Opinion

Ewing v. County of Los Angeles CA2/4

Court
California Court of Appeal
Filed
Jul 22, 2024
Status
Unpublished
Cited by
0 cases
Authority
More cited than 30.3%

The opinion

Filed 7/22/24 Ewing v. County of Los Angeles CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

CHRISTOPHER EWING, B321762

Plaintiff and Appellant, (Los Angeles County

Super. Ct. No. 20STCV46286)

v.

COUNTY OF LOS ANGELES,

Defendant and Respondent.

APPEAL from a judgment of the Superior Court of

Los Angeles County, Maureen Duffy-Lewis, Judge. Affirmed.

Law Office of Raphael Hedwat, George E. Akwo; Bitton &

Associates and Ophir J. Bitton for Plaintiff and Appellant.

Collins + Collins, Tomas A. Guterres, Chandler A. Parker,

and James C. Jardin for Defendant and Respondent.

This appeal arises from the dismissal of a civil complaint in

which plaintiff and appellant Christopher Ewing asserted causes

of action arising from his alleged over-detention by defendant and

respondent Los Angeles County. Ewing was convicted of robbery

in 2004 and sentenced to a third strike prison term of 25 years to

life. In 2019, the Court of Appeal granted Ewing’s petition for

writ of habeas corpus and remanded the matter to the trial court

with directions to vacate its finding that Ewing suffered two prior

strike convictions and resentence him accordingly.

Ewing was transported from prison in San Luis Obispo to

Los Angeles County for the resentencing. He spent several days

in the Los Angeles County Men’s Central Jail (jail) prior to the

hearing, and he was transported back to the jail after being

resentenced to an effective term of time served. Ewing alleges he

repeatedly told jail staff he should be released immediately, but

they responded with intimidation and threats of violence. Ewing

was released a few days later, after state prison officials notified

the County of his new sentence and release date. Ewing later

sued the County, asserting numerous causes of action arising out

of his alleged overdetention and false imprisonment.1

The County filed a demurrer to the operative first amended

complaint (FAC), arguing that it had various forms of statutory

immunity and that Ewing otherwise did not state a claim. The

1 Ewing also asserted causes of action arising out of the

County’s alleged failure to properly investigate and prosecute his

prior strike convictions, and his appellate counsel’s failure to

properly appeal them. The trial court granted the County’s

special motion to strike those allegations under Code of Civil

Procedure section 425.16, and a different panel of this court

affirmed that ruling on appeal. (Ewing v. County of Los Angeles

(Apr. 25, 2023, B314722) [nonpub. opn.].)

2

trial court sustained the demurrer with leave to amend and

dismissed the complaint without prejudice after Ewing failed to

amend it. Ewing appealed.

We affirm. One of the immunity provisions relied upon by

the County, Government Code section 844.6, subdivision (a)

(section 844.6), provides that a public entity generally is not

liable for “[a]n injury to any prisoner.” Because Ewing was a

“prisoner” for purposes of section 844.6, the County is immune

from his claims. To the extent some of the claims may lie beyond

the scope of this immunity, the FAC does not adequately state a

claim for relief.

FACTUAL BACKGROUND

In the FAC, Ewing alleged the following relevant facts,

which we accept as true for the purpose of reviewing the ruling

on the County’s demurrer.

Ewing was convicted of robbery in 2004. After his jury

trial, the court held a bench trial on allegations that Ewing

suffered two prior convictions in Colorado that qualified as

serious or violent felonies under the Three Strikes law. The court

found the prior convictions qualified as strikes and sentenced

Ewing to a third strike sentence of 25 years to life. Ewing

appealed, but his appointed counsel refused his requests to argue

that the evidence was insufficient to support the finding that his

prior convictions were strike offenses. Ewing’s conviction and

sentence were affirmed on appeal, and the Supreme Court denied

review.

Ewing subsequently “filed multiple habeas petitions

arguing, among other things, that his prior CO convictions were

not serious felonies under CA law and that his appellate counsel

3

. . . was ineffective in failing to raise that argument.”

Eventually, the California Supreme Court “agreed to take up his

petition” and “ordered the CA Court of Appeal to consider”

Ewing’s claims.2 On October 2, 2019, Division Five of this district

concluded that insufficient evidence supported the trial court’s

finding that Ewing’s prior convictions qualified as strikes, and his

appellate counsel rendered ineffective assistance by failing to

raise an argument to that effect. Division Five remanded the

matter to the trial court with directions to vacate its finding that

Ewing suffered two prior strikes and resentence him accordingly.

The trial court scheduled Ewing’s resentencing hearing for

December 9, 2019. On December 2, 2019, Ewing was transferred

from the state prison in San Luis Obispo to the jail in Los

Angeles. On December 9, 2019, county sheriff’s deputies

transported Ewing from the jail to the trial court in Van Nuys.

The trial court resentenced Ewing, gave him credit for time

served, placed him on parole, and instructed him to report to the

2 According to the Court of Appeal opinion attached to the

FAC, the Supreme Court issued an order to show cause “as to

‘why petitioner is not entitled to relief pursuant to [People v.

Gallardo (2017) 4 Cal.5th 120 (Gallardo)], and why Gallardo

should not apply retroactively on habeas corpus to final

judgments of conviction, or in the alternative, why appellate

counsel did not render ineffective assistance in failing to

challenge on appeal the sufficiency of the evidence to support a

finding that petitioner’s prior Colorado robbery convictions

qualified as serious felonies.’” (In re Ewing (Oct. 2, 2019,

B297362) [nonpub. opn.].)

4

parole office upon release.3 Sheriff’s deputies then transported

Ewing back to the jail.

When Ewing arrived at the jail, deputies removed his

handcuffs “and, rather than sit him down and process him for

immediate release, they sent him back upstairs to the jail inmate

housing Unit, telling him he ‘would be told about being released’

promptly.” Ewing told a deputy upstairs that “all he needed was

to go get his stuff and be released consistent with the Court’s

order,” but the deputy told Ewing “to head to his cell to wait and

he will be called to be released.” Ewing did as he was told, but

“nothing happened.” Later that day, another jail inmate to whom

Ewing refers as “the House Mouth” “took it upon himself to

approach COLA[4] jail Sheriff Deputies that [sic] Ewing needed to

be released and should not be there.” The deputies “did not

release Ewing and instead threatened him with violence when he

asked again to be released.” Ewing “had no choice but to keep his

mouth shut,” and he spent the night of December 9, 2019 in the

jail.

3 Ewing did not allege specific details about the resentencing

hearing or his new sentence. According to the minute order

documenting the resentencing hearing, which the County

attached to the demurrer and of which we take judicial notice

with the agreement of the parties, the trial court vacated the

finding that Ewing’s prior convictions qualified as strikes; denied

probation; sentenced Ewing to the upper term of five years for the

robbery; awarded him 6,107 actual days of custody credit; ordered

Ewing to pay $16,700 in victim restitution; and ordered him to

“report to the parole office within 48 hours after release from

custody.”

4 Ewing uses the acronym “COLA” to refer to the County.

5

The following day, Ewing and the House Mouth again

asked the deputies to release Ewing. “They again refused, and

again threatened Ewing with violence and intimidated and

coerced his silence.” Over the next few days, Ewing remained

housed in the general population instead of the disabled inmate

housing unit he had requested due to his use of a cane. Ewing

had to sleep in a bed in which another inmate had been stabbed

the day before Ewing’s arrival, and he “was constantly afraid for

his life as he was housed in a cell where inmates were stabbed,

beaten up, and fights were rampant.” Other inmates threatened

Ewing with violence because he disrupted their sleep due to

“uncontrollable shaking bouts” he suffered during the night.

Ewing also “was constantly cold, and stressed about the then

unfolding new pandemic called Coronavirus he had started

hearing about,” and “inmates around him had the flu, coughed

incessantly and were getting sick.”

On December 10 and 11, 2019, Ewing “started calling

attorneys’ [sic] from the famed Innocence Project who had been

helping him with his successful appeal, to help him secure his

release from COLA’s jail facilities.” On December 13, 2019,

“around noon, Innocence Project Attorneys’ [sic] and some of their

law student staff descended on COLA’s Jail screaming and

threatening a lawsuit if Ewing was not released immediately.”

At 10:31 a.m. that same day, “CA prison officials notified COLA

to in essence release Ewing since December 13, 2019 was his

release date.”5 This notification was made despite “no

5 The County attached this notification to the demurrer. It

states, “Please drop our CDCR [California Department of

Corrections and Rehabilitation] hold on subject listed above . . .

as his release date is 12/13/2019.”

6

documented evidence . . . as to any communication between CA

and COLA employees about Ewing’s release at all prior to

December 13, 2019, even though, Ewing and others were, on a

daily basis, pled with, begged and asked COLA’s Jail Deputies to

effectuate his release.”

Ewing was released later that day, at 6:00 p.m., “to the

streets of Los Angeles into the darkness,” with “no money or any

assistance whatsoever” and “nowhere to turn.” He suffered stress

and anxiety as a result.

PROCEDURAL HISTORY

I. FAC

On December 3, 2020, Ewing filed a complaint against the

County, former Los Angeles County Sheriff Alex Villanueva,

former Los Angeles County District Attorney Steve Cooley, two

former deputy district attorneys, his appellate counsel, and 25

Doe defendants. He filed the operative FAC against the same

defendants on March 26, 2021, identifying Doe 1 as the State of

California. In the FAC, Ewing alleged 11 causes of action against

the various defendants: (1) violation of civil rights under the

California Constitution and the Bane Act, Civil Code section 52.1

against all defendants; (2) liability under 42 U.S.C. section 1983

(section 1983) against unnamed sheriff’s deputies sued as Doe

defendants; (3) liability under section 1983 pursuant to Monell v.

New York City Dept. of Social Services (1978) 436 U.S. 658

(Monell)6 against the County; (4) false imprisonment against all

6 Monell holds that a municipal or county entity cannot be

held liable under section 1983 on a respondeat superior theory.

(Monell, supra, 436 U.S. at p. 691.) However, “[l]ocal governing

bodies . . . can be sued directly under § 1983 [where] the action

7

defendants except appellate counsel, relating to the delay in his

release; (5) breach of duty to release Ewing against the County

and the State; (6) false imprisonment based on an illegal sentence

against all defendants except appellate counsel; (7) negligent

handling of a legal matter against appellate counsel; (8)

intentional infliction of emotional distress against all individual

defendants; (9) negligence against all defendants; and (10)

declaratory and injunctive relief against the County and the

State; and (11) unfair business practices under Business and

Professions Code section 17200 against appellate counsel. Ewing

prayed for general damages, special damages, punitive damages,

attorney fees, penalties, costs, and other relief.

II. Demurrer

As relevant here, the County filed a demurrer to the FAC

as it related to Ewing’s alleged overdetention, specifically to the

causes of action for (1) violation of civil rights; (3) Monell liability

under section 1983; (4) false imprisonment relating to the delay

in Ewing’s processing/release; (5) breach of duty to release Ewing;

(6) false imprisonment, again relating to the delay in Ewing’s

release; (9) negligence; and (10) injunctive relief. The County

invoked three statutory immunity provisions: section 844.6;

Government Code section 845.8, which immunizes public entities

from liability for “[a]ny injury resulting from determining

whether to parole or release a prisoner” (Gov. Code, § 845.8, subd.

(a)); and Government Code section 820.6, which provides, “If a

public employee acts in good faith, without malice, and under the

apparent authority of an enactment that is unconstitutional,

that is alleged to be unconstitutional implements or executes a

policy statement, ordinance, regulation, or decision officially

adopted and promulgated by that body's officers.” (Id. at p. 690.)

8

invalid, or inapplicable, he is not liable for any injury caused

thereby except to the extent that he would have been liable had

the enactment been constitutional, valid and applicable.” The

County also claimed state agent immunity from Monell liability,

arguing that the sheriff acts as a state official rather than a

county official when setting policies governing the release of

prisoners.

The County further argued that Ewing could not state a

claim for various reasons, including the County’s lack of legal

duty to Ewing. The County pointed to California Code of

Regulations, title 15, section 3371.1, subdivision (e)(2) (regulation

3371.1) which provides that when “an abstract of judgment,

amended abstract of judgment, or other court order is received for

an inmate who has been incarcerated by the [CDCR] for at least

five business days and it is determined that the inmate is

immediately eligible for release within the following five business

days, he or she shall be released no later than five business days

after receipt of the abstract of judgment, amended abstract of

judgment, or court order.” The County attached to the demurrer

a clerk’s certificate of mailing, dated December 9, 2019, which

stated that the minute order from the resentencing hearing was

mailed to the California Men’s Colony on December 9, 2019. As

noted above, it also attached the notification the CDCR sent to

the County on December 13, 2019, stating that Ewing’s release

date was December 13, 2019.

The County also attached several other documents,

including an “Inmate Removal Order,” a “Notice of Detainer

(Placed by CDCR),” and a “Voluntary Delayed Release” form.

The County did not request judicial notice of these documents

here or below, but both parties discussed them in the briefing and

9

agreed at oral argument that this court could take judicial notice

of all the documents attached to the demurrer, which we do. We

accordingly note that the court-issued Inmate Removal Order

ordered the warden of the California Men’s Colony in San Luis

Obispo to “deliver [Ewing] to the Sheriff of Los Angeles County”

for the December 9, 2019 resentencing hearing, and ordered the

sheriff to “execute this order by receiving [Ewing] into your

custody and causing [Ewing] to appear in the Superior Court at

the time and place indicated above, and thereafter return

[Ewing] back into the custody of the Warden or Director of the

above-named institution when his or her presence is no longer

required by the Court.” We further note that the Notice of

Detainer directed the sheriff, in bold, capital letters, “DO NOT

RELEASE BEFORE CALLING” the state prison in San Luis

Obispo. The Voluntary Release form is dated December 13, 2019

and bears the signatures of Ewing and a jail employee. It

advised that “all inmates/arrestees have the right to remain in

custody up to 16 hours or until normal business hours, whichever

is shorter, in order to be discharged to a treatment center or to be

released from jail during business hours. Normal business hours

are between 0700 hours – 1700 hours.” The listed reasons an

inmate could choose to delay release included “Do not want to be

released during nighttime hours,” “Unable to access basic reentry

services,” “Transportation arrangements,” and “Homeless shelter

intake hours.” A box is checked next to the statement, “No, I do

not want to participate in the Voluntary Delayed Release

Program and want to be released as soon as possible.”

III. Opposition and Reply

Ewing filed a written opposition to the demurrer. He

contended that section 844.6 was inapplicable because

10

subdivision (d) provides that “[n]othing in this section exonerates

a public employee from liability for injury proximately caused by

his negligent or wrongful act or omission,” and the County was

vicariously liable for the acts of its employees. Ewing argued

that Government Code section 845.8 was inapplicable because

the County claimed that it had no authority to release Ewing

without clearance from the state, regulations cited by the County

did not apply, and the County had a statutory duty to consider

his best interests when making release decisions. He further

argued there was no immunity for his Bane Act claim, which was

adequately alleged; his negligence claims survived because “there

exists ‘a special relationship between jailer and prisoner’”; his

Monell claim was properly predicated on the County’s “policy of

inaction”; the County had a ministerial duty to release him and

had no immunity from his false imprisonment claims; and the

“case is replete with controversial issues” warranting declaratory

and injunctive relief.

In its reply, the County contended that Ewing’s failure to

dispute that he was a “prisoner” at the time of his alleged injuries

was “fatal” to his state law claims because it brought his claims

squarely within section 844.6. It further argued that it did not

breach any statutes, that any duty to protect Ewing was separate

from a duty to release him, and that it was a state actor for

Monell purposes because Ewing remained in the constructive

custody of the state at all relevant times.

IV. Hearing and Ruling

The trial court heard the demurrer on October 13, 2021.

No court reporter was present for the hearing. The court, “having

read and considered the moving and opposing papers” and

hearing the parties’ oral arguments, sustained the demurrer. In

11

the minute order documenting the hearing, the court stated, “The

County demurs to all causes of action on sufficiency grounds. [¶]

Government Code Section 845.8. Broadly [sic] construed to

immunize public entities and public employees from “Any injury

resulting from determining whether to . . . release a prisoner or

from determining the terms and conditions of his . . . release. . .”

[¶] The FAC fails to allege what the County did to the plaintiff

and how this violated any statute (as there is no common law tort

liability for public entities in California). [¶] The demurrer is

sustained with 10 days leave to amend.”

Ewing did not amend the FAC. The County subsequently

moved for entry of judgment of dismissal pursuant to Code of

Civil Procedure section 581, subdivision (f)(2) and California

Rules of Court, rule 3.1320(h). Ewing did not oppose the request

or appear at the scheduled hearing, which also had no court

reporter present. The trial court granted the request and ordered

the FAC dismissed on January 28, 2022 in an unsigned minute

order. Ewing appealed.7

7 Although Ewing purports to appeal from a judgment of

dismissal, it does not appear that any such judgment was filed or

entered. Indeed, Ewing attached the unsigned minute order

dated January 28, 2022 to his civil case information statement.

That order is not an appealable judgment of dismissal. (See Code

Civ. Proc., §§ 581d, 904.1; Powell v. County of Orange (2011) 197

Cal.App.4th 1573, 1577-1578.) However, “[t]he fact that no

judgment of dismissal was entered on the order sustaining the

demurrer does not present an insurmountable obstacle to the

appeal.” (Shepardson v. McLellan (1963) 59 Cal.2d 83, 88.)

“[W]hen the trial court has sustained a demurrer to all of the

complaint’s causes of action, appellate courts may deem the order

to incorporate a judgment of dismissal, since all that is left to

12

DISCUSSION

I. Standard of Review

“On appeal from an order of dismissal after an order

sustaining a demurrer, the standard of review is de novo: we

exercise our independent judgment about whether the complaint

states a cause of action as a matter of law.” (Stearn v. County of

San Bernardino (2009) 170 Cal.App.4th 434, 439.) We read the

operative complaint as a whole, contextualizing its parts and

giving it a reasonable interpretation. (Ibid.) We treat the

demurrer as admitting all properly pleaded material facts,

however improbable they may be, but we do not assume the truth

of any contentions, deductions, or conclusions of law. (Id. at pp.

439-440; Del E. Webb Corp. v. Structural Materials Co. (1981) 123

Cal.App.3d 593, 604.) We also require every fact material to the

existence of statutory liability to be pled with particularity,

because all governmental tort liability is based on statute. (City

of Los Angeles v. Superior Court (2021) 62 Cal.App.5th 129, 138.)

In addition to the facts pled, we consider matters which may be

judicially noticed. (Mathews v. Becera (2019) 8 Cal.5th 756, 768.)

make the order appealable is the formality of the entry of a

dismissal order or judgment.” (Sisemore v. Master Financial, Inc.

(2007) 151 Cal.App.4th 1386, 1396 (Sisemore); see also Estate of

Dito (2011) 198 Cal.App.4th 791, 799-800 [“where it is clear the

court intended to entirely dispose of the action, we are

empowered to amend the order to make it an appealable

judgment of dismissal”].) Here, the January 28, 2022 minute

order effectively ended Ewing’s ability to proceed with his claims

against the County. “The only step left to make the order

appealable was the formal entry of a dismissal order or judgment.

We will accordingly deem the [January 28, 2022 order dismissing

the FAC] to incorporate a judgment of dismissal and will review

the order.” (Sisemore, at p. 1396.)

13

“[B]ecause we are reviewing the trial court’s ruling and not

its reasoning, we may affirm on any ground supported by the

record regardless of whether the trial court relied upon it.” (Doe

v. Roman Catholic Archbishop of Los Angeles (2016) 247

Cal.App.4th 953, 960.) A demurrer based on an affirmative

defense may be sustained where the face of the complaint

discloses that the action is necessarily barred by the defense.

(Silva v. Langford (2022) 79 Cal.App.5th 710, 716.)

II. Analysis

The gravamen of Ewing’s claims is that Ewing should have

been released from custody immediately upon his resentencing on

December 9, 2019. Because the County did not release him until

a few days later, Ewing contends, it falsely imprisoned him and

violated his rights. The trial court correctly sustained the

County’s demurrer to these claims.

One of the immunity provisions invoked by the County

below, section 844.6, subdivision (a)(2), provides that a public

entity is not liable for “[a]n injury to any prisoner.” The rationale

behind this provision is that “‘no tort liability should be admitted

for damages sustained as the consequence of conditions which are

common to all inmates and which simply represent a reasonable

application of general policy determinations by responsible prison

or jail authorities with respect to the administration of such

institutions.’” (Badiggo v. County of Ventura (1989) 207

Cal.App.3d 357, 360, quoting 5 Cal. Law Revision Com. Rep.

(Jan. 1963) p. 425.)

For purposes of section 844.6, “injury” means “death, injury

to a person, damage to or loss of property, or any other injury

that a person may suffer to his person, reputation, character,

feelings or estate, of such nature that it would be actionable if

14

inflicted by a private person.” (Gov. Code, § 810.8.) The term

“prisoner” “includes an inmate of a prison, jail, or penal or

correctional facility.” (Gov. Code, § 844.) A “lawfully arrested

person . . . becomes a prisoner, as a matter of law, upon his or her

initial entry into a prison, jail, or penal or correctional facility,

pursuant to penal processes” (ibid.), and remains a prisoner so

long as he or she is “lawfully confined as part of the penal

process.” (Reed v. County of Santa Cruz (1995) 37 Cal.App.4th

1274, 1277; see also Lawson v. Superior Court (2010) 180

Cal.App.4th 1372, 1386-1387 (Lawson).) Ewing contends he was

no longer a “prisoner” once he was resentenced on December 9,

2019, and therefore section 844.6 does not apply. We disagree.

When a person is sentenced to a term of imprisonment, he

or she “shall be imprisoned until duly released according to law.”

(Pen. Code, § 2901.) A “convicted felon once sentenced,

committed, and delivered to prison is not restored to presentence

status . . . by virtue of a limited appellate remand for correction of

sentencing errors. Instead, he remains ‘imprisoned’ [citation] in

the custody of the Director [of CDCR] ‘until duly released

according to law’ [citation], even while temporarily confined away

from prison to permit his appearance in the remand proceedings.”

(People v. Buckhalter (2001) 26 Cal.4th 20, 23; see also Pen. Code,

§ 2620 [providing that when a prisoner is temporarily removed

from state prison “for the purpose of hearing a motion or other

proceeding,” he or she “shall remain in the constructive custody of

the warden thereof”].) Thus, while Ewing was in the jail, he

remained under the legal custody of the CDCR even though he

was in the physical custody of the County.

The CDCR was not present at Ewing’s resentencing

hearing and was not required to be. “[W]here, as here, a prisoner

15

is temporarily removed from the custody of the warden to appear

as a witness in a criminal proceeding in the trial court there is no

law requiring the warden to attend the hearing of such

proceeding in order to ascertain the nature or result of it; nor is

he charged with constructive notice of what is being done there, if

he does not attend.” (In re Sargen (1933) 135 Cal.App. 402, 410

(Sargen).) If any order is made in such a proceeding, “purporting

to affect the terms of the commitment theretofore issued, the

order so made or a certified copy thereof must be served upon the

warden.” (Ibid.) This requirement is codified in Penal Code

section 1213, subdivision (a), which requires a judgment or

minute order for imprisonment to be “certified by the clerk of the

court” and “forthwith furnished to the officer whose duty it is to

execute the order or judgment.” A prisoner’s prior commitment

“remains in full force and effect until [the warden] is notified

officially otherwise by service upon him of some authentic

document issued by competent legal authority showing that such

commitment has either been vacated or nullified.” (Sargen,

supra, 135 Cal.App. at p. 409.) Once that notification is made,

“and it is determined that the inmate is immediately eligible for

release or eligible for release within the following five business

days, he or she shall be released no later than five business days

after receipt . . . .” (Regulation 3371.1.)

Here, Ewing was resentenced on December 9, 2019. At

some point on or before December 13, 2019, the CDCR was

apprised of the order, determined Ewing was eligible for release

on December 13, 2019, and communicated that to the County.

Ewing was released the same day, which was well within the five

business days’ processing time authorized by Regulation 3371.1.

Ewing was lawfully confined during this time and accordingly

16

was a “prisoner” within the meaning of section 844.6. And

therefore the County was immune to his claims of injury.

Ewing contends that Sullivan v. County of Los Angeles

(1974) 12 Cal.3d 710 (Sullivan) holds otherwise. In Sullivan,

plaintiff Sullivan began serving a 50-day jail sentence on June 7,

1967. (Sullivan, supra, 12 Cal.3d at p. 713.) While he was

serving that sentence, other pending charges against him were

dismissed: felony charges were dismissed on July 13, 1967, and a

misdemeanor charge was dismissed on July 21, 1967. The

municipal court issued an order to release Sullivan immediately

after it dismissed the misdemeanor charge, but the superior court

had not issued a release order after it dismissed the felony

charges. Sullivan completed his sentence on July 26, 1967, but

the jail would not release him in the absence of a release order

from the superior court. Sullivan was released on August 7,

1967, after he wrote to the superior court about the missing

release order. (Id. at p. 714.) Sullivan later sued the County for

false imprisonment, alleging that the sheriff knew or should have

known there were no charges pending against him and Sullivan

was entitled to release upon completion of his sentence. (Ibid.)

The trial court granted the County’s motion for judgment

on the pleadings, finding that the County had immunity under

Government Code section 821.6. (Sullivan, supra, 12 Cal.3d at p.

715.) The Supreme Court reversed, holding that no immunity

provision “insulates the county from liability for false

imprisonment.” (Ibid.) The court observed that public entities

are liable under Government Code section 815.6 for injury caused

by violation of a mandatory duty designed to protect against that

kind of injury, and Penal Code section 1384 imposes a mandatory

duty to discharge a person from custody “[i]f the court directs the

17

action to be dismissed,” which “speaks precisely to this situation.”

(Ibid.) The court additionally rejected the County’s reliance on

section 844.6 on the ground that Sullivan was not a “prisoner.”

(See id. at pp. 716-717.) It stated that false imprisonment “is an

injury to a non-prisoner which converts him into a prisoner,” and

“[c]ontinued confinement cannot legally make [Sullivan] a

‘prisoner’ when the jail term has expired.” (Id. at p. 717.)

Finally, the court “reaffirm[ed] the test for false imprisonment

liability”: “If the sheriff ‘knew or should have known’ that

plaintiff’s incarceration was unlawful because all charges against

him had been dismissed, then the sheriff is liable for false

imprisonment. The test requires either that the sheriff have

actual knowledge that the imprisonment of the plaintiff is

unlawful or alternatively that he have some notice sufficient to

put him, as a reasonable man, under a duty to investigate the

validity of the incarceration.” (Id. at p. 719.)

Sullivan is distinguishable from this case. The charges

against Sullivan were dismissed, giving rise to a mandatory duty

for the County to release him when he otherwise completed his

sentence. (See Pen. Code, § 1384.) Ewing argues that he was

“not a ‘prisoner’ as of the issuance of the [resentencing] decision

by Judge Brandolino,” but he has not pointed to any authority

holding that a resentencing gives rise to a similar duty,

particularly where the resentencing order does not on its face

provide for immediate release. Instead, the prior commitment

“remains in full force and effect until [the warden] is notified

officially otherwise by service upon him of some authentic

document issued by competent legal authority showing that such

commitment has either been vacated or nullified.” (Sargen,

supra, 135 Cal.App. at p. 409.) Ewing has not challenged the

18

sufficiency or expedience of the court’s transmission of its order to

CDCR; the FAC alleges that the County released him the same

day it received notice from CDCR and the Innocence Project.

Ewing suggests the County knew or should have known he

was entitled to immediate release based on the comments he and

the House Mouth made to jail staff. However, “mere protests by

the person allegedly wrongfully jailed” do not give a jailer reason

to know that the person should be released. (Castro v. City of

Hanford (E.D. Cal. 2008) 546 F.Supp.2d 822, 829.) To be liable

for false imprisonment or negligence for prolonged detention, a

jailer must receive some sort of other notice, such as “a court

order, independent evidence, or some other official notice,” that

reasonably should “cause it to investigate” the person’s claim that

he or she is entitled to release. (Ibid.) Ewing alleges the jail

received such notice from state prison officials and the Innocence

Project on December 13—the day he was released. Moreover, jail

personnel are entitled to rely on orders and process that appear

facially valid. (Ibid.) Here, the Inmate Removal Order directed

the sheriff to return Ewing to the state prison warden, and the

Notice of Detainer, to which a certified copy of Ewing’s

commitment was apparently attached, indicated that Ewing was

a “lifer” and in bold type instructed the sheriff not to release him

without calling a designated phone number. Ewing’s contentions

that he was entitled to release the moment the court issued its

order and he told deputies about it do not remove him from the

definition of “prisoner” for purposes of section 844.6.

Nor do they establish any liability for negligence. As

Ewing recognizes, governmental tort liability must be based on

statute. (B.H. v. County of San Bernardino (2015) 62 Cal.4th

168, 179.) Government Code section 815.6 provides an exception

19

to that rule: “Where a public entity is under a mandatory duty

imposed by an enactment that is designed to protect against the

risk of a particular kind of injury, the public entity is liable for an

injury of that kind proximately caused by its failure to discharge

the duty unless the public entity establishes that it exercised

reasonable diligence to discharge the duty.” (Gov. Code, § 815.6;

B.H. v. County of San Bernardino, 62 Cal.4th at p. 179.) Ewing

points to two statutory provisions that he asserts give rise to a

mandatory duty, Penal Code sections 1213 but neither is

applicable here.8 Penal Code section 1213 is directed at the court

and court clerk, not the sheriff. (See Pen. Code, § 2900.5, subd.

(d) [“It is the duty of the court imposing the sentence to

determine the date or dates of any admission to, and release

from, custody prior to sentencing and the total number of days to

be credited pursuant to this section. The total number of days to

be credited shall be contained in the abstract of judgment

provided for in Section 1213.”]; People v. Mitchell (2001) 26

Cal.4th 181, 185-186; 35 Cal.L.Rev.Comm. Reports 219 (2007).)

And, as noted earlier, Penal Code section 1384 imposes a duty to

immediately release a defendant when an action is dismissed or

bail is exonerated; it does not by its terms impose a similar duty

where a defendant is resentenced. (See Pen. Code, § 1384.)

Ewing’s reliance on Fearon v. Department of Corrections

(1984) 162 Cal.App.3d 1254 (Fearon) is similarly misplaced. In

8 He also points to the language in the Notice of Detainer

directing the sheriff not to release him before calling the state

prison, which he claims is based on Penal Code section 2620 and

therefore imposes a mandatory duty on the County to call. The

Notice of Detainer is not a statutory enactment, nor is it based on

Penal Code section 2620, which governs removal orders.

20

Fearon, plaintiff Fearon alleged that when he first entered

prison, “his silver belt buckle, valued by him at $200,000, was

taken by prison officials for safekeeping until his release.” (Id. at

p. 1256.) When Fearon was released, prison officials told him the

belt buckle had been lost. Fearon sued the state for negligent loss

of property and conversion. (Ibid.) The trial court granted the

state’s motion for judgment on the pleadings, finding it was

immune under section 844.6. (Ibid.) The Court of Appeal

reversed as to the conversion count, finding that Fearon was not

a “prisoner” when he demanded return of the buckle while “a

parolee on the way out of prison.” (Id. at pp. 1256-1257.) The

FAC specifically alleges that Ewing “has never been on parole,

never had to report to parole office or parole officer other than

that first day post his release.” Moreover, the bulk of Ewing’s

alleged injuries stem from the County’s alleged refusal to release

him, not its actions subsequent to his release. Any claim that

Ewing was injured because he was released in the evening hours

is undermined by the Voluntary Release Form.

Ewing also argues that, “[r]elease issues aside, the FAC

alleges COLA employees were negligent in many other ways

above and beyond their actions/inactions in Appellant’s release,”

including ignoring his safety, threatening him with violence, and

placing him in a cell for a non-disabled person “even with his

obvious disability.” He contends the County is not immune from

liability for such conduct because Government Code, section

844.6, subdivision (d) states that “[n]othing in this section

exonerates a public employee from liability for injury proximately

caused by his negligent or wrongful act or omission,” and the

County is vicariously liable for the wrongs of its employees.

21

To the extent this argument implicates Ewing’s allegations

about threats from jail staff and his Bane Act claim, it is not

persuasive. The Bane Act does not create an exception to section

844.6. (Towery v. State of California (2017) 14 Cal.App.5th 226,

229.) Moreover, “[t]he essence of a Bane Act claim is that the

defendant, by the specified improper means (i.e., ‘threats,

intimidation, or coercion’), tried to or did prevent the plaintiff

from doing something he or she had the right to do under the law

or to force the plaintiff to do something that he or she was not

required to do under the law.” (Austin B. v. Escondido Union

School District (2007) 149 Cal.App.4th 860, 883.) Here, Ewing

alleges jail staff “threatened and intimidated [him] into silence

causing him to succumb to the 5 additional days of illegal

incarceration they subjected him to.” However, as explained

above, Ewing was not entitled to immediate release.

The lack of entitlement to immediate release also precludes

Ewing’s Monell claim, which is entirely predicated on the

County’s alleged policy and custom of unreasonably delaying the

release of inmates “who have been ordered released as a result of

serving an excessive sentence.” State statutory immunities

generally may not be asserted as a defense to a section 1983

claim. (Arce v. Childrens Hospital Los Angeles (2012) 211

Cal.App.4th 1455, 1485; see also Pitts v. County of Kern (1998) 17

Cal.4th 340, 350 [“The availability of immunity from liability

under section 1983 in state court is governed by federal, not state

law”].) Yet if a plaintiff does not suffer an underlying

constitutional deprivation by a deputy or officer of a government

entity, the plaintiff’s Monell claim automatically fails. (See City

of Los Angeles v. Heller (1986) 475 U.S. 796, 799.) Ewing was

released once notice of his updated release date was transmitted

22

to the County. Thus, he has not adequately alleged a

constitutional deprivation on which to base Monell liability.

Ewing’s claims of medical negligence are similarly

deficient. A public entity is not liable for “injury proximately

caused by the failure of the employee to furnish or obtain medical

care for a prisoner in his custody,” unless an employee “knows or

has reason to know that the prisoner is in need of immediate

medical care and [the employee] fails to take reasonable action to

summon such medical care.” (Gov. Code, § 845.6.) Liability

under this section is limited to serious and obvious conditions

requiring immediate care. (Lawson v. Superior Court, supra, 180

Cal.App.4th at p. 1385.) Placing Ewing in general housing

despite his use of a cane, as described in the FAC, does not

amount to neglect of a serious and obvious medical condition or a

disregard of his safety. Although Ewing alleges that “fights were

rampant” in his cell, the FAC does not specifically allege that

Ewing was a victim of any violence or faced threats to his safety.

DISPOSITION

The judgment is affirmed. The County may recover its

costs of appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

COLLINS, J.

We concur:

CURREY, P.J.

ZUKIN, J.

23

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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