BEDSWORTH, J., Dissenting. I
I wholeheartedly support the idea of immunizing public safety officers from liability for injuries suffered by an officer from a different agency [1456]during a joint response. I like the result my colleagues have crafted, and would join them if I could discern some basis for their conclusion other than judicial fiat. However, I cannot find such a rule in Calatayud v. State of California (1998) 18 Cal.4th 1057 [77 Cal.Rptr.2d 202, 959 P.2d 360], and I believe creation of such an immunity is properly the role of the Legislature, not the Court of Appeal.
In Calatayud, the Supreme Court did not analyze the firefighter’s rule itself; instead it confined its opinion to determining whether Civil Code section 1714.9, a particular statutorily created exception to the rule, was applicable to public safety officers. The court’s holding was merely that the phrase “any person” in section 1714.9 was not intended to include other police officers, and thus the exception to the firefighter’s rule created by statute did not apply. Nothing in Calatayud changed the basic parameters of the firefighter’s rule.
In fact, Calatayud cites with approval the Supreme Court’s prior opinion in Neighbarger v. Irwin Industries, Inc. (1994) 8 Cal.4th 532, 538 [34 Cal.Rptr.2d 630, 882 P.2d 347], in which the court notes that the protection afforded by the firefighter’s rule is fairly narrow: “ ‘The rule does not apply to conduct other than that which necessitated the summoning of the firefighter or police officer, and it does not apply to independent acts of misconduct that are committed after the firefighter or police officer has arrived on the scene.’ ” (Calatayud v. State of California, supra, 18 Cal.4th at p. 1063.) I’m unable to discern the nuance my colleagues find in that language. It seems clear to me and seems clearly applicable to our case.
Here, Morrison’s inadvertent release of his dog, which occurred long after Farnam was on the scene, cannot be construed as “conduct . . . which necessitated the summoning of [Farnam].” Consequently, Morrison’s conduct simply cannot be protected by the firefighter’s rule. Because the conduct is not governed by the rule in the first instance., it is immaterial whether, under Calatayud'' s analysis, a statutory exception to the rule should apply.
Given that the firefighter’s rule does not apply in this case, the issue boils down to whether this court should declare an immunity in favor of public safety officer which did not heretofore exist. I think not. It is the role of the Legislature to make the laws, and the role of the courts to interpret them. I hope the Legislature will act; unlike my colleagues, I am unwilling to do it myself.
[1457]II
Because I do not believe this case can be resolved at this point based upon the firefighter’s rule, I must address the issue actually raised by the defendants, and upon which summary judgment was granted, i.e., the notion that Government Code section 821.6. (section 821.6) provides immunity to public employees for virtually all conduct committed in the course of investigating crime or apprehending criminals.
Section 821.6, enacted as part of the California Tort Claims Act, 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.” Farnam contends section 821.6 applies only to malicious prosecution, relying primarily upon Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 719-720 [117 Cal.Rptr. 241, 527 P.2d 865].
In Sullivan, the Supreme Court evaluated the scope of section 821.6 and rejected the suggestion it provided immunity for falsely imprisoning someone past the appropriate term. Although the Sullivan court gave two reasons for its decision, it stated the “more important” reason was that “the history of section 821.6 demonstrates that the Legislature intended the section to protect public employees from liability only for malicious prosecution .... The Senate Committee comment to the section states that ‘The California courts have repeatedly held . . . public employees immune from liability for this sort of conduct. [Citing several California cases which deal with public employee immunity from malicious prosecution suits: White v. Towers (1951) 37 Cal.2d 727 [235 P.2d 209, 28 A.L.R.2d 636]; Coverstone v. Davies (1952) 38 Cal.2d 315 [239 P.2d 876]; Hardy v. Vial (1957) 48 Cal.2d 577 [311 P.2d 494, 66 A.L.R.2d 739] and one case dealing with public entity immunity for malicious prosecution: Dawson v. Martin (1957) 150 Cal.App.2d 379 [309 P.2d 915].] This section continues the existing immunity of public employees', and, because no statute imposes liability on public entities for malicious prosecution, public entities likewise are immune from liability.’ ” (Sullivan v. County of Los Angeles, supra, 12 Cal.3d at pp. 719-720, second italics added, bracketed material added by Sullivan.)
Despite the Supreme Court’s suggestion that section 821.6 provides immunity only for malicious prosecution, several Courts of Appeal have concluded its scope is not strictly limited to that tort. Defendants rely upon those cases to argue that section 821.6 immunizes any act committed by an officer in the course of investigating crime or pursuing suspected criminals. I cannot agree.
[1458]Although there is some overlap, the cases which extend section 821.6 beyond traditional malicious prosecution claims can be generally divided into two categories. First, some cases have held section 821.6 provides immunity not only for the judicial or administrative proceeding itself, but also includes any “essential step to the institution of the [proceeding] . . . .” (Kemmerer v. County of Fresno (1988) 200 Cal.App.3d 1426, 1436-1437 [246 Cal.Rptr. 609] [investigation and preliminary notice of proceedings before civil service commission were within the scope of “administrative proceeding” as used in § 821.6]; see also Kayfetz v. State of California (1984) 156 Cal.App.3d 491, 494 [203 Cal.Rptr. 33] [publication of disciplinary action against doctor was part of disciplinary process]; Jenkins v. County of Orange (1989) 212 Cal.App.3d 278, 283-284 [260 Cal.Rptr. 645] [inadequate investigation of child abuse was part of dependency proceeding]; Baughman v. State of California (1995) 38 Cal.App.4th 182 [45 Cal.Rptr.2d 82] [execution of search warrant was part of criminal proceeding].)
These cases do not really challenge the basic concept that section 821.6 addresses malicious prosecution; instead they merely clarify that a judicial or administrative proceeding encompasses much more than the act of filing charges. None of the cases, however, go so far as to hold that efforts to apprehend a suspect fall within the malicious prosecution definition of “initiating a judicial proceeding.”
The second line of cases does, however, conclude that section 821.6 immunity can apply in situations where a malicious prosecution action would not technically lie. In Johnson v. City of Pacifica (1970) 4 Cal.App.3d 82 [84 Cal.Rptr. 246], the plaintiff alleged the officers had negligently, but not maliciously, instituted proceedings. The court held the concluding language of section 821.6, which specifies the immunity applies “even if he acts maliciously and without probable cause,” implied the immunity also attached if the acts were not malicious. (Johnson, at p. 87.) In Amylou R. v. County of Riverside (1994) 28 Cal.App.4th 1205, 1210 [34 Cal.Rptr.2d 319], the court evaluated the policy underlying section 821.6, before concluding immunity applied even to damage claims made by one who was not the target of the judicial or administrative proceeding (and who would thus not have standing to bring a malicious prosecution claim). The court noted section 821.6 was prompted by the need to give officers the “ ‘ “free[dom] to act in the exercise of honest judgment uninfluenced by fear of consequences personal to themselves,” ’ . . .” (Amylou R. v. County of Riverside, supra, 28 Cal.App.4th at p. 1213, citation omitted) and reasoned that the danger of such influence was the same whether or not the person injured was the target of the proceeding.
The concept that section 821.6 immunity is intended to protect the ability of law enforcement officers to make judgment calls runs through many of [1459]the cases, and was strongly emphasized by the Supreme Court in Sullivan. On this point, the Supreme Court quotes from an analysis by Professor Van Alstyne, whom it characterizes as “the principal architect of the California Tort Claims Act.” In that passage, Professor Van Alstyne explains that section 821.6 was intended to “ ‘codif[y] the recognized common 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.’ ” (Sullivan v. County of Los Angeles, supra, 12 Cal.3d at pp. 721-722, quoting Van Alstyne, Cal. Government Tort Liability Supplement (Cont.Ed.Bar 1969) § 5.63, pp. 24-25, italics added.) Van Alstyne makes clear that section 821.6 was not designed to immunize inadvertent conduct such as failing to release a prisoner, and specifically distinguishes such conduct from the type “ ‘of discretionary determination . . . which the immunity was designed to safeguard.’ ” (12 Cal.3d at pp. 721-722.)
Indeed, in each of the cases discussed above, the acts which allegedly caused injury were indisputably intentional acts of judgment. In some cases, the acts were allegedly prompted by a malicious intent to injure (e.g., in Amylou R. v. County of Riverside, supra, 28 Cal.App.4th 1205, the defendants were alleged to have made intimidating and defamatory statements about the plaintiff, a rape victim, because she was not sufficiently cooperative), while in others, the acts were allegedly the product of negligence (e.g., in Jenkins v. County of Orange, supra, 212 Cal.App.3d 278, the decision to institute dependency proceedings was allegedly the product of an inadequate investigation). Baughman v. State of California, supra, 38 Cal.App.4th 182, is the only case in which the facts do not make clear whether the act complained of was intentional, and it is illuminating.
In Baughman, the defendants destroyed computer disks belonging to the plaintiff in the course of executing a search warrant. The plaintiff sued for conversion, thereby alleging the destruction was intentional. At the conclusion of the plaintiff’s case-in-chief, the trial court expressed the belief the conversion claim was immunized by section 821.6, and the plaintiff consequently dismissed the conversion claim, but was given leave to amend his complaint to conform to proof of negligence (i.e., unintentional destruction). Thus, the trial court in Baughman drew a clear distinction between an intentional destruction claim, which it felt would be immunized, and an unintentional destruction claim, which could proceed to the jury. Unfortunately, the Court of Appeal itself did not get an opportunity to evaluate how section 821.6 applied to the unintentional destruction, because the jury returned a verdict for the defendants on that claim. The appeal concluded only that section 821.6 should be applied to the conversion (intentional [1460]destruction) claim. (Baughman v. State of California, supra, 38 Cal.App.4th at pp. 190-193.) Nonetheless, in my view, the trial court drew the appropriate distinction.
The purpose of section 821.6, to protect the ability of government employees to act upon their judgments without fear of personal consequences, applies only where the employee is making a conscious decision to act (or not act) that might be affected by extrinsic personal considerations. But in the instant case, unlike the cases discussed above, Farnam’s injury was not the product of an intentional act by Morrison. Instead, by all accounts, Morrison had no intention of releasing Barry; it was simply a mistake. And such mistakes, devoid of any thought process at all, are neither affected by the prospect of immunity nor should they be promoted by it. Consequently, the immunity of section 821.6 should not be applied where, as here, the act which caused the damage was not intentional.
My conclusion that Government Code section 821.6 is not intended to cover Farnam’s injury is also bolstered by Civil Code section 3342, which provides strict liability for dog bites. Although as defendants point out that Civil Code section 3342 exempts dog bites by police dogs in the course of their work (Civ. Code, § 3342, subd. (b)), they neglect to mention the exemption applies only if the person bitten is “a party to [or] participant in, [or] suspected to be a party to or a participant in, the act or acts that prompted the use of the dog . . . .” (Civ. Code, § 3342, subd. (c).)1 By that latter provision, the Legislature has made clear it intends police agencies to escape liability for their dogs’ bites only when the person bitten is the suspected wrongdoer.
In light of the Legislature’s very specific provision of strict liability for dog bites (including police dogs that bite someone other than the suspect), I can hardly conclude they intended to immunize that same damage through a broad interpretation of section 821.6. (See San Francisco Taxpayers Assn. v. Board of Supervisors (1992) 2 Cal.4th 571, 577 [7 Cal.Rptr.2d 245, 828 P.2d 147], quoting Rose v. State of California (1942) 19 Cal.2d 713, 723-724 [123 P.2d 505] [“ ‘It is well settled . . . that a general prevision is controlled by one that is special, the latter being treated as an exception to the former. A specific provision relating to a particular subject will govern in respect to that subject, as against a general provision, although the latter, standing [1461]alone, woud be broad enough to include the subject to which the more particular provision relates.’ ”].)
I would reverse the summary judgment, remanding the case for further proceedings, and the legal lacuna which concerns my brethren for legislation.
Appellant’s petition for review by the Supreme Court was denied February 28, 2001. Mosk, J., was of the opinion that the petition should be granted.
Farnam relied upon Civil Code section 3342 in his opposition to summary judgment. Morrison argues Farnam could not properly do so because he did not specifically plead it in his complaint (see Brenneman v. State of California (1989) 208 Cal.App.3d 812 [256 Cal.Rptr. 363]) and did not seek leave to amend. This seems to me the legal equivalent of suggesting Farnam failed to say “Mother may I,” since Morrison does not contend he was prejudiced by the omission. In any event, Farnam’s failure to plead the statute as a separate basis of liability does not prevent me from looking to it for guidance in my legal analysis of Government Code section 821.6.