Filed 9/30/13 Babb v. Hall CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


JAMES BABB,
         Plaintiff and Appellant,
v.                                                                   A136886
KIM HALL et al.,
                                                                     (Solano County
         Defendants and Respondents.                                 Super. Ct. No. FCS039502)

         Plaintiff James Babb, a state-prison inmate, alleges that Kim Hall, Sam Martin,
and Janet Alcantara (collectively referred to as defendants) caused a false rules violation
report to be filed against him in order to get him placed in administrative segregation and
fired from his job at the prison bookbindery. He further alleges that Alcantara retaliated
against him for filing an administrative grievance regarding the false report.
         Plaintiff filed this lawsuit, alleging that defendants violated his due process rights
and committed various tortious acts against him, including false imprisonment, abuse of
process, malicious prosecution, intentional and negligent infliction of emotional distress,
defamation, and negligence. The defendants demurred to these claims. The trial court
sustained the demurrer without leave to amend and plaintiff appealed the resulting
judgment.
         We conclude plaintiff‟s allegations do not state a cause of action because
defendants are entitled to statutory immunity as to all claims except the one for false
imprisonment. The false imprisonment claim also fails because lawfully incarcerated
prison inmates have no legal grounds on which to state such a claim. We therefore affirm
the judgment.
                                           FACTS
       Because we are reviewing an order sustaining a demurrer, we are required to
accept as true the allegations of fact set forth in plaintiff‟s complaint. (City of Dinuba v.
County of Tulare (2007) 41 Cal.4th 859, 865 (City of Dinuba).) Therefore, the facts set
forth in this opinion are taken from the allegations in plaintiff‟s pleading.
       Plaintiff, an inmate incarcerated at California State Prison, Solano (CSP Solano),
had worked in the prison‟s bookbindery for 20 years. At the time relevant to this lawsuit,
he was the lead operating inmate. Defendants are employees of the Prison Industry
Authority (PIA), a public entity within the California Department of Corrections and
Rehabilitation that operates the CSP Solano bookbindery. Hall and Martin worked there
as supervisors. Alcantara was an assistant superintendant.
       Plaintiff came to believe that defendants no longer wanted him to work at the
bookbindery. As a result, in the months leading to February 2011, he refused to teach
them what he knew about the facility‟s machines. He also declined their requests to put
particular inmates on certain machines because he believed defendants were trying to
“ „set up‟ ” the other inmates to get them removed from their work assignments. He
began taking notes at work to record his observations of defendants‟ actions.
       On February 2, 2011, a wrench that plaintiff had been using went missing. When
plaintiff reported the missing tool, Alcantara called for security and requested that
plaintiff be placed in administrative segregation. Inmates who lose tools generally forfeit
their jobs and are placed in administrative segregation. The correctional officer who
responded to Alcantara‟s call instead insisted that the wrench be found. The tool was
eventually found in a trash can near Hall‟s desk. As a result, plaintiff was not placed in
administrative segregation.
       Two days later, Hall and Martin noticed plaintiff was taking notes at work and
demanded to see what he was writing. He refused to show them his notes, and began
tearing up the paper and putting it in his mouth. Martin went to call for security while

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Hall continued to demand that plaintiff give him the pieces of paper. Plaintiff refused
and walked quickly past Hall toward the exit of the bookbindery. Shortly thereafter,
correctional officers arrived and escorted plaintiff back to his cell. They returned to
discuss the incident with Hall and Martin. Hall informed the officers that plaintiff had
physically bumped into him while walking out of the facility. As a result, plaintiff
received a rules violation report for battery and was placed in administrative segregation
pending a review and hearing. Hall subsequently told the investigating officers that he
did not believe plaintiff intended to assault him. After a hearing, the rules violation
report was dismissed and plaintiff was released from administrative segregation.
       Plaintiff submitted an administrative grievance regarding Hall‟s false accusations
and requested to be reinstated to his position at the bookbindery. Alcantara approached
plaintiff and said that he could have his job back on the condition that he withdraw his
grievance. Plaintiff refused. He was never reinstated to his position.
                                     PROCEEDINGS
       On March 13, 2012, plaintiff filed a complaint alleging nine causes of action.
Against Hall and Martin, plaintiff‟s claims included violation of due process rights under
Civil Code 52.1, subdivision (b), false imprisonment, abuse of process, malicious
prosecution, intentional and negligent infliction of emotional distress, defamation, and
negligence.1 Against Alcantara, plaintiff asserted claims for violation of due process
rights and retaliation, along with intentional and negligent infliction of emotional distress,
and negligence.
       On June 11, 2012, defendants filed a demurrer to the complaint.
       On August 22, 2012, the trial court filed an order sustaining defendants‟ demurrer
without leave to amend. The court found defendants were immune from liability under
Government Code section 821.6 as to all causes of action except false imprisonment. As
to that claim, the court ruled that an inmate who is moved to administrative segregation


       1
        On appeal, plaintiff does not challenge the trial court‟s determination as to the
abuse of process claim.

                                              3
cannot maintain a claim for false imprisonment. Judgment was entered in favor of
defendants. This appeal followed.
                                        DISCUSSION
I. Standard of Review Applicable to Demurrer
       Our standard of review of an order sustaining a demurrer on the ground that the
complaint fails to state facts sufficient to constitute a cause of action is well settled. We
independently review the ruling on demurrer and determine de novo whether the
complaint alleges facts sufficient to state a cause of action. (McCall v. PacifiCare of
Cal., Inc. (2001) 25 Cal.4th 412, 415.) When conducting this de novo review, “[w]e give
the complaint a reasonable interpretation, reading it as a whole and its parts in their
context. [Citation.] Further, we treat the demurrer as admitting all material facts
properly pleaded, but do not assume the truth of contentions, deductions or conclusions
of law.” (City of Dinuba, supra, 41 Cal.4th at p. 865.)
       When a demurrer is properly sustained on the ground that the complaint fails to
state facts sufficient to constitute a cause of action, and leave to amend is denied, “we
decide whether there is a reasonable possibility that the defect can be cured by
amendment: if it can be, the trial court has abused its discretion and we reverse; if not,
there has been no abuse of discretion and we affirm. [Citations.] The burden of proving
such reasonable possibility is squarely on the plaintiff.” (Blank v. Kirwan (1985)
39 Cal.3d 311, 318.)
II. Immunity Under Government Code Section 821.62
       As stated above, the gravamen of the complaint is that defendants wrongly
initiated the disciplinary action against plaintiff. On appeal, plaintiff asserts the trial
court erred in sustaining the demurrer because section 821.6 does not apply to public
employees who knowingly file false charges. Defendants claim they are statutorily




       2
        All further statutory references are to the Government Code except as otherwise
indicated.

                                               4
immune from liability against every cause of action except the one for false
imprisonment.
       With the exception of the false imprisonment claim, the demurrer was based on
the immunity of section 821.6, which provides: “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.” “The immunity conferred by section 821.6 is not limited to peace officers and
prosecutors but has been extended to public school officials [citation], heads of
administrative departments [citation], social workers [citation], county coroners
[citation], and members of county boards of supervisors [citation].” (Tur v. City of Los
Angeles (1996) 51 Cal.App.4th 897, 901 (Tur).) The immunity “extends to actions taken
in preparation for formal proceedings” (Amylou R. v. County of Riverside (1994)
28 Cal.App.4th 1205, 1209–1210 (Amylou R.)) and “encompasses conduct during an
ongoing prosecution” (Randle v. City and County of San Francisco (1986)
186 Cal.App.3d 449, 456 (Randle)). As stated in Baughman v. State of California (1995)
38 Cal.App.4th 182, 192 (Baughman), “[o]fficers must be free to use their honest
judgment uninfluenced by fear of litigation or harassment of themselves in the
performance of their duties.”
       A. Scope of Employment
       Plaintiff first claims Hall was not acting within the scope of his employment when
he allegedly knowingly filed false charges against him. He asserts Hall “acted with an
impermissible purpose and sought personal gain from his conduct.” However, plaintiff
does not suggest that Hall‟s conduct was connected to anything other than the workplace
setting. In particular, there is no suggestion that Hall or any of the other defendants
sought to secure any private gain from their actions.
       Section 821.6 immunity applies only to conduct within the scope of employment.
An employee is acting in the course and scope of his employment when he is engaged in
work he was employed to perform, or when the act is incident to his duty and is
performed for the benefit of his employer, not to serve his own purposes or convenience.

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(Mazzola v. Feinstein (1984) 154 Cal.App.3d 305, 311.) Scope of employment is
ordinarily a question of fact for the jury (Mary M. v City of Los Angeles (1991) 54 Cal.3d
202, 221), but where only one reasonable inference can be drawn we may decide the
question as a matter of law (Fowler v. Howell (1996) 42 Cal.App.4th 1746, 1751).
       Plaintiff claims the defendants acted not for the benefit of their employer, but
instead acted to “satisfy their own goal” of having him removed from the bookbindery.
The only reasonable inference to be drawn from these allegations is that the conduct was
incident to defendants‟ duties as employees of the PIA, and was not for their own private
purposes. Whether their duties were carried out negligently, maliciously, or without
probable cause, they were within the scope of employment for purposes of section 821.6.3
(Baughman, supra, 38 Cal.App.4th at p. 192.)
       We also agree with defendants that section 821.6 applies to Alcantara‟s alleged
retaliation against plaintiff in refusing to return him to his job unless he dropped his
grievance. Further, to the extent he claims violations of his constitutional rights under
Civil Code section 52.1, we note that section does not prevail over the Government Code
section 821.6 immunity. (See County of Los Angeles v. Superior Court (2009)
181 Cal.App.4th 218, 231.)
       B. Section 822.2 Does Not Apply
       Plaintiff contends even if Hall was acting within the scope of his employment, he
is still liable for the act of knowingly filing false charges, per section 822.2.



       3
          In Randle, supra, 186 Cal.App.3d 449, the plaintiff charged the public employees
with suppression of evidence in a criminal case. The court held recovery of damages was
precluded by the immunity provisions of section 821.6. (Randle, at p. 455.) It stated:
“That the complaint alleges improper conduct regarding the evidence does not alter the
fact that the acts alleged fall within the scope of employment. [Citation.] To hold
otherwise would mean that an impropriety which provides a basis for liability would also
provide a basis for vitiating immunity from such liability, thus making a mockery of
section 821.6.” (Id. at p. 457.) As defendants note, the immunity “would be meaningless
if a plaintiff could defeat its application merely by alleging an improper purpose; most
actions for malicious prosecution likely include such allegations.”

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That section provides that a public employee is immune for negligent and intentional
misrepresentation, “unless he is guilty of actual fraud, corruption or actual malice.” This
exception applies only if a plaintiff also alleges facts showing in a nonconclusory fashion
that a public employee is motivated by “ „ “corruption or actual malice, i.e., a conscious
intent to deceive, vex, annoy or harm the injured party.” ‟ ” (Curcini v. County of
Alameda (2008) 164 Cal.App.4th 629, 649 (Curcini).)
       In Curcini, the court reviewed allegations that misrepresentations made during the
bid process for awarding a public contract were made “ „for corrupt purposes and/or with
malice towards plaintiffs and their interests‟ and that defendants‟ conduct „was intended
. . . to cause injury to plaintiffs or constituted despicable conduct which was carried on by
defendants, and each of them, with a willful and conscious disregard of the rights of
plaintiffs.‟ ” (Curcini, supra, 164 Cal.App.4th at p. 650.) The court held the allegations
to be conclusory. (Ibid.) Similarly, here plaintiff alleges in a conclusory fashion that
Hall acted with actual malice “since he filed false charges against Plaintiff knowing full
well that the charges were false, solely in an attempt to have Plaintiff removed from his
position in the bookbindery.” In particular, he does not state any facts to support his
conclusion that Hall‟s actions were motivated by a desire to have plaintiff removed from
his job. He merely surmises that this must have been Hall‟s motivation. Conclusory
allegations are insufficient to survive demurrer. (Curcini, at p. 650; Masters v. San
Bernardino County Employees Retirement Assn. (1995) 32 Cal.App.4th 30, 42.)
       Accordingly, as all of the acts complained of arise out of the defendants‟ actions
surrounding the filing of the rule violation report, the immunity set forth in section 821.6
applies to all of plaintiff‟s causes of actions against all of the defendants, with the
exception of his claim for false imprisonment. (See Paterson v. City of Los Angeles
(2009) 174 Cal.App.4th 1393, 1405 [for purposes of this immunity provision,
investigations are deemed to be part of judicial and administrative proceedings];
Cappuccio, Inc. v. Harmon (1989) 208 Cal.App.3d 1496, 1500 [the test of immunity is
not the timing of the act but whether there is a causal relationship between the act and the
prosecution process].) The immunity thus applies to his claims for malicious prosecution

                                               7
(Tur, supra, 51 Cal.App.4th at p. 901), intentional and negligent infliction of emotional
distress (Amylou R., supra, 28 Cal.App.4th at pp. 1208–1209), defamation (Kayfetz v.
State of California (1984) 156 Cal.App.3d 491, 499), negligence (Strong v. State of
California (2011) 201 Cal.App.4th 1439, 1461), and violation of due process (Ingram v.
Flippo (1999) 74 Cal.App.4th 1280, 1291–1293). These claims are precluded by
section 821.6 immunity, and there is no reasonable possibility that the defect can be cured
by amendment.
III. The False Imprisonment Claim Fails
       As to the false imprisonment claim, section 820.4 states: “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
imprisonment.” To state a claim for false imprisonment, a plaintiff must allege he was
restrained by another, and that the restraint was completely unlawful and without
authority. (See Collins v. County of Los Angeles (1966) 241 Cal.App.2d 451.) As there
is no dispute as to whether plaintiff is legally incarcerated, we conclude he cannot sustain
a false imprisonment claim, even if he was wrongfully housed in administrative
segregation for a period of time.
       Courts in other jurisdictions have held that legally incarcerated inmates cannot
demonstrate they have been illegally detained simply because they have been placed in a
segregated unit, and such circumstances do not give rise to a false imprisonment claim.
(See, e.g., Estate of Claude Brooks v. United States (9th Cir. 1999) 197 F.3d 1245, 1248–
1249; Clark v. Michigan Dept. of Corrections (E.D.Mich. 1982) 555 F.Supp. 512; Burton
v. Scribner (E.D.Cal., Dec. 21, 2006, No. CV F 05 1287 OWW SMS P) 2006 U.S.Dist.
Lexis 92407; Wilson v. Stolman (E.D.Cal., Apr. 11, 2006, No. 1:05-CV-00226-OWW-
SMS-P) 2006 U.S.Dist. Lexis 18617; McLaurin v. Rubenstein (S.D.W.Va., Feb. 21,




                                             8
2012, No. 2:11-cv-00090) 2012 U.S.Dist. Lexis 38437.)4 We concur with these decisions
and hold that plaintiff has not stated a viable cause of action for false imprisonment.
       In sum, the trial court properly sustained the demurrer to the complaint without
leave to amend.5
                                      DISPOSITION
       The judgment is affirmed.




                                                 __________________________________
                                                 Dondero, Acting P. J.


We concur:


__________________________________
Banke, J.

__________________________________
Sepulveda, J.*




* Retired Associate Justice of the Court of Appeal, First Appellate District, Division
Four, assigned by the Chief Justice pursuant to article VI, section 6 of the California
Constitution.


       4
        Although not binding, nonpublished federal district court cases are citable as
persuasive authority. (See Olinick v. BMG Entertainment (2006) 138 Cal.App.4th 1286,
1301, fn. 11.)
       In light of our conclusions, we need not address the parties‟ remaining
       5

arguments.

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