"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.)

Supreme Court finds: Municipalities have no "discretion" to violate the Constitution.

The Case:  Owen v. Independence, 445 U.S. 622 (1980)

George Owen, the Chief of Police in the City of Independence, Missouri, was fired, without explanation and without a hearing.

Owen filed A Federal civil rights lawsuit was filed against the city, the City Manager, and the members of the City Council in their official capacities [42 USC 1983] alleging a denial of procedural and substantive due process and seeking declaratory and injunctive relief. 

The lower Court (8th Cir.) found that the actions of the defendants DID in fact violate Owens Constitutional rights, but that the defendants had acted in good faith, and therefore granted qualified immunity.

The Supreme Court granted certiorari to consider whether "good faith" entitles a municipality to qualified immunity .  Held, qualified immunity was not available.

Held:  While municipalities were entitled in common law to absolute immunity for discretionary acts involved in  the exercise of governmental functions, this immunity was limited to that which was necessary in order to maintain a separation of powers... to do otherwise would infringe upon powers properly vested in a coordinate and coequal branch of government, [citing 2 Dillon 753, at 862, n 31; Johnson v. State, 69 Cal. 2d 782, 794, n. 8]

HOWEVER, there was no qualified immunity available to municipalities in common law, and the court here found no rational reason for doing so.

The defendants argued they acted in good faith while violating the Constitution and should be granted qualified immunity.  The Court disagreed, instead finding that a municipality has no "discretion" to violate the Federal Constitution...

In denying qualified immunity the Court explained...  "when a court passes judgment on the municipality's conduct in a 1983 action, it does not seek to second-guess the "reasonableness" of the city's decision nor to interfere with the local government's resolution of competing policy considerations. Rather, it looks only to whether the municipality has conformed to the requirements of the Federal Constitution and statutes. "

Qualified immunity was denied and the case was remanded back to the 8th Circuit for trial.

No immunity where A prosecutor procuring false testimony during an investigation and then introduced that same testimony at trial.

McGhee v. Pottawattamie  514 F.3d 739 (8th Cir. 2008)

Held: 

"We find immunity does not extend to the actions of a County Attorney who violates a person’s substantive due process rights by obtaining, manufacturing, coercing and fabricating evidence before filing formal charges, because this is not “a distinctly prosecutorial function.” The district court was correct in denying qualified immunity to Hrvol and Richter for their acts before the filing of formal charges."

NOTE: This case was accepted for review at the U.S. Supreme Court. The question presented for review:

"Whether a prosecutor may be subjected to a civil trial and potential damages for a wrongful conviction and incarceration where the prosecutor allegedly violated a criminal defendant’s “substantive due process” rights by procuring false testimony during the criminal investigation, and then introduced that same testimony against the criminal defendant at trial."

The case was ultimately dismissed by the [Supreme] Court when the defendants offered a settlement.  The briefs for this case are available at ScotusWIki