Leon v. County of Riverside

IN THE SUPREME COURT OF

CALIFORNIA

DORA LEON,

Plaintiff and Appellant,

v.

COUNTY OF RIVERSIDE,

Defendant and Respondent.

S269672

Fourth Appellate District, Division Two

E073781

Riverside County Superior Court

RIC1722990

June 22, 2023

Justice Kruger authored the opinion of the Court, in which

Chief Justice Guerrero and Justices Corrigan, Liu, Groban,

Jenkins, and Evans concurred.

LEON v. COUNTY OF RIVERSIDE

S269672

Opinion of the Court by Kruger, J.

A provision of the Government Claims Act immunizes

public employees from liability for “instituting or prosecuting

any judicial or administrative proceeding” within the scope of

their employment, “even if” the employees act “maliciously and

without probable cause.” (Gov. Code, § 821.6 (section 821.6).)

This provision immunizes public employees from claims of

injury caused by wrongful prosecution. The question before us

is whether, as several Courts of Appeal have held, it also confers

immunity from claims based on other injuries inflicted in the

course of law enforcement investigations. The answer is no.

While other provisions of the Government Claims Act may

confer immunity for certain investigatory actions, section 821.6

does not broadly immunize police officers or other public

employees for any and all harmful actions they may take in the

course of investigating crime.

I.

Plaintiff Dora Leon’s husband, José Leon, was shot and

killed in the driveway of a mobile home lot near his home.1

When Riverside County Sheriff’s deputies arrived on the scene,

they heard additional shots. They dragged José behind a

vehicle, where they unsuccessfully attempted to revive him. The

1

For clarity, we refer to Dora and José Leon by their first

names.

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LEON v. COUNTY OF RIVERSIDE

Opinion of the Court by Kruger, J.

movement had caused José’s pants to slide down to his ankles,

exposing his naked body. His body remained in that uncovered

state for approximately eight hours while officers searched for

the shooter and investigated the shooting. The officers

ultimately determined that the shooter had killed himself

shortly after killing José. No charges were filed.

Dora sued, asserting a single cause of action for negligent

infliction of emotional distress. The complaint alleged that the

deputies and the public entity that employed them failed to

exercise reasonable care when they left José’s body exposed and

uncovered for hours, in view of both Dora and the general public.

The County of Riverside (County) moved for summary

judgment. Under the Government Claims Act (sometimes the

Act), a public entity like the County is ordinarily immune from

liability when its employees are immune. (Gov. Code, § 815.2,

subd. (b); see Caldwell v. Montoya (1995) 10 Cal.4th 972, 980.)

As relevant here, the County argued that its employees were

immune under section 821.6 for “all conduct related to the

investigation and filing of charges.” Because the suit arose from

steps taken while investigating José’s homicide, the County

argued, both the employees and their employer were immune

from liability. (See Gov. Code, §§ 815.2, 821.6.) The trial court

agreed and entered judgment for the County.

The Court of Appeal affirmed. (Leon v. County of Riverside

(2021) 64 Cal.App.5th 837 (Leon).) As it explained, a line of

appellate cases “ha[s] consistently construed section 821.6 as

immunizing a public employee from liability for any injury-

causing act or omission in the course of the institution and

prosecution of any judicial or administrative proceeding,

including an investigation that may precede the institution of

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LEON v. COUNTY OF RIVERSIDE

Opinion of the Court by Kruger, J.

any such proceeding.” (Id. at p. 846, italics added.) Because “the

deputies’ negligence, if any, in failing to promptly cover or

remove José’s body from the scene, occurred during the course

of the deputies’ performance of their official duties [and their]

investigation of the shooting,” the deputies, and thus the

County, were immune. (Id. at p. 848.)

Justice Raphael joined the majority opinion but wrote

separately to observe that this court, addressing other fact

patterns, had construed section 821.6 more narrowly to

“provide[] absolute immunity only against malicious

prosecution claims.” (Leon, supra, 64 Cal.App.5th at p. 860

(conc. opn. of Raphael, J.), citing Sullivan v. County of Los

Angeles (1974) 12 Cal.3d 710.) “Working on a blank slate,”

Justice Raphael would have adopted the narrower

interpretation. (Leon, at p. 863 (conc. opn. of Raphael, J.).) But

he concluded, “[A]ny correction to the Court of Appeal’s decades-

old, expansive application of section 821.6 will have to come

from our Supreme Court, rather than from us.” (Id. at p. 864

(conc. opn. of Raphael, J.).)

We granted review.

II.

A.

For many years before the Government Claims Act was

enacted in 1963, California courts had applied a common law

doctrine of governmental immunity that generally barred tort

suits against public entities. (Muskopf v. Corning Hospital Dist.

(1961) 55 Cal.2d 211, 214–215.) Over time, however, this

common law immunity became “riddled with exceptions” that

“operate[d] so illogically as to cause serious inequality.” (Id. at

p. 216.) As scholarly criticism mounted, other jurisdictions

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LEON v. COUNTY OF RIVERSIDE

Opinion of the Court by Kruger, J.

judicially abolished governmental tort immunity. (Ibid., citing,

e.g., Molitor v. Kaneland Community Unit District No. 302

(1959) 18 Ill.2d 11, 14–25 [163 N.E.2d 89, 90–96]; Colorado

Racing Com’n v. Brush Racing Ass’n (1957) 136 Colo. 279, 284–

285 [316 P.2d 582, 585–586]; Hargrove v. Town of Cocoa Beach

(Fla. 1957) 96 So.2d 130, 132–134.) In 1961, this court joined

those jurisdictions and abrogated the common law rule of

governmental tort immunity. (Muskopf, at p. 216.)

Presented with the abrupt discontinuation of

governmental immunity from tort suits, the Legislature

temporarily restored the status quo ante pending further study.

(Civ. Code, former § 22.3, enacted by Stats 1961, ch. 1404, § 1,

pp. 3209–3210; see Corning Hospital Dist. v. Superior Court

(1962) 57 Cal.2d 488, 492–495.) The California Law Revision

Commission (sometimes Commission) completed a

comprehensive review of governmental immunity and

submitted to the Legislature a series of proposed statutes

governing the tort liability of public entities and employees.

(Recommendation Relating to Sovereign Immunity, Number 1 –

Tort Liability of Public Entities and Public Employees (Jan.

1963) 4 Cal. Law Revision Com. Rep. (1963) p. 801

(Recommendation).) In 1963, the Legislature enacted the

Commission’s proposed scheme, with minor modifications, as

the California Tort Claims Act (Stats. 1963, ch. 1681, § 1,

pp. 3266–3284), which has since been retitled the Government

Claims Act (see Quigley v. Garden Valley Fire Protection Dist.

(2019) 7 Cal.5th 798, 803, fn. 1 (Quigley)).

The Government Claims Act abolished common law tort

liability and immunity for public entities, replacing it with “a

comprehensive statutory scheme governing the liabilities and

immunities of public entities and public employees for torts.”

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LEON v. COUNTY OF RIVERSIDE

Opinion of the Court by Kruger, J.

(Quigley, supra, 7 Cal.5th at p. 803; see Gov. Code, § 815.) As a

general rule, the Act makes public entities liable for injuries

proximately caused by their employees in the course of

employment but immunizes the public entity from liability

when the employee is immune. (Gov. Code, § 815.2, subds. (a),

(b).) The Act contains numerous provisions conferring

immunity on employees, including for acts or omissions

resulting from an exercise of discretion vested with the

employee (id., § 820.2); for the execution of enactments when

carried out with due care (id., § 820.4); and for the failure to

adopt or enforce an enactment (id., § 821). The immunity

provision at issue in this case, section 821.6, provides in full: “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.”

B.

This is not our first encounter with section 821.6. In

Sullivan v. County of Los Angeles, supra, 12 Cal.3d 710

(Sullivan), this court considered whether section 821.6

immunized a county and its officials from a false imprisonment

suit for failing to discharge an inmate once his lawful term

expired. Based on examination of the text and legislative

history, we concluded section 821.6 afforded no such immunity.

“[T]he Legislature,” we explained, “intended the section to

protect public employees from liability only for malicious

prosecution and not for false imprisonment.” (Sullivan, at

p. 719.)

We reiterated and expanded on this conclusion in Asgari

v. City of Los Angeles (1997) 15 Cal.4th 744, which involved a

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LEON v. COUNTY OF RIVERSIDE

Opinion of the Court by Kruger, J.

claim against police officers and their employer for false arrest

and imprisonment before a trial at which Asgari was ultimately

acquitted. As in Sullivan, the defendants invoked section 821.6.

We explained in Asgari that police officers are not, by virtue of

their job title alone, outside the scope of section 821.6. Because

section 821.6 “focus[es] upon the nature of the alleged tort,

rather than the nature of the governmental duties performed by

the defendant” (Asgari, at p. 756), the immunity it confers can

extend beyond “ ‘prosecuting attorneys and other similar

individuals’ . . . ‘to police officers as well’ ” (id. at pp. 756–757,

citation omitted). But immunity under section 821.6 “ ‘is

dependent on how the injury is caused.’ ” (Asgari, at p. 757.) We

went on to explain that “[u]nder California law, a police officer

may be held liable for false arrest and false imprisonment, but

not for malicious prosecution.” (Ibid.) These are “ ‘mutually

inconsistent concepts, the former relating to conduct that is

without valid legal authority and the latter to conduct where

there is valid process or due authority.’ ” (Ibid.) We thus

concluded that the defendants in the case were not immune from

liability for false arrest and imprisonment that occurred before

the plaintiff’s arraignment. Once he was arraigned, however,

his continued incarceration was a result of the institution of

judicial proceedings against him, and the officers were immune

under section 821.6 for any role they played in bringing about

that result. (Asgari, at p. 758.)

While Sullivan and Asgari both described section 821.6 as

conferring immunity against what they termed “malicious

prosecution” claims, the Courts of Appeal to address section

821.6 have ventured in different directions. Some appellate

decisions have hewed to the same course as Sullivan and Asgari,

granting immunity to officers and their employers for their role

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LEON v. COUNTY OF RIVERSIDE

Opinion of the Court by Kruger, J.

in initiating prosecutions. (See, e.g., Collins v. City and County

of San Francisco (1975) 50 Cal.App.3d 671, 676–678; Johnson v.

City of Pacifica (1970) 4 Cal.App.3d 82, 85–87; see Ogborn v.

City of Lancaster (2002) 101 Cal.App.4th 448, 463 [§ 821.6 “is

intended to prevent malicious prosecution actions against

government officials”]; Sharp v. County of Orange (9th Cir.

2017) 871 F.3d 901, 920–921 [following Sullivan: § 821.6

protection limited to malicious prosecution claims].) But many

Courts of Appeal have charted a different path, extending

section 821.6 to claims for injuries caused by official conduct

other than the initiation or prosecution of a proceeding. (See,

e.g., Amylou R. v. County of Riverside (1994) 28 Cal.App.4th

1205, 1211–1214 (Amylou R.) [police officers investigating a

rape immune for inflicting emotional distress on victim through

comments they made to and about her]; Citizens Capital Corp.

v. Spohn (1982) 133 Cal.App.3d 887, 888 [officials immune for

publicizing allegations of improper conduct].) These courts

either understood Sullivan as limited to its facts (e.g., Jenkins

v. County of Orange (1989) 212 Cal.App.3d 278, 283 [reading

Sullivan as limited to false imprisonment claims]) or ignored it

altogether (e.g., Citizens Capital Corp., supra, 133 Cal.App.3d

887).

As particularly relevant here, the 1994 decision in Amylou

R. concluded that section 821.6 applied to the tort claims of

plaintiffs allegedly harmed by police misconduct or negligence

in the course of investigating crimes, even where the plaintiffs’

injuries did not result from the initiation or prosecution of an

official proceeding. Since then, a number of appellate courts

have followed Amylou R.’s lead in applying section 821.6

immunity against claims of harm stemming from police

investigations. (See, e.g., Baughman v. State of California

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LEON v. COUNTY OF RIVERSIDE

Opinion of the Court by Kruger, J.

(1995) 38 Cal.App.4th 182, 191–193 [police immune for

destruction of data storage discs in the course of executing a

search warrant]; Strong v. State of California (2011) 201

Cal.App.4th 1439, 1443–1445, 1461 [California Highway Patrol

officer immune from liability for negligently losing or destroying

identification information during investigation of accident].)

In this case, the Court of Appeal relied on Amylou R. and

similar decisions to conclude that section 821.6 immunity for, in

the statutory language, “instituting or prosecuting any judicial

or administrative proceeding,” applies to a claim for negligent

infliction of emotional distress resulting from the conduct of a

police investigation. The court so held even though the claim

was brought by a plaintiff who claimed no harm resulting from

the institution or prosecution of judicial or administrative

proceedings — and who could not conceivably have claimed such

harm, because no proceedings were ever instituted. (Leon,

supra, 64 Cal.App.5th at pp. 846–848.)

We conclude this was error. The Court of Appeal’s

conclusion is inconsistent with section 821.6’s text and history,

as well as our precedent construing the same.

III.

A.

To understand the intended scope of section 821.6, we

begin with the text. (Villanueva v. Fidelity National Title Co.

(2021) 11 Cal.5th 104, 114.) Section 821.6 immunizes public

employees from liability “for injury caused by . . . instituting or

prosecuting any judicial or administrative proceeding,” provided

those actions occur “within the scope of . . . employment,” and

“even if” those actions are taken “maliciously and without

probable cause.” We described the dictionary meaning of the

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Opinion of the Court by Kruger, J.

relevant terms in Sullivan: “According to Webster’s Third New

International Dictionary (1961) ‘institute’ means ‘to originate

and get established . . . [to] initiate,’ and ‘prosecute’ means ‘to

institute legal proceedings against; esp: to accuse of some crime

or breach of law or to pursue for redress or punishment of a

crime or violation of law in due legal form before a legal

tribunal.’ ” (Sullivan, supra, 12 Cal.3d at p. 719.) Other

contemporaneous sources further explain that “[t]o ‘prosecute’

an action is not merely to commence it, but includes following it

to an ultimate conclusion.” (Black’s Law Dict. (4th ed. 1951)

p. 1385, col. 1; see 12 Oxford English Dict. (2d ed. 1989) p. 662

[tracing historical definition].) We explained in Sullivan that,

“viewed literally,” this language “does not reach the act of

holding a person in jail beyond his term,” which was the act

challenged in that case. (Sullivan, at p. 719.) The language

likewise does not reach the investigatory acts challenged in this

case, none of which constitute the initiation or continued

prosecution of official proceedings.

What we had described in Sullivan as the “literal,”

dictionary-derived meaning of the language of section 821.6

echoes the common law usage of the same operative terms to

describe the tort of malicious prosecution — a tort generally

defined as “improperly instituting or maintaining” a legal

action. (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss

& Karma, Inc. (1986) 42 Cal.3d 1157, 1169; see Sullivan, supra,

12 Cal.3d at p. 720 [“Malicious prosecution ‘consists of initiating

or procuring the arrest and prosecution of another under lawful

process, but from malicious motives and without probable

cause’ ” (italics omitted)].) We generally presume that when the

Legislature uses common law terms in its enactments, it intends

to incorporate their settled common law meanings. (E.g., People

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Opinion of the Court by Kruger, J.

v. Lopez (2003) 31 Cal.4th 1051, 1060; People v. Tufunga (1999)

21 Cal.4th 935, 946.) This presumption is particularly

appropriate here, in a case concerning the meaning of the

Government Claims Act — a statute consciously enacted

against the backdrop of the common law for the purpose of

governing common law tort claims against public entities and

employees. (See Recommendation, supra, 4 Cal. Law Revision

Com. Rep. at pp. 807–813.)

Consideration of common law meaning reinforces our

conclusion that section 821.6 immunity does not reach the

officer’s conduct in this case. Under the common law governing

the malicious prosecution tort, the conduct of an investigation,

without more, is not an actionable institution or prosecution of

a legal action. (E.g., Van Audenhove v. Perry (2017) 11

Cal.App.5th 915, 924 [“Before charges are filed, the actions of

the police and the prosecutor are merely investigatory,” and no

malicious prosecution claim will lie]; Brody v. Montalbano

(1978) 87 Cal.App.3d 725, 736–737; Imig v. Ferrar (1977) 70

Cal.App.3d 48, 58–60.) While a claim of malicious prosecution

may lie against a defendant other than the public prosecutor

who filed the relevant charges, the claim still must be based on

the defendant’s role in bringing the proceedings about.

(Sullivan, supra, 12 Cal.3d at p. 720 [“ ‘The test is whether the

defendant was actively instrumental in causing the

prosecution’ ”].) 2 We presume that when the Legislature crafted

an immunity provision using language largely tracking the

2

Because Dora does not allege her injuries arose from any

official proceeding, this case provides no occasion for further

delineating the causal connection between a defendant’s conduct

and the initiation of a proceeding that Sullivan identified as

necessary for a malicious prosecution action.

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Opinion of the Court by Kruger, J.

definition of the common law tort of malicious prosecution, it

intended for courts to respect the traditional distinction between

mere investigation and the prosecution of a legal action.

The language of section 821.6 does deviate from the

malicious prosecution tort in one regard. The malicious

prosecution tort requires proof that the defendant acted with

malice and without probable cause. (Sullivan, supra, 12 Cal.3d

at p. 720; see also, e.g., Brennan v. Tremco Inc. (2001) 25 Cal.4th

310, 313.) But the statutory immunity applies to a public

employee who commits covered acts “even if he acts maliciously

and without probable cause.” (§ 821.6, italics added.) Although

this language is certainly broad enough to include traditional

malicious prosecution claims alleging malice and a lack of

probable cause, the inclusive phrase “even if” makes clear that

the statute is not limited to traditional malicious prosecution

claims; suits for damages arising from a negligent prosecution

are covered too. (See Johnson v. City of Pacifica, supra, 4

Cal.App.3d at pp. 86–87 (lead opn. of Christian, J.) [“If the

Legislature had inexplicably intended to deny immunity to an

officer who merely acts negligently while protecting one who,

more culpably, is guilty of malicious prosecution, it would have

been superfluous to use the word ‘even’ ”].)3

3

Johnson v. City of Pacifica, supra, 4 Cal.App.3d 82 is an

example of a court upholding section 821.6 immunity in a case

involving allegations of negligence rather than malice. For

other examples, see Jenkins v. County of Orange, supra, 212

Cal.App.3d at page 283 (social worker’s negligence allegedly

leading to baseless child welfare proceeding); Randle v. City and

County of San Francisco (1986) 186 Cal.App.3d 449, 455–457

(police negligence in the course of a prosecution). We cite these

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For this reason, although our prior decisions have loosely

described section 821.6 as conferring immunity against

malicious prosecution claims (e.g., Sullivan, supra, 12 Cal.3d at

p. 721), section 821.6 is more aptly characterized as providing

immunity against liability for claims of injury based on tortious

or wrongful prosecution. The immunity is narrow in the sense

that it applies only if the conduct that allegedly caused the

plaintiff’s injuries was the institution or prosecution of an

official proceeding. But this immunity is broad in the sense that

it applies to every such tort claim, whether formally labeled as

a claim for malicious prosecution or not. And where it applies,

it is absolute, meaning that “the immunity is not conditioned on

a showing that the defendant acted in a reasonable or

procedurally proper manner, or any similar requirement.”

(Quigley, supra, 7 Cal.5th at p. 809; cf., e.g., Gov. Code, § 820.4

[qualified immunity for execution or enforcement of laws with

“due care”]; id., § 820.6 [qualified immunity for actions under

apparent authority of unconstitutional, invalid, or inapplicable

enactments, taken “in good faith, without malice”].)

The County does not dispute that section 821.6 covers only

injuries caused by the institution or prosecution of official

proceedings. It argues, however, that injuries caused by police

investigations qualify because of the close relationship between

investigations and prosecutions. The County leans heavily on

the Court of Appeal’s opinion in Amylou R., supra, 28

Cal.App.4th 1205, which held that section 821.6 applied to a

decisions only for the principle that claims of negligence can

come within section 821.6, not for what they may say on other

points, such as when a public employee other than the public

prosecutor may be considered to have initiated or prosecuted an

official proceeding.

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Opinion of the Court by Kruger, J.

crime victim’s claims related to the mishandling of a police

investigation because “investigation is part of the prosecution of

a judicial proceeding.” (Amylou R., at p. 1211.) Amylou R.

elsewhere reasoned that “[b]ecause investigation is ‘an essential

step’ toward the institution of formal proceedings, it ‘is also

cloaked with immunity.’ ” (Id. at p. 1210, quoting Kemmerer v.

County of Fresno (1988) 200 Cal.App.3d 1426, 1436–1437 and

citing Jenkins v. County of Orange, supra, 212 Cal.App.3d at

pp. 283–284, Johnson v. City of Pacifica, supra, 4 Cal.App.3d 82

and Stearns v. County of Los Angeles (1969) 275 Cal.App.2d 134,

136–137.)

In the wake of Amylou R., numerous Courts of Appeal

have extended section 821.6’s immunity for “instituting or

prosecuting” an official proceeding to cases in which the

plaintiff’s alleged injuries arose from investigative or law

enforcement conduct other than the prosecution of an official

proceeding. (See Leon, supra, 64 Cal.App.5th at p. 855; Doe v.

State of California (2017) 8 Cal.App.5th 832, 844; Strong v. State

of California, supra, 201 Cal.App.4th at p. 1461; County of Los

Angeles v. Superior Court (2009) 181 Cal.App.4th 218, 229;

Richardson-Tunnell v. Schools Ins. Program for Employees

(SIPE) (2007) 157 Cal.App.4th 1056, 1062; Gillan v. City of San

Marino (2007) 147 Cal.App.4th 1033, 1048; Ingram v. Flippo

(1999) 74 Cal.App.4th 1280, 1293; Baughman v. State of

California, supra, 38 Cal.App.4th at p. 192.)

Following in the same vein, the County argues that

because an investigation can be described as a precursor to a

criminal prosecution, investigation qualifies as “prosecuting any

judicial . . . proceeding” (§ 821.6) — even in a case like this one,

where no charges are ever filed and no judicial proceeding is

ever prosecuted. This argument is at odds with the plain

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Opinion of the Court by Kruger, J.

meaning of the statutory language, not to mention this court’s

explication of that very same language in Sullivan and the

substantial body of common law distinguishing the

investigation of crime from the wrongful prosecution of a legal

action. It likewise ignores the simple reality that investigations

need not, and often do not, lead to the institution or prosecution

of any proceedings — a fact that ought to serve as a tipoff that

the two things are not the same and cannot plausibly be treated

as though they were.

To be sure, the facts surrounding the conduct of an

investigation and the initiation or conduct of prosecution may

sometimes overlap. But the potential for factual overlap

between investigations and prosecutions does not justify

treating them as one and the same, as the County asks us to do.

If a law enforcement officer has initiated an official proceeding,

the officer will enjoy immunity for that conduct under section

821.6, regardless of whether the officer’s conduct may include

certain acts described as investigatory. Where, however, the

plaintiff’s claim of injury does not stem from the initiation or

prosecution of proceedings, section 821.6 immunity does not

apply.

B.

To the extent the text leaves any room for debate, the

legislative history confirms our reading of the statute. (National

Lawyers Guild v. City of Hayward (2020) 9 Cal.5th 488, 498.)

The history shows that section 821.6 was primarily designed to

codify a preexisting common law immunity against malicious

prosecution claims. The history contains no suggestion that the

statute was also designed to create a new and much broader

immunity for police officers engaged in investigation.

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Before the Government Claims Act was enacted, police

officers were generally immune from civil liability for malicious

prosecution, but not for other negligent or wrongful acts

committed in the course of their duties. (Sullivan, supra, 12

Cal.3d at p. 720; Davis v. Kendrick (1959) 52 Cal.2d 517, 518–

519; A Study Relating to Sovereign Immunity (Jan. 1963) 5 Cal.

Law Revision Com. Rep. (1963) pp. 415–416, 433.) As noted, after

this court abolished the common law doctrine of governmental

immunity in Muskopf, the Legislature charged the California

Law Review Commission with recommending appropriate

statutory provisions to govern governmental tort liability.

Section 821.6 was one of several provisions proposed by the

Commission. (See Recommendation, supra, 4 Cal. Law Revision

Com. Rep. at p. 845 [proposed § 821.6]; Sen. Bill No. 42 (1963

Reg. Sess.) as introduced Jan. 10, 1963, § 1 [identical text].) The

Legislature enacted the Commission’s proposed section 821.6

without change. (See Stats. 1963, ch. 1681, § 1, p. 3270.)

In its report to the Legislature, the Commission

commented on the understanding behind each proposed

provision, including section 821.6. The Senate Committee on

Judiciary made minor revisions to the Commission’s comment

on section 821.6 and issued the modified comment as reflective

of its own intent in approving the statute: “The California courts

have repeatedly held public entities and public employees

immune from liability for [the conduct immunized by the

proposed statute]. Dawson v. Martin, 150 Cal.App.2d 379, 309

P.2d 915 (1957) (public entities). White v. Towers, 37 Cal.2d 727,

235 P.2d 209 (1951); Coverstone v. Davies, 38 Cal.2d 315, 239

P.2d 876 (1952); Hardy v. Vial, 48 Cal.2d 577, 311 P.2d 494

(1957) (public employees). This section continues the existing

immunity of public employees; and, because no statute imposes

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liability on public entities for malicious prosecution, public

entities likewise are immune from liability.” (Sen. Com. on

Judiciary, Rep. on Sen. Bill No. 42 (1963 Reg. Sess.) 2 Sen. J.

(1963 Reg. Sess.) p. 1890.) 4

As we explained in Sullivan, the comment indicates that

section 821.6 was designed to continue preexisting law

immunizing public employees against liability for malicious

prosecution. (Sullivan, supra, 12 Cal.3d at pp. 719–720.) The

common law immunity cases cited in the comment “all involve

the government employees’ acts in filing charges or swearing out

affidavits of criminal activity against the plaintiff” — that is,

acts that would support a finding the defendant played a

sufficient role in bringing about the prosecution, as a malicious

prosecution claim requires. (Id. at p. 720; see id. at p. 720, fn. 9

[discussing common law cases].) The same cases demonstrate

that claims predicated on conduct other than the prosecution of

official proceedings fell outside the common law immunity and

were dealt with on the merits. (See Coverstone v. Davies, supra,

38 Cal.2d at pp. 319–322 [rejecting malicious prosecution claim

based on immunity but dealing with trespass, assault and

battery, conspiracy, and false arrest and imprisonment claims

on the merits]; Dawson v. Martin, supra, 150 Cal.App.2d at

p. 381 [rejecting malicious prosecution claim based on immunity

4

The Assembly Committee on Ways and Means thereafter

reviewed both the Commission’s comments and the Senate

Committee on Judiciary’s modifications to those comments. It

offered its own revisions to some comments — none affecting

any provision at issue here — and otherwise endorsed the

Commission’s and Senate Committee’s views as reflective of its

own “intent . . . in approving the various provisions of Senate

Bill No. 42.” (Assem. Com. on Ways & Means, Rep. on Sen. Bill

No. 42 (1963 Reg. Sess.) 3 Assem. J. (1963 Reg. Sess.) p. 5439.)

16

LEON v. COUNTY OF RIVERSIDE

Opinion of the Court by Kruger, J.

but dealing with false arrest and imprisonment claims on the

merits].)

Other available legislative history underscores the point

that section 821.6 was principally directed to malicious

prosecution claims and not other types of tort claims. In the

Commission’s proposal to the Legislature, section 821.6, which

conferred prosecution immunity on public employees, would

have been accompanied by a separate provision, proposed

Government Code section 816, which would have imposed

liability on public entities if an employee, “acting within the

scope of his employment, instituted or prosecuted a judicial or

administrative proceeding without probable cause and with

actual malice.” (Recommendation, supra, 4 Cal. Law Revision

Com. Rep. at p. 841.) In explaining the proposal, the

Commission described it entirely in terms of its effect on the

liability of public employees and employers for malicious

prosecution: “The immunity from liability for malicious

prosecution that public employees now enjoy should be

continued so that public officials will not be subject to

harassment by ‘crank’ suits. However, where public employees

have acted maliciously in using their official powers, the injured

person should not be totally without remedy.” (Id. at p. 817.)

The Commission went on: “Under the previous law, public

employees were not liable for malicious prosecution. White v.

Towers[, supra, 37 Cal.2d 727]. This immunity is continued by

Section 821.6. But under . . . Section 816, the public entity

employing the particular employee may be held liable.” (Id. at

p. 841.) The Legislature did not, however, enact the

Commission’s proposed section 816 establishing malicious

prosecution liability for public entities. The Senate Committee

on Judiciary explained that the provision was deleted from the

17

LEON v. COUNTY OF RIVERSIDE

Opinion of the Court by Kruger, J.

bill to restore “pre-Muskopf law, and both public entities

(Sections 815 and 815.2) and public employees (Section 821.6)

are immune from liability for malicious prosecution.” (Sen.

Com. on Judiciary, Rep. on Sen. Bill No. 42, supra, 2 Sen. J.

(1963 Reg. Sess.) p. 1888.)

The available history, in short, indicates that section 821.6

was designed primarily to preserve the existing common law

immunity for conduct that might otherwise support a malicious

prosecution action. This immunity, we observed in Sullivan, did

not extend to the act challenged there, consisting of “holding of

a person in jail beyond his term,” which had never before given

rise to a malicious prosecution finding. (Sullivan, supra, 12

Cal.3d at p. 720.) Neither has the conduct challenged here —

the investigation of a potential crime, unconnected to the filing

of any charges — ever formed the basis of a malicious

prosecution finding. Section 821.6 does expand the scope of

immunity to include any claim of injury caused by wrongful

prosecution, even if the prosecution is merely negligent and not

malicious. But neither text nor legislative history lends support

to the County’s argument that section 821.6 covers claims of

injury caused by acts that are merely investigatory and

unconnected to the prosecution of any official proceeding.

C.

The County argues that policy considerations favor a

broader reading of section 821.6. We are unpersuaded.

The County’s arguments invoke language from cases

discussing the common law immunity of public employees from

claims of malicious prosecution. In White v. Towers, supra, 37

Cal.2d 727, the defendant, a Fish and Game Commission

investigator, swore out affidavits that caused state and federal

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LEON v. COUNTY OF RIVERSIDE

Opinion of the Court by Kruger, J.

prosecutions of the plaintiff; after all charges were dismissed,

the plaintiff sued for malicious prosecution. (Id. at pp. 728–

729.) We held that common law immunity extends to peace

officers sued for injuries arising from an alleged malicious

prosecution, explaining: “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 wreak untold harm.” (Id. at pp. 729–730.) To avoid such

a breakdown, “experience has shown that the common good is

best served by permitting law enforcement officers to perform

their assigned tasks without fear of being called to account in a

civil action for alleged malicious prosecution.” (Id. at p. 730.)

Such immunity “ ‘is for the benefit of all to whom it applies, that

they may be free to act in the exercise of honest judgment

uninfluenced by fear of consequences personal to themselves.

This again is not for their personal advantage or benefit. It is

only that they may be enabled to render a better public

service.’ ” (Id. at p. 732.)

Similarly, in Hardy v. Vial, supra, 48 Cal.2d 577, we held

that school officials were entitled to common law immunity in a

malicious prosecution action brought by a professor who claimed

the defendants had wrongfully instituted administrative

proceedings to have him fired from his position. Describing the

rationale for official immunity more generally, we quoted Judge

Learned Hand: “ ‘[I]t has been thought in the end better to leave

unredressed the wrongs done by dishonest officers than to

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LEON v. COUNTY OF RIVERSIDE

Opinion of the Court by Kruger, J.

subject those who try to do their duty to the constant dread of

retaliation.’ ” (Id. at p. 583, quoting Gregoire v. Biddle (2d Cir.

1949) 177 F.2d 579, 581.)

The Courts of Appeal have relied on these passages in

White and Hardy as justification for extending immunity under

section 821.6 beyond wrongful prosecution to all manner of

other torts. (Leon, supra, 64 Cal.App.5th at pp. 847, 855–856;

Doe v. State of California, supra, 8 Cal.App.5th at p. 844;

Amylou R., supra, 28 Cal.App.4th at p. 1213; Citizens Capital

Corp. v. Spohn, supra, 133 Cal.App.3d at p. 889.) Emphasizing

the potential chilling effect of suits like this one might have on

legitimate law enforcement investigative activity, the County

invites us to do likewise.

We decline the invitation. For one thing, the County

overreads White and Hardy. White and Hardy afforded

immunity only from claims based on wrongful institution of

proceedings; neither case purported to recognize a sweeping

immunity for any and all acts police officers may perform within

the scope of their employment. And while each case did discuss

the societal benefits of officer immunity, each also discussed the

substantial considerations on the other side of the balance,

including the hardship to individuals who may be left without

an effective remedy for harm they have suffered. (White v.

Towers, supra, 37 Cal.2d at p. 730; accord, Hardy v. Vial, supra,

48 Cal.2d at p. 583 [“ ‘There must indeed be means of punishing

public officers who have been truant to their duties; but that is

quite another matter from exposing such as have been honestly

mistaken to suit by anyone who has suffered from their errors.

As is so often the case, the answer must be found in a balance

between the evils inevitable in either alternative’ ”], quoting

Gregoire v. Biddle, supra, 177 F.2d at p. 581.)

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LEON v. COUNTY OF RIVERSIDE

Opinion of the Court by Kruger, J.

In any event, the legal landscape has changed

considerably since our common law decisions in White and

Hardy. Since then, the Legislature enacted a comprehensive

statutory scheme that wipes the slate clean of common law

liabilities and immunities and replaces them with statutory

provisions specifying the extent of liability or immunity. (See

Gov. Code, §§ 815, 815.2, 820.) In enacting section 821.6, the

Legislature conferred absolute immunity against claims based

on injuries caused by wrongful prosecutions, but not other types

of injuries inflicted in the course of law enforcement

investigations. The scope of the statute reflects the

Legislature’s considered judgment about how to balance the

relevant policy considerations at stake, and we are bound to give

effect to it.

It bears some emphasis, however, that section 821.6 is not

the only provision of the Government Claims Act capable of

addressing the concerns the County now raises. For instance,

in enacting the Government Claims Act, the Legislature

provided for public entity defense of claims and payment of

judgments against public employees. (Gov. Code, §§ 825–825.6.)

As we have previously recognized, these provisions alleviate the

kinds of difficulties we outlined in Hardy: they mean that “[t]he

public employee need not suffer concern over the possibility that

he will be compelled to finance and oversee a tort suit filed

against him personally” and “faces only a slim danger of

ultimate personal liability; such liability attaches only in the

rare instances of injuries arising from acts either outside the

scope of employment or performed with actual fraud, corruption,

or malice.” (Johnson v. State of California (1968) 69 Cal.2d 782,

791–792.)

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LEON v. COUNTY OF RIVERSIDE

Opinion of the Court by Kruger, J.

In addition, various provisions of the Act confer immunity

for official acts other than the institution or prosecution of

official proceedings; the scope of immunity conferred by each

provision is tailored to the relevant circumstances. The “most

significant” of the Act’s immunity provisions confers a general

immunity for discretionary acts taken within the scope of

authority. (Recommendation, supra, 4 Cal. Law Revision Com.

Rep. at p. 812.) This immunity was long recognized at common

law (Caldwell v. Montoya, supra, 10 Cal.4th at p. 979; see, e.g.,

Downer v. Lent (1856) 6 Cal. 94, 95) and preserved in

Government Code section 820.2 (Recommendation, at p. 843;

see Caldwell, at p. 980). But the Act also contains other, more

targeted immunity provisions addressing what the Commission

described as specific types of discretionary acts. (Gov. Code,

§§ 820.4–821.8; see Recommendation, supra, 4 Cal. Law

Revision Com. Rep. at pp. 843–845; Sen. Com. on Judiciary,

Rep. on Sen. Bill No. 42, supra, 2 Sen. J. (1963 Reg. Sess.)

pp. 1889–1890.) These provisions include Government Code

section 820.4, which confers immunity for any “act or omission,

exercising due care, in the execution or enforcement of any law,”

though not for “false arrest or false imprisonment.” These

provisions also include Government Code section 821, which

expressly immunizes the “failure to enforce an enactment.” (See

Recommendation, at p. 844 [provision continues existing

common law immunity for, inter alia, failure to arrest, citing

Rubinow v. County of San Bernardino (1959) 169 Cal.App.2d

67].)

Depending on the circumstances, these and other

immunity provisions may apply to certain investigatory actions

of law enforcement officers even if section 821.6’s absolute

immunity does not apply. Ultimately, although the County may

22

LEON v. COUNTY OF RIVERSIDE

Opinion of the Court by Kruger, J.

prefer section 821.6’s absolute immunity to the other

possibilities, this preference does not justify an expansive

reading of that immunity that accords with neither its text nor

its history.

D.

Little of what we say today is new; we reached essentially

the same conclusions in Sullivan, supra, 12 Cal.3d 710. Relying

on the text and legislative history, this court adopted a “narrow

interpretation of section 821.6’s immunity, confining its reach to

malicious prosecution actions.” (Id. at p. 721; see id. at pp. 719–

722.) We restate that conclusion here with this clarification:

Section 821.6 applies to claims of injury arising from a public

employee’s initiation or prosecution of an official proceeding,

whether the act was allegedly done with malice and without

probable cause, as required for a malicious prosecution action,

or was allegedly tortious for other reasons.

According to the County, Sullivan decided only that false

imprisonment is not immunized under section 821.6 and thus

left open the question whether the statute might apply to other

torts, such as negligent infliction of emotional distress, and

other actions, such as investigations preliminary to any

potential prosecution. The Court of Appeal below relied on a

similar rationale to distinguish Sullivan, as have many of the

Courts of Appeal that have applied section 821.6 to claims other

than wrongful prosecution. (Leon, supra, 64 Cal.App.5th at

p. 854; see Gillan v. City of San Marino, supra, 147 Cal.App.4th

at pp. 1048–1049; Jenkins v. County of Orange, supra, 212

Cal.App.3d at p. 283; cf. Amylou R., supra, 28 Cal.App.4th at

p. 1211 & fn. 2 [citing Sullivan, but without distinguishing it].)

23

LEON v. COUNTY OF RIVERSIDE

Opinion of the Court by Kruger, J.

But our analysis in Sullivan was not limited to the

distinction between malicious prosecution and false

imprisonment; we addressed the intended scope of section 821.6

more generally, concluding the statute was intended to continue

the common law immunity for malicious prosecution alone. (See

Sullivan, supra, 12 Cal.3d at pp. 719–721.) While the discussion

in Sullivan did focus on the lack of immunity for false

imprisonment, we ultimately enunciated what we described as

a “narrow interpretation of section 821.6’s immunity, confining

its reach to malicious prosecution actions.” (Id. at p. 721.) We

explained that narrow interpretation was consistent with the

statute’s language and history. (Id. at pp. 719–720.) The facts

of Sullivan may have involved wrongfully holding the plaintiff

in confinement beyond his term. But the rationale for our

decision was not limited to those facts. The County offers no

adequate explanation for concluding otherwise.

In the alternative, the County argues that the Court of

Appeal decisions extending section 821.6 immunity to

investigatory conduct, including the court’s decision in this very

case, are consistent with Sullivan, properly understood, because

they simply “apply, directly or indirectly, the same test applied

in Sullivan with regard to malicious prosecution — ‘whether the

defendant was actively instrumental in causing the

prosecution.’ ” But in this case and some others on which the

County relies, there was either no prosecution at all or no causal

connection between the prosecution and the plaintiff’s claimed

injuries. Dora is not suing the County and its officers for

causing an unjust prosecution, but for the officers’ lack of care

in handling her late husband’s body. Much the same is true of

the plaintiffs in, for example, Amylou R., supra, 28 Cal.App.4th

1205 (suit over disparaging remarks) and Baughman v. State of

24

LEON v. COUNTY OF RIVERSIDE

Opinion of the Court by Kruger, J.

California, supra, 38 Cal.App.4th 182 (suit over destroyed

research).

Finally, the County argues that even if Sullivan

establishes section 821.6 immunity extends only to tortious

prosecution claims, “the doctrine of stare decisis should not be

mechanically applied,” and this court should reconsider

Sullivan in light of the many Courts of Appeal that have

interpreted the immunity more broadly. But as we have

discussed, the textual and policy-based arguments on which

those decisions rest do not hold up to scrutiny. And “[t]he

principles underlying the doctrine of stare decisis apply with

special force in the context of statutory interpretation, because

the Legislature remains free to alter what we have done.”

(Barner v. Leeds (2000) 24 Cal.4th 676, 686, fn. 2.) We declined

in Barner to disturb a decades-old construction of the scope of

the immunity afforded by Government Code section 820.2; we

do the same here with respect to immunity under section 821.6.

We reaffirm the holding of Sullivan, supra, 12 Cal.3d 710, 719:

Section 821.6 protects public employees from liability only for

initiation or prosecution of an official proceeding.

To the extent they are inconsistent with this opinion, we

disapprove Doe v. State of California, supra, 8 Cal.App.5th 832;

Strong v. State of California, supra, 201 Cal.App.4th 1439;

County of Los Angeles v. Superior Court, supra, 181 Cal.App.4th

218; Paterson v. City of Los Angeles (2009) 174 Cal.App.4th

1393; Richardson-Tunnell v. Schools Ins. Program for

Employees (SIPE), supra, 157 Cal.App.4th 1056; Gillan v. City

of San Marino, supra, 147 Cal.App.4th 1033; Javor v. Taggart

(2002) 98 Cal.App.4th 795; Ingram v. Flippo, supra, 74

Cal.App.4th 1280; Baughman v. State of California, supra, 38

Cal.App.4th 182; Amylou R. v. County of Riverside, supra, 28

25

LEON v. COUNTY OF RIVERSIDE

Opinion of the Court by Kruger, J.

Cal.App.4th 1205; Jenkins v. County of Orange, supra, 212

Cal.App.3d 278; and Citizens Capital Corp. v. Spohn, supra, 133

Cal.App.3d 887.

IV.

The Court of Appeal upheld the application of section

821.6 to confer absolute immunity on the County for negligent

infliction of emotional distress arising out of the alleged

mishandling of plaintiff’s husband’s body. This was error.

Because the claim does not concern alleged harms from the

institution or prosecution of judicial or administrative

proceedings, section 821.6 does not apply.

Section 821.6 prosecution immunity was the only defense

the trial court and Court of Appeal addressed, but it was not the

only defense the County raised in its motion for summary

judgment. Nothing we say addresses these other defenses,

including whether Government Code sections 820.2, 820.4, or

any other statutory immunity provision may apply.

V.

The judgment of the Court of Appeal is reversed and the

matter is remanded for further proceedings consistent with this

opinion.

KRUGER, J.

We Concur:

GUERRERO, C. J.

CORRIGAN, J.

LIU, J.

GROBAN, J.

JENKINS, J.

EVANS, J.

26

See next page for addresses and telephone numbers for counsel who

argued in Supreme Court.

Name of Opinion Leon v. County of Riverside

__________________________________________________________

Procedural Posture (see XX below)

Original Appeal

Original Proceeding

Review Granted (published) XX 64 Cal.App.5th 837

Review Granted (unpublished)

Rehearing Granted

__________________________________________________________

Opinion No. S269672

Date Filed: June 22, 2023

__________________________________________________________

Court: Superior

County: Riverside

Judge: Daniel A. Ottolia

__________________________________________________________

Counsel:

Law Office of Steven Zwick, Steven Zwick, James Alquist; Law Office

of Richard L. Antognini and Richard L. Antognini for Plaintiff and

Appellant.

Law Offices of Ali Taheripour, Ali Taheripour; Law Offices of Les T.

Zador and Leslie T. Zador for Ali Taheripour and Leslie T. Zador as

Amici Curiae on behalf of Plaintiff and Appellant.

Lewis Brisbois Bisgaard & Smith, Arthur K. Cunningham, Jeffry A.

Miller and Lann G. McIntyre for Defendant and Respondent.

Counsel who argued in Supreme Court (not intended for

publication with opinion):

Richard L. Antognini

Law Office of Richard L. Antognini

2485 Notre Dame Boulevard, Suite 370-45

Chico, CA 95928-7167

(916) 295-4896

Leslie T. Zador

Law Offices of Les T. Zador

15760 Ventura Boulevard, Suite 700

Encino, CA 91436

(818) 584-3560

Jeffry A. Miller

Lewis Brisbois Bisgaard & Smith LLP

550 West C Street, Suite 1700

San Diego, CA 92101

(619) 233-1006