Pollak, Vida & Barer

****Update:  On August 18, 2021, the California Supreme Court granted review of this decision.  The order granting review specified that the lower court decision could continue to be cited for its persuasive authority.****

In Leon v. County of Riverside, published May 27, 2021, the Fourth District Court of Appeal, Division 2 affirmed summary judgment in favor of the defendant county and deputies in a lawsuit alleging negligent infliction of emotional distress.  The plaintiff's husband was shot by a neighbor.  When a deputy arrived on the scene, he believed the decedent to be dead, but began rendering aid.  Shots rang out from neighboring property.  The deputy evacuated the area, forcing the plaintiff to leave.  When a second deputy arrived, the first deputy moved an SUV between the body and the source of the shots, and the second dragged the decedent behind the SUV.  As he did, the decedent's pants were pulled down, exposing his genitals.  The second deputy attempted chest compressions and announced the decedent dead.  More deputies and officers arrived, and nearly four hours after the first deputy arrived the shooter was found dead of a self-inflicted wound.  The body remained with its genitals exposed for approximately another four hours, when the coroner finished processing the body and collecting evidence.  The first deputy and lead investigator testified that they did not know why the body was not covered after the shooter was found dead.  The trial court granted summary judgment based on the immunities set forth in Government Code sections 815.2(b) and 821.6

The appellate court agreed that the statutes applied.  As interpreted by multiple appellate court opinions, Government Code section 821.6 immunizes the deputies from liability for any negligence in leaving the decedent's body exposed.  Section 821.6 immunizes public employees from liability for any injury-causing act or omission in the course of an investigation that may precede the institution and prosecution of a judicial or administrative proceeding.  In light of the investigation of the body, and statutory law barring moving a decedent, the acts for which the deputies were sued were part of their investigation.  Any negligence in leaving the body uncovered when it might have been uncovered is subject to the immunity.  Under Government Code section 815.2(b), the county cannot be held liable for the deputies' acts where the deputies are immune.  Government Code section 815 immunizes the county from any direct liability for negligence, because there is no statutory basis for that negligence.  Catsouras v. Department of California Highway Patrol was distinguishable, because the court in that case found that sharing photos of a decedent's remains was not part of official police business.  The court rejected an argument that the case law applying section 821.6 to investigations was wrongly decided, finding support for the statute in pre-Government Claims Act common law.

A concurring justice noted that the California Supreme Court had apparently interpreted section 821.6 to apply only to malicious prosecution, and that federal courts had followed that line of authority.  The justice agreed with the majority, however, that the lower courts had interpreted section 821.6 to apply to torts other than malicious prosecution.