ARDESHIR ASGARI, Plaintiff and Respondent, v. CITY OF LOS ANGELES et al., Defendants and Appellants.
No. S051825
Supreme Court of California
June 2, 1997
15 Cal. 4th 744
James K. Hahn, City Attorney, Thomas C. Hokinson, G. Daniel Woodard and Katherine J. Hamilton, Assistant City Attorneys, and Lisa S. Berger, Deputy City Attorney, for Defendants and Appellants.
Ruth Sorensen, Manning, Marder & Wolfe and Robert S. Wolfe as Amici Curiae on behalf of Defendants and Appellants.
Marjorie G. Fuller for Plaintiff and Respondent.
OPINION
GEORGE, C. J.—Plaintiff Ardeshir Asgari was arrested and later charged with a criminal offense. He remained in custody for more than seven months, until he was acquitted following a jury trial. He sued the arresting police officers, and the city that employed them, for false arrest and related causes of action and, following a jury trial, obtained a judgment against the city and one of the officers in the amount of $1,327,000.
We granted review to decide whether the trial court erred in instructing the jury that a police officer‘s liability for false arrest may include damages sustained by the arrestee after the filing of formal charges where, for example, the officer knowingly presented false evidence to the prosecutor. In so instructing the jury, the trial court relied upon a federal decision, Smiddy v. Varney (9th Cir. 1981) 665 F.2d 261, that determined the appropriate measure of damages in an action alleging that an improper arrest constituted an intentional invasion of civil rights under
I
Plaintiff Ardeshir Asgari sued the City of Los Angeles and several of its employees and agents, including Los Angeles Police Detective Ruperto V. Sanchez, for false arrest and related causes of action. Plaintiff had been arrested and prosecuted for possession for sale of a pound of heroin as the
Plaintiff testified that he was born in Iran and became a member of that country‘s national wrestling team. On July 24, 1982, he defected from Iran while traveling in Venezuela with the wrestling team and eventually came to the United States. Plaintiff‘s father and uncle were officials in the Iranian government and had vowed to kill plaintiff because he had defected.
In 1986 and 1987, plaintiff became a National Collegiate Athletic Association (NCAA) All-American wrestler, finishing in the top six nationally in his weight class, and was invited to the Olympic trials. The top two finishers would make the team.
Several weeks before he was arrested, plaintiff met Mahmoud Bassir outside the gymnasium at the college plaintiff attended. Plaintiff did not know that Bassir was a police informant. Bassir introduced himself as Mohammed Hussein, and they had a conversation in Farsi. After plaintiff‘s wrestling practice concluded, plaintiff encountered Bassir outside the gym, and Bassir walked home with plaintiff. They met several times after that and became friends.
Bassir told plaintiff he was in the diamond business and had been “ripped off” by a woman named Sylvia Reyes (who, unbeknownst to plaintiff, also was a police informant) and wanted to recoup his loss by selling her dirt rather than diamonds. At Bassir‘s behest, plaintiff telephoned Reyes and said he wanted to do business. Bassir had instructed plaintiff to refer to diamonds as “medicine.” Reyes expressed interest and later met plaintiff at a Holiday Inn. Plaintiff told her he had medicine to sell, and Reyes said she would pаy $35,000. Plaintiff was shocked at this figure. Bassir later told him that $35,000 was the exact amount Reyes owed him. Bassir asked plaintiff to arrange to meet Reyes once more, but told plaintiff that Bassir would conduct the transaction himself.
On December 15, 1987, plaintiff met Reyes and drove her to his apartment complex to meet Bassir. They walked around looking for Bassir. Reyes said she was tired and leaned against an automobile. Reyes noticed a briefcase underneath the vehicle, picked it up, and carried it to the third floor. Reyes opened the briefcase, and plaintiff looked inside. Reyes then shut the briefcase and went back downstairs with it.
When plaintiff and Reyes reached the parking lot, several men began running toward them. Reyes dropped the briefcase, and plaintiff kicked it
The evidence introduced by defendants providеd a dramatically different version of the events leading to plaintiff‘s arrest. In September 1987, Los Angeles Police Detective Charles Uribe arrested Bassir for possession of heroin for sale and arranged for Bassir to become a police informant. Bassir subsequently provided reliable information leading to the arrest of two drug dealers.
In December 1987, Bassir telephoned Detective Uribe, stating he had met an Iranian man who desired to sell a pound of Persian brown heroin. Because it appeared the alleged dealer was located in Orange County, Detective Uribe contacted Detective Sanchez, who assumed responsibility for the investigation.1 Detective Sanchez provided Bassir with the telephone number of Reyes, a reliable paid informant with whom Detective Sanchez had worked for more than 10 years.
Bassir passed on Reyes‘s telephone number to plaintiff, and on December 14, 1987, plaintiff called Reyes and said he wanted to conduct some “business” concerning brown “medicine” (which Reyes took to mean brown heroin), setting the price at $35,000. They met at a Holiday Inn to discuss the transaction.
Plaintiff telephоned Reyes the following day, December 15, 1987, and stated he was ready to complete the deal. Plaintiff and Reyes met at 8 p.m. and, after plaintiff asked to see the money, they drove to the parking lot of a nearby movie theater where Detective Sanchez, posing as Reyes‘s brother, approached the vehicle and showed plaintiff the money. After plaintiff produced a small sample of heroin, plaintiff drove Reyes to plaintiff‘s apartment complex. Sanchez and other detectives followed surreptitiously.
Plaintiff parked his vehicle, and he and Reyes exited and walked around the complex. Plaintiff entered an apartment and returned with a briefcase. He opened the briefcase in a hallway on the second floor and removed two plastic bags containing heroin, but quickly closed the briefcase and began walking rapidly toward the staircase when he noticed one of the undercover detectives nearby.
On December 16, 1987, the day following plaintiff‘s arrest, Los Angeles Police Department Detective Thomas Thompson obtained a warrant pursuant to
In closing argument at the conclusion of the trial in the present civil proceedings, plaintiff‘s attorney argued that Detective Sanchez, Bassir, and Reyes were “damn liars” who intentionally had framed plaintiff. Counsel urged the jury to award damages to compensate plaintiff for spending more than seven months in jail.
At plaintiff‘s request, the trial court instructed the jury in accordance with the decisiоn in Smiddy v. Varney, supra, 665 F.2d 261, 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
The jury returned a verdict in favor of plaintiff, awarding him $1,262,000 from the City of Los Angeles and Detective Sanchez jointly ($750,000 for false arrest and false imprisonment, $400,000 for intentional infliction of emotional distress, $70,000 for conspiracy, and $42,000 for conversion), plus an additional $65,000 in punitive damages from Detective Sanchez only, for a total award of $1,327,000. The Court of Appeal reversed that portion of the resulting judgment awarding damages of $70,000 for conspiracy, because this award duplicated damages assessed against defendants under other causes of action, and affirmed the judgment in all other respects.
As noted at the outset, we granted review to decide whether the jury instruction requested by plaintiff and based upon the decision in Smiddy v. Varney, supra, 665 F.2d 261, accurately states the applicable California law.
II
Under California law, a police officer is granted statutory immunity from liability for malicious prosecution, but not for false arrest and imprisonment.3 (Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 719.)
In Jackson v. City of San Diego (1981) 121 Cal.App.3d 579, the Court of Appeal concluded that the Legislature‘s imposition of liability for fаlse arrest and false imprisonment, coupled with its grant of immunity for malicious prosecution, evidenced the Legislature‘s “intent 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.) In Jackson, that meant that the plaintiff was “entitled to all the damages he suffered during the period from his warrantless arrest to the date he was rearrested pursuant to the grand jury indictment.” (Ibid.)
The appellate court in Jackson observed that there are two ways by which to determine whether a police officer‘s liability for damages caused by false arrest and false imprisonment ends when criminal charges are instituted. The first is to determine whether the institution of criminal charges breaks the chain of causation so that further damages are not attributable to the false arrest and false imprisonment. The chain of causation is broken if the institution of criminal charges constitutes an independent intervening act. The court in Jackson recognized that the determination whether the institution of criminal charges constitutes an independent intervening act depends upon the particular circumstances of each case, a process necessitating a time-consuming factual inquiry. The court in Jackson, rejecting this means of resolving the issue, instead favored an approach analyzing the Legislature‘s purpose in immunizing public employees from damages for malicious prosecution while retaining liability for damages caused by false arrest and false imprisonment.7
The court in Jackson recognized the difference between the tort of false imprisonment, which is premised upon a violation of the personal liberty of another accomplished without lawful authority, and the tort of malicious
As noted above, the Legislature reсognized this distinction between the torts of false imprisonment and malicious prosecution in enacting the California Tort Claims Act (
Federal law governing actions under
The Ninth Circuit held: “Filing of a criminal complaint immunizes investigating officers such as the appellants from damages suffered thereafter because it is presumed that the prosecutor filing the complaint exercised independent judgment in determining that probable cause for an accused‘s
The Ninth Circuit thus adopted an approach—nearly identical to that rejected by the California Court of Appeal in Jackson—of determining whether the institution of criminal charges breaks the chain of causation so that further damages are not attributable to the false аrrest and false imprisonment. This difference in approach arises from fundamental differences between federal law governing actions under section 1983 and California law regarding governmental liability and immunity for false arrest, false imprisonment, and malicious prosecution.9
Governmental immunity for claims of violation of civil rights under section 1983 is not conferred expressly by statute, but is based upon a judicial gloss on section 1983. As the United States Supreme Court has stated: “Although the statute on its face admits of no immunities, we have read it ‘in harmony with general principles of tort immunities and defenses rather than in derogation of them.’ [Citation.]” (Malley v. Briggs (1986) 475 U.S. 335, 339; Note, Qualified Immunity for Government Officials: The Problem of Unconstitutional Purpose in Civil Rights Litigation (1985) 95 Yale L.J. 126, 129 [“[I]t is important to note that the law of qualified immunity is entirely a creation of the courts, without textual basis in either the Constitution or statute.” (Fn. omitted.)].) The high court looks to whether “an official was accorded immunity from
Under federal law, judges are granted absolute immunity “for acts committed within their judicial jurisdiction.” (Pierson v. Ray (1967) 386 U.S. 547, 554.) Prosecutors are granted absolute immunity from damages arising from “initiating a prosecution and in presenting the State‘s case,” because such activities are “intimately associated with the judicial phase of the criminal process.” (Imbler v. Pachtman (1976) 424 U.S. 409, 430-431.)
“For executive officials in general, . . . qualified immunity represents the norm.” (Harlow v. Fitzgerald (1982) 457 U.S. 800, 807.) Police officers are granted a qualified immunity shielding them from liability for damages caused by their official acts “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” (Id. at p. 818.) Under federal law, therefore, a police officer is liable for all damages proximately caused by his or her official acts that a reasonable person would have known to violate clearly established rights, including such acts that would constitute malicious prosecution. (Cook v. Sheldon (2d Cir. 1994) 41 F.3d 73, 79 [“Section 1983 liability may also be anchored in a claim for malicious prosecution, as this tort ‘typically imрlicates constitutional rights secured by the fourteenth amendment, such as deprivation of liberty.’ [Citation.]“].)
California law regarding the presence or absence of governmental immunity for false arrest and malicious prosecution differs in at least two respects from federal law governing immunity from actions under section 1983. First, governmental immunity under California law is governed by statute. Second, Government Code sections 820.4 and 821.6 focus upon the nature of the alleged tort, rather than the nature of the governmental duties performed by the defendant.
As noted above, California law grants immunity to any “public employee” for damages arising from malicious prosecution. (
Under California law, a police officer may be held liable for false arrest and false imprisonment, but not for malicious prosecution. (
Plaintiff contends that his false imprisonment “continued from the date of his arrest to the date of his release from prison” more than seven months later. That is incorrect. Plaintiff‘s false imprisonment ended when he was arraigned in municipal court on the felony complaint seven days after he was arrested. At that point, plaintiff‘s confinement was pursuant to lawful process and no longer constituted false imprisonment.
Attempting to engraft upon Californiа law the federal rule embodied in Smiddy v. Varney, supra, 665 F.2d 261, would produce absurd results.11 If a police officer falsely arrested a suspect and then knowingly provided false
information to the prosecutor, the officer could be found liable for damages arising from the entire period of the suspect‘s incarceration. But the officer would enjoy absolute immunity if, instead of arresting the suspect, the officer proceeded directly to the prosecutor and maliciously and knowingly provided false information that led to the filing of criminal charges. Such conduct would constitute malicious prosecution, and the officer would enjoy absolute immunity from liability under
Plaintiff contends that, “[u]nder principles of waiver and estoppel,” defendants are precluded from arguing that the trial court erred in giving the challenged instruction based upon the decision in Smiddy v. Varney, supra, 665 F.2d 261, because defendants also relied upon the decision in Smiddy in requesting an instruction stating a different proposition.12 We do not agree. Citing a particular decision as authority for a requested jury instruction does not preclude a party from arguing on appeal that the trial court erred in giving a different instruction based upon the same decision but stating a different proposition of law.
Plaintiff mistakenly relies upon the rule stated in Fortman v. Hemco, Inc. (1989) 211 Cal.App.3d 241, 255, that ” ‘[a] party may not complain of the giving of instructions which he has requested. [Citation.]’ ” That rule does not apply in the present case, because defendants did not request the challenged instruction.
We hold that the trial court erred in instructing the jury, in accordance with the decision in Smiddy v. Varney, supra, 665 F.2d 261, that a
Defendants further contend the judgment should be reversed because the trial court refused their request that the jury be instructed in accordance
with
III
The judgment of the Court of Appeal is reversed to the extent it affirms the award of damages for fаlse arrest and intentional infliction of emotional distress, as well as related punitive damages,15 and is affirmed in all others respects. The Court of Appeal is directed to remand the matter to the trial court for further proceedings consistent with this opinion.
Kennard, J., Baxter, J., Werdegar, J., Chin, J., and Brown, J., concurred.
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 imрrisonment, 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.
In
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.)
Through the interaction of
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;
In
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
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 nonliability for injury caused by his instituting or prosecuting a judicial or administrative proceeding.
Nowhere in the California Tort Claims Act—neither in
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. 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
.) 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.injury 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.
Pеrhaps 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 emplоyee 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
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 [sic] 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.
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.
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 рrosecution 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
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?
III
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.
Notes
On December 17, 1987, two days after plaintiff‘s arrest, a felony complaint was filed charging plaintiff with sale of a controlled substance, heroin, in violation of
The events at issue in Gill v. Epstein, supra, 62 Cal.2d 611, occurred before the enactment of the California Tort Claims Act of 1963, and the decision in that case therefore did not consider the effect of sections 820.4 and 821.6 or discuss the effect that immunity for maliсious prosecution should have on the scope of the damages properly recoverable in an action for false arrest. As explained above, our consideration of these statutes leads us to conclude that permitting an arrestee to recover damages arising from incarceration following his or her arraignment on formal charges effectively would nullify, in part, the statutory immunity for malicious prosecution. Accordingly, we decline to follow the decision in Gill v. Epstein, supra, 62 Cal.2d 611, and disapprove the decision in Jackson v. City of San Diego, supra, 121 Cal.App.3d 579, to the extent they hold that the recovery of damages for postarraignment confinement is permitted.
Our conclusion that damages for false arrest may not include damages arising from confinement following arraignment on formal charges is consistent with the rule recognized in the State of New York. (Broughton v. State (1975) 37 N.Y.2d 451, 459 [“Where a plaintiff successfully establishes liability for false imprisonment his damages will be measured only to the time of arraignment or indictment whichever occurs first.“].)
We do not decide whether any statutory immunity applies to the seizure of funds in plaintiff‘s bank account, nor what damages, if any, properly could be awarded for such seizure in the present case.
The dissent further states that the summation by defendants’ attorney “tended to nullify” any misleading effect of the erroneous instruction, because defendants’ attorney urged the jury to follow the instruction given to the jury, at defendants’ request, directing that damages for false imprisonment are limited to those suffered during the period from the false arrest to the filing of a criminal complaint. (Dis. opn. of Mosk, J., post, at pp. 769-770.) Again, the record does not support this assertion. Plaintiff‘s attorney used the erroneous instruction to refute the argument defendants’ attorney had made earlier, stating: “Now, let‘s talk about that instruction about when the damages for false arrest end. Counsel [for defendants] would have you believe that they end as soon as you file the criminal complaint. That‘s bull. There [are] two instructions. It ends when you file the criminal complaint unless, and the two instructions are right next to each other. . . .” After an interruption by the court concerning the form in which the jury would receive the instructions, plaintiff‘s counsel continued: “[I]n any event what that instruction says [is] when a police officer acts maliciously or with reckless disregard for the rights of the 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.” The argument of plaintiff‘s attorney thus greatly contributed to the misleading effect of the erroneous instruction.