As relevant here, a claim “relating to a cause of action for death or for injury to
[the] person” must be presented within “six months after the accrual of the cause of
action.” (§ 911.2, subd. (a).) “[A] cause of action for defamation accrues at the time the
defamatory statement is ‘published,’” and “publication occurs when the defendant
communicates the defamatory statement to a person other than the person being
defamed.” (Shively v. Bozanich (2003) 31 Cal.4th 1230, 1247.) However, in
circumstances where a reasonably diligent plaintiff could not have been expected to know
about the publication (for example, because it was contained in a personnel file), the
accrual date tolls until the plaintiff discovers or reasonably should have discovered the
publication. (Id. at p. 1248; Schneider v. United Airlines, Inc. (1989) 208 Cal.App.3d 71,
77.) We need not decide whether Roger’s claim accrued on October 16, 2013—when the
charge was published in the JIMS database and sent to the DOJ—or on December 6,
2013—when he read the letter from the hospital regarding his felony charge—because in
either case his September 2014 claim was late.
The waiver provision of the Government Claims Act, section 911, states that
“[a]ny defense as to the sufficiency of the claim based upon a defect or omission in the
claim as presented is waived by failure to give notice of insufficiency.” Section 911.3
contains another waiver provision, specific to timeliness, which provides that when a
claim is untimely and there is no application for leave to present a late claim under
17
section 911.4, the public entity must give notice of the defect, or waive it. “The notice
must warn the person making the government claim that his or her only recourse is to
apply without delay to the public entity for leave to present a late claim.” (Estill v.
County of Shasta (2018) 25 Cal.App.5th 702, 709 (Estill).) It is well established that
“[f]ailure to give the warning within 45 days after the claim was presented results in
waiver of the defense that the government claim was untimely. (§ 911.3, subd. (b).)”
(Ibid.; see also Phillips, supra, 49 Cal.3d at pp. 705-706 [“Failure to provide such notice
of timeliness waives a public entity’s defense based on untimeliness even if the claim is
otherwise insufficient”].)
In Phillips, our Supreme Court concluded the defendant public hospital district
waived their late-claim defense because they “failed to notify plaintiffs of any timeliness
defects” at the claim stage. (Phillips, supra, 49 Cal.3d at p. 711.) The Court explained
the rationale behind the waiver rule— it “encourages public entities to investigate claims
promptly, and to make and notify claimants of their determinations, thus enabling the
claimants to perfect their claims.” (Id. at p. 706.)
Here, as in Phillips, the County did not notify Roger that his claim was late.
Instead, it summarily rejected his claim on the merits. As a result, the County waived its
ability to raise the lateness of Roger’s claim as a defense in this lawsuit, and the trial
court erred in accepting such a defense.
The County argues the waiver rule does not apply in this instance because Roger
represented an accrual date of May 1, 2014 on the claim form, and it was only during this
18
litigation that it learned his claim had in fact accrued upon his arrest, in October 2013.
The County argues it should be able to rely on the date the claimant provides and should
not be required to perform an independent investigation to determine if that date is
correct. We are unpersuaded.
First of all, Roger did not represent the accrual date was May 1, 2014. Rather, he
accurately answered the only timing question the County’s claim form asked, which was
when his “damage or injury” occurred. But the date of injury is not the relevant timing
question under the Government Claims Act, the date of claim accrual is. (§ 910, subd. (c)
[claims must include “[t]he date, place and other circumstances of the occurrence or
transaction which gave rise to the claim asserted”], italics added.) Although the
distinction between accrual and occurrence of injury may not matter for many torts (such
as negligence causing personal injury), the distinction is important for a tort like
defamation, where the claim accrues upon publication but the injury caused by the
publication can occur much later. Thus, the issue is not that Roger gave the wrong
answer to or mislead the County, it’s that the County’s form asks the wrong question.2
We cannot hold the claimant responsible for this issue with the County’s form.
Indeed, doing so would be contrary to the waiver provisions in the Government
Claims Act, which were intended “1) to provide relief for technical noncompliance, 2) to
allow cases to be heard on their merits, and 3) to protect claimants from traps for the
2 For example, California’s form for claims against the state—which we judicially notice at Roger’s request (Evid. Code, § 452, subd. (c))—asks claimants to “State the exact date of the incident that you believe caused the damage or injury.” This question, unlike the question in the County’s form, is designed to elicit the accrual date. 19
unwary.” (Sykora v. State Dept. of State Hospitals (2014) 225 Cal.App.4th 1530, 1537,
italics added.) It would set just such a trap to allow public entities to ask about the time
of the injury at the claims stage to avoid their obligation to notify claimants of timing
deficiencies in their claims, and then rely on the accrual date during litigation to avoid
waiver for failing to notify such claimants.
Second, although the County’s form does not ask for an accrual date, Roger still
provided one in his claim. He explained that the cause of his May 2014 injury was
respondents’ inaccurate booking entry and subsequent publication of his arrest on their
website. He also attached to his claim a printout of the JIMS booking entry reflecting he
had been arrested and booked for a felony on October 16, 2013. Seeing as that printout
was the first of four attachments, even a cursory claim review should have identified the
accrual date. Indeed, the County’s claims adjuster conceded as much in her declaration,
when she said that had Roger provided the October 16, 2013 booking date in his claim,
the County would have known his claim was late and deemed it so. Seeing as Roger did
provide that information, we find the County’s argument that his claim misled them about
the accrual date disingenuous. Roger’s claim—as presented—was untimely, and the
County should have informed him so.
Finally, the County’s attempt to avoid application of the waiver rule by arguing it
is not responsible for reviewing the documents Roger submitted with his claim
contravenes the purpose behind the waiver rule, which is to encourage public entities to
“investigate claims promptly, . . . and notify claimants of their determinations, thus
20
enabling the claimants to perfect their claims.” (Phillips, supra, 49 Cal.3d at p. 706.)
Simply put, the County cannot have it both ways. It cannot say Roger should have
provided the booking date in his claim so it would have known his claim was late, then
disclaim responsibility for reviewing the documents he did submit which provide that
very date.
While a public entity is not required to investigate a claim for timeliness, it fails to
do so at the risk of waiving a timeliness defense in litigation. “[T]he claims-presentation
requirements encourage a public entity to timely investigate a claim. [Citation.] In
particular, the notice and defense-waiver provisions (§§ 910.8, 911, 911.3) furnish strong
incentive for a public entity to investigate a claim even if they do not require a public
entity to do so.” (Estill, supra, 25 Cal.App.5th at pp. 709-710.) Had the County notified
Roger his claim was late, he would have been able to submit an application to file a late
claim under section 911.4. He could have explained in that application why he had not
discovered his claim for damages until the fall of 2014, when he discovered he had a
criminal record with the DOJ as a result of the October 2013 arrest. If the County denied
the application, he could have petitioned the trial court for relief under section 946.6.
(See § 946.6, (c)(1) [court shall grant petition to file late claim if “[t]he failure to present
the claim was through mistake, inadvertence, surprise, or excusable neglect”].) By
failing to notify him of the defect, the County deprived him of this opportunity to provide
an excusable justification for the lateness of his claim. We therefore conclude the County
21
waived the late-claim defense and the trial court erred in dismissing the defamation
claims.
2. Prosecutorial immunity
Respondents argue the prosecutorial immunity in section 821.6 supplies an
alternate ground for upholding the trial court’s dismissal of the defamation claims. This
argument failed in the trial court, and it fails here.3 Nothing about respondents’ conduct
that gave rise to this case invokes prosecutorial immunity.
Section 821.6 provides: “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.” Under section
815.2, if the employee is immune from liability, so is the public entity.4
“Immunity under Government Code section 821.6 is not limited to claims for
malicious prosecution, but also extends to other causes of action arising from conduct
protected under the statute, including defamation and intentional infliction of emotional
distress.” (Gillan v. City of San Marino (2007) 147 Cal.App.4th 1033, 1048 (Gillan).)
The issue is whether respondents’ publication of false charges against Roger was part of
the “prosecution” of a judicial proceeding within the meaning of section 821.6.
3 After the trial court ruled the prosecutorial immunity did not apply, the County unsuccessfully petitioned this court to overturn that ruling. We denied the County’s writ petition on September 8, 2016. 4 Section 815.2, subdivision (b) says: ‘”Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability.”
22
Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 719 (Sullivan) is
instructive. In that case, our Supreme Court considered whether the immunity applied to
a sheriff’s holding the plaintiff in jail beyond his term. The Court first looked to the plain
meaning of the word “prosecute.” “According to Webster’s Third New International
Dictionary (1961) . . . ‘prosecute’ means ‘to institute legal proceedings against; esp: to
accuse of some crime or breach of law or to pursue for redress or punishment of a crime
or violation of law in due legal form before a legal tribunal.’” (Ibid.) The Court turned
to the purpose of section 821.6—to protect public employees from liability for malicious
prosecution, which “‘consists of initiating or procuring the arrest and prosecution of
another under lawful process, but from malicious motives and without probable cause.’”
(Id. at p. 720.) The test for whether a public employee has committed malicious
prosecution, and is therefore immune under section 821.6, “is whether the [employee]
was actively instrumental in causing the prosecution.” (Sullivan, at p. 720.) The Court
noted that “the suits against government employees or entities cited by the Senate
Committee in commenting upon section 821.6 all involve the government employees’
acts in filing charges or swearing out affidavits of criminal activity against the plaintiff.”
(Ibid.)
The Court concluded that both the plain language of section 821.6 and its
legislative history compelled a conclusion that prosecutorial immunity did not apply to
the sheriff’s failure to timely release the plaintiff from custody. (Sullivan, supra, 12
Cal.3d at p. 720.) The Court explained, “‘section 821.6 codified the recognized common
23
law immunity of prosecutors and other law enforcement officers from malicious
prosecution actions, in order to prevent interference with their discretionary and quasi-
judicial responsibility for institution and prosecution of enforcement proceedings.’” (Id.
at p. 722, italics added.) It concluded the “negligence in the [sheriff’s] ministerial
recordkeeping” that resulted in the plaintiff being held in custody beyond his term was
not “the kind of discretionary determination—to initiate [or prosecute] proceedings
against the plaintiff—which the immunity was designed to safeguard.” (Ibid.)
Similarly here, we conclude section 821.6 immunity does not apply because the
conduct at issue amounts to ministerial recordkeeping—it is neither discretionary nor
prosecutorial. A discretionary act requires “‘“personal deliberation, decision and
judgment,”’” whereas a ministerial act consists of performing “‘“a duty in which the
officer is left no choice of his own.”’” (Johnson v. State of California (1968) 69 Cal.2d
782, 788]; see also Kavanaugh v. West Sonoma County Union High School Dist. (2003)
29 Cal.4th 911, 916 [ministerial acts are those performed “without regard to [the actor’s]
own judgment or opinion concerning such act’s propriety or impropriety, when a given
state of facts exists”].) The discretionary act in this case was the trial court’s
determination that Roger had committed civil contempt of court by refusing to comply
with a discovery order. Respondents’ ensuing acts of booking Roger into custody and
transmitting that booking information to the DOJ involved no similar judgment call and
were instead purely ministerial. Their job was simply to enter the violation the trial court
24
had issued into their database and relay that information to the DOJ. That they performed
that task incorrectly does not trigger section 821.6 immunity.
In addition, respondents played no role in prosecuting Roger for violating the civil
discovery order in the underlying commercial lawsuit. The court-appointed receiver
argued Roger was not complying with the discovery order, and the trial court, as fact
finder, agreed. Respondents’ role in the contempt violation was limited and tangential.
They were responsible for booking and housing Roger for the duration of his failure to
comply with the discovery order.
While courts have held that “section 821.6 immunizes not only the act of filing or
prosecuting a judicial or administrative complaint, but also extends to actions taken in
preparation for such formal proceedings” (Gillan, supra, 147 Cal.App.4th at p.1048), this
broad view of prosecutorial immunity does not help respondents, because they also
played no investigatory role in this matter. Again, the receiver and the trial court were
the only parties who did so. As a result, the County’s reliance on Amylou R. v. County of
Riverside (1994) 28 Cal.App.4th 1205—where police officers were immune from tort
liability arising out of statements they made during their criminal investigation—is
unhelpful.
The other cases respondents rely on are similarly unhelpful, as they all involve
discretionary acts performed in the course of the defendants’ own investigation or
prosecution. (Kayfetz v. State of California (1984) 156 Cal.App.3d 491, 496 [immunity
applied to medical board’s publication regarding the outcome of its disciplinary action
25
against plaintiff]; Kemmerer v. County of Fresno (1988) 200 Cal.App.3d 1426, 1436-
1437 [immunity applied to actions the public agency employer took in investigating and
disciplining the plaintiff employee]; Citizens Capital Corp. v. Spohn (1982) 133
Cal.App.3d 887, 889 [immunity applied to statements the state prosecutor and regulatory
agency officials made in press releases regarding their investigation of the plaintiff];
Gillan, supra, 147 Cal.App.4th at p. 1050 [immunity applied to statements police officers
made in press releases regarding their investigation of the plaintiff].) Of these cases, the
medical board’s report of the disciplinary action against the plaintiff in Kayfetz may be
the most similar to the incorrect recording of Roger’s violation, but the case is still a far
cry from analogous. In Kayfetz, the medical board was reporting on the results of its own
disciplinary proceeding, so the report could be seen as part of the prosecution process.
We reject the argument that section 821.6 applies.
C. Writ and Declaratory Relief
In denying Roger’s motion for summary judgment on the writ of mandate and
declaratory relief claims, the trial court concluded the claims were moot because
respondents corrected their mistakes during the litigation. The trial court also concluded
it could not direct respondents to develop a procedure for accurately booking inmates for
civil contempt because “there is no statute that imposes upon [respondents] a duty to
create or maintain . . . records in a specific manner.” Roger argues these rulings were
erroneous because respondents’ booking procedure for civil contempt of court is a matter
of public importance and the mistakes that occurred in his case are likely to recur as
26
respondents have not developed a procedure for accurately recording civil contempt
violations. We agree.
Although writs of mandate and judicial declarations are different types of relief
with different requirements, they both require an actual controversy and they both contain
a mootness exception for issues of public importance that are likely to recur. “A
traditional writ of mandate under Code of Civil Procedure section 1085 is a way to
compel a public entity to perform a legal, typically ministerial, duty.” (Weiss v. City of
Los Angeles (2016) 2 Cal.App.5th 194, 204.) To obtain a writ of mandate under Code of
Civil Procedure section 1085, a petitioner must show, among other things, “that the
respondent has failed to perform an act despite a clear, present and ministerial duty to do
so, and that the petitioner has a clear, present and beneficial right to that performance.”
(Riverside Sheriff’s Assn. v. County of Riverside (2003) 106 Cal.App.4th 1285, 1289.)
The requirement of a ministerial duty to act “may be greatly relaxed, if not virtually
abandoned, where the question is one of public interest.” (8 Witkin, Cal. Procedure (5th
ed. 2008) Extraordinary Writs, § 84, pp. 970-971.) “‘As a general proposition courts will
not issue a writ of mandate to enforce an abstract right of no practical benefit to
petitioner, or where to issue the writ would be useless, unenforceable or unavailing.
[Citation.] However, where the problem presented and the principle involved are of great
public interest, the courts have deemed it appropriate to entertain the proceedings rather
than to dismiss the same as being moot.’ [Citations.]” (Ellena v. Department of Ins.
(2014) 230 Cal.App.4th 198, 207; see also Californians for Alternatives to Toxics v.
27
Department of Pesticide Regulation (2006) 136 Cal.App.4th 1049, 1069 [trial court erred
in dismissing the plaintiff’s mandamus claims because although the claims were moot,
“[t]his case raises important issues of public policy that are likely to recur”].)
Code of Civil Procedure section 1060 authorizes “[a]ny person . . . who desires a
declaration of his or her rights or duties with respect to another . . . in cases of actual
controversy” to seek declaratory relief from the court. “A declaratory judgment “‘serves
to set controversies at rest before they lead to repudiation of obligations, invasion of
rights or commission of wrongs; in short, the remedy is to be used in the interests of
preventive justice, to declare rights rather than execute them.’ [Citations.]”” (County of
San Diego v. State of California, supra, 164 Cal.App.4th at pp. 607-608.) A claim for
declaratory relief “‘becomes moot when some event has occurred which “deprive[s] the
controversy of its life.” [Citation.] The policy behind a mootness dismissal is that
“courts decide justiciable controversies and will normally not render advisory opinions.”’
[Citations.] The voluntary cessation of allegedly wrongful conduct destroys the
justiciability of a controversy and renders an action moot unless there is a reasonable
expectation the allegedly wrongful conduct will be repeated.” (Center for Local
Government Accountability v. City of San Diego (2016) 247 Cal.App.4th 1146, 1157 (San
Diego), italics added.)
Here, regardless of whether a statute specifically compels respondents to keep
accurate booking records, they have a duty to do so. Respondents admitted as much
during discovery, when they conceded they owed Roger a duty to accurately report
28
information about his violation in its database and to the DOJ. Moreover, it should go
without saying that the issue in this litigation is of public importance, as citizens have a
significant interest in the accuracy of their criminal record.
That respondents corrected Roger’s record partway through this litigation does not
eliminate the legal bases for writ and declaratory relief because, on this record, “there is a
reasonable expectation the allegedly wrongful conduct will be repeated.” (San Diego,
supra, 247 Cal.App.4th at p. 1157.) Respondents admitted they have no policy for
recording civil contempt of court violations and admitted their practice has been to
designate such violations as either a felony or a misdemeanor—both of which are
inaccurate and would create a false criminal record for an inmate when the County
relayed the booking information to the DOJ. In addition to this admission, respondents
have presented no evidence they have or will develop a policy to accurately record such
violations. As a result, they have not shown the errors that occurred in this case are not
likely to recur.
Respondents argue Dreier’s declaration supplies the evidence that they have
developed a policy for accurately recording civil contempt of court violations to reflect
their civil nature. We disagree. Dreier did not say the County or sheriff’s department has
implemented a new procedure to avoid designating civil contempt violations as criminal
charges. Instead, she said they had fixed the error in Roger’s record by “manually
record[ing]” his charge “as a civil commitment with no severity” and faxing the corrected
form to the DOJ. As to any sort of procedure going forward, all Dreier said was: “Based
29
on my understanding, as a result of this case, the Court system itself has changed its
procedure so that a CCP Section 1209(a)(5) civil violation will now be manually entered
by hand instead of electronically through the Livescan equipment.” (Italics added.)
There are two evidentiary problems with this statement.
As an initial matter, because the statement is not based on Dreier’s experience or
personal knowledge, but on her “understanding,” it is insufficient to support a finding as
to the truth of what she said. (E.g., Sykora v. State Dept. of State Hospitals, supra, 225
Cal.App.4th at p. 1535 [assertions “upon information and belief” are insufficient to
support a factual finding]; Overland Plumbing, Inc. v. Transamerica Ins. Co. (1981) 119
Cal.App.3d 476, 483 [declarations followed by the phrase “To the best of my knowledge”
or upon “information and belief” are insufficient because they “indicate[] something less
than the ‘personal knowledge’ required under Code of Civil Procedure section 437c”].)
Second, Dreier’s statement is not about what respondents have done to ensure they
accurately record and relay to the DOJ civil contempt violations. Rather, it conveys her
understanding of the court’s procedures only. Without more explanation from
respondents, we would have to speculate as to whether any change in the state court
system regarding designating civil contempt violations would also affect a change at the
county level. As far as we can tell from Dreier’s declaration, the court may have adopted
a policy of manually designating civil contempt violations to reflect their civil nature, but
her statement does not support a finding that respondents now have a procedure in place
to ensure they accurately record and report such violations. We find it telling she focused
30
on the court’s procedures, not her employer’s. Respondents’ evidence leaves a gap that
cannot be filled by their counsel’s reassurances the issue has been resolved. We therefore
reverse the judgment dismissing the writ and declaratory relief claims.
D. Section 1983 Claim
Roger argues the court erred in sustaining the demurrer to his section 1983 claim.
As a threshold matter, we reject respondents’ contention he failed to preserve this
challenge because he did not specifically identify the court’s order sustaining the
demurrer in his notice of appeal. “A prior nonappealable order or ruling need not be
specified in the notice of appeal from a subsequent appealable judgment.” (Eisenberg et
al., Cal. Practice Guide, Civil Appeals and Writs (The Rutter Group 2018) ¶ 3:119, p. 3-
52, citing Gavin W. v. YMCA of Metropolitan Los Angeles (2003) 106 Cal.App.4th 662,
669.) Because “[o]rders sustaining demurrers are not appealable” (Hill v. City of Long
Beach (1995) 33 Cal.App.4th 1684, 1695, citing Code Civ. Proc., § 904.1), Roger was
not required to separately identify it in his notice of appeal.
Turning to the merits, section 1983 states in relevant part: “Every person who,
under color of any statute, ordinance, regulation, custom, or usage, of any State or
Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of
the United States or other person within the jurisdiction thereof to the deprivation of any
rights, privileges, or immunities secured by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in equity, or other proper proceeding for
redress.” “[L]ocal governments, like every other § 1983 ‘person,’ by the very terms of
31
the statute, may be sued for constitutional deprivations visited pursuant to governmental
‘custom’ even though such a custom has not received formal approval through the body's
official decisionmaking channels.” (Monell v. Department of Social Services (1978) 436
U.S. 658, 690-691.) As relevant here, “the inadequacy of police training may serve as the
basis for § 1983 liability only where the failure to train amounts to deliberate indifference
to the rights of persons with whom the police come into contact.” (Harris, supra, 489
U.S. at p. 388.)
Roger’s amended section 1983 claim alleged that respondents had no procedure
for accurately booking inmates who have committed civil contempt, that they knew they
had no such procedure, and that these facts demonstrated their training “was so
inadequate as to amount to deliberate indifference” to such inmates’ civil rights. The trial
court sustained respondents’ demurrer on the basis that Roger had not “set forth facts
establishing the nature of [their] training program and that it was so obviously inadequate
as to demonstrate that [their policymakers made a conscious choice to disregard citizens’
constitutional rights.” We conclude the court required Roger to know too much about the
respondents’ booking procedure at the pleading stage.
To survive demurrer, a plaintiff is “only required to plead ultimate facts. . . .
Whether [they] can produce at trial, or in response to a motion for summary judgment,
evidence that will in fact support all or any of [their] allegations . . . is another matter.”
(Doheny, supra, 132 Cal.App.4th at p. 1098, italics added.) “‘“[A] plaintiff is required
only to set forth the essential facts of his case with reasonable precision and with
32
particularity sufficient to acquaint a defendant with the nature, source and extent of his
cause of action. [Citation.] If there is any reasonable possibility that the plaintiff can
state a good cause of action, it is error to sustain a demurrer without leave to amend.
[Citations.]” . . . “The particularity required in pleading facts depends on the extent to
which the defendant in fairness needs detailed information that can be conveniently
provided by the plaintiff; less particularity is required where the defendant may be
assumed to have knowledge of the facts equal to that possessed by the plaintiff.
[Citation.]” . . . There is no need to require specificity in the pleadings because ‘modern
discovery procedures necessarily affect the amount of detail that should be required in a
pleading.”” (Id. at p. 1099, italics added.)
Roger’s allegations satisfied this fair notice test. He alleged respondents had no
procedure for booking inmates who have committed civil contempt as anything other
than felons or misdemeanants. He also alleged they knew this lack of procedure would
result in false charges against this particular subset of inmates. Those allegations were as
specific as they could be at the pleading stage, without the benefit of discovery. Roger is
not privy to the details of respondents’ booking procedures, but respondents presumably
have access to that information. Roger’s allegations alerted respondents to the fact their
booking policies for civil contempt would be at issue in the litigation, and thus would be
the subject of discovery. “[A] claim of municipal liability under section 1983 is
sufficient to withstand a motion to dismiss ‘even if the claim is based on nothing more
than a bare allegation that the individual officers’ conduct conformed to official policy,
33
custom, or practice.’” (Karim-Panahi v. Los Angeles Police Dept. (9th Cir. 1988) 839
F.2d 621, 624, quoting Shah v. County of Los Angeles (9th Cir. 1986) 797 F.2d 743, 747.)
On appeal, respondents argue Roger’s claim fails not because his allegations were
too vague, but because damage to reputation is not actionable under section 1983. While
respondents are correct that “[d]amage to reputation alone is not actionable under
[section] 1983,” a plaintiff has an actionable claim if he can present “evidence that he lost
his job because of the defamatory statements.” (Hart v. Parks (9th Cir. 2006) 450 F.3d
1059, 1069-1070.) This is precisely what Roger has alleged—that the false booking
entry and transmission of a felony charge to the DOJ directly resulted in his loss of
employment.
Finally, respondents argue Roger’s claim fails because “his arrest was based on a
lawful Court order supported by probable cause,” and in such cases a plaintiff cannot
state a section 1983 claim. But this rule applies when the plaintiff is alleging their injury
is the deprivation of their liberty (i.e., they were arrested but later determined to be
innocent, so they never should have spent time in custody). (E.g., Hart v. Parks, supra,
450 F.3d at p. 1069, citing Cabrera v. City of Huntington Park (9th Cir.1998) 159 F.3d
374, 380 [‘“To prevail on his section 1983 claim for false arrest . . . [the plaintiff] would
have to demonstrate that there was no probable cause to arrest him’”].) The rule has no
application in circumstances like this, where the plaintiff is not alleging false arrest, but
rather defamation resulting in loss of employment. We therefore conclude the trial court
should not have sustained respondents’ demurrer to the section 1983 claim.
34
III
DISPOSITION
We reverse the judgment dismissing the defamation, defamation per se, writ of
mandamus, declaratory relief, and section 1983 claims. Respondents shall bear
appellant’s costs.
SLOUGH J.
We concur:
McKINSTER Acting P. J.
CODRINGTON J.
35
Filed 1/22/20 CERTIFIED FOR PUBLICATION
COURT OF APPEAL -- STATE OF CALIFORNIA
FOURTH DISTRICT
DIVISION TWO
ORDER
DOUGLAS J. ROGER, E070776 Plaintiff and Appellant, (Super.Ct.No. PSC1501512)
v. The County of Riverside
COUNTY OF RIVERSIDE et al., ORDER CERTIFYING OPINION Defendants and Respondents. FOR PUBLICATION _______________________________________
THE COURT
The request for publication filed on January 17, 2020 is GRANTED. The opinion meets the standard for publication as specified in California Rules of Court, rule 8.1105(c). It is ORDERED that the opinion filed in this matter on January 9, 2020, be certified for publication.
SLOUGH J.
We concur:
McKINSTER Acting P. J.
CODRINGTON J.
AI Brief
AI-generated · verify before citing
Holding. The court held that the County waived its late-claim defense under the Government Claims Act by failing to provide the required notice of untimeliness to the plaintiff, and that the plaintiff sufficiently alleged a section 1983 claim based on the County's failure to train employees on booking procedures for civil contempt.
Issues
Did the County waive its late-claim defense under the Government Claims Act by failing to notify the plaintiff of the claim's untimeliness?
Did the plaintiff sufficiently allege a section 1983 claim based on the County's failure to train employees on booking procedures for civil contempt?
Did the trial court err in dismissing the defamation claims based on prosecutorial immunity?
Were the plaintiff's claims for writ of mandate and declaratory relief moot?
Disposition. reversed
Quotations verified verbatim against the opinion
“The County did not notify Roger that his claim was late.”
“[Respondents’] training program with regard to Plaintiff and to other persons placed in custody on civil contempt charges was so inadequate as to amount to deliberate indifference to the constitutional rights of such persons.”