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