Public Entity Immunity (California)

Under the California Tort Claims Act (Gov. Code, 810 et seq.), public entities are immune from liability except as provided by statute (Gov. Code, 815, subd. (a)), public employees are liable for their torts except as otherwise provided by statute (Gov. Code, 820, subd. (a)), public entities are vicariously liable for the torts of their employees (Gov. Code, 815.2, subd. (a)), and public entities are immune where their employees are immune, except as otherwise provided by statute (Gov. Code, 815.2, subd. (b)). (See Caldwell v. Montoya (1995) 10 Cal.4th 972, 980, 897 P.2d 1320.) Government Code section 820.2 provides one exception to the general rule of liability of public employees: "Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused." In Kemmerer v. County of Fresno (1988) 200 Cal. App. 3d 1426, the Court held that the decision to institute disciplinary proceedings against a civil service employee was a policy decision involving the exercise of discretion; as such, the decision was entitled to immunity under Government Code section 820.2. As the City's vicarious liability for wrongful termination is coextensive with its employees, it too is immune from suit on this theory. (Kemmerer, supra, at p. 1435.) Government Code section 821.6 states: "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." Although Government Code section 821.6 has been primarily applied to immunize prosecuting attorneys and similar individuals, the section is not restricted to legally trained personnel but applies to all employees of a public entity, including police officers and public employees who institute and prosecute administrative disciplinary proceedings against other public employees. (Asgari v. City of Los Angeles (1997) 15 Cal.4th 744, 756-757, 937 P.2d 273; Kemmerer v. County of Fresno, supra, 200 Cal. App. 3d 1426.) This immunity extends to (1) conduct taken in instituting and prosecuting any proceeding, including a termination proceeding; (2) conduct essential to the accomplishment of instituting and prosecuting a proceeding; and (3) conduct which, although only incidental and collateral to instituting and prosecuting a proceeding, serves to promote the accomplishment of those principal purposes. (White v. Towers (1951) 37 Cal.2d 727, 733, 235 P.2d 209; Whitcombe v. Yolo County (1977) 73 Cal. App. 3d 698, 714.) Appellant's complaint admits that her termination was preceded by an investigation and that she availed herself of posttermination proceedings. She complains, however, that the proceedings were baseless, unlawful and malicious. Nevertheless, Government Code section 821.6 immunity even applies to unlawful conduct. "Because of the special needs of government and public service, the Tort Claims Act expressly allows public employees to engage in certain acts and omissions free of suit, even when they might otherwise be liable for causing injury or violating individual rights." (Caldwell v. Montoya, supra, 10 Cal.4th at p. 988; see also Shoemaker v. Myers (1992) 2 Cal.App.4th 1407, 1424; Randle v. City and County of San Francisco (1986) 186 Cal. App. 3d 449, 456-457, 230 Cal. Rptr. 901.)