Opinion
JOHNSON, J. Plaintiffs appeal from a judgment for defendants after the court granted their motion for summary judgment. We reverse as to defendant County of Los Angeles.
Walter Tallmadge was arrested for the unlawful possession of firearms and the firearms were seized. He was subsequently convicted of unlawful possession of machine guns. He was not convicted of unlawful possession of the remaining firearms. However, both the machine guns and the other guns were destroyed pursuant to court order.
Tallmadge and Charles Weedman, co-owners of the guns, allege the other guns were destroyed without prior notice and contrary to the representations of Los Angeles County Deputy District Attorney Wells that the other guns would be returned to plaintiffs “without the necessity for plaintiffs to initiate legal process for [their] recovery.” The complaint alleges Wells’s representations concerning the guns were false and “were made with the intent to deceive and mislead plaintiff[s] into not initiating legal process for the return of [the guns].”
The county and Wells based their motion for summary judgment on the ground they were immune from liability under the Tort Claims Act. If the complaint is viewed as one for misrepresentation, defendants’ claim of immunity must be sustained. Government Code section 822.2 provides, “A public employee acting in the scope of his employment is not liable for an injury caused by his misrepresentation, whether or not such misrepresentation be negligent or intentional, unless he is guilty of actual fraud, corrup[254]tion or actual malice.” The complaint did not allege Wells was guilty of fraud, corruption or actual malice. The county is not liable for an employee’s misrepresentation whether negligent or intentional. (Gov. Code, § 818.8.)
The immunities cited above would ordinarily dispose of this case. However, under the circumstances it is fair to ask whether the complaint could be construed to state a cause of action not barred by governmental immunity. Those circumstances are: the defendants chose to use the summary judgment procedure in place of a demurrer (cf. Franklin v. Municipal Court (1972) 26 Cal.App.3d 884, 899-900 [103 Cal.Rptr. 354]); the claim form submitted to the county and incorporated into the complaint by reference alleged plaintiffs’ injury occurred when the county destroyed their property without notice (cf. Union Bk. & Tr. Co. v. Los Angeles Co. (1934) 2 Cal.App.2d 600, 607 [38 P.2d 442]); the defendants’ motion for summary judgment acknowledges the complaint incorporates the claim form by reference; plaintiff Weedman’s declaration in opposition to the motion for summary judgment pointed out the property was destroyed without prior notice to plaintiffs.
Plaintiffs’ complaint can properly be construed to state a cause of action for conversion. The complaint alleges the plaintiffs were the owners and entitled to possession of the property; the property was held by the county for the benefit of the plaintiffs; the county destroyed the property without prior notice to plaintiffs. At the time the guns were destroyed, Penal Code section 1418 provided in relevant part, “If the ownership of such exhibits and the address of the owner can be reasonably ascertained, the court shall notify the owner of the location thereof and the method by which the owners may obtain such exhibits.” (See now Pen. Code, §§ 1417-1417.7 (Stats. 1985, ch. 875).)
In Kane v. County of San Diego (1969) 2 Cal.App.3d 550 [83 Cal.Rptr. 19] the county was held liable for conversion when it destroyed the plaintiff’s dogs without giving him prior notice under a statute similar to Penal Code section 1418. See also Hibbard v. City of Anaheim (1984) 162 Cal.App.3d 270,274,278 [208 Cal.Rptr. 733] in which the court recognized a conversion action would lie where city police destroyed guns taken on a search warrant without prior notice to the owners.
No immunity provision in the California Tort Claims Act insulates the county from liability for conversion under the facts of this case.
The county claims immunity under Government Code section 821.6 which provides, “A public employee is not liable for injury caused by his instituting or prosecuting any judicial or administrative proceeding within [255]the scope of his employment, even if he acts maliciously and without probable cause.” This is not an action for malicious prosecution. Furthermore, plaintiffs’ injury was not caused by a public employee “instituting or prosecuting” a judicial proceeding. Tallmadge’s prosecution had ended when the wrongful act he complains of occurred. (Cf. Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 719 [ 117 Cal.Rptr. 241, 527 P.2d 865].) Plaintiffs’ claim is not based on the district attorney’s act of preparing the order to destroy the guns or on the judge’s act of signing the order. These acts flowed as the natural consequence of plaintiffs’ failure to petition for return of the guns. Plaintiffs’ claim is based on the failure of the court clerk to give plaintiffs the notice required by section 1418.
We have also considered whether immunity for discretionary acts or judicial immunity bar this suit. It is clear from the language of Penal Code section 1418, quoted above, notice of the method by which the owner may obtain an exhibit was mandatory “[i]f the ownership of such exhibits and the address of the owner can be reasonably ascertained____” There appears to be no doubt in this case about the ownership and location of the owners of the guns. In any event, this would be an issue of fact at trial.
Judicial immunity is not involved here. This is not an action for conversion based on acts of the trial judge. (Cf. Franklin v. Municipal Court, supra, 26 Cal.App.3d 884.) Although section 1418 spoke of notice by “the court” this does not imply giving the notice was a judicial act or that it could only be performed by a judge. On the contrary, Government Code section 69843 provides, “The clerk of the superior court shall issue all process and notices required to be issued.” The superior court clerk is a county employee. (Cal. Const., art. VI, § 4.) The mere fact the clerk performs duties for a court does not clothe the clerk with judicial immunity. (Lick v. Madden (1868) 36 Cal. 208, 213.) The question whether the court clerk is immune from liability under the doctrine of judicial immunity depends not on his or her status as a clerk of court but on the nature of the act involved. (See, Annot., Applicability of Judicial Immunity to Acts of Clerk of Court Under State Law, (1984) 34 A.L.R.4th 1186, 1189 and cases cited therein.) In Sullivan v. County of Los Angeles, supra, a prisoner was held in jail despite a mandatory duty to release him because “no release order had been issued by the superior court____” (12 Cal. 3d at p. 714.) In upholding the plaintiff’s suit against the county for false imprisonment the court observed, “Plaintiff might have, but did not, base his claim against the county upon an allegation that the county clerk failed to issue the release order.” (Id., at p. 717, fn. 8.)1
[256]In the case before us, plaintiffs base their claim against the county on the failure by the clerk to give the notice required by Penal Code section 1418.
Nothing in the defendants’ declaration supports summary judgment on the conversion cause of action. Therefore, the judgment must be reversed.
Disposition
The judgment is reversed. It is ordered that defendants’ defense of governmental immunity is established as to plaintiffs’ cause of action for misrepresentation; that the action be dismissed as to defendant Wells; and, that the action proceed as to the issues remaining between plaintiffs and the County of Los Angeles. The parties are to bear their own costs.
Thompson, J., concurred.
In Union Bk. & Tr. Co. v. Los Angeles Co., supra, the court held a county is not liable for the tortious acts of the county clerk when he is acting as clerk of the superior court. The court did not base this holding on judicial immunity but on the theory the clerk was not acting under the control of the county. (2 Cal.App.2d at p. 611.) The court’s reasoning was criticized in Price v. Superior Court (1986) 186 Cal.App.3d 156, 162 [230 Cal.Rptr. 442] and it conflicts with the statement in Sullivan quoted above. Consequently, we decline to follow Union Bk. & Tr. Co. here.