"Public entity" immunity for misrepresentations [Gov. Code 818.8] is limited to commercial or financial transactions.

The Case:  Johnson v. State of California (1968) 69 Cal.2d 782 '

The question: 
 To what extent are public entities immune for misrepresentations made by the entity or its employees under Gov.  Code §. 818.8.

Gov.  Code §. 818.8  provides that "A public entity is not liable for an injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional."

According to Johnson, and subsequent cases, the application of Gov. Code §. 818.8 is limited to "interferences with financial or commercial interest."


Subsequent Cases:

*   Adkins v. State of California (1996) 50 Cal.App.4th 1802, 1818.
*    Michael J. v. Los Angeles County Dept. of Adoptions (1988) 201 Cal.App.3d 859, 247 Cal.Rptr. 504.

RELATED ISSUE:   This immunity does not apply to contracts. See Arthur L. Sachs, Inc. v. City of Oceanside (1984)151 Cal. App. 3d 315


Gov. Code 818.8 does not apply to actions based on a contract which are specifically subject to liability under Government Code section 814. Citing  In Souza & McCue Constr. Co. v. Superior Court, 57 Cal.2d 508, and the legislative committee comment  to section 814. 

Silberg v. Anderson (Cal. Supreme Court) There is no "interest of justice" requirement for the "litigation privilege" to apply.

Silberg v. Anderson (1990) 50 Cal.3d 205 (1990)

A psychologist who provided an Evid. Code §730 Evaluation in a family law custody proceeding was denied immunity under Civil Code §47 (litigation privilege) by the trial court and on appeal, based on an "interest of justice" exception, a concept originating with Bradley v. Hartford Acc. & Indem. Co. (1973) 30 Cal. App.3d 818. [FN 1]

Review was granted "to resolve a conflict in decisions within the districts regarding the nature and scope of the "litigation privilege" found in Civil Code §47, subd. 2,  Specifically disapproved the "interest of justice" exception found in Bradley and subsequent cases. e.g.,  Kinnamon v. Straitman & Snyder (1977) 66 Cal. App.3d 893, 897 ; Earp v. Nobmann (1981) 122 Cal. App.3d 270, 284; Barbary Coast Furniture Co. v. Sjolie (1985) 167 Cal. App.3d 319, 333; Fuhrman v. California Satellite Systems (1986) 179 Cal. App.3d 408, 421; McKnight v. Faber (1986) 185 Cal. App.3d 639, 649.

In determining there is no "interest of justice" exception the court considereed the "usual formulation" to determine whether the "litigation privilege should apply. That  the privilege applies to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action. [FN 2]

The court rationalized its decision the court found that "[T]he [third] requirement that the communication be in furtherance of the objects of the litigation is, in essence, simply part of the [fourth] requirement that the communication be connected with, or have some logical relation to, the action, i.e., that it not be extraneous to the action."

The supreme Court has spoken, the interest of justice exception is no longer available, immunity is absolute.

There are a few noteworthy decisions finding no privilege based on the "usual formulation", to include:

»»    McKnight v. Faber, supra, 185 Cal. App.3d at p. 650 [the immunity of section 47(2) does not apply to conduct but is 218 limited to communications];

»»    Fuhrman v. California Satellite Systems, supra, 179 Cal. App.3d at p. 421 [factual question existed as to whether the potential lawsuit was actually contemplated];

»»    Earp v. Nobmann, supra, 122 Cal. App.3d at p. 285 [communication had no logical relation to the action].)

»»    Parkes v. County of San Diego, 345 F. Supp. 2d 1071 [Immunity is not available to Social workers under Civil Code § 47. if precluded Government Code § 820.21, under which privdes "[N]otwithstanding any other provision of the law" social workers have no immunity for perjury, fabrication of evidence, failure to disclose exculpatory evidence and obtaining testimony by duress, if committed with malice, defining malice as conduct intended to cause injury or despicable conduct that is carried on with a "willful and conscious disregard of the rights or safety of others."

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FN 1     Bradley has since been followed by  Kinnamon v. Straitman & Snyder (1977) 66 Cal. App.3d 893, 897 ; Earp v. Nobmann (1981) 122 Cal. App.3d 270, 284; Barbary Coast Furniture Co. v. Sjolie (1985) 167 Cal. App.3d 319, 333; Fuhrman v. California Satellite Systems (1986) 179 Cal. App.3d 408, 421; McKnight v. Faber (1986) 185 Cal. App.3d 639, 649.

FN 2    See Green v. Uccelli (1989) 207 Cal. App.3d 1112, 1124; Carney v. Rotkin, Schmerin & McIntyre (1988) 206 Cal. App.3d 1513, 1521; Walsh v. Bronson (1988) 200 Cal. App.3d 259, 269; Financial Corp. of America v. Wilburn (1987) 189 Cal. App.3d 764, 772-773; Chen v. Fleming (1983) 147 Cal. App.3d 36, 41;   Hagendorf v. Brown (9th Cir.1983) 699 F.2d 478, 480.)

Pleading requirements to establish the failure to discharge a mandatory duty [Gov. Code 815.6.]

Gov. Code § 815.6 provides:

"Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty."

In Nunn v. State of California (1984) 35 Cal.3d 616, 624, the court found a three prong test to determining liability under § 815.6.

"(1) an enactment must impose a mandatory, not discretionary, duty ...; (2) the enactment must intend to protect against the kind of risk of injury suffered by the party asserting section 815.6 as a basis for liability ...; and (3) breach of the mandatory duty must be a proximate cause of the injury suffered." (Ibid; citations omitted.)"  See also Becerra v. County of Santa Cruz 68 Cal.App.4th 1450 (1998)

The first prong requires a ltigant who seeks to plead the breach of a mandatory duty to specifically allege the applicable statute or regulation.  In other  words...

"Duty cannot be alleged simply by stating `defendant had a duty under the law; that is a conclusion of law, not an allegation of fact. The facts showing the existence of the claimed duty must be alleged. Sullivan v. City of Sacramento (1987) 190 Cal.App.3d 1070, 1080" Becerra v. County of Santa Cruz

See also Searcy v. Hemet Unified School Dist., 177 Cal. App. 3d 792...

"[t]o state a cause of action every fact essential to the existence of statutory liability must be pleaded with particularity, including the existence of a statutory duty. (Susman v. City of Los Angeles, supra, 269 Cal. App.2d 803, 809.) Duty cannot be alleged simply by stating "defendant had a duty under the law"; that is a conclusion of law, not an allegation of fact. The facts showing the existence of the claimed duty must be alleged. (Id.; see also Rubinow v. County of San Bernardino (1959) 169 Cal. App.2d 67, 71 [336 P.2d 968].) Since the duty of a governmental agency can only be created by statute or "enactment," the statute or "enactment" claimed to establish the duty must at the very least be identified."

---------------------------

Note:  The term "duty" as it is used in Gov. Code § 815.6 [relative to an failure to perform a mandatory duty]  should not to be confused with the duty of care element of a cause of action for negligence. 

What discretionary acts means for the immunity purposes under Gov. Code 820.2.

Gov. Code § 820.2 grants immunity to public employees for injuries resulting from discretionary decisions. The question is what constitutes "discretionary. On this question, Johnson v. State of California (1968) 69 Cal.2d 782 is recognized as the the leading case. See  Ogborn v. City of Lancaster 101 Cal.App.4th 448 (2002)

Johnson first addressed basic principles... e.g.,

Gov. Code § 820.2 was intended to restate the pre-existing California law, citing Sava v. Fuller 249 Cal. App.2d 281, 284,  and [according to pre-existing law] "... the Legislature has not granted immunity from liability for every act or omission following after the exercise of discretion." (Ibid. p. 285.)

And, that the 1963 Tort Claims Act alter the basic teaching of  Muskopf v. Corning Hospital Dist., supra, 55 Cal.2d 211, 219 " (1961), that when there is negligence, the rule is liability, immunity is the exception."

Johnson went on to state that  courts should not casually decree governmental immunity; through a literal interpretation of "discretionary" or otherwise, [that]  820.2 should not be made a "catchall section broadly encompassing every judgment exercised at every level.... [That,] to borrow the language of Justice Frankfurter ... [would be] to make the act `self-defeating by covertly imbedding the casuistries' of some of the pre-Muskopf cases." (Sava v. Fuller, supra, 249 Cal. App.2d 281, 291.)

Johnson went on to state that  courts should not casually decree governmental immunity; through a literal interpretation of "discretionary" or otherwise, [that]  820.2 should not be made a "catchall section broadly encompassing every judgment exercised at every level.... [That,] to borrow the language of Justice Frankfurter ... [would be] to make the act `self-defeating by covertly imbedding the casuistries'of some of the pre-Muskopf cases." (Sava v. Fuller, supra, 249 Cal. App.2d 281, 291.)

Johnson further held that "to be entitled to immunity the state must make a showing that such a policy decision, [that] consciously balancing risks and advantages, took place. The fact that an employee normally engages in `discretionary activity' is irrelevant if, in a given case, the employee did not render a considered decision. 

SUBSEQUENT HISTORY:

"In Barrier v. Leeds (2000) 24 Cal.4th 676, 102 Cal.Rptr.2d 97, 13 P.3d 704, 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, 73 Cal.Rptr. 240, 447 P.2d 352. 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. (Barrier v. Leeds, supra, 24 Cal.4th at p. 685, fn. 2, 102 Cal.Rptr.2d 97, 13 P.3d 704.)"   Perez-Torres v. State 42 Cal.4th 136 (2007)

A FEW OF MANY CITING CASES: [This is a crucial principle, more cases will be added]

The scope of the discretionary act immunity `should be no greater than is required to give legislative and executive policymakers sufficient breathing space in which to perform their vital policymaking functions.'[Citation]"Salazar v. Upland Police Department Court of Appeal, 4th Dist., Div. 2 (2004)

For immunity to apply, the defendants must show that the decisions in question are properly considered as " `basic policy decisions "made at the" planning "stage of [the entity's] operations,'" rather than "routine duties incident to the normal operations" of the employee's office or position." Taylor v. City of Los Angeles 144 Cal.App.4th 1216

No immunity for false arrest under Government Code § 821.6, or derivative claims of negligence and emotional distress.

The Case:  Cousins v. Lockyer, 568 F. 3d 1063  (9th Circuit 2009)

Facts:

●    Cousins was arrested June 1999 under California Penal Code § 290(g)(2), leading to his conviction and sentence of twenty-five years to life in prison under California's "three strikes" law.

●    In October 2003, the California Court of Appeal, First Appellate District, decided People v. North, 112 Cal.App.4th 621, 5 Cal.Rptr.3d 337 (2003), in which the court declared California Penal Code § 290(f)(1), the statute under which Cousins had been incarcerated, unconstitutionally vague.

●    In January 2004, Cousins filed a writ of habeas corpus in the California Supreme Court, arguing that he was entitled to release because the statute under which he was imprisoned had been declared unconstitutional.

●    More than a year later, the state responded to Cousins' petition, and argued that even though California Penal Code § 290(f)(1) had been declared unconstitutionally vague, it was still valid in his case.

●    Cousins was released from prison in June 2005, approximately one year and seven months after the North court overturned California Penal Code § 290(f)(1).

●    In February 2007, Cousins filed a complaint in federal district court, alleging that his extended incarceration violated several state laws and his civil rights under § 1983.

The court below granted motions to dismiss under F.R.C.P 12(b)(6) [Failure to state a cause of action] on the grounds that the Attorney General [Locklyer] was entitled to absolute prosecutorial immunity, and that the remaining defendants are entitled to qualified immunity.

On appeal: For reasons not discussed here, the AG was granted prosecutorial immunity as to the federal §1983 claims, and the remaining defendants (prison officials) recieved qualified immunity.

HOWEVER, as to the AG, no immunities were granted for the state law causes of action pursuant to Civ. Code § 52.1, for the following reasons.

The district courts relied on California Government Code § 821.6, the California statutory equivelant to prosecutorial immunity. However, the case being one of false imprisonment under Government Code §815.6,  neither the immunity afforded by Government Code § 821.6, nor that provided by any other state governmental immunity provision, applies. See Sullivan v. County of L.A., 12 Cal.3d 710,

The court also reversed summary judgment on the state law negligence and negligent infliction of emotional distress claims, finding that to the extent they were "base[d] ... on the same facts as his false imprisonment claim" there are "derivative of the false arrest and false imprisonment claims" are "related" to his false imprisonment claim, both Martinez and Asgari require that we reverse their dismissal as to the AG because California's statutory immunities do not apply. Citing Martinez v. City of Los Angeles 141 F.3d 1373, 1379 (9th Cir.1998); Asgari v. City of Los Angeles 15 Cal.4th 744 (1997)

The remaining defendants:

Summary judgment was granted to the remaining defendants on the basis of qualified immunity, which is not available under California law.

"`[t]he doctrine of qualified governmental immunity is a federal doctrine that does not extend to state tort claims against government employees.'" Venegas v. County of L.A., 153 Cal.App.4th 1230, 63 Cal. Rptr.3d 741, 751 (2007) (quoting Ogborn v. City of Lancaster, 101 Cal.App.4th 448, 124 Cal.Rptr.2d 238, 246 (2002)). California law is also clear that qualified immunity does not apply to state civil rights claims. See id. at 753 (holding that "qualified immunity of the kind applied to actions brought under 42[U.S.C. § ] 1983 does not apply to actions brought under [the Bane Act]").

An important aspect of this decision is the derivative claims exception to immunity for state claims of negligence, negligent infliction of emotional distress under the "Bane Act".