Stanford Law School - Robert Crown Law Library

Filed 8/16/07

IN THE SUPREME COURT OF CALIFORNIA

LENIN FREUD PEREZ-TORRES,
Plaintiff and Appellant,
S137346
v.
Ct.App. 2/3 B179327
STATE OF CALIFORNIA et al.,
Los Angeles County
Defendants and Respondents. )
Super. Ct. No. BC267143

Mistakenly believing that plaintiff, who was not on parole, had violated his
parole, state parole agents arrested and jailed him. After the error was discovered
and 25 days after his arrest, plaintiff was released. As relevant here, plaintiff sued
the State of California and three of its parole agents for, among other things,
negligence and false imprisonment. Defendants invoked Government Code
section 845.8, subdivision (a) (§ 845.8(a)),1 which grants public entities and
employees immunity from liability for any injury resulting from prisoner release
or parole decisions. The trial court granted defense motions for summary
judgment. The Court of Appeal affirmed on the ground that defendants were
immune under section 845.8(a). We disagree.

1
Unless otherwise indicated, all statutory citations are to the Government
Code.
1

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I
Plaintiff Lenin Freud Perez-Torres also uses the names Lenin Freud Perez,
Lenin Perez, and Lenin F. Perez.2 In 1995, plaintiff was arrested by the
Montebello police for spousal abuse. (Pen. Code, § 273.5, subd. (a).) At that
time, plaintiff was fingerprinted and the Department of Justice assigned him
criminal identification and information (CII) number A11099636 for use in its
criminal history information system (CHIS). Plaintiff was released and no charges
were filed.
On March 10, 1997, another man, Lenin Salgado Torres, also known as
Lenin Freud Perez, was arrested for spousal abuse. (Pen. Code, § 273.5, subd.
(a).) (To distinguish this man from plaintiff, we will refer to him as Salgado.)
Salgado was fingerprinted, and his fingerprints were sent to Los Angeles County
authorities in charge of determining the existence of a criminal history. No
criminal record for Salgado was found, and he was assigned CII number
A11552358. That identification number and Salgado’s fingerprints were then sent
to the Department of Justice for entry into CHIS; that entry was made in June
1997.
Later in March 1997, Salgado pled guilty and was sentenced to prison. At
the time of the plea, Los Angeles County law enforcement authorities checked
Salgado’s criminal history through CHIS, which provided them plaintiff’s name
and plaintiff’s CII identification number. The Los Angeles County law

2
This case is before us after the trial court’s granting of defendants’ motion
for summary judgment. Our statement of facts is taken from the record before the
trial court when it granted defendant’s motion. (Johnson v. City of Loma Linda
(2000) 24 Cal.4th 61, 65-66.)
2

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enforcement authorities then put plaintiff’s CII number on Salgado’s
documentation, including his judgment of conviction.
In October 1998, Salgado was paroled from state prison and deported to
Mexico. A condition of parole was that he not return to the United States. When
a person is paroled, the California Department of Corrections enters the parolee’s
name into the “Supervised Release File” (parole file) database. If the parolee is
later arrested, a CHIS check will trigger the parole file database; notification of the
parolee’s arrest is then sent to the parole office supervising the parolee. As
explained earlier, plaintiff’s CII identification number had been erroneously put on
documents relating to Salgado’s conviction; thus it was plaintiff’s CII number that
was entered into the parole database.
Also in October 1998, the Department of Corrections notified the
Department of Justice that the CII identification numbers assigned to plaintiff and
Salgado should be consolidated because the Department of Corrections thought
that the numbers were for only one person, not two. Thereafter, an investigation
by the Department of Justice revealed that the two numbers involved not one but
two persons, but the Department of Justice failed to inform the Department of
Corrections of that discovery.
On April 7, 2000, Montebello police officers arrested plaintiff for driving
under the influence. In checking plaintiff’s criminal history, the police learned of
his 1995 arrest and the CII identification number assigned to him back then.
When plaintiff’s fingerprints and his CII number were sent to the Department of
Justice, the parole file database indicated that plaintiff was on parole, and a notice
of his arrest was then sent to the supervising parole office in Inglewood, where it
was received by parole agent David Chaney. Because, as explained earlier,
plaintiff’s CII number had been mistakenly entered into the parole database, the
notification to the Inglewood parole office, which was supervising parolee
3

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Salgado, erroneously indicated that Salgado, rather than plaintiff, was recently
arrested for driving under the influence.
On June 22, 2000, state parole agent Chris Kane, accompanied by agents
from the federal Immigration and Naturalization Service, including agent Michael
Vaughn, went to plaintiff’s home. Plaintiff acknowledged his recent arrest for
driving under the influence as well as his earlier 1995 arrest for spousal abuse.
Based on Kane’s determination that plaintiff resembled a photograph he had of
parolee Salgado, plaintiff was arrested. Plaintiff was taken to the Los Angeles
County jail, where he was booked and both a parole and an immigration “hold”
were placed on him. Upon arrival at the jail, plaintiff repeatedly told Kane that
they had the wrong man. Kane then realized there was a disparity between
plaintiff’s height (5 feet and 3 or 4 inches) and Salgado’s height (5 feet and 8 or 9
inches) as stated in his criminal records. Kane took photographs of plaintiff. Back
at the parole office, Kane showed the photographs to parole agent Chaney and
supervisor Elizabeth Soos. When Chaney telephoned federal Immigration and
Naturalization Service agent Vaughn to express doubts about plaintiff’s identity,
Vaughn said that he had a picture of parolee Salgado and that the jailed person
was indeed Salgado. The state parole agents then apparently decided that
fingerprint verification was unnecessary.
On July 12, 2000, state parole agent Chaney, at the request of an attorney
retained by plaintiff’s wife, asked that a state Department of Justice technician
visually compare plaintiff’s fingerprints with those of parolee Salgado. The
comparison confirmed that plaintiff was not Salgado; that same day, the state
parole hold on plaintiff was removed. But the federal Immigration and
Naturalization Service’s immigration hold was not lifted until July 17, 2000, when
plaintiff was released from jail.
4

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Thereafter, but before the lawsuit in this case was filed, plaintiff
participated in a federal class action against Los Angeles County, the Los Angeles
County Board of Supervisors, and the Los Angeles County Sheriff’s Department
alleging, among other things, liability for arresting the wrong person and holding
the person without a timely determination of the person’s true identity. The
federal class action was resolved by a December 6, 2002, order of settlement,
release, and dismissal, under which plaintiff received $8,500.
On January 28, 2002, plaintiff filed this action in the Los Angeles Superior
Court against the United States and federal immigration agent Vaughn, as well as
the State of California and its parole agents Kane and Chaney. The complaint
alleged causes of action for interference with the exercise of legal rights (Civ.
Code, § 52.1), false imprisonment, and negligence (id., § 1714). The United
States government filed in the federal district court a notice of removal of the
action, thereby divesting the state court of authority to proceed unless the case was
remanded. (28 U.S.C. § 1446(a), (d).) The federal district court granted motions
to dismiss the State of California and to dismiss its parole agents Chaney and Kane
in their official capacities, and it remanded to the state court plaintiff’s claims
against these defendants. After that remand, plaintiff added state parole supervisor
Soos as a defendant. In the trial court, the State of California and Soos demurred
to the complaint on the ground of statutory immunity. The trial court overruled
the demurrers.
Defendants State of California and parole supervisor Soos then moved for
summary judgment on the ground that plaintiff’s lawsuit was barred by the
doctrine of res judicata in light of the settlement of the federal class action in
which plaintiff had participated before filing this action against the state
defendants. Plaintiff moved for summary adjudication of defendants’ affirmative
defense that they had acted reasonably.
5

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The trial court granted the state defendants’ motion for summary judgment,
ordered plaintiff’s motion for summary adjudication off calendar, and entered
judgment for defendants. On plaintiff’s appeal, the Court of Appeal held that res
judicata did not apply in this case, but it nevertheless affirmed the judgment in
favor of the state defendants based on its conclusion that defendants have
immunity under section 845.8(a). It agreed with defendants that “it makes no
difference that the revocation decision concerned Salgado’s parole rather than
plaintiff’s parole status (plaintiff apparently has never been on parole). Plaintiff is
in the same situation as other innocent third parties who are harmed by a decision
regarding someone else’s parole.” (Original italics.) The Court of Appeal
concluded that although “the manner in which the plaintiff in the instant case was
affected by defendants’ decisions regarding Salgado’s parole status is out of the
ordinary (arrest and incarceration rather than physical harm), this variance does
not take his case out of the [immunity] provisions of section 845.8.” We granted
plaintiff’s petition for review.
II
Plaintiff challenges the Court of Appeal’s holding that section 845.8(a)
grants the state defendants immunity from liability on three grounds: (1) the error
in assigning to him the wrong identification number was not part of the state’s
determination whether to revoke parole; (2) the immunity applies only if the
person whose parole is revoked is the person actually on parole; and (3) under this
court’s decision in Johnson v. State of California (1968) 69 Cal.2d 782 (Johnson),
the immunity does not extend to his continued incarceration after the state
defendants knew or should have known he was the wrong man. We disagree with
plaintiff’s first and second arguments; we agree, however, with plaintiff’s third
argument, which we will address last.
6

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The immunity provision at issue states: “Neither a public entity nor a
public employee is liable for: [¶] (a) Any injury resulting from determining
whether to parole or release a prisoner or from determining the terms and
conditions of his parole or release or from determining whether to revoke his
parole or release.” (§ 845.8(a).)
We reject plaintiff’s first argument, that the state’s administrative error in
assigning him a CII identification number belonging to parolee Salgado was not
part of “determining whether to revoke . . . parole” under the statute. As the
state’s administrative error was the basis for the parole revocation determination
and thus was an integral part of that decision, it was part of determining whether to
revoke parole.
We also reject plaintiff’s second argument, that the statutory immunity for
state defendants does not apply because state officials arrested and jailed him
based on the mistaken belief that he was a parole violator. As plaintiff points out,
it was Salgado, not plaintiff, who was on parole. True, plaintiff was the wrong
man, so to speak, and he was an innocent third party. But, as the Court of Appeal
observed, these facts do not render the immunity provision inapplicable, because
the statutory phrase “any injury” includes injuries to innocent third parties. (See,
e.g., Thompson v. County of Alameda (1980) 27 Cal.3d 741, 746-749 [immunity
for death of five-year-old killed by release of juvenile offender]; Fleming v. State
of California (1995) 34 Cal.App.4th 1378, 1382-1383 [immunity for murder
committed by parolee]; Brenneman v. State of California (1989) 208 Cal.App.3d
812 [same].) Because the state immunity applies to injuries suffered by innocent
third parties and plaintiff was an innocent third party, that plaintiff was not
personally the parolee does not by itself render the statutory immunity
inapplicable here.
7

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We do, however, agree with plaintiff’s third argument, that the statutory
immunity does not extend to plaintiff’s continued incarceration after defendants
knew or should have known he was the wrong man. Pertinent here is this court’s
decision in Johnson, supra, 69 Cal.2d 782. That case involved the applicability of
both section 820.2 and section 845.8, which is the statute here in issue, pertaining
to a claim of immunity by the state for injuries arising out of the Youth
Authority’s decision to place in a foster home a dangerous youth who was on
parole. (Johnson, supra, at pp. 784-785.) The youth had displayed homicidal
tendencies as well as violence and cruelty to both animals and people, aspects that
were not revealed to the foster parents. (Ibid.) The youth assaulted one of the
foster parents. (Id. at p. 785.) This court held that the state’s decision whether to
warn the foster parents of the youth’s dangerous propensities was not within either
section 820.2’s immunity for discretionary decisions of public employees or
section 845.8(a)’s immunity for an injury resulting from a determination to parole
or release a prisoner (Johnson, supra, at p. 786). Below we discuss the basis for
that holding.
As just noted, section 820.2 grants immunity to public employees for
injuries resulting from discretionary decisions. Johnson, supra, 69 Cal.2d 782,
distinguished between basic policymaking or “planning” on the one hand and
ministerial or “operational” levels of decisionmaking on the other hand, holding
that the first category triggered immunity while the latter category did not. (Id. at
pp. 793-796.) Johnson concluded that although the basic policy decision (such as
standards for parole) warrants immunity, “subsequent ministerial actions in the
implementation of that basic decision still must face case-by-case adjudication on
the question of negligence.” (Id. at p. 797.)
Johnson, supra, 69 Cal.2d 782, then addressed section 845.8(a), which is at
issue here and which immunizes the state from a determination “whether to parole
8

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or release a prisoner or from determining the terms and conditions of his parole or
release or from determining whether to revoke his parole or release.” To resolve
the issue, Johnson applied the distinction it had drawn earlier between basic or
discretionary decisions on the one hand and ministerial decisions implementing
the basic decision on the other hand. “Once the proper authorities have made the
basic policy decision—to place a youth with foster parents, for example—the role
of section 845.8 immunity ends” (Johnson, supra, at p. 799), that is, actions
implementing that basic policy decision are outside the scope of the immunity.
Johnson went on to hold that the state’s “subsequent negligent actions, such as the
failure to give reasonable warnings to the foster parents actually selected, are
subject to legal redress.” (Ibid.; see 5 Witkin, Summary of Cal. Law (10th ed.
2005) Torts, § 357, p. 570.)
In
Barner v. Leeds (2000) 24 Cal.4th 676, this court rejected a request by
59 California cities and towns that we reconsider and overrule our 1968 decision
in Johnson, supra, 69 Cal.2d 782. We observed in Barner that the principles set
forth in Johnson reflected more than three decades of authoritative precedent, and
that the Legislature during that time had made no changes to the governmental
immunity provision of section 820.2 addressed in Johnson. (Barner v. Leeds,
supra, 24 Cal.4th at p. 685, fn. 2.) Nor, we now note, has the Legislature made
any changes to the immunity under section 845.8(a), the other statute addressed in
Johnson. We further note that by now the principles we enunciated in Johnson are
approaching four decades of established precedent.
The state here contends that Johnson, supra, 69 Cal.2d 782, is
distinguishable from this case because in Johnson, section 845.8(a) did not apply
to the plaintiff’s claim, while section 845.8(a) does apply here to plaintiff’s claim.
Not so. Johnson concluded that the plaintiff’s claim there was within section
845.8(a) to the extent it was based on the Youth Authority’s decision to place the
9

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dangerous youth with the foster parents, but not insofar as it was based on that
entity’s later negligent acts. Johnson, as we have pointed out earlier, stated:
“Once the proper authorities have made the basic policy decision—to place a
youth with foster parents, for example—the role of section 845.8 immunity ends;
subsequent negligent actions, such as the failure to give reasonable warnings to the
foster parents actually selected, are subject to legal redress.” (69 Cal.2d at p. 799.)
Thus, contrary to the state’s assertion here, Johnson cannot be distinguished from
this case on the ground that Johnson did not apply section 845.8(a).
Likewise misplaced is the state’s suggestion that Johnson’s distinction
between discretionary and ministerial decisions does not apply to section 845.8(a).
Citing this court’s decision in Kisbey v. State of California (1984) 36 Cal.3d 415
(Kisbey) and the Court of Appeal’s decision in Swift v. Department of Corrections
(2004) 116 Cal.App.4th 1365 (Swift), the state defendants assert that the section
845.8(a) governmental immunity is absolute, rendering inapplicable any
distinction between discretionary and ministerial decisions. But Kisbey concerned
the application of section 845.8, subdivision (b),3 not subdivision (a), which is at
issue here. Kisbey did state that section 845.8 “has been interpreted as providing
for an ‘absolute’ immunity—one which applies to ministerial as well as
discretionary acts. (County of Sacramento v. Superior Court (1972) 8 Cal.3d 479,
481-484.)” (Kisbey, supra, 36 Cal.3d at p. 419.) But Kisbey made that
observation in the context of subdivision (b) rather than subdivision (a) of section
845.8. And the supporting authority that Kisbey cited, County of Sacramento v.
Superior Court, had distinguished this court’s decision in Johnson, supra, 69

3
Section 845.8, subdivision (b), grants immunity for: “(b) Any injury
caused by: [¶] (1) An escaping or escaped prisoner; [¶] (2) An escaping or
escaped arrested person; or [¶] (3) A person resisting arrest.”
10

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Cal.2d 782, with regard to the scope of subdivision (b) of section 845.8, by noting
that in contrast to subdivision (a) of that statute, subdivision (b) was not limited in
its scope. (County of Sacramento v. Superior Court, supra, 8 Cal.3d at p. 484.)
With respect to the Court of Appeal’s decision in Swift, supra, 116
Cal.App.4th 1365, defendants here rely on this statement on page 1373 from that
decision: “California courts have routinely rejected the claim that section 845.8
does not afford immunity for the ministerial implementation of correctional
programs.” That language, defendants contend, supports their argument that the
distinction this court drew in Johnson, supra, 69 Cal.2d 782, between
discretionary and ministerial decisions by the state does not apply to the
governmental immunity under section 845.8(a). True, that language from Swift
does lend support to the state’s argument here. But the observation in Swift was
overbroad and thus wrong, as discussed below.
As noted on page 9, ante, this court in Johnson, supra, 69 Cal.2d 782,
applied the distinction between basic or discretionary decisions and ministerial
decisions when it addressed the governmental immunity provision of section
845.8(a). Also, the Court of Appeal in Swift, supra, 116 Cal.App.4th at page
1374, cited Court of Appeal decisions in Martinez v. State of California (1978) 85
Cal.App.3d 430 (rape and murder by parolee), Brenneman v. State of California,
supra, 208 Cal.App.3d 812 (molestation and murder by parolee), and Whitcombe
v. County of Yolo (1977) 73 Cal.App.3d 698 (assault by probationer released from
custody on bail), as supporting its statement that section 845.8(a)’s governmental
immunity applies irrespective of whether the governmental act complained of is
ministerial or discretionary. Each of the three cited cases relied on by the Court of
Appeal in Swift involved claims of liability based on the state’s alleged negligent
failure to supervise a parolee or a probationer released from custody on bail. But
Swift did not involve negligent supervision of either a parolee or a probationer; nor
11

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does this case. Swift’s statement quoted above was overbroad because it had
nothing to do with the case before it. What was at issue in Swift was a claim that
the revocation of the plaintiff’s parole was improper because his term of parole
had expired. (116 Cal.App.4th at p. 1371.)4
Here, the state’s decision to revoke Salgado’s parole, based on the mistaken
belief that plaintiff, a nonparolee, was Salgado, was—like the decision in Johnson
to place the dangerous youth on parole with the foster parents—a basic policy
decision and thus within the governmental immunity provision of section 845.8(a).
After that basic policy decision was made, however, the state defendants’ conduct
in keeping plaintiff in jail after they knew or should have known that he was the
wrong man was—like the failure in Johnson to warn the foster parents of the
youth’s dangerous propensities—an action implementing the basic policy decision
and thus outside the statutory immunity, making it subject to legal redress on the
question of negligence by the state. (Johnson, supra, 69 Cal.2d at pp. 797, 799.)
Just as section 845.8(a)’s governmental immunity was inapplicable in Johnson to
the state’s failure to warn the foster parents, so too here it is inapplicable to the
state defendants’ decision to keep plaintiff in jail after they knew or should have
known he was not parolee Salgado.5

4
To the extent Swift v. Department of Corrections, supra, 116 Cal.App.4th
1365, is inconsistent with the views expressed here, it is disapproved.
5
This conclusion makes it unnecessary to address plaintiff’s contentions that
applying the governmental immunity of section 845.8(a) here would violate his
federal and state constitutional right to equal protection of the laws and his federal
and state constitutional right to be free from unreasonable seizures.

Plaintiff also asks that we decide his motion for summary adjudication and
conclude that his arrest was unreasonable. We decline to do so. The trial court
has not ruled on plaintiff’s motion, which was taken off calendar when the trial
court granted the state defendants’ motion for summary judgment.

12

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The judgment of the Court of Appeal is reversed.
KENNARD,
J.
WE CONCUR:

GEORGE, C. J.
BAXTER, J.
WERDEGAR, J.
CHIN, J.
MORENO, J.
CORRIGAN, J.
13

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See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Perez-Torres v. State of California
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted XXX 132 Cal.App.4th 49
Rehearing Granted

__________________________________________________________________________________

Opinion No.

S137346
Date Filed: August 16, 2007
__________________________________________________________________________________

Court:

Superior
County: Los Angeles
Judge: David A. Workman

__________________________________________________________________________________

Attorneys for Appellant:

Robert Mann and Donald W. Cook for Plaintiff and Appellant.

Law Offices of John Burton and John Burton for LA Police Watch as Amicus Curiae on behalf of Plaintiff
and Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Manuel M. Medeiros, State Solicitor General,
James M. Humes, Chief Assistant Attorney General, James M. Schiavenza, Assistant Attorney General,
Marsha S. Miller and Paul C. Epstein, Deputy Attorneys General, for Defendants and Respondents.

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Counsel who argued in Supreme Court (not intended for publication with opinion):

Donald W. Cook
3425 Wilshire Boulevard, Suite 2900
Los Angeles, CA 90010
(213) 252-9444

Paul C. Epstein
Deputy Attorney General
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
(213) 620-2249

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Opinion Information

Date:	Docket Number:
Thu, 08/16/2007	S137346

Disposition
Aug 16 2007	Opinion: Reversed

Dockets
Sep 19 2005	Received premature petition for review   counsel for appellant Lenin-freud Perez-Torres
Sep 26 2005	Case start: Petition for review filed
Oct 17 2005	Received:   letter from respondent State of California
Oct 21 2005	Received Court of Appeal record
Nov 16 2005	Letter sent to:   Counsel re: Certification of Interested Entities & Persons
Nov 16 2005	Petition for review granted (civil case)   Votes: George, C.J., Kennard, Baxter, Werdegar, Chin, and Moreno, JJ.
Nov 28 2005	Certification of interested entities or persons filed   From Atty Mann for appellant
Dec 16 2005	Opening brief on the merits filed   Plaintiff and Appellant Lenin Freud Perez-Torres Attorney Robert Mann, Retained
Jan 10 2006	Request for extension of time filed   answer brief/merits to 2-16-06 Defendants and Respondents State of California and Elizabeth Soos Dpty Attorney General Paul C. Epstein
Jan 12 2006	Extension of time granted   on application of the respondents State of California and Elizabeth Soos, and good cause appearing, it is ordered that the time to serve and file the respondents' answer brief on the merits is extended to and including February 16, 2006.
Feb 16 2006	Answer brief on the merits filed   State of California & Elizabeth Soos, respondents Paul C. Epstein, counsel
Mar 8 2006	Request for extension of time filed   reply brief/merits to 3-22-06 Appellant Lenin Freud Perez-Torres Attorney Donald W. Cook
Mar 10 2006	Extension of time granted   On application of Lenin Freud Perez-Torres, and good cause appearing, it is ordered that the time to serve and file the appellant's reply brief on the merits is extended to and including March 22, 2006.
Mar 23 2006	Reply brief filed (case fully briefed)   Appellant Lenin Freud Perez-Torres [rule 40.1] Attorney Robert Mann, Retained
May 2 2007	Case ordered on calendar   to be argued on Tuesday, May 29, at 1:00 p.m., in San Francisco
May 17 2007	Request for Extended Media coverage Filed   by James Gualtieri of the California Channel.
May 17 2007	Request for extended media coverage denied   The request for extended media coverage, filed by The California Channel, on May 17, 2007, is hereby denied.
May 29 2007	Cause argued and submitted
Aug 15 2007	Notice of forthcoming opinion posted
Aug 16 2007	Opinion filed: Judgment reversed   Majority Opinion by Kennard, J., ----- Joined George, C. J., Baxter, Werdegar, Chin, Moreno and Corrigan, JJ.
Oct 1 2007	Remittitur issued (civil case)
Oct 10 2007	Received:   Receipt for Remittitur from the Court of Appeal, Second Appellate District, Division Three.
Oct 26 2007	Returned record   to the Court of Appeal, Second Appellate District, Division Three - two doghouses
Jan 24 2008	Received:   one doghouse

Briefs
Dec 16 2005	Opening brief on the merits filed
Feb 16 2006	Answer brief on the merits filed
Mar 23 2006	Reply brief filed (case fully briefed)

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