Filed 3/27/20 Call v. Badgley CA1/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

JASON CALL,

Plaintiff and Appellant,

v.

MATT BADGLEY et al.,

Defendants and Respondents.

A154279

(Humboldt County Super.

Ct. No. DR150282)

Plaintiff Jason Call appeals from the judgment of dismissal entered after the trial court sustained a general demurrer to all causes of action without leave to amend. We will affirm.

BACKGROUND

In 2012, members of a state-county task force suspected plaintiff of large-scale marijuana cultivation. A state Department of Justice officer applied for a search warrant. A Humboldt County magistrate issued a warrant authorizing a search of plaintiff’s residence. State and county law enforcement personnel searched plaintiff’s home and found dozens of marijuana plants. A criminal prosecution was commenced, but terminated in 2015 when a Humboldt County Superior Court judge quashed the warrant because it was based on stale information.

Several months later, plaintiff filed suit in state court against the officers and the County of Humboldt (hereafter “defendants,” “the state defendants,” or “the county defendants” as appropriate), stating causes of action all based on the search and the officers’ actions in conducting the search. The state defendants had the case removed to federal court.

In May 2017, the district court granted defendants’ motion for summary judgment. In his 23-page order, District Judge Gilliam made a number of determinations. First, he concluded that plaintiff “has failed to make” the required “substantial showing that the warrant application contained a false statement or omission that was deliberately false or made with reckless disregard for the truth.” Also, “Plaintiff’s suggestion that Nelson [the state officer who applied for the warrant] misled the magistrate judge by providing stale information is similarly unavailing.” Second, notwithstanding the possible staleness of some of the information in the application, the warrant was supported by probable cause. Third, plaintiff failed to substantiate a claim under 42 U.S.C. § 1983 (section 1983) concerning execution of the warrant. This determination applied to plaintiff’s claims that (1) the officers had no basis in a good faith reliance on the warrant, (2) officers’ conduct during the search was unreasonable, and (3) the officers had used unreasonable force in conducting the search. Fourth, in light of the foregoing, plaintiff had no cause of action for false arrest based on what was discovered in the search. Fifth, plaintiff had no viable cause of action for damages under section 1983 for the County’s “failure to train and supervise” its employees because he “has failed to identify any Humboldt County policy or custom that caused [his] alleged injury,” and “has also failed to identify any factual basis for imputing knowledge of County Defendant’s wrongful conduct, even assuming they engaged in any.” Accordingly, summary judgment was granted on plaintiff’s first through fifth causes of action. Judge Gilliam declined to exercise “supplemental jurisdiction over Plaintiff’s remaining state law claims,” which were remanded to state court.

Once the case was back in state court, in November 2017, plaintiff filed his third amended complaint, in which he stated causes of action styled as follows: (1) “Negligent Use of Deadly Force (against defendant Harkness)”; (2) “(California State Bane Act, Civil Code § 52.1) (Against all defendants)”; (3) “Assault & Battery (Against defendant Harkness)”; (4) “California Cause of Action for Conversion (Against all defendants)”; (5) “(False Arrest and Imprisonment against Humboldt County, Humboldt County Sheriff’s Office, Matt Badgley and Wayne Hanson)”; (6) “(Failure to Properly Train and Supervise against Humboldt County, Humboldt County Sheriff’s Office, Humboldt County Sheriff Michael Downey, Humboldt County Drug Task Force Supervisor Wayne Hanson)”; (7) “(Defamation Against defendants County of Humboldt, Humboldt County Sheriff’s Office, Humboldt County Sheriff Michael Downey, Deputy Sheriff Wayne Hanson)”; (8) “(Intentional Infliction of Emotional Distress against all defendants)”; and (9) “(Negligent Infliction of Emotional Distress against all defendants).”

The state and county defendants filed separate general demurrers on various grounds, one of which was that all of plaintiff’s “state-law claims are barred by collateral estoppel.” In connection with the demurrers, the trial court was asked to take judicial notice of Judge Gilliam’s order.

Plaintiff’s response was unusual: after filing a fourth amended complaint, he filed no response to the demurrers, causing the state and county defendants to each file a separate “notice of non-opposition,” arguing that “Plaintiff’s failure to oppose defendants’ demurrer constitutes a concession that defendants’ demurrer to the Third Amended Complaint is meritorious and should be sustained.”

Some background came out at the hearing on the demurrers. The court noted, “Plaintiff’s counsel did not file any opposition, as was directed by this court. Instead, . . . the fourth amended complaint was filed.” (Italics added.) Counsel for plaintiff explained that she thought the filing of the fourth amended complaint mooted the demurrers:

“I would like to formally object to the Court going forward on hearing for the demurrer to the third amended complaint.

“Because at this point, once the clerk’s office filed our fourth amended complaint, then basically that complaint was superseded by the fourth.

“And as the result . . . the demurrer should have been taken off calendar.

“So, I guess to—just as long as I want to formally enter that objection to having any hearing on the demurrer, period.

“So basically, Your Honor, as I said, I’m very perplexed [why] we are even here.”

When the court pointed out that, “You failed to get leave from the Court” to file the fourth amended complaint, plaintiff’s counsel responded, “We are not required to.”

After some discussion on whether the fourth amended complaint was properly filed, the court asked plaintiff’s counsel “are you addressing now, today, defendants’ demurrer?” The response: “I’m addressing now, today, the fact that we should not be here. . . . [¶] . . . [¶] Because, basically, we were never required to oppose the demurrer. [¶] Once we filed our fourth amended complaint their demurrer was moot. That is why we did not file an opposition because we weren’t required to.”

At the request of one of the defense attorneys, and over plaintiff’s objection, the court took judicial notice of “the entire federal file” (which had been lodged with the court). Plaintiff’s counsel took the position that “what happened in the federal court is not relevant in this court, [to] these state proceedings.”

The last point made before the court adopted its tentative ruling came from one of the defense attorneys:

“One more thing, Your Honor. I would essentially say that the plaintiff has waived everything that she’s said today by not raising it.

“She says that the defendants should have alerted her to striking the fourth amended complaint. But, in fact, the state’s non-opposition states plaintiff’s fourth amended complaint should be stricken, because it’s improperly filed without leave of court.

“So, what do are [sic] we doing here listening to oral argument that has not been put before the Court.

“This was set on February 27th, so—this—she [plaintiff’s attorney]’s waived all of this by not responding.”

The minutes for the day, March 14, 2018, recite that the trial court heard argument from the parties, granted the request for judicial notice of “the entire federal proceedings” which “had been lodged” with the court, and confirmed the tentative ruling that “All causes of action have been dismissed.” A month later, the court filed its “order sustaining demurrers without leave to amend and judgment of dismissal.” The pertinent language was (with minor editorial changes) as follows:

“As to the first cause of action for negligent use of deadly force asserted against defendant Harkness, demurrer is sustained without leave to amend pursuant to Government Code § 911.2, for plaintiff’s failure to allege compliance with the Government Claims Act or allege a basis for noncompliance. The Court takes judicial notice that defendant Harkness was employed as a police officer by the City of Eureka at all material times based on filings in the Federal case, specifically the Declaration of defendant Harkness in Support of defendants’ Motion for Summary Judgment. Demurrer is also sustained without leave to amend on this basis in favor of defendant Harkness as to every other cause of action in the complaint.

“As to the second cause of action for violation of the Bane Act, the third cause of action for assault and battery, the fourth cause of action for conversion, the fifth cause of action for false arrest, the eighth cause of action for intentional infliction of emotional distress, and the ninth cause of action for negligent infliction of emotional distress, the demurrers are sustained without leave to amend. Plaintiff is precluded from bringing these claims under the doctrine of collateral estoppel, based on the findings and conclusions set forth in the Order Granting Summary Judgment issued in the Federal case.

“As for the sixth cause of action, for failure to properly train and supervise, demurrer is sustained without leave to amend on the ground that the County of Humboldt cannot be liable as a matter of law under Government Code § 815[, subd.] (a) under any common law theory, on the ground that neither defendant Downey nor defendant Hanson are alleged to be employers, and pursuant to the doctrine of collateral estoppel, based on the findings and conclusions set forth in the Order Granting Summary Judgment issued in the Federal case.

“As for the seventh cause of action for defamation, demurrer is sustained without leave to amend based on absolute immunity set forth in Government Code § 821.6 as well as the [litigation] privilege communication doctrine set forth in Civil Code § 47.

“The Court further finds that the demurrers are sustained without leave to amend pursuant to [California] Rules of Court 8.54(c) because plaintiff failed to file opposition to the demurrers.

“The Court further finds that the plaintiff’s Fourth Amended Complaint is a nullity and is therefore stricken, as it was filed without leave of court as required by California Code of Civil Procedure [§] 472. It is well established that a plaintiff can only amend his original complaint once as a matter of right and can do so only before defendants have answered or the case has been at issue.

“As for plaintiff’s argument raised for the first time at the hearing that the demurrers were filed in contravention of Code of Civil Procedure § 430.41, the Court finds that this argument was waived by plaintiff’s failure to file oppositions to the defendants’ demurrers, and because the Court granted plaintiff’s motion for leave to file the Third Amended Complaint without prejudice to defendants reasserting by demurrer, the futility arguments raised in opposition to that motion, fully advising plaintiff as to the basis for and intended filing of the demurrers on behalf of each defendant and thereby satisfying the ‘meet and confer’ provisions of Code of Civil Procedure § 430.41.”

DISCUSSION

Procedural Issues

Plaintiff opens his brief by challenging the final paragraph of the trial court’s written order. As his caption frames it, “The Superior Court should have required Respondents to meet and confer before considering the demurrer.” Plaintiff is relying upon this statutory language: “Before filing a demurrer . . . , the demurring party shall meet and confer in person or by telephone with the party who filed the pleading that is subject to demurrer for the purpose of determining whether an agreement can be reached that would resolve the objections to be raised in the demurrer. If an amended complaint, cross-complaint, or answer is filed, the responding party shall meet and confer again with the party who filed the amended pleading before filing a demurrer to the amended pleading.” (Code Civ. Proc., § 430.41, subd. (a).)

It is not entirely clear whether plaintiff believes the court should have dropped the demurrers from the calendar until the parties had met and conferred or continued the hearing. Also, by plaintiff’s logic, there was no point to meeting and conferring about the third amended complaint because that pleading had been superseded by the filing of the fourth amended complaint. However, this assumes the major point at issue—whether the fourth amended complaint was properly filed or whether, in the trial court’s view, it was a “nullity.”

The statute does not set forth any penalties for failure to follow the meet-and-confer process. Indeed, subdivision (a)(4) of Code of Civil Procedure section 430.41 provides that “[a]ny determination by the court that the meet and confer process was insufficient shall not be grounds to overrule or sustain a demurrer.” Thus, even if a defendant fails to comply with the meet-and-confer requirements, the consequence of that failure does not mean that the court loses jurisdiction over the pleadings. (Olson v. Hornbrook Community Services Dist. (2019) 33 Cal.App.5th 502, 515.) Moreover, plaintiff did not comply with that part of the statute directing that “a complaint . . . shall not be amended more than three times[] absent an offer [of proof] to the trial court as to such additional facts to be pleaded” that would allow the pleading to survive a demurrer. (Code Civ. Proc., § 430.41, subd. (e)(1).)

The next point in plaintiff’s brief, again quoting the caption, is “The Superior Court abused its discretion in striking the Fourth Amended Complaint.” This implicates the major point plaintiff made at the hearing, although it occupies less than a full page in the brief. The only fault asserted by plaintiff is the court “failed to cite to even one appellate court or even superior court decision” to support its conclusion that plaintiff had to secure leave to file the fourth amended complaint. There was no obligation for the trial court to provide authority for every sentence in its Order and Judgment.

In any event, the authorities are legion that the court’s leave is required after a complaint has been answered or the case is at issue. (E.g., Hedwall v. PCMV, LLC (2018) 22 Cal.App.5th 564, 574-575; Alden v. Hindin (2003) 110 Cal.App.4th 1502, 1509 [Code Civ. Proc., § 472 “authorizes amendment without leave of court only before an adverse party has filed an answer”]; Asia Investment Co. v. Borowski (1982) 133 Cal.App.3d 832, 840 [“ ‘Once the defendant’s answer is filed, the plaintiff’s right to amend as a matter of course is gone’ ”]; Simons v. County of Kern (1965) 234 Cal.App.2d 362, 368 [“Once the issues have been joined, a party may amend his pleadings only by leave of court”]; Neal v. Bank of America Nat. Trust & Savings Assn. (1949) 93 Cal.App.2d 678, 682 [“the authorities have recognized the propriety of a motion to strike an amended complaint filed without the requisite leave of court”]; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2019) ¶ 6:610.5, p. 6-174 [“The right to amend . . is limited to the original complaint; there is no right to amend (without leave of court) an amended complaint”].) Plaintiff implicitly conceded as much when he sought the court’s leave to file his third amended complaint.

“The court may . . . at any time in its discretion . . . [s]trike . . . any pleading not drawn or filed in conformity with the laws of this state, a court rule, or an order of the court.” (Code Civ. Proc., § 436, subd. (b).) The order striking a pleading will be reversed only for a clear case of abuse exceeding the bounds of reason and amounting to a miscarriage of justice. (Brandwein v. Butler (2013) 218 Cal.App.4th 1485, 1497; The Capital Gold Group, Inc. v. Nortier (2009) 176 Cal.App.4th 1119, 1127.) In light of the foregoing, with plaintiff close to flouting the authority of the trial court and ignoring well-established principles, we cannot conclude the trial court exceeded the bounds of reason by striking a pleading filed in violation of those principles. (See Loser v. E. R. Bacon Co. (1962) 201 Cal.App.2d 387, 390 [“A court may, by virtue of its inherent power to prevent abuse of its processes, strike an amended complaint which is filed in disregard of established procedural processes”].)

Plaintiff ends his brief with the contention that “Defendant Harkness cannot be dismissed from the instant case” because “a court may not take judicial notice of allegations in affidavits or declarations in court,” especially since Harkness “failed to file a request to take judicial notice of either the entire federal file or the declaration he filed in federal court.”

Matters that may be judicially noticed are properly considered in ruling on demurrers. (E.g., Mathews v. Becerra (2019) 8 Cal.5th 756, 768; Centinela Freeman Emergency Medical Associates v. Health Net of California, Inc. (2016) 1 Cal.5th 994, 1010.) The major ground for the demurrers was collateral estoppel by reason of Judge Gilliam’s summary judgment ruling. In order to determine whether the doctrine applied, the trial court would be obliged to “look carefully at the entire record from the prior proceeding.” (Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 511 (Hernandez).) It was consequently not error to ensure that the “entire record” generated by “the federal case” could be consulted. In addition, although plaintiff objected to the court taking judicial notice of “the entire federal file,” the objection was not on the grounds now urged in his brief, which therefore was not preserved for review. (Evid. Code, § 353, subd. (a).) Moreover, at the time it granted plaintiff’s motion to file a third amended complaint, the court also ordered the parties to file “the entire file” of the federal proceedings; there was no objection by plaintiff.

In any event, that Officer Harkness was employed by the City of Eureka was a fact known to plaintiff at least since the time of Judge Gilliam’s order. Plaintiff believed Harkness’s assignment to the state-county task force in effect made him a county employee, and thus covered by the administrative claim plaintiff filed with the county. The correctness or reasonableness of this belief might have relevant earlier in the litigation (cf. Department of Water & Power v. Superior Court (2000) 82 Cal.App.4th 1288, 1293 [“Before a court may relieve a claimant from the statutory tort claim filing requirements, the claimant must demonstrate . . . both that the application to the public entity . . . was presented within a reasonable time and that the failure . . . was due to mistake, inadvertence, surprise, or excusable neglect.” “There must be more than the mere failure to discover a fact; the party seeking relief must establish the failure to discover the fact in the exercise of reasonable diligence” (ibid.)]), but not by the time of the demurrers, three years after suit was begun.

Submission of a timely claim (Gov. Code, § 900 et seq., esp. §§ 910, 945.4) “is a condition precedent to a tort action against either the employee or the public entity,” and “ ‘an integral part of plaintiff’s cause of action.’ ” (Williams v. Horvath (1976) 16 Cal.3d 834, 838, 842; accord, State of California v. Superior Court (2004) 32 Cal.4th 1234, 1240.) A claim filed with the wrong public entity is no claim at all.

“If a complaint does not allege facts showing a claim was timely made, or that compliance with the claims statutes is excused, it is subject to demurrer.” (J.M. v. Huntington Beach Union High School Dist. (2017) 2 Cal.5th 648, 652.) There being no such allegations in plaintiff’s third amended complaint, the county defendants’ demurrer to all of plaintiff’s causes of action against Harkness was properly sustained without leave to amend.

Collateral Estoppel

“ ‘Collateral estoppel precludes relitigation of issues argued and decided in prior proceedings. [Citation.] Traditionally, we have applied the doctrine only if several threshold requirements are fulfilled. First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceeding. [Citations.]’ ” (Hernandez, supra, 46 Cal.4th at p. 511.)

Under the heading “The Order of the Federal Court Does Not Provide a Basis For Collateral Estoppel For Plaintiff’s State Causes of Action,” plaintiff has two and one-half pages of argument. After setting out some procedural history and the principles for applying collateral estoppel, plaintiff states: “Even if the minimal requirements for application of collateral estoppel are satisfied, courts will not apply the doctrine if considerations of policy or fairness outweigh the doctrine’s purposes as applied in a particular case [citations], or if the party to be estopped had no full and fair opportunity to litigate the issue in the prior proceeding. [Citations.] [¶] In the federal case, the court specifically declined to exercise its supplemental jurisdiction to decide the state claims. Instead, the court decided only the federal section 1983 claims and applied the federal doctrine of qualified immunity.” There follows a little more than a page under the subheading “Federal qualified immunity does not provide a basis for collateral estoppel for state tort claims or the Bane Act claim,” citing only Venegas v. County of Los Angeles (2007) 153 Cal.App.4th 1230 (Venegas). Plaintiff concludes his argument with this: “None of the six causes of action to which the superior court applied collateral estoppel, violation of the Bane Act, assault and battery, conversion, false arrest, intentional infliction of emotional distress and negligent infliction of emotional distress is even similar to a federal section 1983 claim, much less the ‘functional equivalents’ as defendants claim.”

Plaintiff’s brief does not mention Hernandez, the most relevant precedent, where our Supreme Court squarely held that collateral estoppel would be applied to state court causes of action based on what had occurred in federal court, causes of action that were based on alleged use of excessive force by law enforcement personnel. This omission is even more striking because Hernandez figured prominently in the state defendant’s points and authorities in support of their demurrer.

Plaintiff recites the requirements for applying collateral estoppel, but he does not argue that one or more of the requirements are absent with respect to any of the causes of action to which the trial court determined the doctrine was applicable. He does not identify any “considerations of policy or fairness” that would prevent application of the doctrine. He does not attempt to show that he did not have a “full and fair opportunity to litigate” in federal court.

As for the Venegas opinion, the words “collateral estoppel” do not appear in it, so its relevance to the present issue is, to put it mildly, unclear. The Venegas court held that liability under the Bane Act (Civ. Code, § 52.1) is limited to violations of constitutional and statutory rights accomplished “by threats, intimidation or coercion.” Venegas, supra, 153 Cal.App.4th at p. 1247; accord, O’Toole v. Superior Court (2006) 140 Cal.App.4th 488, 501-502.) In sum, “[t]he essence of a Bane Act claim is that the defendant, by the specified improper means (i.e., ‘threats, intimidation or coercion’), tried to or did prevent the plaintiff from doing something he or she had the right to do under the law or to force the plaintiff to do something that he or she was not required to do under the law.” (Austin B. v. Escondido Union School Dist. (2007) 149 Cal.App.4th 860, 883.) It does not make actionable otherwise lawful conduct, such as a lawful search or arrest (see Venegas, at pp. 1239-1240 & fn. 15, 1247-1248; Ritschel v. City of Fountain Valley (2006) 137 Cal.App.4th 107, 123-125), which is what Judge Gilliam determined had occurred. We therefore agree with the county defendants’ statement that “Plaintiff’s purported cause of action for violation of the Bane Act is simply a re-packaged unlawful search and seizure claim.”

Plaintiff’s arguments that his state law causes are invulnerable to collateral estoppel because they have elements not necessary for a section 1983 claim betray a misunderstanding of the doctrine. Complete overlap is not required. (See Hernandez, supra, 46 Cal.4th at pp. 511-512 [“ ‘The “identical issue” requirement addresses whether “identical factual allegations” are at stake in the two proceedings, not whether the ultimate issues or dispositions are the same’ ”].) Thus, plaintiff’s second cause of action—the one based on the Bane Act—alleged that defendants had made themselves liable “[b]y conducting the complained of search.” But if the search was legal, the state cause of action necessarily becomes untenable.

The same is true for plaintiff’s third cause of action for assault and battery against defendant Harkness. A section 1983 action has been described as the federal counterpart of a state cause of action for battery. (Yount v. City of Sacramento (2008) 43 Cal.4th 885, 902.) A common law battery cause of action against a police officer making an arrest requires proof the officer used unreasonable force. (Ibid.) Judge Gilliam determined that Harkness (and the other officers) had acted reasonably, and the force employed was appropriate and justified by the circumstances. Thus, plaintiff could not argue in state court that the officers had acted “maliciously,” and with the “design” to “cause fear, apprehension, and specific and serious physical and emotional pain and suffering.”

Plaintiff’s fourth cause of action was for conversion of his property, i.e., the marijuana plants seized when his residence was searched. “Conversion is the wrongful exercise of dominion over the property of another.” (Burlesci v. Petersen (1998) 68 Cal.App.4th 1062, 1066.) Its elements include “(1) the plaintiff’s ownership or right to possession of the property; (2) the defendant’s conversion by a wrongful act or disposition of property rights; and (3) damages.” (Ibid.)

This claim is barred in part by collateral estoppel. Judge Gilliam determined the search and seizure were legal. Indeed, he specifically determined the officers acted reasonably in concluding on the basis of the facts of which they were aware that there was probable cause to believe plaintiff possessed the marijuana for sale rather than strictly for personal use. Plaintiff therefore cannot base his claim of conversion on any assertion that the seizure of his property at the time of the search and arrest were wrongful.

That said, the district court’s determination that the search and initial seizure were lawful does not bar plaintiff’s conversion claim in its entirety. This is because plaintiff did not base his claim solely on the initial seizure. Rather, the conversion claim alleged that “Plaintiff was, and still is, entitled to the possession of the personal property, seized from [him] on January 19, 2011” and that defendants “took” the property from him and “converted the same to their own use or destroyed the property.” (Italics added.) Judge Gilliam’s determination that the initial taking was lawful bars that part of plaintiff’s conversion claim that rests on the seizure of the marijuana but does not bar the conversion claim based on its subsequent retention or destruction.

However, the allegations of the third amended complaint fail as to that aspect of the conversion claim for other reasons. In order to establish a claim for conversion, plaintiff must plead and prove that he owns or has a right to possession of the property and that the defendant’s conversion was accomplished by a wrongful act or disposition of the property. (Burlesci v. Petersen, supra, 68 Cal.App.4th at p. 1066.) As to claims against government employees and government entities, such facts must be pled with particularity. (Richardson-Tunnell v. School Ins. Program for Employees (2007) 157 Cal.App.4th 1056, 1061, disapproved on other grounds in Quigley v. Garden Valley Fire Protection Dist. (2019) 7 Cal.5th 798, 815, fn.8; Searcy v. Hemet Unified School Dist. (1986) 177 Cal.App.3d 792, 802 [[T]o state a cause of action [for government tort liability] every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty”]; Gov. Code, § 951 [complaint against local or state officer for injury caused by act under color of law must allege with particularity sufficient facts to establish liability].) Plaintiff has not alleged such facts.

The third amended complaint alleges plaintiff’s physician issued him an Informed Medical Consent and Verification (IMCV) under the Compassionate Use Act (CUA), Health and Safety Code section 11362.5 allowing him to grow 99 mature plants and possess 19 pounds of cannabis, that he had been diagnosed with various conditions that justified issuance of the IMCV, that the medical cannabis plaintiff grew was within square footage limits established by the city of Arcata, and that the number of plants defendants seized was 78. As Littlefield v. County of Humboldt (2013) 218 Cal.App.4th 243 (Littlefield) indicates, these allegations do not establish either that plaintiff was legally entitled to possession of the items seized or that defendants engaged in a wrongful act by disposing of them. Rather, plaintiff was required to allege that the amount of marijuana he possessed was reasonably related to his then-current medical needs, as required by the Compassionate Use Act. (Littlefield, at p. 256.) He has not so alleged. Absent allegations supporting the lawfulness of his possession, he has failed to plead an essential element of his conversion claim.

Further, as also discussed in Littlefield, California statutes authorize public officials to destroy controlled substances without a court order under certain circumstances. (Littlefield, supra, 218 Cal.App.4th at p. 254.) Nowhere does plaintiff allege that the defendants, in destroying his marijuana plants, failed to comply with this or any other relevant state law. Plaintiff has failed to allege facts demonstrating that the retention or destruction of all or part of the marijuana was a wrongful act, another essential element of a conversion claim.

We therefore affirm the sustaining of the demurrer to Plaintiff’s fourth cause of action.

Plaintiff’s fifth cause of action was for false arrest and false imprisonment. In the circumstances alleged here, false arrest and false imprisonment are essentially the same thing. (Asgari v. City of Los Angeles (1997) 15 Cal.4th 744, 752, fn. 3 (Asgari) [“ ‘ “[F]alse arrest” and “false imprisonment” are not separate torts. False arrest is but one way of committing a false imprisonment . . .’ ”].) Because Judge Gilliam determined he had been arrested with probable cause, plaintiff could not substantiate his allegation that there had been “an unlawful restraint upon [his] freedom of movement, to wit by arresting and handcuffing his hands behind his back [and] transporting him to Humboldt County Jail where he was detained.” (Cf. Michigan v. Summers (1981) 452 U.S. 692, 704-705 [“If the evidence that a citizen’s residence is harboring contraband is sufficient to persuade a judicial officer that an invasion of the citizen’s privacy is justified, it is constitutionally reasonable to require that citizen to remain while officers . . . execute a valid warrant to search his home”]; and see Pen. Code, § 847, subd. (b)(1) [“There shall be no civil liability on the part of, and no cause of action shall arise against, any peace officer . . . acting within the scope of his or her authority for false arrest . . . arising out of any [lawful] arrest”].) Put another way, the challenged action must be done “ ‘ “without lawful privilege” ’ ” (Asgari, at p. 757), which was not the case here.

Plaintiff’s sixth cause of action was against the county defendants for “failure to properly train and supervise” those who participated in the search. The particulars were that defendants “failed to instruct, supervise, control, and discipline . . . law enforcement officers in their duties” to refrain from (1) “unlawfully and maliciously harassing a citizen” as well as “unlawfully and maliciously arresting, imprisoning and prosecuting a citizen who was acting in accordance with his constitutional and statutory rights, privileges, and immunities”; (2) “conspiring to violate” those “rights, privileges, and immunities,” and; (3) “otherwise depriving Plaintiff of his constitutional and statutory rights, privileges, and immunities.”

Judge Gilliam concluded that plaintiff had no such claim under section 1983 by reason of a failure of proof as to any “wrongful conduct” and “any factual basis for imputing knowledge” of any “wrongful conduct” to the County. He also noted that “Plaintiff appears to have abandoned this claim by failing to defend it in his opposition to the motion for summary judgment.” Assuming there is such a common law cause of action under state law (see Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 990, 1025 (conc. & dis. opn. of Kennard, J.)), it is predicated on the assumption of wrongful conduct, which Judge Gilliam concluded was either nonexistent or unproven. (See Goddard v. Security Title Ins. & Guarantee Co. (1939) 14 Cal.2d 47, 52 [judgment in one suit precludes a subsequent suit where the first suit was dismissed “on the failure of the facts alleged to establish a cause of action, and the same facts are pleaded in the second action”].) Plaintiff does not defend it in his opening brief, which we deem another abandonment. (Morgan v. AT&T Wireless Services, Inc. (2009) 177 Cal.App.4th 1235, 1262-1263; Wurzl v. Holloway (1996) 46 Cal.App.4th 1740, 1754, fn. 1.)

Plaintiff’s eighth cause of action for the intentional infliction of emotional distress required him to prove that defendants subjected him to conduct that “so extreme as to exceed all bounds of that usually tolerated in a civilized immunity,” and that “ ‘ “defendants’ conduct was unprivileged.” ’ ” (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 209.) Judge Gilliam’s order established not only was defendants’ conduct privileged in the sense it was judicially authorized, but also that the officers’ conduct did not exceed the bounds of decency.

As for his ninth cause of action for negligent infliction of emotional distress, we have characterized it as “a tort in negligence, and the plaintiff must establish the elements of duty, breach of duty, causation, and damages.” (Moon v. Guardian Postacute Services, Inc. (2002) 95 Cal.App.4th 1005, 1009; accord, Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129.) Additionally, the conduct must be shown as unprivileged (Easton v. Sutter Coast Hosp. (2000) 80 Cal.App.4th 485, 497; Kelly v. General Telephone Co. (1982) 136 Cal.App.3d 278, 286), which it was not.

Immunity

Plaintiff’s seventh cause of action, for defamation, was alleged as follows: On the day plaintiff was arrested, defendant Hanson “prepared a Humboldt County Sheriff’s Office Information Bulletin, which was disseminated in the media falsely stating that ‘Officers located a commercial indoor marijuana growing operation.’ The Information Bulletin was issued by Humboldt County Sheriff Michael Downey.” “The Information Bulletin stating the false statements of [plaintiff’s] arrest was broadcast over the radio and television, and published in newspapers and on the internet that day and for several weeks thereafter. The articles on the internet can still be read by the public,” to plaintiff’s damage.

The trial court concluded that Government Code section 821.6 made defendants immune from liability on plaintiff’s cause of action for defamation. The statute provides: “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within the scope of his employment, even if he acts maliciously and without probable cause.”

Citing Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710 and Asgari, supra, 15 Cal.4th 744, plaintiff contends the statute “only applies to malicious prosecution, not defamation.” Plaintiff is mistaken.

All that was held in Sullivan was that the statute under consideration did not immunize deputies who kept a person in county jail beyond the end of his sentenced time. The Asgari court stated its holding as follows: “[T]he immunity . . .provided to public employees by . . . Government Code section 821.6 precludes a plaintiff in a false arrest action from recovering damages that are attributable to the period of the plaintiff’s incarceration that follows his or her arraignment on criminal charges.” (Asgari, supra, 15 Cal.4th at p. 748.) In neither instance did our Supreme Court mention defamation.

Plaintiff is also mistaken in arguing the statute has a narrow application. As the leading treatise puts it: “The application of the immunity under Govt. C[ode] § 821.6 is not confined solely to suits ‘for damages for malicious prosecution, although that is a principal use of the statute.’ ” (1 Cal. Government Tort Liability Practice (4th ed. 2019) § 10.43, pp. 10-56–10-57, quoting Kayfetz v. State of California (1984) 156 Cal.App.3d 491, 497.) “This immunity provision is to be construed broadly so as to further ‘its purpose to protect public employees in the performance of their prosecutorial duties from the threat of harassment through civil suits.’ ” (Strong v. State of California (2011) 201 Cal.App.4th 1439, 1461.)

“Acts by a public employee that are preparatory to a potential institution of judicial proceedings, including acts in the course of an investigation of alleged wrongdoing, are covered by the statutory immunity. [Citations.] ‘Because investigation is “an essential step” toward the institution of formal proceedings, it “is also cloaked with immunity.” ’ [Citation.] Furthermore the immunity under [Government Code] section 821.6 extends to communications made by the employee that have a connection with the investigation or prosecution process.” (All Angels Preschool/Daycare v. County of Merced (2011) 197 Cal.App.4th 394, 407-408.) Plaintiff’s defamation cause of action was doomed because press releases are included in those protected communications. (Id. at p. 408; Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033, 1048; Ingram v. Flippo (1999) 74 Cal.App.4th 1280, 1293; Capucchio, Inc. v. Harmon (1989) 208 Cal.App.3d 1496, 1499; cf. Kilgore v. Younger (1982) 30 Cal.3d 770, 778 [Attorney General’s press release immunized by Civ. Code, § 47]; Doe v. State of California (2017) 8 Cal.App.5th 832 [entry on state-wide sex offender registry of person against whom criminal charges were eventually dismissed]; Kayfetz v. State of California, supra, 156 Cal.App.3d 491 [publication of disciplinary action]; Citizens Capital Corp. v. Spohn (1982) 133 Cal.App.3d 887, 888 [“widespread newspaper publicity charging . . . improper conduct”].)

We note that the People argue this immunity would also extend to plaintiff’s second, fourth, eighth, and ninth causes of action. Although the trial court did not sustain the state defendant’s demurrer on this ground as to those causes of action, it was raised in that demurrer and thus may constitute a separate and independent for affirmance. (Carman v. Alford (1982) 31 Cal.3d 318, 324 [“A judgment of dismissal after a demurrer has been sustained without leave to amend will be affirmed if proper on any of the grounds stated in the demurrer, whether or not the court acted on that ground”].)

Additional arguments made by plaintiff/the parties need not be addressed.

DISPOSITION

The judgment of dismissal is affirmed.

 

STEWART, J.

We concur.

KLINE, P.J.

RICHMAN, J.

Call v. Badgley (A154279)