Filed 7/2/13
                           CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                            SECOND APPELLATE DISTRICT

                                      DIVISION TWO


FREDDY RODRIGUEZ,                                B241049

        Plaintiff and Appellant,                 (Los Angeles County
                                                 Super. Ct. No. BC446932)
        v.

COUNTY OF LOS ANGELES et al.,

        Defendants and Respondents.




        APPEALS from judgments of the Superior Court of Los Angeles County.
Kenneth R. Freeman, Judge. Affirmed in part and reversed in part.


        Robert Mann and Donald W. Cook for Plaintiff and Appellant.


        Joseph A. Langton, Deputy County Counsel; Manning & Kass, Ellrod, Ramirez,
Trester, LLP and Steven J. Renick for Defendant and Respondent County of
Los Angeles.


        Lynberg & Watkins, S. Frank Harrell and Alexandru D. Mihai for Defendant and
Respondent County of Orange.


                                   _____________________
       Appellant Freddy Rodriguez sued respondents the County of Los Angeles and the
County of Orange (collectively county defendants) as vicariously liable under
Government Code section 815.2 for false imprisonment by sheriff‟s deputies, after he
was held in custody for 11 days pursuant to a bench warrant issued for another person.
Relying on Venegas v. County of Los Angeles (2004) 32 Cal.4th 820 (Venegas), the trial
court found that appellant‟s claims were barred because a sheriff acts as a state agent as a
matter of law in determining whether to hold someone in custody. Because Venegas
dealt with federal claims under the Civil Rights Act (42 U.S.C.A. § 1983) (section 1983),
and we are confronted with a state law claim, we follow Sullivan v. County of Los
Angeles (1974) 12 Cal.3d 710 (Sullivan), which held that a county can be held vicariously
liable for false imprisonment by county employees.
                  FACTUAL AND PROCEDURAL BACKGROUND
The Second Amended Complaint
       The operative second amended complaint (SAC) alleges the following: On
October 23, 2009, around 7:30 p.m., appellant was stopped by police for driving while
talking on a cell phone. He handed over his driver‟s license, which showed his name as
Freddy Pantoja Rodriguez, his registration, and his proof of insurance. After the two
officers held a discussion, appellant was told to step out of his car, and one of the officers
said, “We got you now RAMOS.” Appellant replied that his name was Rodriguez, not
Ramos. One of the officers slammed him against a wall and asked if he had any weapons
or tattoos, to which he replied “no.” The officer then looked under appellant‟s shirt, and
placed him in the patrol car.
       It turns out that more than 20 years earlier, a no-bail bench warrant was issued by
the Orange County Superior Court for the arrest of another man for a parole violation.
The bench warrant stated the name as “RODRIGUEZ Alfredo Ramos.”1
       Appellant was taken to the Los Angeles Police Department. He told the booking
officer his true name, and asked that his fingerprints and photograph be taken. His


1
       Appellant conceded below that the warrant appeared to be facially valid.

                                              2
requests were initially ignored, and he was told there was an outstanding warrant for him
issued by the superior court in Inglewood for his nonappearance on a citation for a dog
leash violation.
       Appellant was finally fingerprinted, photographed, and placed in a cell at the
Los Angeles Police Department. Because October 23, 2009 was a Friday, appellant
remained in custody at the department until Monday, October 26, 2009. On that day, he
was taken to court in Inglewood, where he pled guilty to the dog leash infraction and was
sentenced to time served.
       Appellant was not released, but taken to the Los Angeles County jail, where he
was called by the name of Ramos. He was subjected to physical abuse by jail personnel,
including having apples thrown at him, and forced to paint cells and hallways during the
night, despite having informed jail personnel that he had diabetes and high blood
pressure.
       On October 30, 2009, appellant was transported to the Orange County jail, where
he repeated that he was not the person named in the bench warrant. He was placed in a
gang cell and feared for his life. On November 2, 2009, appellant appeared in court in
Orange County, where it was adjudicated that he was not the person named in the bench
warrant, the case was dismissed, and he was released. Appellant spent a total of 11 days
in custody.
       The SAC names as defendants the City of Los Angeles, three individual
Los Angeles Police Department officers, the County of Los Angeles and the County of
Orange.2 The SAC asserts causes of action for false imprisonment against the county
defendants on the theory that they are vicariously liable for the acts of their employees
under Government Code section 815.2, subdivision (a), because the county jail personnel
“refused” appellant‟s attempts to identify himself, and failed to conduct any investigation
into the matter, such as comparing appellant‟s signature and documents with those of




2
       Only the county defendants are parties to this appeal.

                                             3
Ramos.3 The SAC also asserts claims for assault and battery, negligence, and civil rights
violations.
Responses and Rulings
       The County of Los Angeles filed a demurrer to the SAC, which was sustained
without leave to amend. The County of Orange filed a motion for judgment on the
pleadings on the false imprisonment claim,4 which was granted without leave to amend.
The trial court found that, under Venegas, the California sheriffs were acting as state
officers as a matter of law in determining to hold inmates. The trial court therefore
concluded that the county defendants were immune from liability for false imprisonment
by their sheriffs under Government Code section 815.2, subdivision (b).5 However,
neither of the county defendants‟ sheriffs were sued. Had they been sued under section
1983, they would have received federal immunity. Because the county defendants were
sued vicariously under a state law false imprisonment claim for the actions of their
deputy sheriffs, neither section 1983 nor Venegas is applicable.
       These appeals followed.




3
        Appellant did not sue, nor does the SAC identify, any particular county sheriff or
deputy sheriff. Although not discussed by the parties, we note that the Legislative
Committee Comments to Government Code section 815.2 state: “Under this section, it
will not be necessary in every case to identify the particular employee upon whose act the
liability of the public entity is to be predicated. All that will be necessary will be to show
that some employee of the public entity tortiously inflicted the injury in the scope of his
employment under circumstances where he would be personally liable.” (Sen. Com. on
Judiciary, Rep. on Sen. Bill No. 42 (1963 Reg. Sess.) Sen. J., pp. 1887-1888.)

4
      It appears that the remaining claims against the County of Orange were previously
dismissed by way of demurrer and motion for summary adjudication.
5
       The demurrer by the County of Los Angeles challenged each of the causes of
action alleged against it. Because appellant raises no arguments on appeal as to any
cause of action other than false imprisonment, he has forfeited the right to do so, and we
affirm that part of the judgment sustaining the demurrer without leave to amend as to the
remaining causes of action.

                                              4
                                       DISCUSSION
I. Standard of Review
       We review de novo a trial court‟s sustaining of a demurrer without leave to
amend, exercising our independent judgment as to whether a cause of action has been
stated as a matter of law. (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th
294, 300; Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) We
assume the truth of properly pleaded allegations in the complaint and give the complaint
a reasonable interpretation, reading it as a whole and with all its parts in their context.
(Stop Youth Addiction, Inc. v. Lucky Stores, Inc. (1998) 17 Cal.4th 553, 558; People
ex rel. Lungren v. Superior Court, supra, at p. 300.)
       “„“The motion for judgment on the pleadings performs the function of a general
demurrer. Therefore, it “„admits all material and issuable facts pleaded.”‟ [Citation.]”
[Citation.] . . . The standard of appellate review of a judgment on the pleadings is,
therefore, identical to that on a judgment following the sustaining of a demurrer.
[Citation.]‟ [Citation.]” (Gami v. Mullikin Medical Center (1993) 18 Cal.App.4th 870,
876 (Gami); Kempton v. City of Los Angeles (2008) 165 Cal.App.4th 1344, 1347–1348.)
Where a demurrer is sustained or a motion for judgment on the pleadings is granted,
denial of leave to amend constitutes an abuse of discretion if the pleading does not show
on its face that it is incapable of amendment. (Gami, supra, at p. 877.)
II. Vicarious Liability for County Defendants
       Appellant contends the trial court erred in finding the county defendants immune
from vicarious liability for false imprisonment pursuant to Government Code section
815.2. This section provides in full: “(a) A public entity is liable for injury proximately
caused by an act or omission of an employee of the public entity within the scope of his
employment if the act or omission would, apart from this section, have given rise to a
cause of action against that employee or his personal representative. [¶] (b) Except as
otherwise provided by statute, a public entity is not liable for an injury resulting from an




                                               5
act or omission of an employee of the public entity where the employee is immune from
liability.”6 (Gov. Code, § 815.2.)
       Appellant relies on Sullivan, supra, 12 Cal.3d 710, in which nearly 40 years ago,
our Supreme Court addressed the following question: “[W]hether an individual who is
confined in a county jail beyond his proper jail term may maintain an action for false
imprisonment against the county or whether such a suit is barred by the governmental
immunity provisions of the California Tort Claims Act.” (Id. at p. 713.) The plaintiff‟s
claim for false imprisonment arose after he remained confined in the Los Angeles County
jail for several days after the termination of his sentence. (Ibid.) Our Supreme Court
found that “[n]o immunity provision in the California Tort Claims Act insulates the
county from liability for false imprisonment” (id. at p. 715), and concluded that “if the
county sheriff is liable as a public employee . . . for his alleged failure to release plaintiff
from jail after all charges against him were dismissed, then the county will be
derivatively liable for those acts under [Government Code] section 815.2.” (Id. at p. 717,
fn. omitted.)
       Here, the trial court did not focus on Sullivan, but instead relied on the Supreme
Court case of Venegas to conclude that the county defendants are immune from liability
for false imprisonment. In Venegas, a husband and wife filed claims against the County
of Los Angeles, its sheriff‟s department, sheriff and deputies, and others, under section
1983 for unreasonable detention, search and seizure.7 They also filed a similar claim


6
       A public employee does not have immunity for false imprisonment. (Gov. Code,
§ 820.4 [“A public employee is not liable for his act or omission, exercising due care, in
the execution or enforcement of any law. Nothing in this section exonerates a public
employee from liability for false arrest or false imprisonment”].)
7
       Section 1983 provides in part: “Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of any State or Territory or the District of
Columbia, subjects, or causes to be subjected, any citizen of the United States or other
person within the jurisdiction thereof to the deprivation of any rights, privileges, or
immunities secured by the Constitution and laws, shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for redress, . . .”


                                                6
under Civil Code section 52.1.8 (Venegas, supra, 32 Cal.4th at p. 828.) The issue before
the Supreme Court was: “Does a sheriff act on behalf of the state or county when
conducting a criminal investigation, including detaining suspects and searching their
home and vehicle?” (Id. at p. 826.) After reviewing California constitutional, statutory
and case law, as well as federal case law, the Venegas court held that “sheriffs act on
behalf of the state when performing law enforcement activities,” and therefore, like the
state, are absolutely immune from prosecution for asserted violations of section 1983.
(Venegas, supra, at p. 826.) The court did, however, allow the state law claim under
Civil Code section 52.1 to proceed against the county, its sheriff‟s department and its
sheriff. (Venegas, at pp. 841–843.)
       We agree with appellant that Sullivan, and not Venegas, is controlling here. In
Venegas, the court was addressing the liability of a county under section 1983. Under
this federal claim, local entities and officers sued in their official capacity cannot be held
vicariously liable for their subordinate officers‟ unlawful acts; they can only be held
directly liable for constitutional violations carried out under their own regulations,
policies, customs, or usages by persons having “„final policymaking authority‟” over the
actions at issue. (Venegas, supra, 32 Cal.4th at p. 829.) By contrast, here, appellant
brought a state law claim for false imprisonment, and not a section 1983 claim. This state
law claim can be based on vicarious liability, while a section 1983 claim cannot.
       Moreover, unlike Venegas, appellant never sued the sheriffs of the county
defendants. Nor did appellant allege a section 1983 cause of action. Thus, there was no
need for the trial court to make any determination as to whether the sheriffs were acting
on behalf of the state or county.



8
         Civil Code section 52.1 subdivision (a) allows a lawsuit to be brought “If a person
or persons, whether or not acting under color of law, interferes by threats, intimidation, or
coercion, or attempts to interfere by threats, intimidation, or coercion, with the exercise
or enjoyment by any individual or individuals of rights secured by the Constitution or
laws of the United States, or of the rights secured by the Constitution or laws of this
state. . .”

                                               7
       The Venegas court unanimously held that a county can be liable under state law,
i.e., Civil Code section 52.1, for actions by its sheriff and sheriff‟s department. But this
analysis does not require any determination of whether a sheriff is a state or county agent,
and the court did not engage in such an analysis. Indeed, we note that in the recent case
of Shoyoye v. County of Los Angeles (2012) 203 Cal.App.4th 947, our colleagues in
Division Four upheld a judgment for false imprisonment against the County of
Los Angeles, based on the county sheriff‟s department having wrongly imprisoned the
plaintiff in the mistaken belief that he was subject to a parole hold. (Id. at p. 962.) In
Allison v. County of Ventura (1977) 68 Cal.App.3d 689, 696, Division Four noted that a
plaintiff could pursue a false imprisonment action against a county based on the actions
of its employees. Likewise, in addressing a claim of false imprisonment against a county,
the court in Scannell v. County of Riverside (1984) 152 Cal.App.3d 596 stated: “It
follows that under the concept of respondeat superior, a public employer is responsible
for the tort of false imprisonment by the conduct of a public employee acting within the
course and scope of his employment.” (Id. at p. 605.) Had our Supreme Court in
Venegas intended to reverse nearly 40 years of precedent, we believe it would have done
so explicitly. Thus, Venegas is not inconsistent with Sullivan.




                                              8
                                     DISPOSITION
      The judgment in favor of the County of Orange is reversed. The judgment in
favor of the County of Los Angeles is reversed as to that portion sustaining without leave
to amend the demurrer to the fifth cause of action for false imprisonment against the
County of Los Angeles; in all other respects the judgment in favor of the County of
Los Angeles is affirmed. Rodriguez is entitled to recover his costs on appeal.
      CERTIFIED FOR PUBLICATION.




                                         ______________________________, J.
                                               ASHMANN-GERST


We concur:



_______________________________, P. J.
           BOREN



_______________________________, J.
           CHAVEZ




                                            9
