McCutchen v. City of Montclair

THOMAS McCUTCHEN, Plaintiff and Appellant, v. CITY OF MONTCLAIR et al., Defendants and Respondents. No. E022025 (Super.Ct.No. RCV 12344) California Court of Appeal Fourth Appellate District Division Two Filed July 29, 1999
CERTIFIED FOR PARTIAL PUBLICATION
        APPEAL from the Superior Court of San Bernardino County. Paul M. Bryant, Jr., Judge. Affirmed.
        Dennis V. Dalsimer for Plaintiff and Appellant.
        Ferguson, Praet & Sherman, Steven A. Sherman and Larry J. Roberts for Defendants and Respondents.
        While on Christmas leave from the U.S. Army, plaintiff Thomas McCutchen was arrested and spent nearly four months in jail on the charge of rape with a foreign object. However, the prosecution on its own motion dismissed charges against him before the case went to trial. Upon his release from confinement, plaintiff filed a complaint against, inter alia, the complaining witness Tracy G. (hereafter, "the complaining witness"), arresting police officer Ron Pipersky, the City of Montclair (hereafter "City"), and the County of San Bernardino (hereafter, "County"). His complaint included claims for (1) violation of civil rights under 42 U.S.C. Section 1983, (2) false arrest, (3) negligence, (4) negligent employment, training, and supervision, (5) intentional infliction of emotional distress, and (6) defamation. The trial court denied defendants' motion for judgment on the pleadings but later granted defendants' motion for summary judgment on all causes of action, and plaintiff appealed. Defendants then cross-appealed.
        As we explain below, we conclude that the trial court was correct in denying defendants' motion for judgment on the pleadings. However, we also conclude that the trial court did not err in granting summary judgment on all causes of action.

FACTUAL AND PROCEDURAL BACKGROUND A. Criminal Proceedings Against Plaintiff
        On December 23, 1993, the complaining witness reported to the Montclair Police Department that at approximately 9:37 in the evening, she was sexually assaulted by an unknown man, as she was going through the automatic double doors at the upper level of a shopping mall located in the City of Montclair. Officer Pipersky was dispatched to the complaining witness's residence in Upland to take her statement. Although the complaining witness was visibly distressed, she managed to give Officer Pipersky a description of her attacker that included his age, weight, build, eye color, skin complexion, hair length, and facial hair. She also described the assailant's clothing.
        On December 24, 1993, while Officer Pipersky was on patrol in the City of Montclair, he observed plaintiff and plaintiff's sister walking down the street. Apparently, plaintiff attracted his attention because he was wearing a shirt that generally matched the description given by the complaining witness. Upon striking up a casual conversation with plaintiff, Officer Pipersky noticed that plaintiff's eye color and build also matched the description given by the complaining witness. Officer Pipersky told plaintiff that he matched the description of a suspect in a rape case and asked plaintiff to come to the police station to take a picture. Plaintiff agreed and, upon arriving at the station, Officer Pipersky took his photograph. When Officer Pipersky asked plaintiff about his whereabouts on the night of December 23, plaintiff told Officer Pipersky that he was at the house of a friend, Mark Gryder, until about 9:30 p.m., at which point Gryder gave him a ride home. Officer Pipersky immediately contacted Gryder, who stated that plaintiff left his house at 8:30 p.m. and walked home. Officer Pipersky once again asked plaintiff his whereabouts on the night in question, and plaintiff repeated that Gryder drove him home at approximately 9:30 p.m. Two days later, plaintiff's photo appeared in a photo lineup shown to the complaining witness. The complaining witness identified plaintiff as the person who sexually assaulted her. At that point, Officer Pipersky arrested plaintiff. After the arrest, Officer Pipersky interviewed plaintiff, who stated that he did in fact leave Gryder's house at 8:30 p.m., walked home, and listened to CD's with his sister until 11 p.m. Subsequently, his mother; sister; and another friend, Ted Darland, confirmed his alibi.
        Plaintiff was charged with a violation of Penal Code section 289. After his arrest, the complaining witness identified him as the perpetrator in two live lineups conducted at the jail. On February 14, 1994, the municipal court conducted a preliminary hearing and ruled that there was probable cause to try plaintiff on the rape charge. Subsequently, plaintiff moved to suppress the photo lineup identification. On April 20, 1994, the trial court conducted a hearing on plaintiff's motion and decided to suppress the photo lineup identification, although the court ruled that the subsequent in-court identifications were admissible. On April 21, 1994, before jury selection started, the prosecution made a motion to dismiss the charges against plaintiff, which the trial court granted. The plaintiff was immediately released from confinement.

B. Plaintiff's Civil Suit
        On November 21, 1994, plaintiff filed the instant complaint against Officer Pipersky, the complaining witness, City, and County. It included the following causes of action: (1) a false arrest claim against all defendants; (2) a negligence claim against City and County; (3) an intentional infliction of emotional distress claim against all defendants; (4) a negligent employment, training, supervision, and retention claim against City and County; (5) a 42 U.S.C. Section 1983 (hereafter, "section 1983") claim against all defendants; and (6) a defamation claim against the complaining witness.
        On January 3, 1997, defendants filed a motion for judgment on the pleadings, contending that a finding of probable cause to try plaintiff on the rape charge collaterally estopped plaintiff's civil suit. The trial court denied the motion. Defendants then filed a motion for summary judgment on all causes of action, which the trial court granted on November 26, 1997. Plaintiff timely appealed. Defendants timely cross-appealed from the denial of the motion for judgment on the pleadings.

DISCUSSION         On appeal, plaintiff contends that the trial court erred in granting summary judgment on the false arrest claim; the section 1983 claim; the negligence claim; and the negligent employment, supervision, and retention claim. ¹ On cross-appeal, defendants contend that the trial court erred in denying the motion for judgment on the pleadings because plaintiff was collaterally estopped from bringing this civil action.
        In part I of the opinion, we address the collateral estoppel issue raised by defendants on cross-appeal. In part II of the opinion, we address the grant of summary judgment on various causes of actions presented by plaintiff's complaint.

I Collateral Estoppel Does Not Preclude Plaintiff From Relitigating the Issue of Probable Cause to Arrest         Defendants contend that the trial court erred in denying their motion for judgment on the pleadings. They point out that the trial court in plaintiff's criminal prosecution ruled there was probable cause to hold him over for trial. Based upon that ruling, defendants argue that the doctrine of collateral estoppel precludes plaintiff from challenging the validity of his arrest for lack of evidence to support it. Plaintiff responds that the ruling at the preliminary hearing does not have preclusive effect on this civil suit because the issue of probable cause to arrest was not actually litigated or necessarily decided at the preliminary hearing. Plaintiff also contends that collateral estoppel does not apply in this case because of the long-standing rule that an order dismissing criminal charges after a preliminary hearing does not have res judicata effect on future criminal prosecution on the same charges. (People v. Uhlemann (1973) 9 Cal.3d 662, 658.) He argues that this rule should be extended in this case because a magistrate conducting a preliminary hearing is not a bona fide judge and does not have the power to decide any issue pertaining to the merits of the case, such as the issue of probable cause to arrest.
        After plaintiff was arrested and charged with rape, the municipal court conducted a preliminary hearing. The only witness called by the prosecution was the complaining witness, and the only witness called by the defense was Officer Pipersky. During cross-examination, the complaining witness admitted that after the photo lineup she also identified plaintiff as her assailant at two subsequent live lineups conducted at the jail. After receiving testimony from both witnesses, the trial court ruled that there was sufficient evidence to hold plaintiff over for trial. Plaintiff never appealed the decision to hold him over for trial. Before jury selection began, the prosecution moved to dismiss all charges against plaintiff.
        On appeal, we review the trial court's decision to grant or deny a motion for judgment on the pleadings under the same standard of review as the decision to sustain or overrule a demurrer. (Boccato v. City of Hermosa Beach (1994) 29 Cal.App.4th 1797, 1803-1804.) Our standard of review is de novo, i.e., we exercise our independent judgment about whether, assuming the truth of the pleadings, the complaint states a cause of action. (Ibid.; Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.)
        The doctrine of collateral estoppel or issue preclusion is a secondary form of res judicata. (People v. Sims (1982) 32 Cal.3d 468, 477, fn. 6.) It prevents a party who had a full and fair opportunity to litigate a particular issue in a prior proceeding from relitigating it in a subsequent proceeding. (7 Witkin, Cal. Procedure (4th ed. 1997) Judgment, § 339, p. 894.) "A prior determination by a tribunal will be given collateral estoppel effect when (1) the issue is identical to that decided in a former proceeding; (2) the issue was actually litigated and (3) necessarily decided; (4) the doctrine is asserted against a party to the former action or one who was in privity with such a party; and (5) the former decision is final and was made on the merits." (Kelly v. Vons Companies, Inc. (1998) 67 Cal.App.4th 1329, 1339.)
        Federal and state courts have consistently held that the doctrine of collateral estoppel may preclude relitigation in a civil suit of issues that were decided in a prior criminal proceeding. (See e.g., Allen v. McCurry (1980) 449 U.S. 90, 104 [giving collateral estoppel effect to a ruling on a pretrial suppression motion]; Coogan v. City of Wixom (6th Cir. 1987) 820 F.2d 170, 175 and Guenther v. Holmgreen (7th Cir. 1984) 738 F.2d 879, 885 [giving collateral estoppel effect to a finding of probable cause made by state court at a preliminary hearing]; Teitelbaum Furs, Inc. v. Dominion Ins. Co. (1962) 58 Cal.2d 601 [giving collateral estoppel effect to a prior felony conviction]; Mueller v. J.C. Penney Co. (1985) 173 Cal.App.3d 713 and Leader v. State of California (1986) 182 Cal.App.3d 1079 [giving collateral estoppel effect to misdemeanor conviction].)
        Our own research has revealed that the issue of whether a finding of probable cause to hold the accused over for trial on criminal charges forecloses a subsequent civil suit on the issue of probable cause to arrest is one of first impression in California. However, the Ninth Circuit had decided this precise question in Haupt v. Dillard (9th Cir. 1994) 17 F.3d 285. In Haupt, the plaintiff was arrested for murder, but the jury acquitted him of all charges. (Id. at p. 287.) Following his acquittal, the plaintiff filed a section 1983 claim alleging, inter alia, that his constitutional right to be free from unreasonable searches and seizures was violated. (Ibid.) Relying on Nevada law governing the doctrine of collateral estoppel, the court held that the determination of sufficiency of the evidence to hold the plaintiff over for trial on murder charges precluded relitigation of the issue of probable cause to arrest. (Id. at p. 290.) In rejecting the plaintiff's bid to avoid the application of collateral estoppel, the Ninth Circuit concluded that the ruling at a preliminary hearing was a final judgment on the merits for the purposes of collateral estoppel because the determination was immediately appealable via a petition for a writ of habeas corpus and could not be litigated further. (Id., at pp. 288-289.) The court also concluded that the identity of the issues requirement was met because, absent a showing that new evidence became available to the prosecution after the plaintiff's arrest, the ruling on sufficiency of the evidence to hold the plaintiff over for trial was a de facto ruling on sufficiency of the evidence to arrest the plaintiff. (Id. at p. 289.) Finally, the court concluded that the plaintiff had a full and fair opportunity to litigate the issue of probable cause at the preliminary hearing, although the court acknowledged that in some cases the plaintiff may have tactical reasons for not fully litigating the issue of probable cause at the preliminary hearing, and in those situations, collateral estoppel might not apply. (Id. at pp. 289-290.)
        In our view, the Ninth Circuit's decision in Haupt v. Dillard is well reasoned and supported by California law. ² The elements of collateral estoppel in Nevada and California are the same: (1) The issue sought to be precluded is identical to the one decided in a prior proceeding; (2) the issue was actually litigated and necessarily decided; (3) there was a final judgment on the merits; and (4) the party against whom collateral estoppel is asserted was a party or in privity with a party to a prior proceeding. (Compare Kelly v. Vons Co., Inc., supra, 67 Cal.App.4th at p. 1339 [California law] with University of Nevada v. Tarkanian (1994) 110 Nev. 581, 598-599 [Nevada law].) A finding of probable cause to hold the defendant over for trial is a final judgment on the merits for the purposes of collateral estoppel under the California law because the accused can (1) immediately appeal the determination by filing a motion to set aside the preliminary hearing (Pen. Code, § 995) and (2) obtain review of the decision on the motion to set aside the preliminary hearing by filing a writ of prohibition (Pen. Code, § 999a). Also, the issue of probable cause cannot be litigated further because it cannot be used as a defense at trial. (People v. Gaines (1966) 247 Cal.App.2d 141, 147.)
        Moreover, a ruling on sufficiency of the evidence at a preliminary hearing would, in most cases, meet the identity of the issues requirement. The quantum of evidence required to support a warrantless arrest is the same as the quantum of evidence required to hold the defendant to stand trial. (Compare People v. Campa (1984) 36 Cal.3d 870, 879 ["'In determining the sufficiency of an affidavit for the issuance of a . . . warrant the test of probable cause is approximately the same as that applicable to an arrest without a warrant, . . . namely, whether the facts contained in the affidavit are such as would lead a man of ordinary caution or prudence to believe, and conscientiously to entertain, a strong suspicion of the guilt of the accused.'"] with People v. DeJesus (1995) 38 Cal.App.4th 1, 15 [The role of a magistrate at a preliminary hearing is to determine "whether there is such a state of facts as would lead a person of ordinary caution or prudence to believe and conscientiously entertain a strong suspicion of the guilt of the accused."].) Thus, absent a showing that evidence not available to the arresting officer was presented at the preliminary hearing, a finding of sufficiency of the evidence to require the defendant to stand trial is a finding of probable cause to arrest the defendant. (Haupt v. Dillard, supra, 17 F.3d at p. 289.)
        With respect to the full and fair opportunity to litigate the issue element of collateral estoppel, federal courts applying collateral estoppel in this situation focus on whether the state preliminary hearing in a criminal case provides sufficient procedural opportunities and motivation for the accused to litigate the issue of probable cause. (Coogan v. City of Wixom, supra, 820 F.2d at p. 175; Geunther v. City of Holmgreen, supra, 738 F.2d at p. 884.) For example, the Sixth Circuit's conclusion that, under Wisconsin law, the plaintiff had a full and fair opportunity to litigate the issue of probable cause at the preliminary hearing was based on the fact that the plaintiff was able to cross-examine the arresting officer and present his own evidence negating the showing of probable cause. (Guenther, supra, at p. 884.) In this state, a preliminary hearing is an adversary judicial proceeding designed to litigate the issue of probable cause to try the accused on criminal charges in which the accused may cross-examine witnesses pertinent to the issue of probable cause to arrest, such as the arresting officer and the complaining witness, and present evidence negating the existence of probable cause. (Cf. Herbert v. Superior Court (1981) 117 Cal.App.3d 661, 666, fn. 3.) Such hearing gives the accused ample opportunity to litigate the issue of probable cause to arrest.
        With respect to motivation to litigate the probable cause issue, we recognize that in some cases the defendant in a criminal proceeding may have tactical reasons not to litigate the probable cause issue. In those situations, collateral estoppel might not apply. (Haupt v. Dillard, supra, 17 F.3d at p. 289.) However, unless the plaintiff in a civil suit can demonstrate that the issue of probable cause was not litigated at the preliminary hearing for tactical reasons, we will presume that the plaintiff had a full and fair opportunity to litigate the issue of probable cause to arrest. (Id. at pp. 289-290.)
        Since a decision to hold the defendant over for trial requires a ruling on the sufficiency of the evidence, absent a showing to the contrary the issue of probable cause to arrest will typically be actually litigated and necessarily decided at the preliminary hearing. One notable exception to this rule would be in a situation where the plaintiff alleges that the arresting officer lied or fabricated evidence presented at the preliminary hearing. (Harris v. Roderick (9th Cir. 1997) 126 F.3d 1189, 1198.) When the officer misrepresents the nature of the evidence supporting probable cause and that issue is not raised at the preliminary hearing, a finding of probable cause at the preliminary hearing would not preclude relitigation of the issue of integrity of the evidence.
        Finally, at least in cases where the former arrestee himself or herself brings the civil suit, the party against whom collateral estoppel is being asserted would be the same as the party at a prior proceeding.
        Therefore, we will follow the Ninth Circuit and hold a prior judicial determination at a preliminary hearing that there was sufficient evidence to hold the plaintiff over for trial may, in some situations, preclude the plaintiff from relitigating the issue of probable cause to arrest in a subsequent civil suit. (Haupt v. Dillard, supra, 17 F.3d at p. 290.)
        However, we conclude that the finding of probable cause at the preliminary hearing in this case does not have collateral estoppel effect because it is apparent from the record that the evidence presented at the preliminary hearing was not the same as the evidence available to Officer Pipersky at the time of plaintiff's arrest. During cross-examination, the complaining witness testified that, in addition to the photo lineup, she identified plaintiff twice in a live lineup conducted at the jail. Although she never testified to the date of the live lineups, in light of the testimony that these lineups were conducted at the jail some time after the photo lineup, it is reasonable to infer that these lineups were conducted after plaintiff was arrested. Since the universe of evidence available to Officer Pipersky changed by the time the preliminary hearing was conducted, the issue decided at the preliminary hearing was different from the issue raised in this case, i.e., was there probable cause at the time plaintiff was arrested?
        Therefore, we conclude that collateral estoppel does not bar plaintiff from relitigating the issue of probable cause to arrest.

[This Part Is Not Certified for Publication]
II Summary Judgment         Since we conclude that collateral estoppel does not preclude plaintiff from relitigating the issue of probable cause to arrest, we will now address the trial court's grant of summary judgment.
        On appeal from the trial court's grant of a summary judgment motion, we must independently review the record before the trial court. (Daddario v. Snow Valley, Inc. (1995) 36 Cal.App.4th 1325, 1339.) Because the grant or denial of a summary judgment motion "'involves pure questions of law, we are required to reassess the legal significance and effect of the papers presented by the parties in connection with the motion. [Citation.] We thus must apply the same three-step analysis required of the trial court: [¶] "'First, we identify the issues framed by the pleadings since it is these allegations to which the motion must respond . . . . [¶] Secondly, we determine whether the moving party's showing has established facts which negate the opponent's claim and justify a judgment in movant's favor. . . . [¶] When a summary judgment motion prima facie justifies a judgment, the third and final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue.'"'" (Ibid., citing Zuckerman v. Pacific Savings Bank (1986) 187 Cal.App.3d 1394, 1400-1401.)

A: False Arrest
        Plaintiff contends that the trial court erred in granting summary judgment on his false arrest claim because there were triable issues of material fact pertaining to (1) the difference between the description given by the complaining witness to Officer Pipersky and plaintiff's description, and (2) Officer Pipersky's alleged manipulation of the photo lineup. Defendants respond that, as a matter of law, there was sufficient probable cause to support plaintiff's arrest because his eye color matched the description given by the complaining witness, he wore the same kind of shirt as the alleged assailant, and his initial alibi story was contradicted. Defendants also point out that the complaining witness's identification of plaintiff as her assailant alone was sufficient to support plaintiff's warrantless arrest.
        We find that the issue framed by the pleadings with respect to the false arrest cause of action is whether there was probable cause to arrest plaintiff.
        Defendants made a prima facie case for summary judgment on this cause of action via the declaration of Officer Pipersky that he arrested plaintiff based upon the following evidence: (1) Plaintiff's description partially matched the description given by the complaining witness because plaintiff had the distinct blue eyes and wore the same type of shirt as the alleged perpetrator; (2) the complaining witness identified plaintiff as the perpetrator at the photo lineup with a high degree of certainty; and (3) plaintiff's initial alibi testimony was not confirmed.
        Plaintiff opposed the motion on the following grounds: (1) His physical description was significantly different from the description given by the complaining witness in age, weight, build, hair length, facial hair, and skin complexion; (2) plaintiff's shirt was of the type commonly sold at a local clothing store and did not match the color of the shirt worn by the alleged perpetrator; (3) the photo lineup was impermissively suggestive because plaintiff was the only person who wore the checkered flannel shirt; and (4) after the photo lineup, the complaining witness was only 70 percent sure that plaintiff was the assailant and said that his neck, goatee, and mustache did not match the assailant's.
        Finally, we must determine whether plaintiff's opposition succeeded in creating a triable issue of material fact.
        The standard governing existence of probable cause to arrest is well settled and can be summarized as follows: "The existence of probable cause depends upon facts known by the arresting officer at the time of the arrest. [Citations.] Probable cause for an arrest is shown if a man of ordinary caution or prudence would be led to believe and conscientiously entertain a strong suspicion of the guilt of the accused. [Citations.] Probable cause may exist even though there may be some room for doubt. [Citations.] [] . . . The test in such case is not whether the evidence upon which the officer made the arrest is sufficient to convict but only whether the prisoner should stand trial. [Citation.]" (Hamilton v. City of San Diego (1990) 217 Cal.App.3d 838, 844, internal quotation marks omitted.) If a law enforcement officer has probable cause to arrest the accused, Penal Code section 847 ³ immunizes the officer from liability for false arrest. Where the facts are not in conflict, the issue of probable cause is a question of law. (Hamilton, supra, at p. 844, citing Giannis v. City and County of San Francisco (1978) 78 Cal.App.3d 219, 225 and People v. Tyler (1961) 193 Cal.App.2d 728, 735.)
        Information from the victim of the crime has been held sufficient to furnish probable cause to arrest, despite the fact that the witness's reliability had not been previously tested. (Hamilton v. City of San Diego, supra, 217 Cal.App.3d at p. 844, citing People v. Hogan (1969) 71 Cal.2d 888, 890; accord, Goehring v. Wright (N.D. Cal. 1994) 858 F.Supp. 989, 1003 [under California law, a police officer, who was informed by ten of the plaintiff's neighbors about plaintiff's alleged criminal behavior, had probable cause to arrest the plaintiff].) Moreover, California courts and lower federal courts have consistently held that a victim's identification of the accused as the perpetrator of the crime alone was sufficient to justify the accused's warrantless arrest. (See e.g., Hamilton, supra, at pp. 844-845; Cole v. Johnson (1961) 197 Cal.App.2d 788, 793; Gorlack v. Ferrari (1960) 184 Cal.App.2d 702, 709; Goehring v. Wright, supra, at p. 1003.) Finally, at least one federal court has held that, even when the identification is a result of an impermissibly suggestive photo lineup, that identification, combined with the evidence placing the plaintiff at the scene of the crime, was sufficient to support the plaintiff's warrantless arrest. (Mundy v. Georgia (5th Cir. 1978) 586 F.2d 507, 508.)
        We conclude that plaintiff's opposition failed to create a triable issue of material fact with respect to the existence of probable cause to arrest him. The evidence is not in dispute that before plaintiff was arrested, the complaining witness identified him as the person who sexually assaulted her. Also, the evidence is not in dispute that plaintiff at least partially matched the description of the assailant given by the complaining witness to Officer Pipersky - plaintiff had the same eye color and wore the same type of shirt as the alleged assailant. Finally, the evidence is not in dispute that plaintiff's alibi was initially discredited and was not confirmed until after his arrest. Thus, there was sufficient evidence to support plaintiff's warrantless arrest.
        Plaintiff argues that the evidentiary dispute concerning the complaining witness's degree of certainty in identification is sufficient to create a triable issue of material fact. We disagree. It is irrelevant whether the complaining witness was 90 percent or 70 percent sure as to her identification - once she identified plaintiff as the assailant with a reasonable degree of certainty, Officer Pipersky was entitled to accept that identification as credible and act on it. (Hamilton v. City of San Diego, supra, 217 Cal.App.3d at pp. 844-845; Cole v. Johnson, supra, 197 Cal.App.2d at p. 793 [probable cause for the plaintiff's arrest found where the victim made the following tentative identification of the plaintiff: "'I think that's the man'"].) The differences between plaintiff and the description given by the complaining witness are likewise immaterial because the identification alone was sufficient to support plaintiff's warrantless arrest. Thus, Officer Pipersky had probable cause to arrest plaintiff and is entitled to immunity under Penal Code section 847. (Hamilton, supra, 217 Cal.App.3d at p. 844.)
        Therefore, we conclude that the trial court did not err in granting defendants' motion for summary judgment on the false arrest cause of action.

B. Negligence
        Plaintiff contends that the trial court erred in granting summary judgment on his negligence claim against City and County because there was evidence that Officer Pipersky was negligent in investigating the crime scene. Defendants respond that summary judgment was properly granted because, once there was probable cause to arrest plaintiff, there was no duty to investigate further. Defendants also argue that they are immune from this claim because Officer Pipersky is immune from liability for negligent performance of a criminal investigation. (Gov. Code, ⁴ §§ 815.2, subd. (b); 821.6.)
        We need not decide whether there is a duty to investigate further once there is probable cause to arrest someone for the crime. As we explain below, Officer Pipersky is immune for any negligence in his investigation of the crime. Consequently, City and County are immune as well. ⁵
        Section 815.2, subdivision (b), ⁶ exempts a public entity from tort liability where the public employee himself or herself is immune, so City and County are entitled to immunity if Officer Pipersky is immune. Section 821.6 ⁷ immunizes public employees from tort liability for instituting or prosecuting any judicial proceeding. Several lower federal courts, as well as state courts, including this court, have extended this immunity to bar liability of social workers and law enforcement officers for tortious conduct in initiating and completing a criminal investigation. (See e.g., Amylou R. v. County of Riverside (1994) 28 Cal.App.4th 1205, 1211 [intentional and negligent infliction of emotional distress suffered by a witness to a crime]; Johnson v. City of Pacifica (1970) 4 Cal.App.3d 82, 87-88 [negligent investigation of a crime]; Jenkins v. County of Orange (1989) 212 Cal.App.3d 278, 283-284 [negligence in investigating child abuse complaint]; Martinez v. County of Los Angeles (9th Cir. 1998) 141 F.3d 1373, 1381 [negligence in performing criminal investigation that led to plaintiff's false arrest].)
        The essence of plaintiff's negligence claim is that Officer Pipersky was negligent in investigating the crime, and City and County are liable on the theory of respondeat superior. Since there is no tort liability for negligence in performing a criminal investigation, Officer Pipersky would have been immune from this claim under section 821.6. (Johnson v. City of Pacifica, supra, 4 Cal.App.3d at pp. 87-88; Martinez v. County of Los Angeles, supra, 141 F.3d at p. 1381.) Consequently, City and County are likewise immune. (§ 815.2, subd. (b).)

C. Negligent Hiring, Retention, Training, and Supervision
        Plaintiff's argument in regard to his negligent hiring, retention, training, and supervision cause of action is the same as his argument concerning the negligence cause of action. He contends the trial court erred in granting summary judgment because there was evidence that Officer Pipersky was negligent in investigating the scene of the crime.
        We find that the issue framed by the pleadings is whether City and County were negligent in their hiring and training practices. City and County made a prima facie case for summary judgment on this cause of action by relying on plaintiff's discovery responses. (Brantley v. Pisaro (1996) 42 Cal.App.4th 1591, 1598.) They contended that plaintiff's discovery responses pointed only to the alleged mistakes made in his case and did not establish any negligent employment practice by City and County. They also presented a sworn declaration from Guy Eisenbrey, City's chief of police, in which he stated the following: (1) City conducts an extensive background check on every prospective police officer before hiring; (2) City requires every new police officer to graduate from a police academy and possess a California Peace Officer Standards and Training certificate; (3) City conducts continuous training of its police officer in the areas of search and seizure, use of force, arrest, and protection of the rights of the accused; (4) City continuously monitors and supervises performance of its police officers and has a procedure to review citizen's complaints. Chief Eisenbrey also declared that he was not aware of any information concerning Officer Pipersky's propensity to fabricate evidence and abuse authority, because his personnel file contained no citizen complaints or criticism of performance.
        Plaintiff opposed summary judgment via the following evidence: (1) Officer Pipersky's deposition testimony that he received no formal training in investigation of sex crimes, and (2) Officer Pipersky's testimony during the hearing on the admissibility of the photo lineup that he did not receive training at the police academy on how to conduct photo lineups. In order to demonstrate City and County's awareness of Officer Pipersky's propensity to fabricate evidence and abuse authority, plaintiff also presented evidence that Officer Pipersky was sued in 1995 for false imprisonment, omission of statutory duty, and intentional and negligent infliction of emotional distress.
        "California case law recognizes the theory that an employer can be liable to a third person for negligently hiring, supervising, or retaining an unfit employee. [Citation.] Liability is based upon the facts that the employer knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes. [Citation.]" (Doe v. Capital Cities (1996) 50 Cal.App.4th 1038, 1054.) In order to be liable under this theory, an employer needs to be aware of the specific danger to others posed by the employee. (Id. at pp. 1054-1055 [allegation that the employer was aware of an employee's drug habit was not sufficient to establish the employer's liability for negligent hiring, supervision, or retention of an employee who drugged and sexually assaulted a customer], accord, Mendoza v. City of Los Angeles (1998) 66 Cal.App.4th 1333, 1339.)
        We conclude that plaintiff's opposition failed to create a triable issue of material fact with respect to the negligent hiring and retention claim. In our view, plaintiff presented absolutely no evidence that City and County had negligent hiring practices. The only evidence of City and County's awareness of Officer Pipersky's alleged propensity to fabricate evidence and abuse authority presented by plaintiff was the complaint filed against Officer Pipersky and City in 1995. However, this evidence is insufficient to demonstrate City and County's negligence in hiring for two reasons. One, assuming that the allegations in the 1995 complaint are true, Officer Pipersky stopped the plaintiff while he was trying to drive his wife to the hospital for emergency medical care, detained him for an unreasonable period of time in order to write him a ticket, and may have delayed the plaintiff's wife's access to medical care. ⁸ Since the lawsuit contained no allegation that Officer Pipersky fabricated evidence, it would not have put City and County on notice that Officer Pipersky had any propensity for fabrication of evidence. (Doe v. Capital Cities, supra, 50 Cal.App.4th at pp. 1054-1055; Mendoza v. City of Los Angeles, supra, 66 Cal.App.4th at p. 1339.) Two, the events described in the 1995 complaint occurred in August 1994, and the complaint was not filed until at least March 23, 1995, i.e., about 15 months after plaintiff was arrested by Officer Pipersky. So even if the 1995 lawsuit against Officer Pipersky contained allegations of fabrication of evidence, it would not constitute evidence of City and County knowledge about Officer Pipersky's propensities in December 1993.
        With respect to plaintiff's failure-to-train claim, the essence of this claim was that City and County's negligent training and supervision of Officer Pipersky resulted in Officer's Pipersky fabrication of evidence. Since plaintiff presented no evidence that Officer Pipersky intentionally fabricated evidence and since, as we concluded above, Officer Pipersky had probable cause to arrest plaintiff, City and County did not breach its duty to train Officer Pipersky.
        Therefore, we conclude that the trial court did not err in granting summary judgment on plaintiff's negligent hiring, retention, training, and supervision claim.

D. Section 1983 Claim
        Finally, with respect to the section 1983 claim, it is once again predicated upon the notion that Officer Pipersky lacked probable cause to arrest plaintiff. It is well settled that where the arresting officer has probable cause to make a warrantless arrest of the plaintiff, as a matter of law, the officer enjoys qualified immunity from section 1983 claims based upon violation of the plaintiff's Fourth Amendment right to be free from unreasonable seizures. (Fuller v. Jewelry (9th Cir. 1991) 950 F.2d 1437, 1443-1445; accord, Tachiquin v. Stowell (E.D. Cal. 1992) 789 F.Supp. 1512, 1520.) Since we conclude there was probable cause to arrest plaintiff, Officer Pipersky is entitled to qualified immunity from suit.
        As for City and County's liability, it is well established that "[l]ocal governments cannot be sued under section 1983 except for injuries resulting from an official policy or custom." (Goehring v. Wright, supra, 858 F.Supp. at p. 996, citing Monell v. Dept. of Social Services of the City of New York (1978) 436 U.S. 658, 691-696.) In his opposition to defendant's motion for summary judgment, plaintiff presented no evidence of the existence of any policy or custom that resulted in violation of his constitutional rights.
        Therefore, the trial court did not err in granting summary judgment on the section 1983 claim.

[End of Part Not Certified for Publication]
DISPOSITION         We are not unsympathetic to plaintiff's situation. He spent four months in jail charged with a serious and heinous crime that he may not have committed.
        However, there are important public policies supporting the laws which preclude imposition of tort liability on defendants in this case. This court has identified these concerns in Amylou R. v. County of Riverside: "The criminal law does not enforce itself; instead, our system of law enforcement depends upon the investigation of crime and the accusation of offenders by properly trained officers. [Citations.] The impartiality of that system requires that, when exercising that responsibility, the officers are free to act in the exercise of honest judgment uninfluenced by fear of consequences personal to themselves. [Citation.] To eliminate that fear of litigation and to prevent the officers from being harassed in the performance of their duties, law enforcement officers are granted immunity from civil liability, even for the malicious abuse of their power. [Citation.] [I]n the end, [it is] better to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation. [Citations.]" (Amylou R. v. County of Riverside, supra, 28 Cal.App.4th, at pp. 1212-1213, internal quotation marks omitted.) This court can only hope plaintiff can find some solace in the fact that the system of justice worked, albeit with a delay, and he regained his freedom.
        The judgment is affirmed.


We concur:
        RAMIREZ,         P.J.
        RICHLI, J.



        Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of part II.
¹          Plaintiff's opening brief on appeal did not address his claims of negligent and intentional infliction of emotional distress and defamation. Thus, we consider these claims to be waived.
²          The Ninth Circuit has just reaffirmed Haupt v. Dillard in Morley v. Walker (9th Cir. 1999) __ F.3d __, 1999 WL 261555, at pp. 4-5.) Moreover, the Ninth Circuit's approach is consistent with the decisions from the Sixth and Seventh Circuits. (See e.g., Coogan v. City of Wixom (6th Cir. 1987) 820 F.2d 170, 174-175; Guenther v. City of Holmgreen (7th Cir. 1984) 738 F.2d 879, 889.)
³          Penal Code section 847 provides, in pertinent part: ". . . There shall be no civil liability on the part of and no cause of action shall arise against any peace officer, acting within the scope of his authority, for false arrest or false imprisonment arising out of any arrest when: [¶] (a) Such arrest was lawful or when such peace officer, at the time of such arrest, had reasonable cause to believe such arrest was lawful; or [¶] (b) When such arrest was made pursuant to a charge made, upon reasonable cause, of the commission of a felony by the person to be arrested . . ."
⁴          Unless otherwise stated, all further statutory references are to the Government Code.
⁵          Even though the issue of applicability of immunity under sections 815.2, subd. (b) and 821.6 was not raised on summary judgment, it is well-settled that we affirm the trial court's order, not its reasoning, and can affirm on any grounds apparent from the record. (Scott v. City of Del Mar (1997) 58 Cal.App.4th 1296, 1305.)
⁶          Section 815.2, subdivision (b) provides as follows: "Except as otherwise provided by statute, a public entity is not liable for an injury resulting from an act or omission of an employee of the public entity where the employee is immune from liability."
⁷          Section 821.6 provides as follows: "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."
⁸          The complaint admits that Officer Pipersky ultimately called the paramedics.




Pursuant to California Rules of Court, rules 976(b) and 976.1, this opinion is certified for publication with the exception of part II.