Majority
Opinion
This is an appeal from a judgment dismissing plaintiff Gary Du Lac’s cause of action for false imprisonment after the court sustained, without leave to amend, a demurrer to the first cause of action of the second amended complaint.
The complaint alleged the following facts concerning plaintiff’s action. William and Susan Du Lac own Encore Designs (hereinafter Encore), a business engaged in printing designs and slogans on T-shirts. Gary Du Lac is employed at Encore.
Defendant Perma Trans Products, Inc. (hereinafter Perma Trans) is also engaged in the business of printing designs and slogans on T-shirts and is a business competitor of Encore. Perma Trans also sells T-shirts and other supplies to businesses engaged in printing designs and slogans on T-shirts. Defendant Farouk Gizatullin (hereinafter Farouk) is “operations manager” of Perma Trans and was at all times pertinent acting within the course and scope of his duties at Perma Trans. Further, all of Farouk’s described acts were authorized or later ratified by Perma Trans.
On December 7, 1977, plaintiff was arrested by a Los Angeles police officer at the Encore premises in North Hollywood. He was “accused of violating Penal Code Section 487.1.” The arrest was made without a warrant.
Plaintiff then alleges defendants’ relationship to the arrest as follows: “Plaintiff's are informed and believe and based upon such information and belief allege that said arrest by the offices [szc-oificers] of the Los Angeles Police Department was based on accusations made by the defendants .... Said accusations... were false and plaintiffs are informed and believe and based upon such information and belief allege that at the time of the making of the accusations, defendants... knew that said accusations which they were making to the [police] were false....”
The remaining allegations relate to plaintiff’s damages, and will be discussed, infra.
1 Hereinafter, unless otherwise indicated, the first cause of action in the complaint (which deals exclusively with plaintiff’s claim) will be referred to as “the complaint.”
Discussion
Defendants’ primary contention in support of the court’s order sustaining the demurrer is that the complaint fails to allege facts sufficient to state a cause of action.
Allegation of the Requisite Act
They assert that plaintiff has failed to allege facts showing any tortious conduct by defendants. They note that the purported tortious act was the making of “an accusation” to police. It was the police—not defendants—who decided to make the arrest. They urge that under California law, liability for false imprisonment cannot be predicated upon the act of a citizen giving information to police. We reject defendants’ statement of the law; nevertheless, we conclude that plaintiff has failed to adequately plead acts on defendants’ part sufficient to state a cause of action for false imprisonment.
As this court recently restated in Ramsden v. Western Union (1977) 71 Cal.App.3d 873 [ 138 Cal.Rptr. 426 ], “[t]he fact that the arrest was made by Los Angeles police officers and not directly by defendants does not render them immune, because a party who ‘authorizes, encourages, directs or assists an officer to do an unlawful act, or procures an unlawful arrest, without process, or participates in the unlawful arrest or imprisonment, is liable.’ [Citations.]” (Id. at p. 880.)
Defendants urge that the only tortious act alleged was the making of an accusation to police and they point to the settled rule that “[a] private person does not become liable for false imprisonment when in good faith he gives information—even mistaken information—to the proper authorities though such information may be the principal cause of plaintiff’s imprisonment.” (Italics added. Peterson v. Robison (1954) 43 Cal.2d 690 , 695 [ 277 P.2d 19 ]; Gogue v. MacDonald (1950) 35 Cal.2d 482 , 487 [ 218 P.2d 542 , 21 A.L.R.2d 639 ]; Miller v. Fano (1901) 134 Cal. 103 , 106 [ 66 P. 183 ].) The reason for this rule is the social policy which seeks to encourage persons to report criminal activity to the authorities “without fear of civil reprisal for an honest mistake....”
None of the cases cited by defendants involved informants who knowingly gave police false inculpatory information. Indeed the cases denying liability emphasize the informant’s good faith. For example, in Miller v. Fano, supra, 134 Cal. 103 , defendant was in the business of buying and selling railroad tickets. Someone sold defendant a stolen ticket; defendant subsequently identified the wrong man to the police. The court held that defendant could not be liable for the mistaken identification where the evidence showed that defendant “certainly believed plaintiff to be a man who had sold him a railroad ticket.” (Id. at p. 106.) Nevertheless, the court noted as follows: “No doubt, if a person should wilfully identify the wrong man as being the criminal, for the purpose of having him arrested and prosecuted, and on such identification he should be arrested, such person would aid and assist in the arrest.” (Id. at p. 107.) In Gogue v. MacDonald, supra, 35 Cal.2d 482 , the complaint alleged that defendant had reported certain facts to a justice of the peace: that plaintiff had left defendant’s cottage without paying rent due. The justice of the peace issued a warrant for plaintiffs arrest, although the facts defendant reported did not constitute any criminal offense. In holding that the plaintiff’s complaint failed to state a cause of action the court emphasized that “[t]here is no allegation of bad faith, such as wilful falsity or malice, in the defendant’s statement of the facts to the justice of the peace.” ( 35 Cal.2d 482 , 484.) In short, the informants’ good faith and honesty was a key fact in immunizing them for liability. In our view, a different rule controls when an arrest occurs because the defendant knowingly gave the police false or materially incomplete information, of a character that could be expected to stimulate an arrest. Such conduct instigates, encourages, and invites the arrest that follows; hence, such conduct can be a basis for imposing liability for false imprisonment. (Accord, Pearson v. Galvin (1969) 253 Ore. 331 [ 454 P.2d 638 ]; Jensen v. Barnett (1965) 178 Neb. 429 [ 134 N.W.2d 53 ]; Wehrman v. Liberty Petroleum Co. (Mo.App. 1964) [ 382 S.W.2d 56 ].)
In the present complaint, plaintiff does allege that defendants knowingly made “false accusations” to police which formed the basis of his arrest without a warrant; nevertheless, he failed either to allege or to show facts demonstrating that these “accusations” were of a character
Allegations Showing Intent
Defendants also assert that the allegations failed to state that defendants intended to instigate the arrest of plaintiff. They point out that the allegations do not disclose specifically who the “false accusation” was aimed at. Again defendants have incorrectly interpreted the law; yet we agree that plaintiff failed to allege the essential fact of intent.
To constitute liability for false imprisonment, defendants’ false statements knowingly made to police must have been made with the intent to induce an arrest. “[T]he actor is not liable unless his act is done for the purpose of imposing confinement upon the other, or with knowledge that such a confinement will, to a substantial certainty, result from it. It is not enough that the actor realizes or should realize that his actions involve a risk of causing a confinement, so long as the likelihood that it will do so falls short of a substantial certainty.” (Rest.2d Torts, § 35, com. h; Prosser, Torts (4th ed. 1971) § 11, p. 48, 1 Harper & James, Law of Torts (1956) § 3.7, fn. 15.)
In a complaint alleging a cause of action for false imprisonment based upon an unlawful arrest, it is frequently unnecessary to expressly refer to the fact of “intent”; an allegation that A arrested B necessarily
2 Such an allegation is also necessary to show proximate causation. Cause in fact was adequately pled: plaintiff alleged that the police “based” the arrest upon the false accusation. Such allegation was nevertheless insufficient to show that police reliance on the defendants’ accusation was a normal incident of the risk created by the accusation.
We do point out, however, that, contrary to the view expressed by defendants, plaintiff was not required to allege that defendants knew plaintiff and specifically acted with the intent to have him arrested. The doctrine of transferred intent has long been recognized to apply to the tort of false imprisonment. (Prosser, Torts (4th ed. 1971) § 11, p. 48; 1 Harper & James, Law of Torts (1956) § 3.7, p. 228; Rest.2d Torts, § 43.) Under this doctrine the intention to confine any person is a sufficient intent to render one liable to the person actually confined. It is immaterial that the actor did not know the identity of the person he intended to confine; nor does it matter that the actor intended to affect some person other than the one actually confined. (Id.) Thus an allegation that defendant intended to induce an arrest of someone would have been sufficient.
Allegation of an Unlawful Confinement
Defendants next assert that plaintiff failed to plead facts showing that the arrest of plaintiff was unlawful. He urges that plaintiff’s allegation that the arrest was without warrant was insufficient, because it failed to negate the various situations in which an arrest without warrant is privileged. For purposes of pleading, it is sufficient that plaintiff alleges arrest without a warrant; plaintiff need not anticipate and negate all of the facts under which the warrantless arrest would be lawful. (Monk v. Ehret (1923) 192 Cal. 186 , 189 [ 219 P. 452 ]; Kaufman v. Brown (1949) 93 Cal.App.2d 508 , 511 [ 209 P.2d 156 ]; Collins v. Owens (1947) 77 Cal.App.2d 713 , 715 [ 176 P.2d 372 ].)
Allegation of Damages
Defendants also assert that plaintiff failed to plead facts sufficient to show that he was entitled to exemplary damages or attorney’s
The Sustaining of the Demurrer Without Leave to Amend
Plaintiff claims that notwithstanding any defects found to exist in the complaint, the trial court abused its discretion when it sustained the demurrer without granting plaintiff leave to amend. Plaintiff points out that no previous demurrer has been sustained as to his cause of action. Defendants demurred to both the original and the first amended complaint. Yet, plaintiff apparently amended the original and first amended complaint without the trial court having ruled on either demurrer. Only as to the second amended complaint was a demurrer to plaintiffs cause of action ruled on and sustained.
There is one additional wrinkle. Defendants allege in their brief that plaintiff was informed by the court of its intent to sustain the demurrer and grant leave to amend. Plaintiff is said to have stated that he preferred an appealable order.
The record before us sheds no light on either of these two circumstances. At argument, a stipulation as to what occurred was sought but to no avail. In light of the conflict of understanding and recollection, we feel constrained to say that plaintiff was entitled to an opportunity to amend his complaint, if he can, to supply the deficiencies of pleading ruled upon but once by the trial court.
3 Appellant’s brief does not argue nor specifically attempt to show that his complaint alleged any cause of action other than false imprisonment. We have therefore examined plaintiff’s allegations only insofar as they purport to state a cause of action for false imprisonment. (6 Witkin, Cal. Procedure (2d ed. 1971) Appeal, § 425, pp. 4391-4392.)
Reversed with directions.
Kaus, P. J., and Ashby, J., concurred.
Cases cited
- Peterson v. Robison 43 Cal.2d 690 at 695 p. 941
- Gogue v. MacDonald 35 Cal.2d 482 at 487, at 484 p. 941, p. 942
- Miller v. Fano 134 Cal. 103 at 106 p. 941, p. 942
- Turner v. Mellon 41 Cal.2d 45 at 48 p. 942
- Hughes v. Oreb 36 Cal.2d 854 at 859 p. 943
- Monk v. Ehret 192 Cal. 186 at 189 p. 944
- Kaufman v. Brown 93 Cal.App.2d 508 at 511 p. 944
- Collins v. Owens 77 Cal.App.2d 713 at 715 p. 944
- McDonell v. American Trust Co. 130 Cal.App.2d 296 at 301-302 p. 945