Asgari v. City of Los Angeles

*762MOSK, J.

I dissent.

Plaintiff Ardeshir Asgari brought an action for damages in the Orange County Superior Court against defendants including the City of Los Angeles and Los Angeles Police Department Detective Ruperto V. Sanchez. On December 15, 1987, with the help of Mahmoud Bassir, a paid informant and drug dealer who was Iranian, like Asgari himself, and Sylvia Reyes, another paid informant and drug dealer, Detective Sanchez had arrested Asgari in Orange County purportedly in possession of about a pound of heroin for sale, and had placed him in custody. On December 17, 1987, Orange County Deputy District Attorney R.D. Jones had initiated a prosecution against Asgari with the filing of a felony complaint. Trial was held in the Orange County Superior Court before a jury. On July 21, 1988, the jury found Asgari not guilty, and the court ordered him released from custody. In his action for damages against the city and Sanchez, Asgari’s claims comprised false imprisonment, including false arrest, but not malicious prosecution. After trial in the superior court, a jury returned verdicts almost uniformly favorable to Asgari, including one finding false imprisonment and fixing $750,000 as the amount of damages by way of compensation. The superior court rendered judgment accordingly.

Viewing the evidence, as it was required, in the light most favorable to the judgment, the Court of Appeal was presented with a shameful picture, as are we: Detective Sanchez, Bassir, and Reyes framed Asgari, a man they knew to be innocent, as a dealer in heroin. The Court of Appeal rejected a claim that the superior court erred by giving a certain instruction bearing on the amount of compensatory damages for false imprisonment. It proceeded to affirm the judgment in part pertinent here.

The majority conclude that they must reverse the Court of Appeal’s judgment in this part, being of the view that the superior court did indeed err, and did so reversibly.

I cannot agree. As I shall explain, the superior court did not err, and, even if it did, it did not do so reversibly.

I

Before turning to the case at bar, we should consider at some length the general principles of law that are applicable here.

The first group of general legal principles concerns the liability vel non of a public employee and his employer for injury caused by his effecting a false imprisonment, including a false arrest.

*763Under the common law, a public employee was liable for injury caused by his effecting a false imprisonment, including a false arrest. So had we held in decisions including Gill v. Epstein (1965) 62 Cal.2d 611, 617-618 [44 Cal.Rptr. 45, 401 P.2d 397].

In Government Code section 820.4, which was added by what has come to be known as the California Tort Claims Act (Stats. 1963, ch. 1681, § 1, p. 3269), the Legislature codified this common law rule. (Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 721 [117 Cal.Rptr. 241, 527 P.2d 865]; see Gov. Code, § 820.4 [stating that, although a “public employee is not liable for his act or omission, exercising due care, in the execution or enforcement of any law,” such provision does not “exonerate[]” him “from liability for false arrest or false imprisonment”].)

Under the common law, a public entity was not liable for injury caused by its employee’s effecting a false imprisonment, including a false arrest. (E.g., Shakespeare v. City of Pasadena (1964) 230 Cal.App.2d 375, 384-385 [40 Cal.Rptr. 863].)

Through the interaction of Government Code section 815.2, subdivision (a), which was added by the California Tort Claims Act (Stats. 1963, ch. 1681, § 1, p. 3268), and Government Code section 820.4, which, as noted, was also added by the same statute (Stats. 1963, ch. 1681, § 1, p. 3269), the Legislature effectively departed from this common law rule in favor of the following: A public entity is liable for injury caused by its employee’s effecting a false imprisonment, including a false arrest, if the employee is liable therefor. (See Gov. Code, § 815.2, subd. (a) [stating that a “public entity is liable for injury proximately caused by an act or omission of an employee of the public entity within the scope of his employment if the act or omission would . . . have given rise to a cause of action against that employee or his personal representative”]; id., § 820.4 [stating that, although a “public employee is not liable for his act or omission, exercising due care, in the execution or enforcement of any law,” such provision does not “exonerate[]” him “from liability for false arrest or false imprisonment”].)

The second group of general legal principles concerns the liability vel non of a public employee and his employer for injury caused by his instituting or prosecuting a judicial or administrative proceeding.

Under the common law, a public employee was not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding, even if he acted maliciously and without probable cause. (E.g., Hardy v. Vial (1957) 48 Cal.2d 577, 582 [311 P.2d 494, 66 A.L.R.2d 739]; *764Coverstone v. Davies (1952) 38 Cal.2d 315, 322 [239 P.2d 876]; White v. Towers (1951) 37 Cal.2d 727, 729-732 [235 P.2d 209, 28 A.L.R.2d 636].) The purpose was to protect the prosecutorial function (e.g., White v. Towers, supra, 37 Cal.2d at pp. 729-730)—and more specifically, it appears, to prevent interference with its quasi-judicial responsibility (Sullivan v. County of Los Angeles, supra, 12 Cal.3d at p. 722).

In Government Code section 821.6, which was added by the California Tort Claims Act (Stats. 1963, ch. 1681, § 1, p. 3270), the Legislature codified this common law rule. (Sullivan v. County of Los Angeles, supra, 12 Cal.3d at p. 721; see Gov. Code, § 821.6 [stating that a “public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding . . . , even if he acts maliciously and without probable cause”]; see also legis. committee com., 32 West’s Ann. Gov. Code (1995 ed.) foll. § 821.6, p. 274; Recommendation Relating to Sovereign Immunity, No. 1, Tort Liability of Public Entities and Public Employees (Jan. 1963) 4 Cal. Law Revision Com. Rep. (1963) p. 845.) Its object was the prevention of interference with the prosecution’s quasi-judicial responsibility. (Sullivan v. County of Los Angeles, supra, 12 Cal.3d at p. 722.)

Under the common law, a public entity was not liable for injury caused by its employee’s instituting or prosecuting a judicial or administrative proceeding. (E.g., Shakespeare v. City of Pasadena, supra, 230 Cal.App.2d at pp. 382-383.)

Through the interaction of Government Code section 815.2, subdivision (b), which was added by the Tort Claims Act (Stats. 1963, ch. 1681, § 1, p. 3268), and Government Code section 821.6, which, as noted, was also added by the same statute (Stats. 1963, ch. 1681, § 1, p. 3270), the Legislature effectively codified this common law rule. (See Gov. Code, § 815.2, subd. (b) [stating that, with an exception not applicable here, a “public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability”]; id., § 821.6 [stating that a “public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding . . . , even if he acts maliciously and without probable cause”]; see also legis. committee com., 32 West’s Ann. Gov. Code, supra, foll. § 821.6, p. 274.)

The third and final group of general legal principles concerns the interplay of one public employee’s liability for injury caused by his effecting a false imprisonment, including a false arrest, and another public employee’s non-liability for injury caused by his instituting or prosecuting a judicial or administrative proceeding.

*765Under the common law, one public employee’s liability for injury caused by his effecting a false imprisonment, including a false arrest, was not cut off as a matter of law by another public employee’s nonliability for injury caused by his instituting or prosecuting a judicial or administrative proceeding. Rather, the question of the extent of the false imprisoner’s liability in the face of the prosecutor’s nonliability depended on the peculiar facts of the individual case under the doctrine of proximate cause. So we held in Gill v. Epstein, supra, 62 Cal.2d 611. There, the false imprisonment extended through a “chain of causation” from arrest through prosecution. (Id. at p. 617.) We recognized that the arrest was a “cause in fact" of the prosecution. (Ibid., original italics.) We also recognized that a “chain of causation may be broken by an intervening act which is not reasonably foreseeable . . . .” (Id. at pp. 617-618.) But we went on to conclude that the chain of causation there was not broken because the prosecution “was clearly a foreseeable result of the arrest and was actually contemplated by” the public employees responsible therefor. (Id. at p. 618.)

Nowhere in the California Tort Claims Act—neither in Government Code section 820.4, nor in Government Code section 821.6, nor elsewhere—has the Legislature indicated any departure from the common law rule set out above: One public employee’s liability for injury caused by false imprisonment is not cut off as a matter of law by another public employee’s nonliability for injury caused by prosecution.

Surprisingly, however, the majority conclude to the contrary: One public employee’s liability for injury caused by false imprisonment is indeed cut off as a matter of law by another public employee’s nonliability for injury caused by prosecution.

In support, the majority rely ultimately on Jackson v. City of San Diego (1981) 121 Cal.App.3d 579 [175 Cal.Rptr. 395]. Jackson, however, relies ultimately on nothing—or, at best, on nothing more than a flawed reading of the effect of the Legislature’s codification of the common law rules set out above. It purports to discern in the California Tort Claims Act an “intent” on the part of the Legislature “that a ceiling be placed on damages which may be awarded for false imprisonment, limiting those damages to the period of incarceration beginning with the false arrest, but ending when lawful process begins.” (Id. at p. 582.) No such intent is apparent. Under the common law, no “ceiling” of this sort existed. In the California Tort Claims Act, none was created.1

To the extent that they rely on their own analysis and not Jackson's, the majority reason, in substance, as follows: One public employee’s liability for *766injury caused by his effecting a false imprisonment, including a false arrest, “effectively would nullify, in part,” another public employee’s nonliability for injury caused by his instituting or prosecuting a judicial or administrative proceeding, unless the false imprisoner’s liability were cut off as a matter of law by the prosecutor’s nonliability. (Maj. opn., ante, at p. 754; accord, id. at p. 758, fn. 10.) That is patently wrong. The false imprisoner remains liable for the injury he caused, no more and no less. The prosecutor remains nonliable for any injury he caused. In view of the prosecutor’s nonliability, the false imprisoner’s liability threatens no interference with the prosecution’s quasi-judicial responsibility.

Perhaps the majority mean to reason as follows: A public employee’s liability for injury caused by his effecting a false imprisonment, including a false arrest, “effectively would nullify, in part,” his own nonliability for injury caused by his instituting or prosecuting a judicial or administrative proceeding, unless his liability for false imprisonment were cut off as a matter of law by his nonliability for prosecution. (Maj. opn., ante, at p. 758; accord, id. at p. 754, fn. 10.) That too would be patently wrong. The public employee remains liable for the injury he caused through false imprisonment, no more and no less. He remains nonliable for any injury he caused through prosecution. It might be argued that, in spite of his nonliability for prosecution, the public employee’s liability for false imprisonment threatens at least some interference with the prosecution’s quasi-judicial responsibility, inasmuch as prosecution entails investigation and investigation may entail imprisonment; and that, to remove this threat, his liability for false imprisonment should be limited so as not to reach conduct in the course of an investigation leading to prosecution. Such a point would be one of policy. It would be trumped by the law. Under the common law, such a limitation did not obtain. Indeed, in Gill v. Epstein, supra, 62 Cal.2d at pages 617 to 618, we expressly confirmed that the public employee was in fact liable for false imprisonment even in the course of an investigation leading to prosecution. In the California Tort Claims Act, the Legislature did not deny that he was. That the majority now state that they “decline to follow” the common law rule (maj. opn., ante, at p. 758, fn. 10) is to do too little, too late. The Legislature codified it many years ago. Hence, Gill survives as a statutory *767principle even if not as a common law decision. As such, it is—or at least should have been—beyond the reach of the majority’s mischief.2

II

Let us turn—at long last—to the City of Los Angeles and Detective Sanchez’s claim of reversible instructional error bearing on the amount of compensatory damages awarded to Asgari for false imprisonment.

At Asgari’s request, the superior court instructed the jury in conformity with Smiddy v. Varney (9th Cir. 1981) 665 F.2d 261, 266-267, as follows:

“Where police officers act maliciously or with reckless disregard for the rights of an arrested person, they are liable for damages suffered by the arrested person even after the district attorney files charges if the presumption of independent judgment by the district attorney is rebutted.
“An example of facts which would support such a rebuttal are: 1. A showing by plaintiff that the district attorney was pressured or caused by the defendant investigating officers to act contrary to his independent judgment.
“2. A showing by plaintiff that the defendant officers presented information to the district attorney that they knew to be false.
“Such a showing will rebut the presumption of independent judgment by the district attorney and further the police officers will not be immunized from plaintiffs [>zc] false arrest damages after the filing of the criminal complaint. These examples are not intended to be exclusive.”

Immediately thereafter, at the request of the city and Sanchez, the superior court instructed the jury, also in conformity with Smiddy v. Varney, supra, 665 F.2d at page 266, as follows:

“You are instructed that damages for false imprisonment are limited to those damages suffered during the period beginning with the false arrest to the point where lawful process begins. The filing of a criminal complaint constitutes lawful process.”

The city and Sanchez contend that Asgari’s “Smiddy instruction” was erroneous. The majority agree. They are wrong.

*768The common law rule, from which the Legislature did not depart in the California Tort Claims Act, is that one public employee’s liability for injury caused by false imprisonment is not cut off as a matter of law by another public employee’s nonliability for injury caused by prosecution.

To the extent that Asgari’s Smiddy instruction was erroneous, it may not be complained of by the city and Sanchez.

For present purposes, let us assume that Asgari’s Smiddy instruction was not negated by the city and Sanchez’s Smiddy instruction, which was facially contradictory: “You are instructed that damages for false imprisonment are limited to those damages suffered during the period beginning with the false arrest to the point where lawful process begins. The filing of a criminal complaint constitutes lawful process.”

On our assumption, Asgari’s Smiddy instruction was more favorable to the city and Sanchez than they deserved. Contrary to the prevailing common law rule quoted above, it implied that one public employee’s liability for injury caused by false imprisonment is indeed cut off as a matter of law by another public employee’s nonliability for injury caused by prosecution—unless the false imprisoner acts “maliciously or with reckless disregard for the rights of [the] arrested person” and the prosecutor does not exercise his presumed “independent judgment.”

In fact, Asgari was entitled to an instruction based on Gill v. Epstein, supra, 62 Cal.2d at pages 617 to 618, to this effect: The “chain of causation” extending from arrest through prosecution “may be broken by an intervening act which is not reasonably foreseeable”; it is not broken, however, when the prosecution is “clearly a foreseeable result of the arrest and was actually contemplated by” the public employee responsible therefor. In view of the evidence presented at trial, an instruction of this sort would necessarily have imposed liability on Sanchez and, derivatively, the city. To quote Gill v. Epstein, supra, 62 Cal.2d at page 618: “Under the circumstances, the arrest was a proximate cause of’ Asgari’s “imprisonment both before and after” Deputy District Attorney Jones’s initiation of the prosecution with the filing of the felony complaint, “and he is entitled to recover damages . . . during the entire period he was confined.”

The city and Sanchez next contend that Asgari’s Smiddy instruction was not only erroneous but also reversibly so. The majority agree. Again they are wrong.

Article VI, section 13 of the California Constitution declares in pertinent part: “No judgment shall be set aside ... in any cause, on the ground of *769misdirection of the jury, . . . unless, after an examination of the entire cause, including the evidence, the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.” The court can form such an opinion only when it is reasonably probable that a result more favorable to the complaining party would have been reached in the absence of the error. (See, e.g., Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 570 [34 Cal.Rptr.2d 607, 882 P.2d 298].) “In assessing prejudice from an erroneous instruction, we consider, insofar as relevant, ‘(1) the degree of conflict in the evidence on critical issues . . . ; (2) whether [the prevailing party’s] argument to the jury may have contributed to the instruction’s misleading effect . . . ; (3) whether the jury requested a rereading of the erroneous instruction . . . or of related evidence . . . ; (4) the closeness of the jury’s verdict. . . ; and (5) the effect of other instructions in remedying the error . . . .’” (Id. at pp. 570-571.)

After examining the entire cause, including the evidence, I simply cannot form the opinion that any error in Asgari’s Smiddy instruction resulted in a miscarriage of justice with regard to the amount of compensatory damages awarded to Asgari for false imprisonment.

That is because it is not reasonably probable that the jury would have selected a sum less than the $750,000 that it fixed in the absence of any error.

First, there was little conflict in the evidence on the critical issue of the amount of damages needed to compensate Asgari for his false arrest by Sanchez and its immediate consequences as opposed to the amount of damages needed to compensate him for the period of his custody beginning with Deputy District Attorney Jones’s initiation of the prosecution with the filing of the felony complaint and ending with his release on acquittal. The fact was reflected in summation. Asgari’s counsel argued that at least $1 million was justified by the false arrest alone: “He was arrested as a heroin dealer.” “[H]e is stained with that for the rest of his life. For the rest of his life.” In contrast, counsel for the city and Sanchez argued to the effect that little more than a nominal sum was called for to cover the entire period of custody: His damages were “speculative.” The majority imply that the record is otherwise. It is not. True, Asgari’s counsel stated that at least $1 million was required for the custody from beginning to end. But he also stated that that amount was warranted for the false arrest alone.

Second, it is doubtful whether the summation by Asgari’s counsel contributed to any misleading effect attributable to Asgari’s Smiddy instruction. That is so because the summation by counsel for the city and Sanchez tended *770to nullify such effect. To be sure, Asgari’s counsel argued his Smiddy instruction to the jury. But counsel for the city and Sanchez argued their Smiddy instruction to the jury—and it was facially contradictory to Asgari’s: “You are instructed that damages for false imprisonment are limited to those damages suffered dining the period beginning with the false arrest to the point where lawful process begins. The filing of a criminal complaint constitutes lawful process.” Again, the majority imply that the record is otherwise. Again, it is not. The argument by Asgari’s counsel for his Smiddy instruction might perhaps have defeated the argument by counsel for the city and Sanchez for their Smiddy instruction if theirs had been delivered as the “rule” and his as an “exception.” They were not. Asgari’s Smiddy instruction was given as a “rule.” The city and Sanchez’s Smiddy instruction was also given as a “rule.” Each, however, was inimical the one to the other.

Third, the jury did not request a rereading of Asgari’s Smiddy instruction or related evidence.

Fourth, the amount of compensatory damages fixed by the jury for Asgari’s false imprisonment cannot be deemed “close.” The selection of a sum required the vote of only nine of the twelve members of the panel. The selection here received the vote of all 12.

Fifth and final, any misleading effect attributable to Asgari’s Smiddy instruction may be said to have been remedied by the city and Sanchez’s Smiddy instruction. As explained above, theirs was facially contradictory to his.

Of course, we do not know whether the jury would have fixed $750,000 as the amount of compensatory damages for Asgari’s false imprisonment in the absence of his Smiddy instruction. But we do know that the superior court would have. In denying a motion for new trial by the city and Sanchez, it rejected a claim that the compensatory damages of $750,000 were excessive for the false arrest and its immediate consequences prior to Deputy District Attorney Jones’s initiation of the prosecution with the filing of the felony complaint: “Frankly,” stated the trial judge, “I would have given more money.” Who are we to disagree?

Ill

For the reasons stated above, I dissent.

Appellants’ petition for a rehearing was denied July 16, 1997, and the opinion was modified to read as printed above.

The majority state: “The Legislature’s decision to immunize public employees and their employers from liability for malicious prosecution ‘was not made precipitously.’ [Citation.] *766The California Law Revision Commission had recommended that public entities be held liable for damages proximately caused by a public employee’s institution of judicial proceedings without probable cause and with actual malice. The Legislature rejected this recommendation and, instead, granted absolute immunity to public entities and their employees for malicious prosecution.” (Maj. opn., ante, at p. 753, fn. 7.) That is correct. But it means only that what is stated in the text is true. The Legislature did not depart from the common law. Rather, it simply codified the common law rule that a public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding, even if he acted maliciously and without probable cause, nor is his employer.

Through their discussion on a related point, the majority suggest that a public employee’s liability for injury caused by false imprisonment, including false arrest, should not depend on false imprisonment. (See maj. opn., ante, at pp. 758-759.) Neither, I imagine, should a person’s liability for injury caused by negligence depend on negligence. Nor should a person’s liability for injury caused by battery depend on battery. And so on.