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District Court of Appeal, Second District, Division 2, California.


Civ. 17767.

Decided: October 16, 1950

Joseph K. Coady, Bellflower, for appellant. Fred N. Howser, Attorney General, Bayard Rhone, Norman Sokolow, Deputy Attorneys General, for respondent.

This is an action for malicious prosecution. Plaintiff has appealed from the judgment following an order sustaining defendant's demurrer to the complaint without leave to amend.

Plaintiff assigns as error several ‘holdings' made by the trial judge in his written opinion ordering the sustaining of the demurrer. While the opinion is a part of the record on appeal, Rules 5(a) and 5(b), Rules on Appeal, 22 Cal.2d 4, it is not a decision of the case but merely states the reasons for the decision. The only question to be determined by the reviewing court is whether the trial court reached the proper legal conclusion. We therefore shall consider whether the court was correct in sustaining the demurrer and not the statements contained in the opinion to which plaintiff has taken exception.

It is alleged in the complaint that on October 5, 1948, defendant filed in the Municipal Court of Long Beach a complaint charging plaintiff with a violation of section 481 of the Fish and Game Code of California in that he deposited into the waters of the state of California certain petroleum, deleterious to fish and plant life; plaintiff was tried on October 28, 1948, and the charge was dismissed; about April 29, 1949, defendant swore to an affidavit which was filed in the District Court of the United States for the Southern District of California alleging that plaintiff discharged into the navigable waters of the United States approximately 4,000 barrels of petroleum oil in violation of section 407 of Title 33 U.S.C.A.; on July 19, 1949, plaintiff was tried and discharged and the information was dismissed.

The complaint contains the usual allegations in such a case—the institution of criminal proceedings against plaintiff, final determination in his favor, malice and want of probable cause. In addition there is attached to the complaint as an exhibit a copy of defendant's affidavit filed in the United States District Court which resulted in plaintiff's prosecution in that court. In such affidavit it is set forth that defendant was an investigator employed by the California Division of Fish and Game when he filed the affidavit and put in motion plaintiff's arrest and prosecution.

Defendant maintains that by reason of his official position he is immune from civil liability for damages while plaintiff contends that defendant's position as investigator did not place him sufficiently high in the official scale to entitle him to immunity. The pollution of waters along the shores of the state is a matter of concern to the Fish and Game Commission. It is one of the duties of the commission to see that such waters are not defiled by the introduction therein of any substance deleterious to fish and plant life. It is the duty of the commission to prosecute under state or federal statute, or both, whenever a violation comes to its notice or is observed by any of its employees. One of the obligations of an investigator employed by the commission is to make observation and inquiry as to whether the littoral waters have been polluted by the discharge therein of any forbidden materials. Upon the ascertainment of facts warranting a prosecution for such pollution it is his legal duty to apprehend the person responsible for the offense, to assemble evidence upon which prosecution of the perpetrator of the unlawful act may be brought to justice, and to initiate proceedings in the proper court therefor.

The division of Fish and Game in the Department of Natural Resources is administered through the Fish and Game Commission provided for by section 25 1/212 of article IV of the Constitution. Fish and Game Code, secs. 10 and 13. Without merit is plaintiff's contention that section 21 of that code, which provides that ‘all deputies' are public officers and have the power and authority of peace officers, excludes defendant from immunity for civil damages, because he was not a deputy. Section 20 authorizes the commission to employ such deputies, clerks, assistants ‘and other employees' as they may need to discharge the duties imposed by law upon the commission. Defendant as one of the ‘other employees' was acting on behalf of the commission when he filed the criminal complaints against plaintiff for the enforcement of the provisions of the law.

Even though defendant was not a deputy immunity was extended to him since as an investigator he was a public servant acting in his official capacity and within the scope of his jurisdiction and exercising judgment and discretion in the discharge of his duties. White v. Brinkman, 23 Cal.App.2d 307, 317, 73 P.2d 254; Norton v. Hoffmann, 34 Cal.App.2d 189, 199–200, 93 P.2d 250. Plaintiff relies on Prentice v. Bertken, 50 Cal.App.2d 344, 123 P.2d 96, in which the court referred to the immunity granted to certain public officers and stated, 50 Cal.App.2d at page 350, 123 P.2d at page 99, that public policy did not require the doctrine of immunity to be extended to a peace officer. That declaration is dictum since on the following page the court held that in any event the complaint did not state sufficient facts to constitute a cause of action for the reason that it did not clearly appear that the prosecution had been terminated. Since the termination of the prosecution is a necessary element in an action for malicious prosecution the failure so to allege would be fatal to the complaint without regard to the official position occupied by the defendant.

It is the policy of the law that where an officer is acting within the scope of his duties as defined by law he should not be subjected to the harassment of civil litigation or be liable for civil damages because of a mistake of fact occurring in the exercise of his judgment or discretion, or because of an erroneous construction and application of the law. Cooper v. O'Connor, 99 F.2d 135, 138, 69 App.D.C., 100, 118 A.L.R. 1440, and cases cited. As stated in the Cooper case, 99 F.2d at page 142, to hold that only the members of the Fish and Game Commission should be immune would defeat the purpose of the law. The administrative duties of the commission necessarily require that some of such duties shall be delegated to its employees, hence when the act of the employee occurs in the course of the performance of his delegated duty it is the official action of the commission and the same immunity extends to the employee as would be enjoyed by the members of the commission.

Judgment affirmed.

WILSON, Justice.

MOORE, P. J., and McCOMB, J., concur.