequences personal to themselves.
This again is not for their personal advantage or benefit. It is
only that they may be enabled to render a better public
service.’ ” (Id. at p. 732.
Similarly, in Hardy v. Vial, supra, 48 Cal.2d 577, we held
that school officials were entitled to common law immunity in a
malicious prosecution action brought by a professor who claimed
the defendants had wrongfully instituted administrative
proceedings to have him fired from his position. Describing the
rationale for official immunity more generally, we quoted Judge
Learned Hand: “ ‘[I]t has been thought in the end better to leave
unredressed the wrongs done by dishonest officers than to
19
LEON v. COUNTY OF RIVERSIDE
Opinion of the Court by Kruger, J.
subject those who try to do their duty to the constant dread of
retaliation.’ ” (Id. at p. 583, quoting Gregoire v. Biddle (2d Cir.
1949) 177 F.2d 579, 581.
The Courts of Appeal have relied on these passages in
White and Hardy as justification for extending immunity under
section 821.6 beyond wrongful prosecution to all manner of
other torts. (Leon, supra, 64 Cal.App.5th at pp. 847, 855–856;
Doe v. State of California, supra, 8 Cal.App.5th at p. 844;
Amylou R., supra, 28 Cal.App.4th at p. 1213; Citizens Capital
Corp. v. Spohn, supra, 133 Cal.App.3d at p. 889.) Emphasizing
the potential chilling effect of suits like this one might have on
legitimate law enforcement investigative activity, the County
invites us to do likewise.
We decline the invitation. For one thing, the County
overreads White and Hardy. White and Hardy afforded
immunity only from claims based on wrongful institution of
proceedings; neither case purported to recognize a sweeping
immunity for any and all acts police officers may perform within
the scope of their employment. And while each case did discuss
the societal benefits of officer immunity, each also discussed the
substantial considerations on the other side of the balance,
including the hardship to individuals who may be left without
an effective remedy for harm they have suffered. (White v.
Towers, supra, 37 Cal.2d at p. 730; accord, Hardy v. Vial, supra,
48 Cal.2d at p. 583 [“ ‘There must indeed be means of punishing
public officers who have been truant to their duties; but that is
quite another matter from exposing such as have been honestly
mistaken to suit by anyone who has suffered from their errors.
As is so often the case, the answer must be found in a balance
between the evils inevitable in either alternative’ ”], quoting
Gregoire v. Biddle, supra, 177 F.2d at p. 581.
20
LEON v. COUNTY OF RIVERSIDE
Opinion of the Court by Kruger, J.
In any event, the legal landscape has changed
considerably since our common law decisions in White and
Hardy. Since then, the Legislature enacted a comprehensive
statutory scheme that wipes the slate clean of common law
liabilities and immunities and replaces them with statutory
provisions specifying the extent of liability or immunity. (See
Gov. Code, §§ 815, 815.2, 820.) In enacting section 821.6, the
Legislature conferred absolute immunity against claims based
on injuries caused by wrongful prosecutions, but not other types
of injuries inflicted in the course of law enforcement
investigations. The scope of the statute reflects the
Legislature’s considered judgment about how to balance the
relevant policy considerations at stake, and we are bound to give
effect to it.
It bears some emphasis, however, that section 821.6 is not
the only provision of the Government Claims Act capable of
addressing the concerns the County now raises. For instance,
in enacting the Government Claims Act, the Legislature
provided for public entity defense of claims and payment of
judgments against public employees. (Gov. Code, §§ 825–825.6.
As we have previously recognized, these provisions alleviate the
kinds of difficulties we outlined in Hardy: they mean that “[t]he
public employee need not suffer concern over the possibility that
he will be compelled to finance and oversee a tort suit filed
against him personally” and “faces only a slim danger of
ultimate personal liability; such liability attaches only in the
rare instances of injuries arising from acts either outside the
scope of employment or performed with actual fraud, corruption,
or malice.” (Johnson v. State of California (1968) 69 Cal.2d 782,
791–792.
21
LEON v. COUNTY OF RIVERSIDE
Opinion of the Court by Kruger, J.
In addition, various provisions of the Act confer immunity
for official acts other than the institution or prosecution of
official proceedings; the scope of immunity conferred by each
provision is tailored to the relevant circumstances. The “most
significant” of the Act’s immunity provisions confers a general
immunity for discretionary acts taken within the scope of
authority. (Recommendation, supra, 4 Cal. Law Revision Com.
Rep. at p. 812.) This immunity was long recognized at common
law (Caldwell v. Montoya, supra, 10 Cal.4th at p. 979; see, e.g.,
Downer v. Lent (1856) 6 Cal. 94, 95) and preserved in
Government Code section 820.2 (Recommendation, at p. 843;
see Caldwell, at p. 980). But the Act also contains other, more
targeted immunity provisions addressing what the Commission
described as specific types of discretionary acts. (Gov. Code,
§§ 820.4–821.8; see Recommendation, supra, 4 Cal. Law
Revision Com. Rep. at pp. 843–845; Sen. Com. on Judiciary,
Rep. on Sen. Bill No. 42, supra, 2 Sen. J. (1963 Reg. Sess.
pp. 1889–1890.) These provisions include Government Code
section 820.4, which confers immunity for any “act or omission,
exercising due care, in the execution or enforcement of any law,”
though not for “false arrest or false imprisonment.” These
provisions also include Government Code section 821, which
expressly immunizes the “failure to enforce an enactment.” (See
Recommendation, at p. 844 [provision continues existing
common law immunity for, inter alia, failure to arrest, citing
Rubinow v. County of San Bernardino (1959) 169 Cal.App.2d
67].
Depending on the circumstances, these and other
immunity provisions may apply to certain investigatory actions
of law enforcement officers even if section 821.6’s absolute
immunity does not apply. Ultimately, although the County may
22
LEON v. COUNTY OF RIVERSIDE
Opinion of the Court by Kruger, J.
prefer section 821.6’s absolute immunity to the other
possibilities, this preference does not justify an expansive
reading of that immunity that accords with neither its text nor
its history.
D.
Little of what we say today is new; we reached essentially
the same conclusions in Sullivan, supra, 12 Cal.3d 710. Relying
on the text and legislative history, this court adopted a “narrow
interpretation of section 821.6’s immunity, confining its reach to
malicious prosecution actions.” (Id. at p. 721; see id. at pp. 719–
722.) We restate that conclusion here with this clarification:
Section 821.6 applies to claims of injury arising from a public
employee’s initiation or prosecution of an official proceeding,
whether the act was allegedly done with malice and without
probable cause, as required for a malicious prosecution action,
or was allegedly tortious for other reasons.
According to the County, Sullivan decided only that false
imprisonment is not immunized under section 821.6 and thus
left open the question whether the statute might apply to other
torts, such as negligent infliction of emotional distress, and
other actions, such as investigations preliminary to any
potential prosecution. The Court of Appeal below relied on a
similar rationale to distinguish Sullivan, as have many of the
Courts of Appeal that have applied section 821.6 to claims other
than wrongful prosecution. (Leon, supra, 64 Cal.App.5th at
p. 854; see Gillan v. City of San Marino, supra, 147 Cal.App.4th
at pp. 1048–1049; Jenkins v. County of Orange, supra, 212
Cal.App.3d at p. 283; cf. Amylou R., supra, 28 Cal.App.4th at
p. 1211 & fn. 2 [citing Sullivan, but without distinguishing it].
23
LEON v. COUNTY OF RIVERSIDE
Opinion of the Court by Kruger, J.
But our analysis in Sullivan was not limited to the
distinction between malicious prosecution and false
imprisonment; we addressed the intended scope of section 821.6
more generally, concluding the statute was intended to continue
the common law immunity for malicious prosecution alone. (See
Sullivan, supra, 12 Cal.3d at pp. 719–721.) While the discussion
in Sullivan did focus on the lack of immunity for false
imprisonment, we ultimately enunciated what we described as
a “narrow interpretation of section 821.6’s immunity, confining
its reach to malicious prosecution actions.” (Id. at p. 721.) We
explained that narrow interpretation was consistent with the
statute’s language and history. (Id. at pp. 719–720.) The facts
of Sullivan may have involved wrongfully holding the plaintiff
in confinement beyond his term. But the rationale for our
decision was not limited to those facts. The County offers no
adequate explanation for concluding otherwise.
In the alternative, the County argues that the Court of
Appeal decisions extending section 821.6 immunity to
investigatory conduct, including the court’s decision in this very
case, are consistent with Sullivan, properly understood, because
they simply “apply, directly or indirectly, the same test applied
in Sullivan with regard to malicious prosecution — ‘whether the
defendant was actively instrumental in causing the
prosecution.’ ” But in this case and some others on which the
County relies, there was either no prosecution at all or no causal
connection between the prosecution and the plaintiff’s claimed
injuries. Dora is not suing the County and its officers for
causing an unjust prosecution, but for the officers’ lack of care
in handling her late husband’s body. Much the same is true of
the plaintiffs in, for example, Amylou R., supra, 28 Cal.App.4th
1205 (suit over disparaging remarks) and Baughman v. State of
24
LEON v. COUNTY OF RIVERSIDE
Opinion of the Court by Kruger, J.
California, supra, 38 Cal.App.4th 182 (suit over destroyed
research).
Finally, the County argues that even if Sullivan
establishes section 821.6 immunity extends only to tortious
prosecution claims, “the doctrine of stare decisis should not be
mechanically applied,” and this court should reconsider
Sullivan in light of the many Courts of Appeal that have
interpreted the immunity more broadly. But as we have
discussed, the textual and policy-based arguments on which
those decisions rest do not hold up to scrutiny. And “[t]he
principles underlying the doctrine of stare decisis apply with
special force in the context of statutory interpretation, because
the Legislature remains free to alter what we have done.”
(Barner v. Leeds (2000) 24 Cal.4th 676, 686, fn. 2.) We declined
in Barner to disturb a decades-old construction of the scope of
the immunity afforded by Government Code section 820.2; we
do the same here with respect to immunity under section 821.6.
We reaffirm the holding of Sullivan, supra, 12 Cal.3d 710, 719:
Section 821.6 protects public employees from liability only for
initiation or prosecution of an official proceeding.
To the extent they are inconsistent with this opinion, we
disapprove Doe v. State of California, supra, 8 Cal.App.5th 832;
Strong v. State of California, supra, 201 Cal.App.4th 1439;
County of Los Angeles v. Superior Court, supra, 181 Cal.App.4th
218; Paterson v. City of Los Angeles (2009) 174 Cal.App.4th
1393; Richardson-Tunnell v. Schools Ins. Program for
Employees (SIPE), supra, 157 Cal.App.4th 1056; Gillan v. City
of San Marino, supra, 147 Cal.App.4th 1033; Javor v. Taggart
(2002) 98 Cal.App.4th 795; Ingram v. Flippo, supra, 74
Cal.App.4th 1280; Baughman v. State of California, supra, 38
Cal.App.4th 182; Amylou R. v. County of Riverside, supra, 28
25
LEON v. COUNTY OF RIVERSIDE
Opinion of the Court by Kruger, J.
Cal.App.4th 1205; Jenkins v. County of Orange, supra, 212
Cal.App.3d 278; and Citizens Capital Corp. v. Spohn, supra, 133
Cal.App.3d 887.
IV.
The Court of Appeal upheld the application of section
821.6 to confer absolute immunity on the County for negligent
infliction of emotional distress arising out of the alleged
mishandling of plaintiff’s husband’s body. This was error.
Because the claim does not concern alleged harms from the
institution or prosecution of judicial or administrative
proceedings, section 821.6 does not apply.
Section 821.6 prosecution immunity was the only defense
the trial court and Court of Appeal addressed, but it was not the
only defense the County raised in its motion for summary
judgment. Nothing we say addresses these other defenses,
including whether Government Code sections 820.2, 820.4, or
any other statutory immunity provision may apply.
V.
The judgment of the Court of Appeal is reversed and the
matter is remanded for further proceedings consistent with this
opinion.
KRUGER, J.
We Concur:
GUERRERO, C. J.
CORRIGAN, J.
LIU, J.
GROBAN, J.
JENKINS, J.
EVANS, J.
26
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion Leon v. County of Riverside
__________________________________________________________
Procedural Posture (see XX below
Original Appeal
Original Proceeding
Review Granted (published) XX 64 Cal.App.5th 837
Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S269672
Date Filed: June 22, 2023
__________________________________________________________
Court: Superior
County: Riverside
Judge: Daniel A. Ottolia
__________________________________________________________
Counsel:
Law Office of Steven Zwick, Steven Zwick, James Alquist; Law Office
of Richard L. Antognini and Richard L. Antognini for Plaintiff and
Appellant.
Law Offices of Ali Taheripour, Ali Taheripour; Law Offices of Les T.
Zador and Leslie T. Zador for Ali Taheripour and Leslie T. Zador as
Amici Curiae on behalf of Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Arthur K. Cunningham, Jeffry A.
Miller and Lann G. McIntyre for Defendant and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Richard L. Antognini
Law Office of Richard L. Antognini
2485 Notre Dame Boulevard, Suite 370-45
Chico, CA 95928-7167
(916) 295-4896
Leslie T. Zador
Law Offices of Les T. Zador
15760 Ventura Boulevard, Suite 700
Encino, CA 91436
(818) 584-3560
Jeffry A. Miller
Lewis Brisbois Bisgaard & Smith LLP
550 West C Street, Suite 1700
San Diego, CA 92101
(619) 233-1006
Opinion Information
| Date: | Docket Number: |
| Thu, 06/22/2023 | S269672 |
