California Court of Appeal Feb 16, 2016 No. D067668Unpublished
Filed 2/16/16 Larson v. Barber CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
HARVEY EUGENE LARSON, D067668
Plaintiff and Appellant,
v. (Super. Ct. No. 37-2013-00031367- CU-ON-CTL) MARK BARBER et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of San Diego County,
Timothy B. Taylor, Judge. Affirmed.
Harvey Eugene Larson, in pro. per., for Plaintiff and Appellant.
McDougal, Love, Eckis, Boehmer & Foley and Margaret A. Gregory for
Defendant and Respondent Mark Barber.
Thomas Montgomery, County Counsel, Morris G. Hill, Carra L. Rhamy and
Erica R. Cortez, Deputy County Counsel, for Defendants and Respondents Paul J. Pfingst
and Genaro Ramirez.
In April 2000 a jury convicted Harvey Eugene Larson of resisting an executive
officer and exhibiting a deadly weapon to a police officer to resist arrest. (Pen. Code,
§§ 69, 417.8.) In 2002 this Court affirmed Larson's conviction. (People v. Larson
(Feb. 08, 2002, D035935) (Larson I).)
Now, some 13 years after his conviction, Larson has sued Mark Barber, the police
officer who arrested him; Paul Pfingst, who was district attorney when Larson was tried;
94676, at p. [4] (" 'Motion for Default Judgment' " denied); Larson v. Runnels (E.D.Cal.,
May 2, 2007, No. CIV S-06-1985 LKK KJM P) 2007 U.S. Dist. Lexis 36271, at
pp. [3]-[4] ("court finds the complaint to be too vague to determine whether the current
action is frivolous," but appears to complain about the processing of his mail—dismissed
with leave to amend); Larson v. Runnels (E.D.Cal., Oct. 10, 2008,
No. CIV S-06-1794 GEB DAD P) 2008 U.S. Dist. Lexis 116583, at p. [5] ("allegations in
plaintiff's complaint are barely legible and are so vague and conclusory that the court is
unable to determine whether the current action is frivolous or fails to state a claim for
relief"—dismissed with leave to amend); Larson v. Runnels (E.D.Cal., Oct. 23, 2009,
No. 2:06-CV-01794 ODW) 2009 U.S. Dist. Lexis 105518 (alleging stolen package from
prison mail system—dismissed with leave to amend).
On December 28, 2015, the Superior Court of San Diego County issued an order
declaring Larson a vexatious litigant, entering a prefiling order, and requiring plaintiff to
furnish security. (Larson v. Judge David J. Danielsen (Super. Ct. San Diego County,
2015, No. 37-2015-00013940-CU-PN-CTL).) On January 8, 2016, this Court summarily
denied Larson's petition for a writ of mandate/prohibition challenging that order. (Larson
v. Superior Court (Jan. 8, 2016, No. D069536).)
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C. Larson Sues Barber, Pfingst, and Others
In January 2013, while self-represented and incarcerated, Larson filed a complaint
against Barber, Pfingst, Ramirez and others.2 Larson alleges "legal malpractice" and
false imprisonment arising from his arrest and subsequent conviction in 2000 for resisting
an executive officer and exhibiting a deadly weapon to a police officer to resist arrest.
Larson's complaint alleges he is falsely imprisoned and a "police arrest false report [sic]"
was not signed under oath. Larson also alleges there was insufficient evidence of
probable cause for his arrest and detainment. He further alleges that he took a lie detector
test, which was " 'inconclusive,' " but with one more " 'point' " to the right, it would have
been scored " 'truth.' " Larson alleges he offered to take another "stipulated lie detector
examination," but the court would not allow lie detector evidence to be shown at trial.
He alleges there was no probable cause for his arrest, and he was not charged by
complaint or indictment.
D. Demurrers
Pfingst, Ramirez, and Barber filed demurrers to Larson's complaint. Pfingst and
Ramirez asserted prosecutors do not owe a duty of care to criminal defendants, and even
if they did, a district attorney (and deputy district attorney) are immune from liability for
instituting or prosecuting any judicial proceeding under section 821.6. Pfingst and
Ramirez also argued that Larson's "own allegations affirmatively show that he was
2 Larson did not serve any other defendants.
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imprisoned under 'due forms of law,' " which therefore precludes liability for false
imprisonment.
Barber, represented by separate counsel, made essentially the same arguments,
citing Heck v. Humphrey (1994) 512 U.S. 477 (Heck) and Yount v. City of Sacramento
(2008) 43 Cal.4th 885 (Yount) for the proposition that Larson's standing conviction
barred his false imprisonment claims. Larson filed tardy oppositions to both demurrers.
E. The Court Sustains the Demurrers Without Leave to Amend
The court sustained the demurrers, stating, "[Larson]'s claim of false imprisonment
is belied by the absence of any allegation in the complaint that his conviction has been
reversed, invalidated, or expunged . . . and . . . section 821.6 provides immunity from
liability for injury caused by instituting or prosecuting any judicial proceeding within the
scope of employment, even if the employee acts maliciously and without probable
cause." On March 13, 2015, the court entered judgment against Larson. This appeal
followed.
II.
DISCUSSION
A. Larson's Noncompliance with Rules of Court
California Rules of Court,3 rule 8.204(a)(1)(B) provides that each brief must
"[s]tate each point under a separate heading or subheading summarizing the point, and
support each point by argument and, if possible, by citation of authority . . . ." An
3 All subsequent rule references are to the California Rules of Court.
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appellant's headings must "take the form of propositions, which if sustained would lend
substantial support to appellant's request for a reversal." (Lady v. Worthingham (1942)
55 Cal.App.2d 396, 397.) The reason for this rule is to assist the court and counsel in
identifying and responding to specific assertions of trial court error. These rules apply to
Larson even though he is self-represented. In a civil case, a party may choose to act as
his or her attorney, and he or she is entitled to the same, but no greater, consideration than
that afforded to other litigants and attorneys. Larson, representing himself, is not entitled
to any special or lenient treatment. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-
985.)
The headings in Larson's brief are: "Overview and Procedural Posture,"
"Applicable Standards," "Request for Judicial Notice," and "Discussion and Ruling."
None of these headings denotes or describes a cognizable issue on appeal. Larson's brief
is mostly a stream of consciousness recital of alleged facts and scattered legal arguments.
We are not compelled to sort through Larson's brief to try to select those claims
that are not separately captioned but seem worthy of comment. Nor will we undertake to
fashion viable arguments for Larson from his numerous comments about the rulings or
evidence that led to his criminal conviction. Although in light of Larson's violation of
rule 8.204 we could deem all issues waived or forfeited, we address the issues as we best
discern them. However, if we have overlooked an argument buried or lurking in Larson's
brief under a topic heading that does not identify an argument, the issue is deemed
forfeited or waived. (Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826,
9
1830, fn. 4 ["The failure to head an argument as required by . . . rule [8.204(a)(1)(B)]
constitutes a waiver."].)
B. The Clerk Properly Refused to File Larson's Motion for Default Judgment
1. Procedural Background
On November 14, 2014, Larson served the summons and complaint on Pfingst,
and on November 18, 2014, on Barber. Larson did not serve any other defendants.
On December 23, 2014 (39 days after service), County Counsel filed a demurrer
on behalf of Pfingst.
On January 22, 2015 (65 days after service), Barber's attorneys filed his demurrer.
On February 13, 2015, County Counsel also filed a demurrer on behalf of
Ramirez.
Meanwhile, after Pfingst's demurrer was filed, Larson sent a self-drafted document
entitled "Motion for Default Judgment" to the court clerk on December 30, 2014, and
again apparently sent the same document for filing on January 15, 2015.
On January 9, 2015, in a document entitled "Notice to Filing Party," the clerk
returned Larson's Motion for Default Judgment, stating, "Your motion is not set and is
being returned in light of Defendant's appearance via Demurrer . . . ."
Larson contends the clerk should have filed his Motion for Default Judgment
because (1) "[s]ummons show default judgment may be granted if defendant does not
respond in 30 days[,]" and (2) "[j]udgment if defendant fails to answer complaint."
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2. Analysis
Larson's arguments fail for at least two reasons. First, even after 30 days have
expired, if no default yet has been entered, a defendant may file a responsive pleading to
a complaint. The court clerk cannot refuse to accept the responsive pleading for filing
merely because the time to respond has expired. (Goddard v. Pollock (1974) 37
Cal.App.3d 137, 141.) Moreover, contrary to Larson's assertions, a responsive pleading
includes not only an answer, but also a demurrer. (Code Civ. Proc., § 585, subd. (a).)
Here, Pfingst filed his demurrer before Larson attempted to file his Motion for Default
Judgment.
Second, even if Larson's Motion for Default Judgment had been submitted for
filing before any demurrer was filed, and even if it were construed as a request for entry
of default (as distinguished from request for entry of default judgment), the court would
have been required to reject it because Larson did not use the mandatory Judicial Council
form for requesting entry of default.
The California Constitution gives the Judicial Council of California the power to
"adopt rules for court administration, practice and procedure." (Cal. Const., art. VI, § 6,
subd. (d).) The Judicial Council has adopted a rule making the use of certain forms
mandatory. (Rule 1.31; § 68511.) The "Request for Entry of Default (Application to
Enter Default)," form No. CIV-100, is mandatory. (Rule 1.31(b) & (c); see Cal. Rules of
Court, appen. A, Judicial Council Legal Forms List.) The form may be found online at:
<www.courts.ca.gov/forms> [as of Feb. 11, 2016].
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Larson did not use the mandatory Judicial Council form. Use of the mandatory
form for requesting entry of default is important because in addition to containing
information used to indicate whether it is being used to enter a default or a default
judgment (a distinction Larson's self-drafted document ignores and confuses), the
mandatory form also contains sections that must be filled out in certain circumstances to
comply with statutory requirements. For example, if the form is to be used to request
entry of default, the plaintiff must fill out a declaration under Code of Civil Procedure
section 585.5, something Larson's self-drafted document does not contain.4
Because Larson failed to use the mandatory Judicial Council form, the court clerk
lacked authority to file Larson's fatally defective and improper request to enter default
judgment. Therefore, the clerk properly rejected his Motion for Default Judgment for
filing.
C. The Court Properly Sustained the Demurrers Without Leave to Amend
1. Standard of Review
An order sustaining a demurrer is reviewed de novo. " 'We treat the demurrer as
admitting all material facts properly pleaded, but not contentions, deductions or
conclusions of fact or law. [Citation.] We also consider matters which may be judicially
noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it
4 Code of Civil Procedure section 585.5, subdivision (a) states: "Every application to enter default under subdivision (a) of Section 585 shall include, or be accompanied by, an affidavit stating facts showing that the action is or is not subject to Section 1812.10 or 2984.4 of the Civil Code or subdivision (b) of Section 395."
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as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we
determine whether the complaint states facts sufficient to constitute a cause of action.
[Citation.] And when it is sustained without leave to amend, we decide whether there is a
reasonable possibility that the defect can be cured by amendment: if it can be, the trial
court has abused its discretion and we reverse; if not, there has been no abuse of
discretion and we affirm. [Citations.] The burden of proving such reasonable possibility
is squarely on the plaintiff." (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.)
2. Negligence Claims Barred by Immunity
"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." (§ 821.6.) " 'California courts construe
section 821.6 broadly in furtherance of its purpose to protect public employees in the
performance of their prosecutorial duties from the threat of harassment through civil
suits.' " (Richardson-Tunnell v. School Ins. Program for Employees (SIPE) (2007) 157
Cal.App.4th 1056, 1062 (Richardson-Tunnell).)
Section 821.6 immunity applies to a public prosecutor. (Miller v. Filter (2007)
150 Cal.App.4th 652, 666.) "The immunity is absolute, applying even if the prosecutor
'acts maliciously and without probable cause' [citations], such as by concealing
exculpatory evidence [citations]." (Ibid.) Section 821.6 also applies to police officers.
(Asgari v. City of Los Angeles (1997) 15 Cal.4th 744, 757.)
Section 821.6 not only protects against claims for malicious prosecution, but also
bars actions for negligence. (Amylou R. v. County of Riverside (1994) 28 Cal.App.4th
13
1205, 1210-1211 [police officers investigating crime immune from liability for negligent
infliction of emotional distress]; Kayfetz v. State of California (1984) 156 Cal.App.3d
491, 497 [collecting cases].)
"The test of immunity is not the timing of the offending conduct but whether there
is a causal relationship between the act and the prosecution process. Thus, if the act is
taken as part of the process, it is protected by the immunity in section 821.6." (County of
Los Angeles v. Superior Court (2009) 181 Cal.App.4th 218, 229.) Although immunity
under section 821.6 is broad, it does not bar an action for false arrest or false
imprisonment. (Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 719-720.)
Because the purpose of section 821.6 is to allow the efficient functioning of the
criminal justice system by enabling public employees to do their jobs without threat of
civil lawsuits, courts have applied section 821.6 at the pleading stage to reject attempts to
impose liability for a wide variety of causes of action arising out of criminal or
[judgment on the pleadings]; Jager v. County of Alameda (1992) 8 Cal.App.4th 294
[demurrer].)
Here, Larson alleges the police and prosecutors lied, fabricated evidence, and
would not allow Larson to present exculpatory evidence. In his brief, Larson asserts
Barber "committed perjury" and the "results of a stipulated lie detector examination were
not considered" at his trial.
Because the acts of misconduct Larson alleges and argues were all part of the
prosecution of the crimes of which he was charged, the conduct is absolutely immune
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under section 821.6 and the court properly sustained the demurrer to Larson's first cause
of action.
3. Larson's Conviction Bars His False Imprisonment Claims
In Heck, the United States Supreme Court considered whether a state prisoner may
challenge the constitutionality of his conviction in a suit for damages under title 42
United States Code section 1983. (Heck, supra, 512 U.S. at p. 478.) Noting that title 42
United States Code section 1983 created a species of tort liability, Heck recognized that
"civil tort actions are not appropriate vehicles for challenging the validity of outstanding
criminal judgments." (Heck, at p. 486.) The Court therefore held that "when a state
prisoner seeks damages in a [title 42 United States Code section] 1983 suit, the [trial]
court must consider whether a judgment in favor of the plaintiff would necessarily imply
the invalidity of his conviction or sentence; if it would, the complaint must be dismissed
unless the plaintiff can demonstrate that the conviction or sentence has already been
invalidated." (Heck, at p. 487; see Beets v. County of Los Angeles (2011) 200
Cal.App.4th 916, 923.)
In Susag, supra, 94 Cal.App.4th 1401, this Court applied the Heck rule to claims
under both title 42 United States Code section 1983 and related state tort law. Susag was
convicted of resisting arrest. (Susag, at p. 1406.) After he was convicted, Susag filed a
civil action alleging, among other things, false imprisonment, arising from the same
incident that led to his conviction. (Id. at p. 1407.) This Court noted an essential element
of resisting arrest is that the officer must be engaged in the lawful performance of his or
her duties. (Id. at p. 1409.) Thus, Susag's civil claims, if proven, would necessarily
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imply the invalidity of his conviction for resisting arrest by an officer. Accordingly, this
Court determined Susag's state law claims were barred. (Id. at p. 1412.) Moreover,
several public policy concerns compelled that result—Susag could not profit from his
own illegal act and should bear the sole responsibility for the consequences of his act, and
a determination contrary to the result in the criminal proceedings would engender
disrespect for the courts and discredit the administration of justice. (Ibid.)
Later, in Yount, the California Supreme Court confirmed that the Heck analysis
applies equally to a plaintiff's claims under both title 42 United States Code section 1983
and analogous state tort law. (Yount, supra, 43 Cal.4th at p. 902.)
Under these authorities, the relevant question here is whether success in Larson's
civil case for false imprisonment would necessarily imply or demonstrate the invalidity of
his earlier conviction for resisting an executive officer under Penal Code section 69. If
so, the civil claim is barred under Susag and Yount.
Under California law, the elements of a tortious claim of false imprisonment are:
"(1) the nonconsensual, intentional confinement of a person, (2) without lawful privilege,
and (3) for an appreciable period of time, however brief." (Easton v. Sutter Coast
Hospital (2000) 80 Cal.App.4th 485, 496.) The second element, "without lawful
privilege," is key here. For Larson to succeed on a false arrest/false imprisonment claim
in his civil case, he must establish the defendants did not have a lawful privilege to arrest
or imprison him.
However, Larson's conviction under Penal Code section 69 required the
prosecution to establish Larson resisted an executive officer who was engaged in the
16
performance of his or her lawful duties. Lawfulness of the arrest is an essential element
of this offense. (See CALCRIM No. 2651 ["To prove that the defendant is guilty of this
crime, the People must prove that: [¶] 1. The defendant willfully and unlawfully used
(violence/ [or] a threat of violence) to try to (prevent/ [or] deter) an executive officer
from performing the officer's lawful duty; AND [¶] 2. When the defendant acted,
(he/she) intended to (prevent/ [or] deter) the executive officer from performing the
officer's lawful duty." (Italics added.)].) "[I]t is . . . a 'well-established rule that when a
statute makes it a crime to commit any act against a peace officer engaged in the
performance of his or her duties, part of the corpus delicti of the offense is that the officer
was acting lawfully at the time the offense was committed.' " (People v. Cruz (2008) 44
Cal.4th 636, 673.)
Larson's false arrest/false imprisonment cause of action is barred by Susag,
because if there were to be a finding in his favor on false arrest/imprisonment, such
finding necessarily would challenge the validity of his conviction for violating Penal
Code section 69. (Susag, supra, 94 Cal.App.4th at pp. 1409-1410 [action for false
imprisonment barred by standing conviction for resisting or obstructing a peace officer].)
Because Larson's conviction has not been deemed invalid, his false imprisonment claims
fail, and the court properly sustained the demurrers to that cause of action.5
5 Larson's reliance on Rezek v. City of Tustin (C.D.Cal., Feb. 6, 2014, No. SACV 11-1601-DOC (RNBx)) 2014 U.S. Dist. Lexis 15117 for a contrary result is misplaced. Unlike Larson, in Rezek, the defendant was acquitted of resisting arrest. 17
D. No Abuse of Discretion in Denying Leave to Amend
The court denied Larson leave to amend, stating:
"Plaintiff in his tardy opposition requests leave to amend . . . , and it is ordinarily an abuse of discretion to deny such a request unless the inability to state a valid cause of action is clear. In this respect, plaintiff has the burden to show in what manner he can amend the complaint and how the amendment will change the legal effect of the pleading. . . . He makes no effort to comply with this requirement. He fails to articulate how he could amend the complaint and the legal impact of that amendment. Leave to amend is therefore denied."
Larson contends the court abused its discretion in denying leave to amend because
he had proven that "[s]ection 821.6 does not immunize a public employee from liability
for false arrest or imprisonment . . . [,] and it follows that under the concept of respondeat
superior, a public employer is responsible for the tort of false imprisonment by the
conduct of a public employee. [Citations.] Appellant requested that the City of El Cajon
and County of San Diego are included as defendants or allowed to amend." (Sic.)
The court did not abuse its discretion in denying leave to amend. As explained,
Larson's false imprisonment cause of action is barred by his standing conviction. Any
amendment to name additional public entity defendants under a respondeat superior
theory of vicarious liability would be subject to the same fatal bar. A court does not
abuse its discretion in denying leave to amend to assert a claim that is barred as a matter
of law. (Royalty Carpet Mills, Inc. v. City of Irvine (2005) 125 Cal.App.4th 1110, 1124.)
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DISPOSITION
The judgment is affirmed. Barber, Pfingst and Ramirez are awarded their costs on
appeal. (Rule 8.278(a).)
IRION, J.
WE CONCUR:
MCINTYRE, Acting P. J.
PRAGER, J.*
* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution. 19
AI Brief
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Holding. The court held that the plaintiff's civil claims for legal malpractice and false imprisonment were barred by prosecutorial immunity under Government Code section 821.6 and by the existence of his valid, unreversed criminal conviction.
Issues
Did the trial court err in refusing to file the plaintiff's motion for default judgment?
Did the trial court err in sustaining the defendants' demurrers to the complaint?
Did the trial court abuse its discretion in denying the plaintiff leave to amend his complaint?
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“Larson cannot collaterally attack his criminal conviction through a civil case.”
“The clerk properly rejected his Motion for Default Judgment for filing.”