Amylou R. v. County of Riverside Appellant's Opening Brief

4th Civil No. E011954
IN THE COURT OF APPEAL
STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
AMYLOU RYAN,
Plaintiff and Respondent,
vs.
COUNTY OF RIVERSIDE,
Defendant and Appellant.
APPEAL FROM THE RIVERSIDE COUNTY SUPERIOR COURT
HONORABLE FRANCIS X. MARNELL, JUDGE
APPELLANT'S OPENING BRIEF
FIDLER, BELL, ORROCK & WATASE
LESLIE E. MURAD, II
2000 Market Street
Riverside, California 92501
(909) 683-6014
GREINES, MARTIN, STEIN & RICHLAND
MARTIN STEIN
TIMOTHY T. COATES
ALISON M. TURNER
9601 Wilshire Boulevard, Suite 544
Beverly Hills, California 90210
(310) 859-7811
Attorneys for Defendant and
Appellant County of Riverside

TABLE OF CONTENTS
INTRODUCTION
STATEMENT OF THE CASE
1
3
A. Summary of Material Facts Pertaining to
Liability. 3
1.
2.
3.
4.
5.
6.
The events of March 24, 1986.
The events of March 25-27.
The April 2 Interview.
Subsequent attempts to communicate with
plaintiff.
Moker and Lackie's communications with
other individuals during the investigation.
Training and guidelines regarding the
treatment of rape victims.
3
6
8
11
12
14
B.
C.
Summary Of Evidence On Injury And Damages.
Summary Of Procedural Facts.
17
18
LEGAL DISCUSSION 21
1. THE JUDGMENT SHOULD BE REVERSED BECAUSE THE
COMMUNICATIONS THAT WERE A BASIS OF THE
EMOTIONAL DISTRESS CLAIMS WERE ABSOLUTELY
PRIVILEGED, AND IT WAS PREJUDICIAL ERROR TO
ADMIT EVIDENCE OF THEM. 21
A.
B.
Civil Code Section 47, Subdivision (b) Applies To
The Communications Made During The Criminal
Investigation.
The Trial Court Erred In Admitting Evidence Of
Allegedly Defamatory Communications.
21
23
i

C. The Trial Court's Error Was Prejudicial. 24
II.
THE JUDGMENT SHOULD BE REVERSED ON THE
NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
CLAIM BECAUSE THE OFFICERS OWED NO DUTY OF
CARE TO PLAINTIFF. 26
1. Extent of powers, role imposed by law. 29
2. Policy of preventing future harm, burden to
defendant and consequence to the community. 29
3. Moral blame. 31
4. The degree of certainty plaintiff suffered
injury. 32
5. Foreseeability. 34
III.
THE JUDGMENT SHOULD BE REVERSED BECAUSE
NONE OF PLAINTIFF'S CLAIMS IS SUPPORTED BY
SUBSTANTIAL EVIDENCE. 35
A. Plaintiff Failed To Present Expert Evidence As To
Whether The Conduct Of The Investigation Was
Beneath The Standard Of Care For Purposes Of
Her Claim For Negligent Infliction of Emotional
Distress. 35
B. There Is No Substantial Evidence To Support
Plaintiffs Claim For Intentional Infliction Of
Emotional Distress. 38
C. There Is No Substantial Evidence To Support
Plaintiffs Claim For False Imprisonment, Either
With Respect To Liability Or Damages. 39
1. Liability. 39
2. Damages. 41
IV.
THE JUDGMENT SHOULD BE REVERSED BECAUSE THE
COUNTY IS IMMUNE FROM LIABILITY FOR
PLAINTIFF'S EMOTIONAL DISTRESS CLAIMS. 42
11

A.
B.
The County Is Immune From Liability Pursuant
To Government Code Section 821.6.
The County Is Immune From Liability Pursuant to
Government Code Section 820.2.
42
44
V. THE JUDGMENT SHOULD BE REVERSED BECAUSE BY
REASON OF THE SEPARATE VERDICTS, PLAINTIFF
MAY HAVE OBTAINED DOUBLE RECOVERY FOR
EMOTIONAL DISTRESS. 48
CONCLUSION
49
111

TABLE OF AUTHORITIES
CASES
Alicia T. v. County of Los Angeles (1990)
222 Cal.App.3d 869
Antique Arts Corp. v. City of Torrance (1974)
39 Cal.App.3d 588
Block v, Sacramento Clinical Labs, Inc. (1982)
131 Cal.App.3d 386
Brodie v. Montalbano (1978)
87 Cal.App.3d 725
Cervantez v. J. C. Penney Co. (1979)
24 Cal.3d 579
Citizens Capital Corp. v. Spohn (1982)
133 Cal.App.3d 887
City of Newport Beach v. Sasse (1970)
9 Cal.App.3d 803
Cohen v. Southland (1984)
157 Cal.App.3d 130
Davidson v. City of Westminster (1982)
32 Cal.3d 197
Flynn v. Higham (1983)
149 Cal.App.3d 677
Foreman & Clark Corp. v. Fallon (1971)
3 Cal.3d 875
Grimes v. Carter (1966)
241 Cal.App.2d 694
In re Tony C. (1978)
21 Cal.3d 888
39
45
22
21
38,39
43
39
30
27, 38
24
3, 4
24
41
IV

Jenkins v . County of Orange (1989)
212 Cal.App.3d 278
Johnson v. City of Pacifica (1970)
4 Cal.App.3d 82
Johnson v. State of California (1968)
69 Cal.2d 782
Kachig v. Boothe (1971)
22 Cal.App.3d 626
Kalfus v. Fraze (1955)
136 Cal.App.2d 415
Kastner v. Los Angeles Metropolitan Transit Authority (1965)
63 Cal.2d 52
Kayfetz v. State of California (1984)
156 Cal.App.3d 491
Lerette v. Dean Witter Organization, Inc. (1976)
60 Cal.App.3d 573
Lopez v. City of San Diego (1987)
190 Cal.App.3d 678
Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989)
48 Cal.3d 583
McCoy v. Hearst Corp. (1991)
227 Cal.App.3d 1657
Michenfelder v. City of Torrance (1972)
28 Cal.App.3d 202
Miller v. Los Angeles County Flood Control Dist. (1973)
8 Cal.3d 689
Molien v. Kaiser Foundation Hospitals (1980)
27 Cal.3d 916
Molko v. Holy Spirit Assn. (1988)
46 Cal.3d 1092
39,43
42,43
44
23
36
36
43
23
27
26, 34
38
45,47
35, 36, 37
32,33
39
v

Morgan v. County of Yuba (1964)
230 Cal.App.2d 938
NAACP v. Claiborne Hardware Co. (1982)
458 U.S. 886
Nally v. Grace Community Church (1988)
47 Cal.3d 278
Natural Soda Products Co. v. City of Los Angeles (1952)
109 Cal.App.2d 440
Novoa v. County of Ventura (1982)
133 Cal.App.3d 137
O'Shea v. General Telephone Co. (1987)
193 Cal.App.3d 1040
Osborn v. Mission Ready Mix (1990)
224 Cal.App.3d 104
People v. Manis (1969)
268 Cal.App.2d 653
People v. Superior Court (1973)
30 Cal.App.3d 257
Pettitt v. Levy (1972)
28 Cal.App.3d 484
Pool v. City of Oakland (1986)
42 Cal.3d 1051
Posey v. State (1986)
180 Cal.App.3d 836
Raymond v. Paradise Unified School Dist. (1963)
218 Cal.App.2d 1
Ribas v . Clark (1985)
38 Cal.3d 355
Ronald S. v. County of San Diego (1993)
93 Daily Journal D.A.R. 7837
29
25
34
35
39
22
25
40
41
23
25
45
27
23
46
VI

Rowland v. Christian (1988)
69 Ca1.2d 108
Scannell v. County of Riverside (1984)
152 Cal.App.3d 596
Schanafelt v. Seaboard Finance Co. (1951)
108 Cal.App.2d 420
Shell v. Schmidt (1954)
126 Cal.App.2d 279
Silberg v. Anderson (1990)
50 Cal. 3d 205
Slaughter v. Friedman (1982)
32 Cal.3d 149
Street v. State of New York (1969)
394 U.S. 576
Sullivan v. City of Sacramento (1987)
190 Cal.App.3d 1070
Sunset Amusement Co. v. Board of Police Commissioners (1972)
7 Cal.3d 64
Thing v. La Chusa (1989)
48 Cal.3d 644
Twaite v. Allstate Ins. Co. (1989)
216 Cal.App.3d 239
Warren v. District of Columbia D.C. App. 1981
444 A.2d 1
Watts v. County of Sacramento (1982)
136 Cal.App.3d 232
Whitcombe v. County of Yolo (1977)
73 Cal.App.3d 698
White v. Towers (1951)
37 Cal.2d 727
27
43, 44
41
48
21,23
22
24
27,45
36
32
32
27
45
44
42,43
vii

Williams v. State of California (1983)
34 Cal.3d 18
Williams v. State of California
32 Cal.3d at p. 24
Zepeda v. City of Los Angeles (1990)
223 Cal.App.3d 232
7735 Hollywood Blvd. Venture v. Superior Court (1981)
116 Cal.App.3d 901
27
29
26
30
STATUTES
Civil Code section 47, subdivision (b)
Code of Civil Procedure section 904.1,
subdivision (a)
Evid. Code, § 801, subd. (a)
Government Code section 815.2
Government Code section 820.2
Government Code section 821.6
Government Code section 26602
Penal Code section 830.1, subdivision (a)(I)
1, 21,22, 23
20
35
28,42
2, 18, 42, 44, 46, 47
2, 19, 42, 43, 44
22, 29, 40
22,29,40
TEXT
Prosser & Keeton on Torts (5th ed. 1984) § 53,
p.358
Rest.2d Torts, § 35
4 Witkin, Summary of California Law (8th ed.
1974) Torts, § 554, p. 2821
26
40
27
viii

INTRODUCTION
This action against the County of Riverside for negligent and intentional
infliction of emotional distress and false imprisonment arises out of difficult and
unusual circumstances.
Plaintiff Amylou Ryan, a young rape victim, contends that
her rights as a victim were violated by conduct of law enforcement officers insensitive
to her emotional needs. But plaintiff was not just the victim of rape; she was the sole
witness with respect to the rape and murder of her school friend.
She escaped being
killed herself when the perpetrator decided to drive her to a telephone, giving her a
quarter to call for help before he disappeared.
Under these circumstances, the officers
had to balance plaintiff's needs and sensitivities against the needs of the investigation,
the goal of which was to apprehend the perpetrator before he raped and killed again.
In an ideal world it might be hoped that a criminal investigation could be
conducted in a manner that would make no one uncomfortable, save the object of the
investigation.
But the reality is that officers, in the interest of public safety, must ask
hard questions, often under the most emotional of circumstances, questions that by
their nature might make a subject, or even a witness, uncomfortable.
As a matter of
public policy, vigorous investigation of crimes cannot be impeded by the fear of
subsequent imposition of civil liability based on amorphous standards adjudicated on
an ad hoc basis.
Not surprisingly, controlling law, both case and statutory, sharply
limits actions against law enforcement agents for precisely this reason.
Yet, despite
these limitations, the trial court allowed plaintiff to proceed to trial.
The result was a
trial infected with error that mandates reversal of the judgment.
First, the trial court admitted evidence of defamatory communications allegedly
made by detectives during the course of the investigation, although these
communications were clearly privileged under Civil Code section 47, subdivision (b).
By admitting this evidence, the trial court, contrary to clear authority, allowed a cause
1

of action for defamation, which had previously been dismissed, to resurface under a
new label.
Second, plaintiff's proof failed on each of her causes of action. For example,
with respect to the cause of action for negligent infliction of emotional distress,
plaintiff presented no expert evidence as to whether the conduct of the investigation -­
including treatment of plaintiff as a victim and witness -- was beneath the standard of
care, even assuming a legal duty was owed plaintiff in the first instance.
(As the
County demonstrates, it was not.) The trial court denied the County's motion for
nonsuit with respect to this claim because it concluded expert testimony was not
required.
That conclusion was improper; criminal investigation is a task for specially
trained experts, and an expert is required to advise the lay person as to the standard of
care lest the jury decide, as the court at one point suggested it could, that it was
negligent even to be suspicious of plaintiff and not to fully believe her story.
Third, assuming a duty to plaintiff and substantial evidence to support her
emotional distress claims, judgment must be reversed as to those claims because the
County is immune from liability under Government Code sections 821.6 and 820.2; it
was error for the court to conclude the immunities were inapplicable.
Finally, the court erred again in the form of verdicts it provided the jury.
On
the basis of those verdict forms, it appears plaintiff obtained double recovery for
emotional distress.
In sum, because of evidentiary error which rendered the trial unfair, the lack
of substantial evidence to support the verdict, and clear errors of law, judgment
should be reversed, and in its stead, judgment entered in favor of the County. At the
very least, the case should be remanded for a new trial.
2

STATEMENT OF THE CASE
A. Summary of Material Facts Pertaining to Liability.
1. The events of March 24. 1986.
On March 24, 1986, plaintiff Amylou Ryan, 15, and her friend, Diane Harper,
left La Sierra High School to go to a 7-Eleven. (RT 1163, 1167.)
On their way,
they encountered Joseph Hart, who offered them $1,000 to act as lookouts while he
harvested marijuana. (RT 1168-69.) They got into Hart's car and traveled to an area
plaintiff was not familiar with. (RT 1169, 1182.) Hart then raped and murdered
Diane Harper and raped plaintiff. (RT 1171-1174.) He then drove plaintiff to a
convenience store, gave her a quarter to call home, and left. (RT 1182-83.)
Subsequently, Deputy Jim Shannon arrived at the convenience store and took
plaintiff to a California Department of Forestry fire station. (RT 1185.)
Detectives Richard Moker and Michael Lackie were assigned to the case.
(RT
963-964.) Moker was an investigator assigned to the Crimes Against Persons Unit of
the Riverside County Sheriff's Department and was responsible for investigating the
sexual assault aspects of the crime.
(RT 610, 894.) Upon assignment to the case,
Moker was advised the crimes were the rape of one girl and the possible rape of a
second girl who was missing and whose physical condition was unknown. (RT 815.)
Lackie was a senior homicide investigator. (RT 1465.)
When the detectives arrived at the fire station, plaintiff's family was present.
(RT 618-619.) Plaintiff was wearing a long white wool skirt, which was soiled, and a
blouse, which was missing buttons. (RT 449, 632, 1469.) She had no undergarments
on, but her breasts were not exposed. (RT 452, 1022, 1469.)
Subsequently,
Deputy Shannon gave her his jacket.
(RT 632, 1209, 1474.) Plaintiff did not
3

complain of physical discomfort or injury.
(RT 872, see RT 1313.) There were no
noticeable physical injuries. (RT 449, 994.)
Moker took plaintiff aside and spoke with her briefly. (RT 620, 1192.)
Plaintiff told Moker that she had been raped, and that she believed Diane Harper was
dead.
(RT 620, 1192.) Moker emphasized the need to try and find Diane Harper as
quickly as possible. (RT 622-623.) He asked plaintiff where the crime had occurred
and if she could take them there.
(RT 620.) Plaintiff told Moker she did not know
the direction she had traveled with Hart and could not name any specific streets.
(RT
620, 1317.) Plaintiff did, however, remember certain signs and landmarks. (RT
1197.)
Lackie testified they had to make a decision what to do next; there was a
missing victim, yet they had to concern themselves with plaintiff and with collecting
evidence of sexual assault at hospital. (RT 1473.) They decided to look for the
missing victim first.
(Ibid.)
Moker asked plaintiff to assist them in locating the area where the crimes had
occurred. (RT 622.) Moker recognized plaintiff was traumatized and afraid (RT 623­
24), but there was no way other than through her to locate the crime scene: it would
have been difficult to do by helicopter or airplane because they did not know where to
go, and the area she described was composed of brush, hills and bushes so that aerial
observation would be difficult. (RT 623-24, 819.)
Plaintiff agreed to assist in finding Diane Harper since she was the only eye
witness.
(RT 819, 1192, 1315.) Mrs. Ryan asked that plaintiff be taken to the
hospital instead. Plaintiff told her mother, "It's okay, Mom, I'll be fine." (RT 452,
1315.) Plaintiff conceded she never asked for medical attention. (RT 1312.) Mrs.
Ryan consented to plaintiffs assisting in the search. (RT 819-820, 1474.)
It took between five and seven hours to find the crime scene. (RT 634, 1477.)
Initially plaintiff was in a car with Moker and Lackie, and Deputy Shannon followed
4

in a marked patrol car. (RT 628.) Mrs. Ryan had asked to go along but did not
accompany them.
(RT 452.) When they located the general area in which the crimes
had occurred, they all got into Deputy Shannon's car, which was equipped with better
suspension, because of the difficulty of the terrain. (RT 1479-1480.) They drove
within view of a bag of beer bottles which the suspect had placed in the road.
(RT
636, 824-825.) They stopped to avoid destroying possible evidence, such as tire
marks or shoe prints, and because plaintiff became very frightened and did not want
to go further.
(RT 636, 825, 827, 1206.) She indicated Diane Harper's body was up
at the end of a narrow trail leading off to the left of the dirt road. (RT 638.)
Because of plaintiffs emotional condition, they left the area as soon as they
had marked the crime scene. (RT 639, 827, 1207.). Deputy Shannon remained at the
turnoff from the main road, while Moker and Lackie drove with plaintiff to the
nearest telephone, at Denny's.
(RT 643-644.)1/ At Denny's, they asked plaintiff if
she wanted to go inside, but she stayed in the car and slept. (RT 644-645, 1207­
1209.) From the telephone booths inside, the officers were able to see the car
through a glass door. (RT 644.)
They were at Denny's about 45 minutes. (RT 645.) The officers called their
sergeant, the Rape Crisis Center to arrange for counselors to be at Riverside General
Hospital, and a patrol unit to transport plaintiff to Riverside General Hospital.
(RT
645.)1/ They also bought coffee. (RT 647.)
Moker and Lackie did not take plaintiff to the hospital; it was their
investigation, so they were needed at the crime scene to finish the search, and the task
of transporting plaintiff to the hospital and collecting evidence according to procedures
was handled more efficiently by a patrol officer. (RT 829-30, 1481-82.) A deputy
1/ The radio in their vehicle was not able to reach dispatch. (RT 643.)
2/ Two volunteers from the Rape Crisis Center subsequently attended plaintiff at
the hospital. (RT 455.)
5

arrived around 12:45 a.m. and transported plaintiff to the hospital. (RT 649.) Moker
and Lackie returned to the crime scene about 1:00 a.m. (RT 831.) Diane Harper's
body was located about 4: 15 or 4:30 a.m. (RT 831.)
Plaintiff testified that, at one point during the search, Deputy Shannon had said
to her "Your friend died for you. The ... least you could do is show us where her
body was."
(RT 1202.)1' Plaintiff testified that if she had not wanted to find the
body, why would she have driven around all those hours.
(RT 1200.)1'
2. The events of March 25-27.
Moker and Lackie went to plaintiffs house to interview her around 6:30 p.m.
on March 25. (RT 656.) A female J.D. technician, who was to do a composite of
the suspect, waited in the van. (RT 658.)
Mrs. Ryan went out to meet the detectives.
(RT 560.) She told them she did
not want them to talk to plaintiff, who was tired and lying down on the couch to
sleep.
(RT 561, 659.) It is disputed whether Mrs. Ryan then gave the detectives
permission to enter: Moker testified that she did, at least implicitly (RT 660, 835);
Mrs. Ryan testified that she asked them to wait, and when she went inside, they
followed her. (RT 561.) An argument ensued. (RT 462.) Moker told Mrs. Ryan he
could speak to plaintiff without her permission. (RT 875.) He testified that either
plaintiff or her mother asked for a warrant ordering them to talk with the detectives;
Mrs. Ryan said she felt her daughter should have an attorney present when they
questioned her.
(RT 836.) Mrs. Ryan testified that Moker at one point told her to
'J/ Deputy Shannon denied making the statement. (RT 2710.)
M About two days later, plaintiff visited Diane Harper's parents. (RT 1991.)
She told them she had wanted to help find Diane's body, hoping she was still alive.
(RT 1993, 2021.)
6

shut up.i f
(RT 462.) During the argument, plaintiff jumped up and ran into the
kitchen. (RT 462.) Moker explained he was very tired, having been up all night on
the case, and Mrs. Ryan responded that it was not as bad as being 15 years old and
raped. (RT 463.)
Moker and Lackie left and contacted Vickki Cochran, Services Coordinator at
the Riverside Area Rape Crisis Center.
(RT 665, 667, 1092.) Cochran arrived and
spoke with Mrs. Ryan, explaining the need to question plaintiff.
(RT 464, 1097.) A
meeting was arranged for the next day. (RT 464, 1098.)
On March 26, with Vickki Cochran present, Moker conducted an in-depth
interview of plaintiff regarding the sexual assault, and a composite of the suspect was
prepared.
(RT 673.) Mrs. Ryan waited outside during the interview, and she testified
she had no problem doing so. (RT 466.) Plaintiff cooperated during the interview.
(RT 674.)
On March 27, Moker got Mrs. Ryan's permission to take plaintiff for a soda;
they were gone for an hour or two, and when he dropped her off, "everything was
fine."
(RT 470.) Thereafter, plaintiff was in constant contact with the Sheriff's
Department, calling when she thought of some new detail about the incident. (RT
471, 1236.)
For a short time beginning March 26, the Ryan house was under surveillance.
(RT 850.) The murderer had Diane Harper's date book with plaintiffs address and
telephone number in it.
(RT 563.) Mrs. Ryan testified the surveillance did not worry
her.
(RT 474.) She requested and received a telephone tap because of harassing
calls, one of which plaintiff thought was from the murderer.
(RT 563.) The crimes
had generated substantial publicity in the community. (RT 909, 914, 1337, 1881.)
'jj Moker denied it. (RT 844.)
7

3. The April 2 interview.
On April 2, Moker and Lackie drove plaintiff and Mrs. Ryan downtown to the
Sheriffs Department.
(RT 485, 854.) At the time, according to Mrs. Ryan,
"Everything was fine. Amy was talking to them." (RT 571-572.)
Moker explained to Mrs. Ryan they wanted to speak to plaintiff again and did
not know how long the interview would take, and she consented to their interviewing
plaintiff without her being present.
(RT 860-861, RT 1345.) There is no evidence
plaintiff asked that her mother be present. (See RT 1356.)
Mrs. Ryan waited downstairs at the Sheriffs Department, and plaintiff went
with Moker and Lackie to a conference room upstairs.
(RT 1225.) The door of the
conference room was closed but not locked.
(RT 738, 862, 1226.) Plaintiff and
Moker sat on one side of the table; the door was behind Lackie and to the left.
(RT
1340.) The interview lasted about two hours. (RT 1226, 1233.)
Mrs. Ryan and plaintiff understood the purpose of the meeting was to prepare
a sketch of the suspect.
(RT 499-500, 1224.) According to the officers, that was one
purpose of the April 2 interview. (RT 1513.)2/
Moker had received reports from the Harpers, parents of the murdered girl,
that they had interviewed students at the school, whose testimony conflicted with
plaintiffs.
(RT 690, 844.) Mr. Harper reported that a schoolmate had seen plaintiff,
rather than Diane Harper, approach the car first.
(RT 845, 908-09.) Mr. Harper also
informed Moker that the students were upset and believed plaintiff was involved and
that there might be trouble at the school if she returned.
(RT 901-902, 1760.) Thus,
another purpose of the April 2 interview was to clarify certain matters which had
developed in the course of the investigation and to resolve any questions Moker and
fl./
As it happened, the sketch was not done at that meeting because plaintiff
became upset. (RT 1411; see infra.)
8

Lackie may have had about plaintiffs veracity.
(RT 710, 851-52, 1758.) The
matters were as follows:
a. There was conflicting information as to who first approached the
suspect's vehicle, plaintiff or Diane Harper.
(RT 1503, 1813-14.) Plaintiff had stated
Diane Harper went to the car first, and a schoolmate had said that plaintiff made the
first contact. (RT 724, 1503.)
b. There was conflicting information regarding the vehicle: some witnesses
said it had pin stripping and plaintiff said it did not, and there was some
discrepancy in the information about its bumper stickers. (RT 1352, 1505, 1717-
1719.)
c. Plaintiff had made conflicting statements regarding the position of the
body. (RT 1508, see RT 1347.)
d. Plaintiff had initially told Deputy Shannon the suspect was black and
then said he was white. (RT 1501-1502.)
e. Plaintiff had told the 911 dispatcher that Diane Harper was killed with a
rock (which turned out to be the case [RT 1945]), and later said she had not seen her
friend killed. (RT 1508, 1523, 1945.)
f. Plaintiff said she saw no blood at the scene, but there was blood
everywhere and traces of Diane's blood were on plaintiffs clothing. (RT 1511-1512,
1555, 1946.)
g. A schoolmate had reported an argument between plaintiff and Diane.
(RT 1509, 1511, 1601.)1 1
h. There was concern that plaintiff might know the suspect or have had
prior contact with him. (RT 1508-09, 1814.)
1/ Plaintiff testified that the argument arose when Diane Harper wore a sweater
plaintiff had just purchased, and the detectives said she-was overheard saying she was
so mad at Diane she could just kill her. (RT 1411.)
9

1. There was concern about the fact that the suspect released plaintiff and
gave her a quarter to call the police. (RT 1505.)
Lackie testified that they recognized if they confronted plaintiff with her
veracity problem, she might not cooperate and they would lose her as a witness. (RT
1763, 1793.) Thus, he testified, he carefully worded his approach, telling plaintiff
that he was having problems with her story and that some witnesses saw things
differently. (RT 1763.) Tears welled up in her eyes. (RT 1764.) However, plaintiff
was cooperative, at least initially, and responded to questions even after they raised
the discrepancies in their information. (RT 1755, 1767.) She drew on the blackboard
and provided new information.
(RT 1918-1920.) Eventually, she became
confrontational and argumentative. (RT 1763, 1767, 1769.)
She demanded to know
what parts of her story were wrong and who had given them their information.
(RT
1767, 1769.) She stated she had already answered their questions before. (RT 1768.)
At one point she asked that a woman be present. (RT 1357.)
Plaintiff testified that during the interview the officers asked her what kind of a
friend she was not to go to Diane Harper's funeral.
(RT 1241-42.) She also testified
that Moker asked her if she thought Diane Harper was prettier and more popular than
she was and wanted to know if she thought boys liked Diane better than they liked
her.
(RT 1276-1277.) Plaintiff testified she told them to "fuck off" when they asked
if she thought Diane was prettier. (RT 1359.)
Plaintiff testified Lackie was cleaning his nails with a one-inch knife during the
interview.
(RT 1227-1228, 1350.) Plaintiff further testified Lackie told her that he
knew she was lying, that he wanted the whole truth, and that he was going to tell
everyone she was lying and she wouldn't have any friends.
(RT 1227-28.) She asked
if she were under arrest, and was told she was not. (RT 1231, 1354, 1770.) They
did not expressly tell her she was a suspect; however, they told her they could hold a
10

suspect 72 hours. (RT 1354-1355, 1405, 1411.~/ Plaintiff asked if she were free to
leave, and the detectives did not respond, but rather paused because they wanted to
continue the interview. (RT 725-26, 729, 737, 738.) Plaintiff asked if she could
leave to get a soda and cigarettes.
(RT 1230-31, 1775-1777.) They told her they
would get these items for her.
(RT 1775-1778.) Plaintiff indicated she wanted to get
the soda and cigarettes from her mother.
(RT 1778.) She then stated they needed a
court order to keep her and that she would tell her attorney they had illegally detained
her and threatened her. (RT 1779-1780, 2483.) She further stated she would not
cooperate with them any longer. (RT 1783, 2484.)
When the interview broke down, Lackie left to speak to his supervisor.
(RT
1786-1787.) At that point he discovered Mrs. Ryan had called an attorney, who was
waiting downstairs and demanding plaintiffs release. (Ibid.) He returned to the
conference room and told plaintiff she was not a suspect; he explained they had been
trying to clarify certain information and obtain as much information about the crime
as possible.
(RT 1788.) Plaintiff said "fuck you" several times and left the room.
(Ibid.)
4. Subsequent attempts to communicate with plaintiff.
After April 2, Moker and Lackie were told by Paul Zellerbach, the deputy
district attorney assigned to the case, to work through plaintiff's counsel, Joseph
Meyers.
(RT 1955.) Lackie testified about attempts to reach Meyers, that Meyers
never returned their calls, and that they were eventually told he would not do so.
(RT
1542, 1868.) Meyers testified that he had requested Moker and Lackie be kept away
from plaintiff and that he wanted to prevent any contact. (RT 958-959.)
~/ Lackie testified that he did not consider her a suspect, that there was a big
difference between believing plaintiff knew the murderer and her being involved in the
murder. (RT 1938-41.)
11

On May 1, Moker and Lackie returned to the Ryan residence. (RT 521, 1855,
1870.) Lackie testified they did so because of an inability to get through to plaintiff's
attorney or mother.
(RT 1868.) Sometime in late April the detectives had learned
from the Harpers that Mrs. Ryan had told them the composite of the suspect was
wrong. (RT 687-688; see RT 1988, 2012, 2015.)2/
Mrs. Ryan told the detectives plaintiff had left town.
(RT 521, 1870-71.)lQ/
Mrs. Ryan testified they told her she was lying and to bring plaintiff out. (RT 521.)
She further testified she asked if they had a warrant (RT 522, 1930) and that, as she
was shutting the door on them, Lackie put his foot in the door and the door broke, a
fact Lackie denied.
(RT 522-23, 1874-1875.) According to Mrs. Ryan, the officers
then left and there were no further communications with them.
(RT 523.)!l!
5. Moker and Lackie's communications with other
individuals during the investigation.
Lackie testified that he and Moker began canvassing the neighborhood and
questioning plaintiff's friends around April 9 or 10. (RT 1805.) They explained the
purpose of their visit -- to investigate the incident at La Sierra High School or the
incident involving two La Sierra High School girls.
(RT 1838.) They were trying to
obtain information from plaintiffs friends and neighbors concerning what plaintiff
knew about the crime, to see if plaintiff or her mother or other family members had
9./ Mrs. Ryan denied telling the Harpers the composite was wrong or that they
would never catch the suspect. (RT 580.)
10/ She had gone to visit her sister on April 26. (RT 519, 521.)
11/ Joseph Hart killed his 13 year old niece on May 3, two days after this incident.
(RT 1875, 2049.) When Zellerbach went to notify the victim's parents, he spotted in
the driveway a vehicle similar to that described by plaintiff. (RT 2051.) Plaintiff
subsequently identified Hart in a lineup and testified against him at trial. (RT 527,
1277.) Hart was convicted of Diane Harper's murder and at the time of trial was on
death row. (RT 2053.)
12

ecounted the story of what had happened to friends and neighbors. (RT 1845, 1847,
1863.) The detectives asked neighbors if they had seen any suspicious vehicles or
activity at the Ryan residence. (RT 1864.) Ifneighbors asked why they did not go
directly to the Ryans with their questions, Lackie would say either they could not talk
to the Ryans or the Ryans would not allow them to talk to them. (RT 1822-1823.)
Lackie denied that either he or Moker attempted to get persons friendly with
plaintiff to pump her for information and to relay it to them. (RT 1739.) Lackie's
report indicated Lisa Georg, who identified herself as plaintiff's best friend, said she
was willing to ask plaintiff for more details and report what, if anything, she had
learned.
(RT 1741-42.) Lackie testified that while he did ask Lisa Georg to tell him
anything plaintiff told her regarding the incident, he did not ask her to do anything on
their behalf.
(RT 1743,1745.) He asked Lisa Georg if plaintiff had mentioned being
raped and she said plaintiff had said nothing to her about it; she had read about the
sexual assault in the newspaper. (RT 1747, 1882.) He asked Lisa Georg if she
seriously believed plaintiff could talk the suspect out of harming her and if she were
able to tell if plaintiff was being truthful. (RT 1748.) He also asked her what kind of
rumors there were about plaintiff, and she replied that almost everybody believed
plaintiff had set the crime up with a friend. (RT 1749.)
Holly Ryan, plaintiff's sister, testified that between March 24 and April 2, at
the house of her boyfriend and his sister, Moker told her plaintiff was not
cooperating, that he knew the family was trying to cover up something, and that
plaintiff's story kept changing, statements Moker denied having made. (RT 987, 991,
2702.)
Vickki Cochran Finley testified Moker told her that plaintiff was a suspect,
that her story was inconsistent, that she was lying, that she might be involved with the
suspect, and that, when looking for the crime scene, plaintiff kept taking him to the
wrong place.
(RT 1107-1109.) The conversation took place within a couple of days
13

of the incident.
(RT 1127.) There was more than one conversation about plaintiffs
lying. (RT 1128, 1130-31.) Moker denied making the statements. (RT 2702-03.)
Joyce Martin, a neighbor, testified the detectives told her that plaintiff was not
cooperating or giving them the information they needed to solve the case and catch the
perpetrator. (RT 2716-2722.) One of the detectives told her there was more to
plaintiffs involvement than met the eye. (RT 2716.)
Diane Bahl testified that Lackie commented to her they were almost 100% sure
plaintiff knew the suspect and that plaintiff was not the victim she presented herself to
be. (RT 2729, 2731.)
Plaintiff testified she overheard Moker telling two of her neighbors that she
was not cooperating and was telling different stories.
(RT 1258.) Moker denied
saying anything to suggest plaintiff was lying or changing her story. (RT 2707-08.)
6. Training and guidelines regarding the treatment of rape
victims.
Moker testified he was aware there were guidelines in effect in March 1986
indicating all sex crimes were to be investigated in a manner to reduce to a minimum
further victimization by the criminal justice system. (RT 809.) By these guidelines,
where possible, female deputies were to interview female victims of sex crimes.
(Ibid.) If a female deputy were not available, a trained female employee, if available,
was to be used to aid the initial response deputy. (RT 810.) If the victim preferred
to have the follow-up interview conducted by a female deputy or a trained female
employee, and one was not available, the interview could be delayed a reasonable
time.
(Ibid.)111
12/ Meyers testified that at some point he requested Zellerbach arrange to have a
female investigator on the case and if that were not possible, to have a district
attorney's investigator, preferably female, handle the case. (RT 944-945.) Zellerbach
denied Meyers or the Ryan family ever requested a female investigator. (RT 2041.)
14

Lackie testified he had received some training about the emotional states of
rape victims and about indicators of such emotional states, but nothing more specific,
because he was not a sexual assault investigator.
(RT 1622-23.) He was not aware of
any material in the department regarding the goal of investigating sex crimes in a
manner to reduce further victimization by the criminal justice system. (RT 1633.)
Elizabeth Ann Dickinson, a lieutenant in the Los Angeles County Sheriffs
Department, testified that, in her opinion, the investigation was consistent with state
and national guidelines and standards of practice.
(RT 2354.)111 In reaching her
opinion, she had, among other things, reviewed the police reports to see if a balance
had been struck between the needs of the sexual assault victim and the needs of the
investigation. (RT 2354-55.) She concluded such a balance had been attained. (RT
2433-34.) She noted that it was an unusual case because it involved a homicide and a
surviving sex assault victim, and had dynamics that a purely sexual assault case would
not have. (RT 2355.)
Specifically, Dickinson testified, among other things, that on March 24, the
detectives had to set priorities with respect to dealing with the surviving victim and
attempting to rescue Diane Harper. (RT 2366.)
In addition, she testified that the primary objective of an investigation,
according to the first POST guideline.d' is the protection of the victim and the
safeguarding of the community.
(RT 2393.) Thus, with the rapist and murderer at
large in the community, it was a high priority to get information out into the
community and to develop leads. (RT 2394.)
13/ Plaintiff offered no expert testimony on the standard of care for a murder-rape
investigation.
14/ POST guidelines refer to the guidelines issued by the California Commission
on Peace Officers Standards and Training.
15

With respect to inconsistencies in information, she testified it is important to
resolve them because they are often raised by the criminal defense attorney at trial to
attack the credibility of the victim witness. (RT 2464, 2583.)
Thus, in Dickinson's
view, it was appropriate for Moker and Lackie to go over and attempt to clarify
inconsistencies with plaintiff on April 2. (RT 2583.)
Dickinson further testified that the sex of the interviewer of rape victim is not
relevant since both male and female officers are capable of sensitivity. (RT 2439.)
On cross-examination, Dickinson testified it would not be appropriate or
consistent with training to make a statement, "Your friend died for you, the least you
can do is show us where the body is." (RT 2521.) Nor would it be appropriate to
tell the plaintiff that, if she did not cooperate, she would not have any friends left.
(RT 2574.) It would be proper for the detectives to tell plaintiff's friends to relay any
information they thought might be helpful, but not to tell them to act as investigators.
(RT 2679.)
Dickinson further testified that the Riverside Sheriff's Department guidelines
about interviewing 'rape victims were consistent with POST training. (RT 2680.)
Thus, under POST guidelines, the objective of an interview is to determine the truth
of allegations of sexual assault without further traumatizing the victim. (RT 2683.)
In her view, that guideline was carried out by the investigators. (RT 2693-94.)
With respect to the April 2 interview, once plaintiff made the specific
statement that she was not going to do anything else to help on the case, the officers
should have terminated the interview since it was reasonably obvious the interview
was concluding.
(RT 2607-2608.) She could not, however, infer the detectives did
not allow plaintiff to leave because there was no indication plaintiff got up to leave the
room. (RT 2603-04.)
16

Finally, in her view, plaintiff displaced her anger and frustration at the rapist,
who was no longer there, to the officers who were, a behavior she had observed in
other rape victims. (RT 2428, 2689-2690.)
B. Summary Of Evidence On Injury And Damages.
Therapist Susan Davis treated plaintiff for posttraumatic stress disorder
resulting from the rape and murder.
(Rt 1085.) The problem plaintiff was having in
dealing with investigators was part of the rape treatment.
saw plaintiff about fifty times at the rate of $70 per hour.
(RT 1087-1088.) Davis
(RT 1047, 1079.) Plaintiff
terminated the treatment with Davis, against Davis' advice, because she felt Davis had
joined those who disbelieved her and thought her capable of being involved in a
murder.
(RT 1050, 1389-90.)ll'
The County called Eugene Malitz, M.D. as an expert witness. He had
conducted a psychiatric examination of plaintiff. (RT 2117.) In Malitz's opinion,
plaintiff did not suffer severe emotional distress as a result of the investigative
process, although she may have experienced temporary distress from "things she did
not like" and physical exhaustion, for example, on the day of the long drive.
(RT
2162.) It was his opinion that she suffered posttraumatic stress disorder as a result of
the rape and murder and subsequently developed a displacement reaction, attributing
the cause of her emotions to investigators. (RT 2149, 2155-56.)
With respect to emotional distress, plaintiff testified she could not go back to
school because everybody hated her and thought she had lied and protected the
suspect, and that some people thought she was involved in the murder. (RT 1278,
ll/
Specifically, plaintiff did not trust Susan Davis because she had talked to
Zellerbach on one occasion without plaintiff being present, and had changed her dress
without telling plaintiff why. (RT 532, 1389-1390.)
17

1406.) Her life was gone; she had no friends and no school. (RT 1406, 1416.)
Additionally, each day she had to go over everything she had said all day with her
mother to determine whether it seemed like she was lying and to make sure that she
had not said anything wrong.
(RT 1409.) She testified that the physical rape by Hart
lasted only minutes whereas the "rape" by the Sheriffs Department lasted six years
and she would never forget it. (RT 1291.)
C. Summary Of Procedural Facts.
Plaintiff filed suit against the County of Riverside and others on July 14, 1987.
(CT 1.) The complaint alleged causes of action against the County for negligence,
assault, false imprisonment, slander, and the infliction of emotional distress,
intentional and negligent. (CT 1-15.)
A jury trial began on June 23, 1992 against the County only.
(CT 276.) The
only causes of action ultimately submitted to the jury for determination were those for
false imprisonment and negligent and intentional infliction of emotional distress.
(See
RT 2956-2959, 2962.)
Before trial, the County had moved in limine to exclude all evidence regarding
alleged defamatory conduct, because the slander cause of action had been dismissed
on a previous motion for summary judgment.
(RT 32; see CT 110-112.) The trial
court stated that "because you bar a cause of action on one point doesn't mean that the
same evidence can't be used on another cause of action."
(RT 61.) Subsequently, the
trial court ruled that the evidence would be allowed on the intentional and negligent
infliction of emotional distress claims. (RT 68.)
Additionally before trial, counsel for the County raised the question of
immunities.
(RT 37-38.) The County had submitted a trial brief arguing the
applicability of certain immunities set forth in Government Code sections 820.2 and
18

821.6. (See RT 46-47.) The court indicated it would consider the immunity issue at
the close of plaintiffs case on a motion for nonsuit. (RT 54.) The court also
suggested that counsel could move to exclude evidence on the grounds of discretionary
immunity.
(RT 54.) When the County did so, the court denied the motion, stating
that once the police decide to undertake an investigation, discretionary immunity is no
longer applicable. (RT 406.) At the conclusion of trial, the court rejected jury
instructions pertaining to the immunities under Government Code sections 820.2 and
821.6. (RT 2738, 2763-64; CT 413-421.) The court stated there would be no
comments or arguments about immunity, which, as a matter of law, had been ruled
out of the case. (RT 2764.)
During trial, when plaintiff rested, the County moved for nonsuit on the
ground that her evidence on negligence was insufficient because she had put on no
expert evidence regarding the standard of care for conducting a criminal investigation.
(RT 1443, CT 323.) The motion was denied.
(RT 1448.) The trial court stated that
while police procedure required expert testimony, it was not beyond the common
knowledge of jurors to determine whether officers had mistreated the plaintiff.
(RT
1445, 1447-48.)
The court submitted to the jury three separate general verdict forms, one for
each cause of action. (RT 2829; see CT 348-350.) Counsel for the County had
objected to the verdict forms. (RT 2976.) After the jury retired, the court called it
back and advised it there could only be one finding of damage for emotional distress,
whether it resulted from intentional infliction or negligent infliction. (RT 2979.) The
judge did not mention the emotional distress component of false imprisonment.
On July 14, 1992, the jury returned verdicts in favor of plaintiff. (RT 3004­
05; CT 348-350.) With respect to intentional infliction of emotional distress, they
assessed damages at $300,000.
(RT 3004; CT 349.) With respect to negligent
infliction of emotional distress, they assessed damages at $300,000, cumulative with
19

intentional infliction. (RT 3005; CT 350.) With respect to false imprisonment, they
assessed damages at $25,000. (RT 3005; CT 348.)
After trial, the County moved for judgment notwithstanding the verdict and for
a new trial. (CT 443, 464.) On October 26, 1992, the motions were denied. (RT 4,
22.)l§' During the hearing, the court had stated, "This case had nothing to do with
immunity or police procedure. It had to do primarily with slander ... [1J ... the
major thrust of it was slander and the resulting emotional distress. The plaintiff's
main thrust was that her life had been ruined forall purposes by the slander of the
two officers who said . . . that she was a suspect, she knew the murderer, that she
knew a lot more than she was telling ...." (RT 14-15.)
This appeal from the judgment followed. (CT 506.)111
16/ The reporter's transcript for the October 26 hearing was not numbered
consecutively with the trial transcripts.
17/ The judgment, which disposes of all issues between the parties, is appealable
under Code of Civil Procedure section 904.1, subdivision (a).
20

LEGAL DISCUSSION
I.
THE JUDGMENT SHOULD BE REVERSED
BECAUSE THE COMMUNICATIONS THAT WERE A
BASIS OF THE EMOTIONAL DISTRESS CLAIMS
WERE ABSOLUTELY PRIVILEGED, AND IT WAS
PREJUDICIAL ERROR TO ADMIT EVIDENCE OF
THEM,
A, Civil Code Section 47, Subdivision (b) Applies To The
Communications Made During The Criminal Investigation.
Civil Code section 47, subdivision (b)lll provides that the publication or
broadcast of statements made "[i]n any (1) legislative or (2) judicial proceeding, or (3)
in any other official proceeding authorized by law" are privileged,
One purpose of
the privilege"'is to assure utmost freedom of communication between citizens and
public authorities whose responsibility is to investigate and remedy wrongdoing.:"
(Silberg v, Anderson (1990) 50 Cal,3d 205, 213; Brodie v, Montalbano (1978) 87
Cal.App.Jd 725, 733.) In order to promote these policy concerns, the privilege is
broadly construed, and "any doubt as to whether the necessary connection between the
publication and the action exists is to be resolved in favor of a finding of privilege. "
(Brody, supra, at p. 733,)
18/ Civil Code section 47 was amended in 1991 to, inter alia, renumber its
subsections. Accordingly, some of the cases cited in this argument refer to Civil
Code section 47, subdivision (2), .instead of section 47, subdivision (b).
21

"[T]he 'official proceeding' privilege has been interpreted broadly to protect
communications to or from governmental officials which may precede the initiation of
formal proceedings."
(Slaughter v. Friedman (1982) 32 Cal.3d 149, 156, emphasis
omitted.) For example, in Block v. Sacramento Clinical Labs, Inc. (1982) 131
Cal.App.Sd 386, 393-394, a coroner's report to the district attorney, during an
investigation as to whether probable cause to initiate criminal charges existed, was
found to be absolutely privileged,
Moreover, in O'Shea v. General Telephone Co.
(1987) 193 Cal.App.Sd 1040, 1048, the court held that communications -- inquiries
and responses -- during a background investigation authorized by law were absolutely
privileged.
@. at p. 1048.) In other words, an official investigation in and of itself
is an "official proceeding" within the meaning of Civil Code section 47, subdivision
(b).
The official rape-murder investigation which occurred in this case was clearly
an "official proceeding" within the meaning of section 47, subdivision (b) in that it
was authorized by law and culminated in the prosecution of Joseph Hart.
Under Penal Code section 830.1, subdivision (a)(l), a peace officer's authority
extends to any public offense committed or to any public offense which there is
probable cause to believe has been committed.
Under Government Code section
26602, the sheriff has a duty to investigate public offenses, Where, as here, an
investigating officer is seeking information regarding a public offense, however
improper his statements are alleged to be, the privilege created by section 47,
subdivision 2 must pertain as a necessary element of law enforcement.
Otherwise, the
authority extended by Penal Code section 830.1, subdivision (a)(1) and Government
Code section 26602 is meaningless.
22

B. The Trial Court Erred In Admitting Evidence Of Allegedly
Defamatory Communications.
While Civil Code section 47 is traditionally viewed as pertaining to defamation
actions, it is applicable to all torts, except malicious prosecution. (Silberg v.
Anderson, supra, 50 Cal.3d at p. 212.) Thus, the privilege immunizes defendants
from tort liability based on, for example, intentional infliction of emotional distress.
(E.g., Ribas v. Clark (1985) 38 Cal.3d 355, 364; Lerette v. Dean Witter
Organization. Inc. (1976) 60 Cal.App.3d 573, 579; Kachig v. Boothe (1971) 22
Cal.App.3d 626, 641.) It also immunizes defendants from tort liability based on
negligence. (Pettitt v. Levy, (1972) 28 Cal.App.3d 484.) In other words, regardless
of the label on the cause of action, the privilege still applies.
Thus, contrary to the court's assertion (RT 61), in light of section 47,
subdivision (b) and the authorities interpreting it, when a defamation cause of action is
barred, the same evidence cannot be used with respect to another cause of action,
because that would defeat the purpose of the statute.
As explained in Lerette v. Dean
Witter Organization Inc., supra, (where the court did not allow the privilege conferred
by section 47, subdivision (b) to be bypassed by a cause of action for intentional
infliction of emotional distress):
"To allow appellant to proceed with this cause of action would substantially
defeat the purpose of the privilege in section 47. It would exalt a judicially
derived cause of action (see Prosser, Intentional Infliction of Mental Suffering:
A New Tort (1939) 37 Mich. L. Rev. 874) above clear legislative intention
and operate as a severe deterrent to communications otherwise protected.
Therefore, no such cause of action, based upon the defamatory nature of a
communication which is itself privileged under the defamation laws, can be
permitted. [citations.]" (Id. at p. 579.)
23

(See also, Flynn v. Higham (1983) 149 Cal.App.3d 677, 682 ["to allow an
independent cause of action for the intentional infliction of emotional distress, based
on the same acts which would not support a defamation action, would allow plaintiffs
to do indirectly that which they could not do directly.
It would render meaningless
any defense of truth or privilege"]; Grimes v. Carter (1966) 241 Cal.App.2d 694, 702
[personal distress may be taken into account to calculate damages for slander but
"does not give rise to an independent cause of action on the theory of a separate tort
... [To permit it to be otherwise] would be, in the words of Prosser, a step toward
'swallowing up and engulfing the whole law of public defamation"'].)
In this case, the issue is not whether the causes of action for emotional distress
were barred by section 47, subdivision (b), since they were not predicated solely on
alleged defamatory communications; the issue is whether the evidence of defamatory
communications should have been excluded because the communications were
absolutely privileged.
Clearly, it should have.been, because admitting it allowed
plaintiff to do indirectly what she could not do directly -- proceed on her slander
claim.l"
C. The Trial Court's Error Was Prejudicial.
The trial court's error was prejudicial by any standard.
First, the case was
presented to the jury (in light of the evidence the court refused to exclude) in such a
way as to allow it to award damages to plaintiff based on statutorily privileged as well
as unprivileged conduct. Where, as here, there is a reasonable possibility that a
judgment is based in whole or in part on protected or privileged conduct, it must be
reversed.
(See Street v. State of New York (1969) 394 U.S. 576, 589-590 [in the
19/ See Statement of The Case, section A, subsec. 5 for a description of the
allegedly defamatory communications.
24

First Amendment context, conviction must be reversed where record insufficient to
eliminate the possibility either that appellants constitutionally protected activity was
the sole basis of conviction or that he was convicted for both protected and
unprotected activities]; see NAACP v. Claiborne Hardware Co. (1982) 458 U.S. 886,
922-932 [judgment reversed where record discloses not all damages caused by
unprotected conduct].)
Second, even leaving privilege aside and viewing this as a purely evidentiary
issue, so that the more stringent "reasonably probable" standard applies, the trial
court's error mandates reversal.w It is virtually certain that the County would have
obtained a more favorable result had the evidence of defamation been excluded:
defamation was the principal theory the case was tried upon. Plaintiff's testimony
pertaining to damages regarding injury and emotional distress focused primarily on
what others thought of her and how that had purportedly ruined her life. (RT 1278,
1406, 1416.) That is, by her own testimony, her primary injury -- serious or severe
distress -- resulted from the alleged defamatory communications, and it may be
presumed that it was for that injury she was awarded the bulk of her damages. If
there is any doubt that the evidence permitted plaintiff improperly to reassert her
slander claim and that such evidence carried the day for her, it is dispelled by the trial
court's comments at the hearing on post-trial motions, including:
"The major thrust
of [the case] was slander and the resulting emotional distress."
(RT 14-15.)ll!
Accordingly, on this ground alone -- the prejudicial error in denying the County's
motion in limine and in refusing to exclude evidence of defamatory communications --
20/ Error is prejudicial when "it is reasonably probable that a result more
favorable to the appealing party would have been reached in the absence of the error. "
(Pool v. City of Oakland (1986) 42 Cal.3d 1051, 1069); Osborn v. Mission Ready
Mix (1990) 224 Cal.App.3d 104, 114.)
21/ Again, this reference is to the reporter's transcript of the post-trial hearing, the
pages of which were not numbered consecutively with the trial transcript.
25

the judgment must be reversed.
It should be reversed as to all causes of action,
including false imprisonment, because the non-probative prejudicial evidence was so
dominant -- as indicated by the trial court's comments -- as to taint the entire trial.
Ii.
. THE JUDGMENT SHOULD BE REVERSED ON THE
NEGLIGENT INFLICTION OF EMOTIONAL
DISTRESS CLAIM BECAUSE THE OFFICERS OWED
NO DUTY OF CARE TO PLAINTIFF.
Negligent infliction of emotional distress is not an independent tort but is the
tort of negligence, and thus the traditional elements of duty, breach of duty, causation,
and damages apply. (Marlene F. v. Affiliated Psychiatric Medical Clinic. Inc. (1989)
48 Cal.3d 583, 588.)
"[T]he term 'duty' is simply 'an expression of the sum total of those
considerations of policy which lead the law to say that the plaintiff is entitled to
protection. '" (Zepeda v. City of Los Angeles (1990) 223 Cal.App.3d 232, 235,
quoting Prosser & Keeton on Torts (5th ed. 1984) § 53, p. 358.)
"Whether a
defendant owes a duty of care is a question of law."
(Marlene F. v. Affiliated
Psychiatric Medical Clinic. Inc., supra, 48 Cal.3d at p. 588.)
As a general rule, to determine the existence of a duty of care, pertinent
factors include '''foreseeability of harm to the plaintiff, the degree of certainty that the
plaintiff suffered injury, the closeness of the connection between the defendant's
conduct and the injury suffered, the moral blame attached to the defendant's conduct,
the policy of preventing future harm, the extent of the burden to the defendant and
consequences to the community of imposing a duty to exercise care with:resulting
liability for breach, and the availability, cost, and prevalence of insurance for the risk
26

involved. '"
(Davidson v. City of Westminster (1982) 32 Cal.3d 197, 203, citing
Rowland v. Christian (1988) 69 Cal.2d 108, 113.) "'When public agencies are
involved, additional elements include "the extent of [the agency's] powers, the role
imposed upon it by law and the limitations imposed upon it by budget; ... "'"
(Ibid., citing Raymond v. Paradise Unified School Dist. (1963) 218 Cal.App.2d 1, 8.)
Specifically with respect to the question of what, if any, duty of care is owed
by a police officer to an individual member of the general public, '"
[a] person does
not, by becoming a police officer, insulate himself from any of the basic duties which
everyone owes to other people, but neither does he assume any greater obligation to
others individually. The only additional duty undertaken by accepting employment as
a police officer is the duty owed to the public at large. '"
(Williams v. State of
California (1983) 34 Cal.3d 18, 24, fn. 3, citing Warren v. District of Columbia
(D.C. App. 1981) 444 A.2d 1, 8, italics deleted.) As a general rule, "[a] person who
has not created a peril is not liable in tort merely for failure to take affirmative steps
to assist or protect another unless there is some relationship between them which gives
rise to a duty so to act."
(Sullivan v. City of Sacramento (1987) 190 Cal.App.3d
1070, 1077, citing 4 Witkin, Summary of California Law (8th ed. 1974) Torts, § 554,
p. 2821.) Thus, "[r]ecovery has been denied ... for injuries caused by the failure of
police personnel to respond to requests for assistance, the failure to investigate
properly, or the failure to investigate at all, where the police had not induced reliance
on a promise, express or implied, that they would provide protection." (Williams v.
State of California, supra, 34 Cal.3d at p. 25; Lopez v. City of San Diego (1987)
190 Cal.App.3d 678, 681.) In contrast, "[W]hen the state, through its agents,
voluntarily assumes a protective duty toward a certain member of the public and
undertakes action on behalf of that member, thereby inducing reliance, it is held to the
same standard of care as a private person or organization." (Williams, supra, 34
Cal.3d at p. 24.)
27

Plaintiffs theory of negligence was based on the notion that the officers
involved had a legal duty to protect her as a victim of rape.
(See RT 2845.) They
purportedly breached their duty by being negligent in their treatment of her because
they failed to minimize her further victimization by the criminal justice system.
(See
RT 809.~1
The conduct alleged to be negligent may be categorized as follows:
a. using plaintiff to locate Diane Harper and the crime
scene before getting her medical attention;
b. the acrimonious attempt to do an in-depth interview of
plaintiff regarding the sexual assault on March 25;
c. the April 2 interview during which the detectives questioned
plaintiff about inconsistencies in their information;
d. the detectives' communications with neighbors and
friends.
When the evidence is analyzed in light of applicable factors, it is clear that, absent a
special relationship inducing reliance, no general legal duty to protect a victim-witness
should be imposed on officers such that their conduct vis-a-vis the victim witness
during the course of an investigation becomes actionable.
22/ No individual deputy or detective was a party to this action. However, the
County's liability would be coextensive with the liability, if any, of its employees, had
they been parties, pursuant to Government Code section 815.2, subdivision (a), which
provides: "A public entity is liable for injury proximately caused by an act or
omission of an employee of the public entity within the scope of his employment if the
act or omission would, .... have given rise to a cause of action against that
employee or his personal representative."
28

1. Extent of powers. role imposed by law.
As previously stated, a peace officer's authority extends to any public offense
committed. (Penal Code § 830.1, subd. (a)(1).)
Moreover, it is the duty of the
sheriffs department to investigate crimes.
(Gov't Code § 26602.) In this instance,
the officers did not create plaintiffs peril -- her vulnerable state as victim of and
witness to vicious crimes. Nor can it be said on the evidence that they voluntarily
assumed a protective duty toward her, acting on her behalf to induce reliance such
that a special relationship giving rise to a duty was created. (Contrast Morgan v.
County of Yuba (1964) 230 Cal.App.2d 938, 946 [failure to warn victim that assailant
had been released, after sheriff's deputies had promised to do so, was actionable].)
Thus, their sole legal duty was "owed to the public at large."
(Williams v. State of
California, supra, 32 Cal.3d at p. 24, n. 3.) That duty, under the law, was to
apprehend Joseph Hart.
2. Policy of Preventing Future Harm. Burden to Defendant and
Consequences to the Community.
As the County's expert testified, the primary objective of an investigation is to
protect the victim and safeguard the community. (RT 2393.) That objective requires
that a balance be struck between the needs of a sexual assault victim and the needs of
an investigation. (RT 2354-2355.) Priorities, however, do have to be set. (RT
2366.~'
Plaintiff had the double misfortune of not only being a victim of rape, but also
the sole witness to a homicide, under unusual circumstances (i.e., where she not
simply lived to tell about it, but was taken to a telephone and given a quarter by the
23/ It follows, then, that an objective or goal is not and cannot be coterminous
with a legal duty.
29

murderer).
As the course of the trial and the substance of her counsel's arguments
made clear, plaintiff contends that there can be no balance between the needs of the
victim and the needs of the investigation (or, for that matter, of another victim):
rather, the needs of the victim should be paramount.
Thus, plaintiff contends it was
at least negligent of the detectives to confront her with inconsistencies in the
information developed during the investigation, instead of confronting her
schoolmates, or it was negligent to believe she knew the suspect, that is, to disbelieve
her story that she did not. (RT 2874, see RT 1725-1726.)
While in the interests of preventing future harm, one would certainly want to
encourage police sensitivity to the victim of a crime by appropriate training and
guidelines, doing so by imposing a legal duty always to put the victim and his or her
needs and sensitivities first goes too far. It imposes too great a burden on law
enforcement, one reason being that "minimizing further victimization" (see RT 809) is
too vague as a standard to permit officers to determine exactly what is required under
the myriad particular circumstances they face in investigating a crime. (See Cohen v.
Southland (1984) 157 Cal.App.3d 130, 142 [no duty imposed where, among other
things, the proposed duty and measure to be applied in the discharge of the duty defy
exact definition and suffer inherent vagueness]; see also, 7735 Hollywood Blvd.
Venture v. Superior Court (1981) 116 Cal.App.3d 901, 905, [where the issue was
whether the landlord had a duty to prevent rape: "If such a duty [to improve lighting]
could be said to exist, the questions that would logically follow are of what candle
power? and in what areas? To ask the questions is to demonstrate the futility of
attempting to impose and define such a duty. "].) Similarly, a legal duty to "minimize
further victimization II
raises questions as to what mayor may not be asked, of which
victims (given varied temperaments), in what tone of voice, and when.
Obviously,
good training would require some thought be given such questions in any particular
case, but given the innumerable contexts and circumstances bound to arise, the
30

countless variables, there is no way to define the duty with sufficient specificity to
fairly permit liability to be imposed for its breach.
In addition, such a legal duty to be sensitive to the feelings of the victim would
almost certainly at times conflict with law enforcement's statutory duty to fully
investigate in order to apprehend criminals. It confronts officers with a Hobson's
choice:
to avoid angering or hurting the feelings of a witness lest a lawsuit ensue, or
to perform their duty to the public at large by asking tough questions.
Significantly,
during trial, the court made a comment which clearly implied that the duty of
reasonable care might for example require the investigating officers to believe plaintiff
rather than her schoolmates, a comment which illustrates how easily this situation of
conflict could arise if a duty were imposed. With respect to the April 2 interview
where the detectives confronted plaintiff with inconsistencies and attempted to go over
information previously obtained, the court stated,"... [T]he jury may very well
conclude the actions of the officers were unreasonable . . . as if . . . the information
given by Amy was deliberately wrong ... it may be that the jury finds it
inconceivable that an officer who's investigating the case ... didn't know of all this
information. II
(RT 1725-1726.) The community would obviously suffer if the
objective of safeguarding it were sacrificed to the interest of protecting the feelings of
a victim-witness by imposing liability for want of care with respect to those feelings.
3. Moral blame.
With respect to the search for Diane Harper, which caused a delay in getting
plaintiff to the hospital, no moral blame should attach to the setting of priorities.
Diane Harper's condition was uncertain.
(RT 623.) There is no evidence that
31

plaintiff asked for and was denied medical care. M1 Moreover, no one could have
anticipated how long it would take to find the crime scene and to do what needed to
be done before plaintiff was transported to the hospital.
With respect to other aspects of the conduct of the investigation, the officers
involved may have been heavy-handed at times under the pressure of circumstances.
Certainly a remark such as "Your friend died for you. The ... least you could do is
show us where her body was" (RT 1202), or Lackie's telling plaintiff he was going to
tell everyone she was lying and she wouldn't have any friends (RT 1227-1228) is
conduct which, if it occurred, might be characterized as far from ideal; but such
lapses in judgment, in light of crucial considerations set forth above, should not be
sufficient to warrant imposing a duty of care such that those words, during the course
of a rape-murder investigation, are actionable.
4. The degree of certainty plaintiff suffered injury.
"Serious emotional distress," an essential element of a cause of action for
negligent infliction of emotional distress [CT 400], is found where a "reasonable
[person] normally constituted, would be unable to adequately cope with the mental
stress engendered by the circumstances of the case."
(Molien v. Kaiser Foundation
Hospitals (1980) 27 Cal.3d 916, 928; Thing v. La Chusa (1989) 48 Cal.3d 644, 668,
fn. 12.) To be compensable, the emotional distress must be substantial and enduring
as distinguished from trivial or transitory. (Twaite v. Allstate Ins. Co. (1989) 216
Cal.App.3d 239, 257-258 [affirming summary judgment for defendant where evidence
indicated plaintiff was merely "angry and upset"].)
Where, as here, evidence of
physical injury or some other objective evidence of serious emotional distress is
24/ Her mother asked she be taken to the hospital first, but plaintiff told her
mother she would be fine and agreed to accompany the officers. (RT 450, 452, 819,
1192, 1315.) Moreover, plaintiff did not complain of physical discomfort or injury.
(RT 872.)
32

wholly lacking, there must be some "guarantee of genuineness" that the emotional
distress plaintiff claims to have suffered was "serious" and not merely "trivial and
transient." (Molien, supra, at pp. 926, 928.)
With respect to the search for Diane Harper, there is little, if any, certainty
plaintiff suffered serious emotional distress from the search itself, from what may
have been said during the search by Deputy Shannon, or, subsequently, from her
mother's argument with Moker on March 25. The evidence indicates plaintiff
consented to the search and wanted to find Diane Harper (RT 819, 1192-93, 1315,
2021); she was able to cooperate in an in-depth interview on March 26 and to
accompany Moker for a soda on March 27 (RT 470, 673-674).
Her mother testified
"everything was fine" on March 27 and again on April 2 when the detectives picked
plaintiff and her mother up for the interview.
inconsistent with serious emotional distress.
(RT 470, 571-572.) These facts are
Any distress occasioned by the events of
March 24-25 must be deemed to have been transient.
It is also less than certain
that serious emotional distress resulted from the April 2 interview, and events
thereafter, including communications with neighbors and friends.
The evidence upon
which plaintiff bases her claim is her own testimony that she would never forget "the
rape" by the Sheriff's Department.
(RT 1291.) Her therapist did not testify that she
suffered severe emotional distress as a result of her treatment by the Sheriff's
Department.
Her mother attributed plaintiff's distress to her fear of her schoolmates.
(RT 528-530.)
In sum, the degree of certainty plaintiff suffered injury is not such to warrant
imposing a legal duty of care on law enforcement officers with respect to the manner
in which they conduct their investigation and pose their questions to the victim and
others during the course of an investigation.
33

5. Foreseeability.
Even if it was arguably foreseeable that plaintiff might become upset or suffer
additional stress in the search for Diane Harper, or under questioning about
inconsistencies in her story, or if she overheard the detectives telling her neighbors
she was uncooperative and changing her story, it was not reasonably foreseeable that
she would suffer more than transient emotional distress; in any event, a cause of
action for negligent infliction of emotional distress may not be based solely upon the
foreseeability that serious emotional distress might result.
(Marlene F. v. Affiliated
Psychiatric Medical Clinic. Inc., supra, 48 Cal.3d at p. 589; Nally v. Grace
Community Church (1988) 47 Cal.3d 278, 297.)
That is, a duty of care does not rest
on foreseeability alone, and should not be imposed in this instance where this factor,
if it pertains at all, is clearly outweighed by other considerations.
In sum, weighing all these factors, it is clear the officers owed plaintiff no
general duty of care such that their conduct is actionable, and judgment should be
reversed on the negligent infliction claim.
34

III.
THE JUDGMENT SHOULD BE REVERSED
BECAUSE NONE OF PLAINTIFF'S CLAIMS IS
SUPPORTED BY SUBSTANTIAL EVIDENCE.
A. Plaintiff Failed To Present Expert Evidence As To Whether The
Conduct Of The Investigation Was Beneath The Standard Of
Care For Purposes Of Her Claim For Negligent Infliction of
Emotional Distress.
Expert testimony is proper where "a subject ... is sufficiently beyond
common experience that the opinion of an expert would assist the trier of fact. . . ."
(Evid. Code, § 801, subd. (a).) Moreover, "[i]f the matter in issue is one within the
knowledge of experts only and not within the common knowledge of laymen, it is
necessary for the plaintiff to introduce expert opinion evidence in order to establish a
prima facie case." (Miller v. Los Angeles County Flood Control Dist. (1973) 8
Cal.3d 689, 702 [original emphasis deleted, emphasis added]; Natural Soda Products
Co. v. City of Los Angeles (1952) 109 Cal.App.2d 440, 443 ["[i]t has long been
recognized that expert testimony is not only proper but also virtually indispensable in
cases where the relation between the facts and results may be understood only by
those with special skill or training"].)
The relation between the facts regarding the
conduct of the investigation in this case and the appropriate standard of care for a
criminal investigation is not within the common experience of persons of ordinary
education such that they may rely on common knowledge and common sense to
determine whether the conduct of the officers demonstrated the skill, knowledge and
competence ordinarily possessed by their fellow officers in similar circumstances.
35

That is, the criminal investigation -- its techniques and procedures -- is a subject that
requires expert testimony.
Law enforcement is a profession or field that requires special training and
expertise, as case authority recognizes in various contexts.
(See Sunset Amusement
Co. v. Board of Police Commissioners (1972) 7 Cal.3d 64, 88 [Mosk, J. concurring
and dissenting] ["private police seldom possess the skills or receive the specialized
training available to regular local law enforcement personnel"].) Thus, for example,
law enforcement officers, by virtue of their specialized skill, training and experience,
are permitted to serve as experts in the areas of accident investigation. (Kastner v.
Los Angeles Metropolitan Transit Authority (1965) 63 Cal.2d 52, 57; Kalfus v. Fraze
(1955) 136 Cal.App.2d 415, 423.) From the very fact that law enforcement requires
specialized training, it necessarily follows that questions of proper and improper
procedure during the course of an investigation are not questions jurors can decide on
the basis of their own experience; rather, they need an expert to educate them on the
standard of care within the profession of law enforcement.
Miller v. Los Angeles County Flood Control Dist., supra, although a
construction case, sheds light on this issue. In Miller, plaintiffs were appealing a
judgment of nonsuit resulting from their failure to present expert evidence regarding
the standard of care applicable to a builder.
The Supreme.Court explained, "Building
homes is a complicated activity. The average layman has neither training nor
experience in the construction industry and ordinarily cannot determine whether a
particular building has been built with the requisite skill. . .. [T]he issue as to
whether or not the Miller home had been negligently constructed involved a multitude
of subsidiary questions bearing not only upon the erection of the structure itself but
also upon the location . . . the elevation . . . surrounding terrain . . . the possibility
of runoffs and floods, and the existence of the debris dam. These were not questions
which the jury could have resolved from their common experience and the trial judge
36

properly concluded that the issue of the allegedly negligent construction of the Miller
residence was one within the knowledge of experts only.
Plaintiffs failed to present
any competent expert opinion evidence on this issue ... Thus, lacking the requisite
expert testimony, plaintiffs failed to prove an essential element of their case -- the
standard of care applicable to [the builder] -- and the nonsuit was proper as to the
theory of negligence." (Miller, supra, 8 Cal.3d at pp. 702-703.)
In the instant case, the trial court wrongly concluded that plaintiff need not
present expert evidence as to the standard of care and denied the County's motion for
nonsuit.
(RT 1448.) The field of criminal investigation, it may be said, is even more
complex than that of the construction industry, in light of the human variables
involved. The issue of whether a criminal investigation has been negligently
conducted involves a multitude of subsidiary questions bearing on which leads to
follow, how and when to question witnesses, how to interpret evidence at a crime
scene, which evidence is reliable and which is not, how to deal with unwilling
witnesses, much less witnesses who are also victims of crimes, as well as a multitude
of other complex factors.
These are not questions the average lay person has the
training or experience to resolve. Since plaintiff failed to present any competent
expert opinion evidence on the standard of care for a murder-rape investigation, and,
specifically, since she failed to present expert evidence to prove the detectives'
conduct fell below the standard of care, she failed to prove an essential element of her
case. lll
Thus, judgment in her favor on the claim of negligent infliction of
emotional distress must be reversed, and judgment entered in favor of the County
instead. (McCoy v. Hearst Corp. (1991) 227 Cal.App.3d 1657, 1661.)
22./ It was accepted at trial that departmental guidelines regarding treatment of a
sexual assault victim were discretionary and did not create a mandatory duty or
establish the standard of care. (E.g., RT 2844-2845.) In addition, it should be noted
that plaintiff was not simply a victim of sexual assault but also a witness with respect
to another crime, a matter which changes' the dynamics of the situation. (RT 2355.)
37

B. There Is No Substantial Evidence To Support Plaintiffs Claim
For Intentional Infliction Of Emotional Distress.
To prove the tort of intentional infliction of emotional distress, a plaintiff must
prove "(I) extreme and outrageous conduct by the defendant with the intention of
causing, or reckless disregard of the probability of causing, emotional distress; (2) the
plaintiff's suffering severe or extreme emotional distress; and (3) actual and proximate
causation of the emotional distress by the defendant's outrageous conduct ....
Conduct to be outrageous must be so extreme as to exceed all bounds of that usually
tolerated in a civilized community." (Cervantez v. J. C. Penney Co. (1979) 24
Cal.3d 579, 593, citations omitted; Davidson v. City of Westminster, supra, 32
Cal.3d at p. 209.)
In Davidson, the defendant officers were staked out near a laundromat where a
man had stabbed someone the previous evening.
(Id. at p. 201.) They were aware
the plaintiff was in the laundromat. (Ibid.) They watched the suspect enter and leave
the laundromat several times. (Ibid.) They did not warn the plaintiff and eventually
she was stabbed. (Ibid.) Their plan had been to intervene after the suspect had
sufficiently committed himself to be subject to arrest but before he actually injured the
plaintiff.
(Id. at p. 210.) The Supreme Court affirmed the trial court's ruling that, as
a matter of law, the defendant officers' conduct did not rise to the level of outrageous
conduct required by this tort, although it noted the events preceding the attack on the
plaintiff "did not constitute the defendant officer's finest hour. 11
(Ibid.) The Supreme
Court characterized the officers' conduct as inaction
-- acting too late -- rather than
as affirmative misconduct, but on the facts of the case, the characterization is a
distinction without a difference.
It could equally be said that the officers used the
plaintiff as bait.
If allowing a citizen to be bait in a life threatening situation as a
matter of law does not satisfy the outrageous conduct element of a cause of action for
38

intentional infliction of emotional distress, certainly the conduct of the officers in this
case falls well short of the mark.7:2'
C. There Is No Substantial Evidence To Support Plaintiff's Claim
For False Imprisonment. Either With Respect To Liability Or
Damages.
1. Liability.
"'The tort of false imprisonment is the nonconsensual, intentional confinement
of a person, without lawful privilege, for an appreciable length of time, however
short'."
(Molko v. Holy Spirit Assn. (1988) 46 Cal.3d 1092, 1123, quoting City of
Newport Beach v. Sasse (1970) 9 Cal.App.3d 803, 810, emphasis added; Novoa v.
County of Ventura (1982) 133 Cal.App.3d 137, 142.) Where legal authority for a
confinement exists, there is no false imprisonment.
(Jenkins v. County of Orange
(1989) 212 Cal.App.3d 278, 285 [detention pursuant to authority under Welfare and
Institutions Code cannot be construed as false imprisonment]; Alicia T. v. County of
Los Angeles (1990) 222 Cal.App.3d 869, 883.)
Plaintiff's claim for false imprisonment appears to rest on two occasions, the
drive to find Diane Harper and the April 2 interview.
With respect to the drive, the
undisputed evidence clearly establishes it was consensual, not only at its inception (RT
1315) but throughout, as plaintiff conceded when she testified that if she had not
wanted to find Diane Harper, why would she have driven around all those hours.
(RT
26/ Conduct amounting to intentional infliction of emotional distress must also be
unprivileged. Cervantez v. J.C. Penney Co., supra, 24 Cal.3d at 593. For a
discussion of applicable privileges and immunities, see, supra, section I and infra,
section IV.
39

1200.) Significantly, it is only the April 2 interview which plaintiff characterized as
her "imprisonment." (RT 1301.)
With respect to the April 2 interview, it is undisputed that at least initially
plaintiff participated and cooperated voluntarily. (See RT 571-572.) Assuming that
consent was withdrawn when plaintiff refused to cooperate further and said she would
tell her lawyer she had been illegally detained and threatened (RT 2483-2484), any
subsequent confinement while Lackie checked with his supervisor and returned to tell
her she was not a suspect in the murder -- i.e., during the winding up of what had
begun as a voluntary interview (RT 1786-1788) -- may not be viewed as false
imprisonment.
First, there is no evidence that at that point in time the officers
intended to confine her.
"An act which is not done [with the intention to confine]
does not make the action liable to the other for a merely transitory or otherwise
harmless confinement, although the act involves an unreasonable risk of imposing it
" (Rest. 2d Torts, § 35.)
Second, if there was confinement or detention, it was reasonable and thus
privileged.
As previously stated, law enforcement officials have legal authority to
investigate public offenses, and thus are "privileged" to seek out and question those
believed to have knowledge of a crime.
(See Penal Code sec. 830.1, subd. (a)(1);
Govt. Code sec. 26602; People v. Manis (1969) 268 Cal.App.2d 653, 662.) To the
extent plaintiff withdrew her consent and was briefly detained against her will, it
should be deemed a lawful temporary detention for investigative purposes.
The
Supreme Court has explained that "in order to justify an investigative stop or
detention, the circumstances known or apparent to the officer must include specific
and articulable facts causing him to suspect that (1) some activity relating to crime has
taken place or is occurring or about to occur, and (2) the person he intends to stop or
detain is involved in that activity. Not only must he subjectively entertain such a
suspicion, but it must be objectively reasonable for him to do so." (In re Tony C.
40

(1978) 21 Cal.3d 888, 893; see also People v. Superior Court (1973) 30 Cal.App.3d
257, 261, ["[t]he circumstances which allow temporary detention are those which
'indicate to a reasonable man in a like position that an investigation is necessary to the
discharge of his duties' [citation].)"
Even if plaintiff was not a suspect, i.e., suspected to have played a direct role
in Diane Harper's murder, it was objectively reasonable on the facts of this case for
the detectives to detain and question plaintiff as a material witness in order to resolve
the inconsistencies in their information and any suspicions they entertained that
plaintiff may have known or had prior contact with the murderer, that she was not
disclosing all she knew. Because plaintiff was temporarily detained, if at all, for
reasonable investigative purposes and for not an unreasonable length of time, as a
matter of law, there was no false imprisonment.
2. Damages.
In an action for false imprisonment a plaintiff may recover damages for
extreme anxiety or emotional distress. (Schanafelt v. Seaboard Finance Co. (1951)
108 Cal.App.2d 420, 423.) There is no evidence that plaintiff suffered any damages
whatsoever from confinement in and of itself.
Rather, her testimony made clear that
it was the officers' communications to neighbors and others which primarily caused
her distress (see, e.g., RT 1278, 1406, 1416) and with respect to the April 2
interview, it was, if anything, the substance of questions and remarks rather than
confinement that caused her alleged distress.
(See RT 1409.) Thus, even if plaintiff
is deemed to have been unlawfully confined, the $25,000 award of compensatory
damages was not supported by any evidence.
41

IV.
THE JUDGMENT SHOULD BE REVERSED
BECAUSE THE COUNTY IS IMMUNE FROM
LIABILITY FOR PLAINTIFF'S EMOTIONAL
DISTRESS CLAIMS.
Even assuming wrongful conduct on the part of the officers, they would be
immune from liability for their conduct during the investigation -- except for alleged
false imprisonment -- under Government Code sections 821.6 and 820.2, and the
immunity applies to the County through Government Code section 815.2, subdivision
(b)lIt Thus, the trial court erred when it ruled that, as a matter of law, the issue of
immunity was out of the case. (RT 2764.)
A. The County Is Immune From Liability Pursuant To Government
Code Section 821.6.
Government Code section 821.6 states that "[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."
The policy underlying this immunity was articulated by the
California Supreme Court in White v. Towers (1951) 37 Cal.2d 727, a decision which
influenced the drafting of section 821.6. (Johnson v. City of Pacifica (1970) 4
Cal.App.3d 82, 87.)
27/ Government Code section 815.2, subdivision (b) provides in pertinent part: "
... 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. "
42

"When the duty to investigate crime and to institute criminal proceedings is
lodged with any public officer, it is for the best interests of the community as a
whole that he be protected from harassment in the performance of that duty.
The efficient functioning of our system of law enforcement is dependent
largely upon the investigation of crime and the accusation of offenders by
properly trained officers.
A breakdown of this system at the investigative or
accusatory level would break untold harm.
'Criminal law does not enforce
itself. It demands the assistance of valid evidence and fearless officials to put
it in execution. Because of their tendency to obstruct the administration of
justice, it is the policy of the law to discourage actions for malicious
prosecution.' [Citation.]." QYhite v. Towers, supra, 37 Cal.2d at 729-730;
see also Scannell v. County of Riverside (1984) 152 Cal.App.3d 596, 609
[noting that to permit suit would tend to eliminate the fearlessness which the
investigatory and accusatory process requires of officers in the administration
of their duties].)
Immunity under section 821.6 is not limited to malicious prosecution actions,
although that is a principal use of the statute.
(Jenkins v. County of Orange, supra,
212 Cal.App.3d at p. 283; Kayfetz v. State of California (1984) 156 Cal.App.3d 491,
497.) Thus, for example, in Citizens Capital Corp. v. Spohn (1982) 133 Cal.App.3d
887, section 821.6 provided immunity to government officials who published the
results of an official investigation of the plaintiff regarding improper collection
methods, where plaintiff sued for conspiracy to destroy his business.
Moreover, section 821.6 immunity clearly extends to investigations. Thus, in
Jenkins, a social worker investigating child abuse reports pursuant to her statutory
duty was held to be immune. In Johnson v. City of Pacifica, supra, 4 Cal.App.3d at
43

p. 85, section 821.6 barred an action against law enforcement officers predicated on a
negligent investigation.
The officers in the instant case were conducting a criminal investigation which
culminated in the criminal prosecution of Joseph Hart.
While generally the immunity
defense is raised to a claim brought by the one who is ultimately the target of the
investigation, prosecution, or other proceeding, there is no reasoned basis for barring
its application to a claim brought by a witness who is objecting to the manner in
which the investigation was conducted. The same policy grounds for the immunity
pertain.
Thus, section 821.6 must bar plaintiffs claims for negligent and intentional
infliction of emotional distress predicated on the conduct of the rape-murder
investigation, including the "publication" of their conclusions about her level of
cooperation.
To hold otherwise "would vitiate a rule whose statutory effect is plain
and convincing" and would "eliminate the fearlessness which the investigatory and
accusatory process requires of officers in the administration of their duties."
(Scannell
v. County of Riverside, supra, 152 Cal.App.3d at p. 609.) Thus, judgment should be
reversed on the emotional distress claims, and instead, judgment should be entered in
favor of the County.
B. The County Is Immune From Liability Pursuant to Government
Code Section 820.2.
Government Code section 820.2 provides:
"Except as otherwise provided by
statute, a public employee is not liable for an injury resulting from his act or omission
where the act or omission was the result of the exercise of the discretion vested in him
whether or not such discretion be abused."
In Johnson v. State of California (1968) 69 Cal.2d 782, fn. 2, the court
defined protected discretionary acts as those basic policy decisions entrusted to a
44

coordinate branch of government, and it distinguished such acts from ministerial acts
which may be the basis of negligence claims.
However, courts have since noted that
the dichotomy between discretionary and ministerial acts has "restricted application in
the area of police and correctional activities." (Whitcombe v. County of Yolo (1977)
73 Cal.App.3d 698, 706; see also Antique Arts Corp. v. City of Torrance (1974) 39
Cal.App.3d 588, 593 ["(t)he statutory scheme shows legislative intent to immunize the
police function from tort liability from the inception of its exercise to the point of
arrest, regardless of whether the action be labeled 'discretionary' or 'ministerial"].)
Thus, courts have applied the immunity decisions by the California Highway Patrol to
inspect and remove vehicles (Posey v. State (1986) 180 Cal.App.3d 836, 852),
decisions of law enforcement officers to order a person off a piece of property ~
v. County of Sacramento (1982) 136 Cal.App.3d 232, 234), and to a police
dispatcher's decision to call and berate a plaintiff who had called for help against a
rapist (Sullivan v. City of Sacramento (1987) 190 Cal.App.3d 1070, 1081). As one
division of this court explained (in a case where the plaintiffs complained about the
defendants' failure to take action to protect their property):
"[I]ntrusions (upon personal liberty) are, of course, a
regular and necessary part of police work conducted for
the preservation of public safety and order.
But the
decision to use this official authority on any particular
occasion is peculiarly a matter of judgment and
discretion." (Michenfelder v. City of Torrance (1972) 28
Cal.App.3d 202, 206, emphasis added.)
Indeed, in Michenfelder, the court rejected application of the distinction
between discretionary and ministerial acts in the context of police activities, noting,
"The fallacy of [plaintiffs'] argument is their assumption that once a city has decided
45

to employ police and send them to the scene of an occurrence, the action of the
officers there is ministerial . . . [T]he officers were obliged to exercise their own
discretion after they had observed what was happening and had listened to the
explanation of the persons present. II
(Id. at p. 207; see also Watts v. County of
Sacramento (1982) 136 Cal.App.3d 232, 235 [liThe fallacy of plaintiffs' argument lies
in their assumption that once law enforcement officials have 'decided' to intervene in
a dispute, any subsequent action by the officials is ministerial. There is no legal basis
for such assertion"].)
Moreover, decisions made by officers in the course of a criminal
investigation -- including decisions with respect to the manner of interviewing a
witness -- are plainly of the type courts have found to be discretionary and hence
immune from liability. For example, in Ronald S. v. County of San Diego (1993) 93
Daily Journal D.A.R. 7837, 7839, Division One of this Court concluded that
Government Code Section 820.2 immunized social workers from liability arising from
the placement of a child in a foster home since their decisions -- including decisions
made in the course of investigation -- were necessarily highly subjective and highly
speculative.
As the court noted:
"There is no way the following of forms or rules or
agency procedures could transmute this most subjective
decision-making process into a ministerial act.
Following
the Johnson admonition to courts not to second-guess
policy decisions of other branches of government, we
opine that second-guessing adoption decisions, and
imposing civil liability upon public servants when the
decision turns out to be wrong, would severely interfere
with and surely impede the proper workings of the
responsible social service department. II
(Ibid.)
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The same holds true with respect to a criminal investigation, as the evidence in
this case illustrates.
From the beginning, the detectives were called upon to make
highly subjective decisions, for example, whether to take plaintiff to the hospital or to
search for Diane Harper (RT 1473), whether to attempt to interview plaintiff on
March 25, and later, whether to confront plaintiff with inconsistencies in their
information at the risk of upsetting her and losing their sole eyewitness. (RT 1763,
1793.) It is these types of decisions, calling for the exercise of judgment, the
weighing of risks, which plaintiff challenges. The acts of detectives pursuing a
criminal investigation are plainly not ministerial routines spelled out in a procedural
manual merely to be implemented, and "second guessing" decisions by investigating
officers with respect to the manner in which they conduct the investigation,
particularly the manner in which they interview a witness, would "severely interfere
with and surely impede the proper workings of the responsible [law enforcement]
department."
(Ronald S., supra, at 7839.) Just as section 820.2 immunizes social
workers, so does it shield officers from liability arising from their investigative
decisions.
In this case, the trial court clearly succumbed to exactly the fallacy the
Michenfelder court warned against: it assumed that once the County decided an
investigation should be undertaken (not a "discretionary" decision in light of the
sheriffs statutory duty to investigate crime), all conduct of the officers thereafter was
ministerial, and discretionary immunity did not apply. (RT 406.) There is no legal
basis for that assumption. The conduct of which plaintiff complains constitutes
"discretionary" acts within the meaning of section 820.2.
The judgment in her favor
on the emotional distress claims must be reversed on this additional ground, and
instead judgment should be entered in favor of the County.
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V.
THE JUDGMENT SHOULD BE REVERSED
BECAUSE BY REASON OF THE SEPARATE
VERDICTS, PLAINTIFF MAY HAVE OBTAINED
DOUBLE RECOVERY FOR EMOTIONAL DISTRESS.
Damages cannot be recovered more than once on different theories arising
from a single set of facts. Thus, for example, "[i]f a given state of facts entitles one
to recover damages upon the theory of tort, and the same state of facts entitles him to
recover damages upon the theory of contract, it would seem plain that recovery could
not be twice had simply because the facts would support recovery upon either theory. "
(Shell v. Schmidt (1954) 126 Cal.App.2d 279, 291 [remanding for new trial on
damages due to duplicative recoveries and noting that "no matter how many theories
of recovery were stated or proved, respondents were entitled to but one
recovery . . ."].)
In this case, the trial court provided the jury with separate verdict forms for
each cause of action. (RT 2829; CT 348-350.) Instead of calling for the sum total of
damages, each verdict form had a space in which the jury could note the damages for
each cause of action. (CT 348-350.) It is conceivable that false imprisonment could
rise to the level of intentional infliction of emotional distress if the jury found the act
of confinement sufficiently outrageous. That is, while false imprisonment and
intentional infliction of emotional distress are separate causes of action, the latter
might include the former.
Because of the separate verdict forms employed by the trial
court over objection (RT 2976), one cannot ascertain whether the damages awarded
for intentional infliction of emotional distress were predicated in any degree on the act
of unlawful confinement.
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In other words, there is a strong likelihood that there was double recovery for
severe emotional distress, and even if judgment was proper on liability (it was not), at
least the case should be remanded for a new trial on damages.
CONCLUSION
For all the reasons stated above, the County of Riverside urges that the
judgment be reversed and a new judgment entered in favor of the County of
Riverside, or that in the alternative, the matter be remanded for retrial.
Dated: August~, 1993
FIDLER, BELL, ORROCK & WATASE
LESLIE E. MURAD, II
GREINES, MARTIN, STEIN & RICHLAND
MARTIN STEIN
TIMOTHY T. COATES
ALISON M. TURNER
By__-:-:--
Alison M. Turner
_
Attorneys for Defendant and Appellant
County of Riverside
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