Reset A A Font size: Print

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

Fidel CERVANTEZ, Plaintiff and Appellant, v. J. C. PENNEY COMPANY, INC., et al., Defendants and Respondents.

Civ. 15614.

Decided: August 21, 1978

Larry L. Curran, Newport Beach, for plaintiff and appellant. Jacobs, Jacobs & Witmer, R. M. Jacobs, and Hugh G. Jacobs, Irvine, for defendants and respondents.


Plaintiff, Fidel Cervantez, appeals from a judgment in favor of defendants, J. C. Penney Company, Inc., and Dennis R. Dahlke, in an action brought by plaintiff to recover damages for personal injuries allegedly sustained as a result of plaintiff's arrest on May 16, 1971. The complaint alleged: (1) false imprisonment, (2) false arrest, (3) malicious prosecution, (4) assault and battery, (5) intentional infliction of emotional distress, and (6) negligence. Following plaintiff's presentation of his case in chief, the trial court granted defendants' motion for nonsuit as to the causes of action for intentional infliction of emotional distress and negligence. The trial resulted in a jury verdict in favor of defendants on the remaining causes of action.


On May 16, 1971, the day of the arrest giving rise to this lawsuit, defendant Dahlke was a full-time peace officer with the City of Orange Police Department and was working as a security officer at the J. C. Penney store in the City of Huntington Beach. At such time there was in effect an agreement executed by the chiefs of police of the cities of Orange County, including the cities of Orange and Huntington Beach, wherein each of the chiefs of police gave consent, pursuant to Penal Code section 830.1, extending the authority of peace officers within their city to any members of the police forces of the signatory police departments.

On the day of the arrest Dahlke first observed plaintiff Cervantez and plaintiff's companion, Alexander Garcia, as they walked from the mall area into the defendant J. C. Penney store in Huntington Beach. Because of plaintiff's mode of dress (open, untucked, long-sleeved shirt) similar to that affected by narcotics addicts, the behavior of the defendant and his companion (a guarded watchfulness), and the hour (just 5-10 minutes before 5 p. m.), Dahlke suspected that the men might be part of a Mexican-American theft ring, which he had learned was operating out of Long Beach and stealing merchandise from Orange County stores. He followed them into the store. As he continued to follow them, they moved from department to department picking up and replacing various objects and looking from side to side and behind them in a nervous manner. He observed them make one purchase in the camera department. They ultimately arrived in the hardware department on the third floor where Dahlke observed Cervantez pick up several articles from a counter. Of this articles Cervantez retained what appeared to be a pair of pliers or wirecutters, which he handed to Garcia who took them, along with other articles he had picked up and retained, into a small shed. Dahlke saw Cervantez assist Garcia slide the door of the shed to within 6 to 8 inches of being closed and then saw Garcia bend over inside the shed while Cervantez paced back and forth looking nervously around to see who might be watching. Thereafter Dahlke saw Garcia emerge from he shed carrying two bags, one of which he had not previously observed.

Dahlke again followed them through the store, finally exiting the store ahead of Cervantez and Garcia, who had stopped at the watch counter where they waited until he had passed them by. As the two men exited the Penney store into the mall area, Dahlke placed them under arrest. He immediately identified himself as “a police officer working security for Penneys” and asked to see their identification. Dahlke required them to open the bags and place the contents on the floor. The allegedly stolen items were returned to Penney for safe keeping and were either lost or destroyed prior to the criminal trial. Cervantez was acquitted of the theft, and Garcia was permitted to enter a plea of guilty of trespass.

Prior to trial the parties stipulated that Dahlke was a full-time employee of the Orange Police Department and also that, at the particular time of the arrest, was working as a security officer at the J. C. Penney store in Huntington Beach and was being paid by Penney. They further stipulated that Cervantez was arrested on the Penney premises and that Dahlke caused someone from the Huntington Beach Police Department to come to the store and take Cervantez into custody and book him. Based upon these stipulations and the consent agreement signed by the chiefs of police pursuant to Penal Code section 830.1, the trial court found as a matter of law that Dahlke was a peace officer at the time of the arrest.

Thereafter, in instructing the jury, the trial court gave instructions applicable to arrests made by a peace officer.

The primary contention on appeal is that the court erred in holding that Dahlke was acting as a peace officer at the time of the arrest. Plaintiff also contends that the court erred in granting defendants' motion for nonsuit on the causes of action for intentional infliction of mental distress and negligence, that the court improperly instructed the jury in numerous particulars, that the court erroneously refused evidence tendered by plaintiff, and that the evidence does not support the verdict.


I. The status of an off duty police officer working as a private security guard.

Because we have concluded that the status of Dahlke at the time of the arrest is determinative of most of the other issues presented in this appeal, we discuss that issue first.

Penal Code section 836 provides, inter alia, that a peace officer may make an arrest without a warrant whenever he has reasonable cause to believe that the person to be arrested has committed a public offense in his presence. Penal Code section 837 authorizes a private person to make an arrest for a nonfelony public offense only when the public offense is actually committed or attempted in his presence.

Plaintiff correctly contends that if Dahlke acted as a private citizen in effecting the arrest, then the instructions incorporating the concept of probable cause should not have been given. He attacks the trial court's conclusion that Dahlke was acting as a peace officer on two grounds, namely, (1) because Dahlke was acting as a security guard for Penney at the time of the arrest, the arrest was made in his capacity as a private citizen, and (2) because the consent executed pursuant to Penal Code section 830.1 could only grant Dahlke the authority of a peace officer while he was acting On behalf of a city as a police officer, he had no official power to make an arrest in Huntington Beach while he was working for Penney.

We have concluded that, for purposes of determining the standard to test the legality of an arrest, a police officer who makes an arrest within the area in which he is authorized to act is acting as a peace officer, and thus such officer may act upon reasonable cause as provided in Penal Code section 836. This conclusion is supported by California appellate decisions and is consistent with the legislative purpose. In Dowdell v. Owl Drug Co. (1932), 121 Cal.App. 316, 8 P.2d 890, the only case found involving the standard to be applied in a false arrest case to an arrest made by a peace officer at a time when he was acting for a private employer, the court stated, “If we assume that Smith made or joined in the making of the arrest, and that at the same time he was acting within the scope of his authority as an ‘investigator’ of appellant Owl Drug Company, nevertheless Smith was also a peace officer, and the lawfulness of an arrest made by him must be tested by the provisions of section 836 of the Penal Code.” (Id., at p. 319, 8 P.2d at p. 891.)

Although the court in Dowdell v. Owl Drug Co. felt it unnecessary to articulate the reasons for its conclusion that the lawfulness of an arrest made by an off duty peace officer is to be tested by rules applicable to peace officers, we are of the opinion that the conclusion is sound and in accord with public policy.

The duties of a peace officer, while not listed in complete detail anywhere in the general law or in local ordinances, include the duties to preserve the public peace, prevent and detect criminal activity, and apprehend and arrest the perpetrators. (See Pen.Code, s 830 et seq.; Christal v. Police Commission (1939) 33 Cal.App.2d 564, 567, 92 P.2d 416; Noble v. City of Palo Alto (1928) 89 Cal.App. 47, 52-53, 264 P. 529.) Moreover, a peace officer on “off duty” status is not relieved of his obligation as an officer to preserve the public peace and to protect the lives and property of the citizens of the public in general. (See People v. Derby (1960) 177 Cal.App.2d 626, 630-631, 2 Cal.Rptr. 401; County of Los Angeles v. Indus. Acc. Com. (1932) 123 Cal.App. 12, 16, 11 P.2d 434, disapproved on another point in Villanazul v. City of Los Angeles (1951) 37 Cal.2d 718, 725, 235 P.2d 16; 16 McQuillen, Municipal Corporations, s 45.15, p. 616.) In County of Los Angeles v. Indus. Acc. Com., supra, 123 Cal.App. 12, 11 P.2d 434, the court held that a deputy marshal, who was on his way home after work (which normally consisted of serving processes and warrants), was engaged in the performance of his duties as a peace officer when he was killed trying to intervene in a robbery, and thus an award under the Workmen's Compensation Act was proper.

This being so, the courts have held that an “off duty” officer in the process of effecting an arrest is to be considered as performing his duty (provided the arrest is otherwise lawful). (See People v. Millard (1971) 15 Cal.App.3d 759, 762, 93 Cal.Rptr. 402; People v. Peters (1966) 18 N.Y.2d 238, 273 N.Y.S.2d 217, 219 N.E.2d 595 affd., 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917.) For purposes of determining the lawfulness of the arrest, the circumstances that cause a peace officer to be present and to observe the criminal activity are immaterial; once he has observed such activity, he has a duty to act, and his acts are those of a peace officer. That Dahlke was, at the time of the arrest, working as a security guard for a store did not detract from his duty, once he observed criminal activity, to act according to his skill and training as a peace officer.

Plaintiff has ignored the above rules and cases, focusing instead on cases where a police officer, in special factual circumstances is deemed to be acting as a private person for purposes of applying the exclusionary rule. Of course, generally police officers are governed by the Fourth Amendment prohibition against unreasonable searches and seizures, and things seized in contravention of that prohibition are inadmissible as evidence. Courts have been reluctant to free the police of such restraints, but have recognized that in certain circumstances an officer may be acting as a private individual and there is no reason to apply the exclusionary rule. For example, in People v. Wolder (1970), 4 Cal.App.3d 984, 84 Cal.Rptr. 788, cited by plaintiff, the court held that a policeman father who, out of parental concern, searched suspicious boxes stored by his daughter on her rented premises was acting in a private capacity, and thus the prohibition against unreasonable searches and seizures did not apply. In People v. Wachter (1976), 58 Cal.App.3d 911, 130 Cal.Rptr. 279, an off duty officer, while accompanying a neighbor on a social call, was led by simple curiosity to a marijuana patch on the defendant's land, and the court deemed him to be acting as a private citizen and not as a police officer. To apply the exclusionary rule in such cases would serve neither of the purposes of the rule, i. e., to deter law enforcement officers from engaging in unconstitutional searches by removing their incentive for doing so and to relieve the courts from being compelled to participate in illegal police conduct (see People v. Cahan (1955) 44 Cal.2d 434, 445-449, 282 P.2d 905), and thus, in the special circumstances when an officer truly is acting as a private individual, the courts treat him as acting in that capacity and not his official capacity as far as application of the exclusionary rule is concerned. Such cases have no application to the instant case; the policy considerations that give rise to the “private citizen” rationale in admitting the fruits of searches by policemen acting in a purely private capacity are altogether different from those involved in arrests by off duty policemen. (See Dyas v. Superior Court (1974) 11 Cal.3d 628, 632-634, 114 Cal.Rptr. 114, 522 P.2d 674.) When an “off duty” peace officer has probable cause to effect an arrest, certainly no public purpose is served by curtailing his duty and prohibiting him from acting according to his training. On the contrary, this would only deprive the public of the considerable benefit afforded by peace officers who perform their duties without regard to the time clock.

Also to be distinguished is People v. Corey (1978), 21 Cal.3d 738, 147 Cal.Rptr. 639, 581 P.2d 644, wherein the California Supreme Court held that an off duty peace officer employed as a private security guard who is subject to regulations of the Private Investigator and Adjuster Act (PIAA) (Bus. & Prof.Code, s 7500 et seq.) is not engaged in the performance of his duties as a peace officer For the purposes of Penal Code section 243.

Penal Code section 243 makes a battery punishable as a felony when committed against a peace officer engaged in the performance of his duties and such capacity is known to the accused. The PIAA prohibits the wearing of police uniforms by private security guards (Bus. & Prof.Code, s 7538, subd. (e)). Therefore, the court reasoned since a peace officer doing private security work is subject to PIAA, he cannot give the appearance of being a police officer. Under these circumstances, the public could not reasonably know, unless the officer violated the law, that he was a peace officer acting within his official capacity, therefore, it would be absurd to say that he was engaged in the performance of his duties as such for the purposes of Penal Code section 243.

The court's decision in Corey is predicated on the requirement under Penal Code section 243 that the peace officer Appear to be a peace officer. Since the PIAA prohibits that appearance when an officer is moonlighting as a private guard, the court concluded that For purposes of section 243 he is not then acting in his official capacity.

Thus, in the case of prosecutions for battery on a peace officer, as in the case of the application of the exclusionary rule to “private citizen” searches, the labeling of the officer's capacity as “private” or “official” is merely a way of describing the result that has been found to accord with the public policy involved and does not necessarily prescribe a general rule of law to be mechanically applied whenever the duties of a peace officer are in issue.

Looking beyond the label to the Supreme Court's reasoning, we see that it is entirely inapplicable to the instant case. In determining whether Dahlke can arrest on probable cause, it is unnecessary to consider how he appeared to the accused or anyone else. Since the PIAA prohibition regarding appearance has no bearing on the standard to be used in effecting an arrest, we have concluded that an off duty police officer employed as a security guard retains his status of peace officer for purposes of determining the lawfulness of the arrest pursuant to Penal Code section 836.

Having concluded that neither the circumstance that Dahlke was “off duty” nor the fact that he was working as a security guard for Penney affects his status as a peace officer, provided he had territorial jurisdiction, we must consider the effect of the consent executed by the police chiefs pursuant to Penal Code section 830.1.

Section 830.1 provides in pertinent part as follows: “Any . . . policeman of a city . . . is a peace officer. The authority of any such peace officer extends to any place in the state: (P) (a) As to any public offense committed or which there is probable cause to believe has been committed within the political subdivision which employs him; or (P) (b) Where he has the prior consent of the chief of police . . . if the place is within a city . . ..”

The consent signed by the police chiefs of both Orange and Huntington Beach stated that “any member of the Orange County Law Enforcement Agencies listed below, who is a peace officer as defined in section 830.1 of the California Penal Code, shall have the authority of a peace officer at all times within the political subdivision for which I am authorized to give consent.”

Since Dahlke was a member of one of the listed agencies and was a peace officer as defined in section 830.1 at the time of the arrest, the consent was clearly applicable. The trial court did not err in holding that Dahlke was a peace officer as a matter of law. It follows that the trial court correctly instructed the jury when it gave BAJI instruction Nos. 6.74, 6.83, 6.86 and 6.93, all of which relate to activity by a police officer.

II. The judgments of nonsuit.

A nonsuit may be granted only when, disregarding conflicting evidence and giving to plaintiff's evidence all of the value to which it is legally entitled, indulging in every legitimate inference that may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff. (Estate of Callahan (1967) 67 Cal.2d 609, 612, 63 Cal.Rptr. 277, 432 P.2d 965.)

With this principle in mind, we turn to a consideration of the evidence introduced by the plaintiff in support of the causes of action based upon intentional infliction of emotional distress and negligence.

“ The elements of a prima facie case for the tort of intentional infliction of emotional distress are: (1) outrageous conduct by the defendant; (2) defendant's intention of causing or reckless disregard of the probability of causing emotional distress; (3) the plaintiff's suffering severe or extreme emotional distress; and (4) actual and proximate causation of the emotional distress by the defendant's outrageous conduct. . . . Whether treated as an element of the prima facie case or as a matter of defense, it must also appear that the defendant's conduct was unprivileged.” (Fletcher v. Western National Life Ins. Co. (1970) 10 Cal.App.3d 376, 394, 89 Cal.Rptr. 78, 88.) Moreover, conduct to be outrageous must exceed all bounds usually tolerated by a decent society. (Newby v. Alto Riviera Apartments (1976) 60 Cal.App.3d 288, 297, 131 Cal.Rptr. 547.)

The evidence cited by plaintiff to support his cause of action for intentional infliction of emotional distress is: (1) the testimony of Dahlke that he maintained a constant surveillance of plaintiff because of his appearance and behavior; (2) the failure of Dahlke to produce at trial the evidence that he had taken from the possession of plaintiff and his companion; (3) alleged inconsistencies in Dahlke's testimony at trial; and (4) testimony of plaintiff's wife that the jailers refused to give plaintiff pain medication he regularly took for a back injury.

(1) Even if the surveillance had been unjustified, it did not constitute an act that had any causal connection with plaintiff's emotional distress. It is only because it resulted in plaintiff's arrest that plaintiff even became convinced that Dahlke's activity was related to him. Having concluded that Dahlke was authorized to arrest upon reasonable cause, we find nothing in the evidence to suggest that the arrest itself was in any way outrageous. Presumably therefore plaintiff cites the evidence of Dahlke's surveillance to show that Dahlke had the requisite intent. Since the only evidence of the surveillance is Dahlke's testimony, and that testimony described activity consistent with Dahlke's suspicions that plaintiff and his friend were behaving in a questionable manner, that evidence does not support an inference that Dahlke harbored any ill will toward plaintiff.

(2) All of the evidence relating to missing evidence suggests that it was simply lost or misplaced by someone other than Dahlke. Plaintiff has cited no evidence from which any reasonable inference can be drawn to the effect that it was the result of any intentional or reckless act.

(3) Plaintiff has failed to clarify the significance of the alleged inconsistencies, and we fail to find any inconsistency of a substantial nature. Certainly none of the testimony cited by plaintiff suggests any intentional misstatement of facts or intent to injure plaintiff.

(4) Finally, the testimony of plaintiff's wife concerning the refusal of plaintiff's jailers to provide medication does not in any way implicate Dahlke or Penney. Since plaintiff's arrest was lawful and he was at the time of the acts complained of in the lawful custody of the Huntington Beach Police Department, we find no basis for holding either Dahlke or Penney liable for the independent acts of plaintiff's jailers.

We conclude that the evidence relied upon by plaintiff is insufficient to support a finding of any of the elements of the tort of intentional infliction of emotional distress. The judgment of nonsuit was properly granted.

The sole allegation of negligence contained in the complaint reads as follows: “At said time and place, defendants, and each of them, so negligently, carelessly and unproperly selected, hired, trained, defendant, Dennis R. Dahlke, as a security officer for said store as to cause said defendant, Dennis R. Dahlke, to assault, batter, and falsely and carelessly accuse plaintiff of a crime, to cause plaintiff to suffer severe emotional and physical distress and shame and humiliation, to falsely imprison plaintiff and cause plaintiff to be falsely prosecuted by the authorities for crimes plaintiff did not commit, and to cause the evidence of his innocense (sic) to be lost or destroyed so that he could not quickly acquit himself of any such alleged crimes.”

There was a total failure of proof of any negligence in hiring or training.

Plaintiff after presenting all his evidence, resting his case, and being confronted with a nonsuit sought to amend the complaint and now argues that it was error to refuse him the right to amend to conform to proof, i. e., to allege negligence in the arrest and in the preservation of the property seized.

There was no abuse of discretion on the part of the trial court in denying plaintiff leave to amend. While it is arguable that the court acted properly because plaintiff's amendment states a new cause of action, we rest our decision on the ground that the proposed amendment clearly is of such a magnitude and was offered at such a stage in the proceedings that the court was entirely within its discretion in denying leave to amend. (See Young v. Berry Equipment Rentals, Inc. (1976) 55 Cal.App.3d 35, 38-40, 127 Cal.Rptr. 200; Hayutin v. Weintraub (1962) 207 Cal.App.2d 497, 24 Cal.Rptr. 761.) The trial court did not err in granting a judgment of nonsuit on the cause of action for negligence.

III. The instructions.

Plaintiff contends that the court erred in instructing the jury that the plaintiff had the burden to prove lack of probable cause for the arrest. He argues that, uncontradicted evidence having shown that he was arrested and imprisoned without a warrant, the burden was on defendant to show justification, citing People v. McGrew (1888) 77 Cal. 570, 20 p. 92, People v. Sagehorn (1956) 140 Cal.App.2d 138, 294 P.2d 1062, People v. Perry (1947) 79 Cal.App.2d Supp. 906, 180 P.2d 465, and Mackie v. Ambassador Hotel etc. Corp. (1932) 123 Cal.App. 215, 11 P.2d 3. To the same effect are Kaufman v. Brown (1949) 93 Cal.App.2d 508, 209 P.2d 156, Collins v. Owens (1947) 77 Cal.App.2d 713, 176 P.2d 372, Collins v. Jones (1933) 131 Cal.App. 747, 22 P.2d 39, and Sebring v. Harris (1912) 20 Cal.App. 56, 128 P. 7.

Defendant counters that, while that indeed was the rule, it has been changed to some extent. He points to Whaley v. Kirby (1962) 208 Cal.App.2d 232 where, at page 237, 25 Cal.Rptr. 50, at page 53, the court stated: “The weight of authority today holds that the establishment of lack of probable or reasonable cause is a necessary element in an action for false arrest or imprisonment, overruling Collins v. Jones, supra, 131 Cal.App. 747, 22 P.2d 39, in this respect.” (See also Whaley v. Jansen (1962) 208 Cal.App.2d 222, 25 Cal.Rptr. 184, providing the court's reasoning in more detail.) This case was followed by Wilson v. County of Los Angeles (1971) 21 Cal.App.3d 308 where, at pages 315-316, 98 Cal.Rptr. 525, at page 530 the court quoted the above passage from Whaley and added: “No longer is it enough for plaintiffs . . . merely to prove that they were arrested without a warrant, thereafter imprisoned and thus damaged.” Defendant explains that the change came about when the California Supreme Court, in Coverstone v. Davies (1952) 38 Cal.2d 315, 239 P.2d 876, revised the law regarding warrantless arrests for misdemeanors. Prior to Coverstone, the general rule was that a police officer could make a warrantless arrest for a felony if he had reasonable cause to believe that the person to be arrested had committed a felony, but that a police officer could make a warrantless arrest for a misdemeanor only if the person to be arrested had actually committed a misdemeanor in the officer's presence. (See, e. g., People v. Perry, supra, 79 Cal.App.2d Supp. 906, 180 P.2d 465.) In Coverstone, the court interpreted Penal Code section 836, which at that time authorized a peace officer to make an arrest without a warrant for “a public offense committed or attempted in his presence,” to include an element of reasonable belief, declaring that “a public offense is committed in the presence of an officer within the meaning of a statute such as Penal Code, s 836, when ‘circumstances exist that would cause a reasonable person to believe that a crime has been committed in his presence.’ ” (Coverstone v. Davies, supra, 38 Cal.2d at p. 320, 239 P.2d at p. 879; see generally, Note (1952) 25 So.Cal.L.Rev. 449.)

Penal Code section 836 was amended in 1957, presumably to state the effect of Coverstone, to authorize a peace officer to arrest without a warrant “(w) henever he has reasonable cause to believe that the person to be arrested has committed a public offense in his presence.” (Stats.1957, ch. 2147, s 2, p. 3805.)

Since this change in the law allows officers under certain circumstances to make warrantless arrests for misdemeanors, defendant argues, the Whaley and Wilson courts logically concluded that a plaintiff can no longer simply show that he has been arrested without a warrant, imprisoned and damaged, and rest on the presumption that such an arrest is unlawful, rather he must also show lack of probable cause for an arrest.

We do not believe that the law has been changed as defendant suggests. First, Coverstone makes no explicit statement that the rule regarding burden of proof of probable cause has been changed. Second, there is no logical reason to presume that the innovation allowing warrantless arrests for misdemeanors on probable cause mandated as a consequence a change in the general rule that upon a showing of an arrest without a warrant, the presumption arises that the arrest is unlawful and the burden is on the defendant to show justification. Warrantless arrests on probable cause were always permitted in felony cases, and the above-mentioned general rule has always applied to those cases. (See, e. g., Hughes v. Oreb (1951) 36 Cal.2d 854, 228 P.2d 550; Van Fleet v. West American Ins. Co. (1935) 5 Cal.App.2d 125, 42 P.2d 378.) Third, in a number of cases decided since Coverstone the general rule has continued to be applied, Whaley and Wilson notwithstanding. (See Dragna v. White (1955) 45 Cal.2d 469, 289 P.2d 428; Miller v. Glass (1955) 44 Cal.2d 359, 282 P.2d 501; Ramsden v. Western Union (1977) 71 Cal.App.3d 873, 138 Cal.Rptr. 426; Collins v. County of Los Angeles (1966) 241 Cal.App.2d 451, 50 Cal.Rptr. 586; Onick v. Long (1957) 154 Cal.App.2d 381, 316 P.2d 427; People v. Sagehorn, supra, 140 Cal.App.2d 138, 294 P.2d 1062.) The weight of authority still appears to allow a plaintiff to show that the arrest was without a warrant and rely on the presumption of unlawfulness. (See cases collected at Annot. (1922) 19 A.L.R. 671; Annot. (1942) 137 A.L.R. 504; 35 C.J.S. False Imprisonment s 55, pp. 733-736.)

While we disagree with defendant's contention of law, nevertheless we have concluded that the court did not err under the circumstances of this case by instructing the jury that plaintiff had the burden of proving that defendant acted without probable cause in arresting him.

False imprisonment is the unlawful confinement of another. It is widely recognized that the constituent elements of the tort are (1) the detention of the person and (2) the unlawfulness of such detention. (See Pen.Code, s 236; Singleton v. Perry (1955) 45 Cal.2d 489, 494, 289 P.2d 794; Barrier v. Alexander 1950) 100 Cal.App.2d 497, 499, 224 P.2d 436; see generally 35 C.J.S. False Imprisonment s 5, p. 628.) For purposes of pleading, it has been held that a cause of action for false imprisonment based on unlawful arrest is stated where it is alleged that there was (1) an arrest without process, (2) imprisonment, and (3) damages. (See Dragna v. White, supra, 45 Cal.2d at p. 471, 289 P.2d 428; Miller v. Glass, supra, 44 Cal.2d at pp. 361-362, 282 P.2d 501; Ramsden v. Western Union, supra, 71 Cal.App.3d at p. 879, 138 Cal.Rptr. 426.) Upon a showing of these elements, plaintiff has made a prima facie case, and a presumption arises that the warrantless arrest was unlawful. (See Coverstone v. Davies, supra, 38 Cal.2d at p. 319, 230 P.2d 876; People v. Agnew (1940) 16 Cal.2d 655, 661-667, 107 P.2d 601; People v. McGrew, supra, 77 Cal. 570, 20 P. 92.) The burden is then on the defendant to prove justification for the arrest. (See, e. g., Dragna v. White, supra, 45 Cal.2d at p. 471, 289 P.2d 428; Ramsden v. Western Union, supra, 71 Cal.App.3d at p. 879, 138 Cal.Rptr. 426; Collins v. County of Los Angeles, supra, 241 Cal.App.2d at p. 456, 50 Cal.Rptr. 586.)

The term “burden of proof” has often been used in two senses: (1) the secondary meaning of the burden of producing or going forward with the evidence and (2) the primary meaning of the burden of proving the issues of the case. Presumptions are also of two distinct kinds: (1) presumptions affecting the burden of producing the evidence and (2) presumptions affecting the burden of proof. See generally Witkin, Cal. Evidence (2d ed. 1966) Burden of Proof and Presumptions, ss 192-298, pp. 177-259; 9 Wigmore, Evidence (3d ed. 1940) ss 2485-2493, pp. 270-293.)

While the cases discussing the presumption of unlawfulness of a warrantless arrest and the consequential burden on defendant to justify the arrest generally have not clearly articulated their meaning, and apparently they are often understood to require a defendant to prove (to some requisite degree of belief) the existence of probable cause, we have concluded that in a false imprisonment case the presumption of unlawfulness of a warrantless arrest places only the burden of producing evidence of justification on the defendant.

In a false imprisonment case, the apparent reasons for placing on the defendant the burden of showing justification for the arrest are (1) that it would be unreasonable to require a plaintiff at the outset of the action to undertake the difficult task of anticipating all possible justifications and negating them by proving their nonexistence and (2) that evidence of justification is usually so much more readily available to the defendant that he should not be permitted to argue that justification exists (or that the plaintiff has failed to show lack of justification) unless he is willing to produce such evidence. (See People v. Agnew, supra, 16 Cal.2d 655, 107 P.2d 601; Kaufman v. Brown, supra, 93 Cal.App.2d 508, 209 P.2d 156; Knight v. Baker (1926) 117 Or. 492, 244 P. 543.) The presumption of unlawfulness of a warrantless arrest is thus designed to facilitate the determination of the false imprisonment action rather than to implement some other public policy and is appropriately classified as a presumption affecting the burden of producing evidence.1 (See Evid. Code, s 603.) We think that this is a sound and practical rule and that it is generally consistent with the manner in which the presumption has actually been applied. (See Coverstone v. Davies, supra, 38 Cal.2d at p. 319, 230 P.2d 876; Wilson v. Loustalot (1948) 85 Cal.App.2d 316, 193 P.2d 127.) At least one other state has expressly recognized that the presumption is one affecting the burden of producing evidence rather than the burden of proof. (See Frank v. Wabash Railroad Company (1956) Mo., 295 S.W.2d 16.)

Generally, the effect of a presumption affecting the burden of producing evidence is to require the trier of fact to assume the existence of the presumed fact unless and until evidence is introduced that would support a finding of its nonexistence, in which case the trier of fact shall determine the existence or nonexistence of the presumed fact from the evidence and without regard to the presumption. (Evid. Code, s 604.) What is probable cause, as has been often said, is a question of law for the court (Collyer v. S. H. Kress & Co. (1936) 5 Cal.2d 175, 181, 54 P.2d 20), thus a defendant should produce evidence of facts that, if true, would constitute probable cause as determined by the court. Of course, if the evidence is conflicting it is the function of the jury to determine whether those facts exist. (Aitken v. White (1949) 93 Cal.App.2d 134, 139-142, 208 P.2d 788.) Under such circumstances, generally, the court should instruct the jury that if they find the facts in a designated way, then such facts do or do not amount to probable cause. (Gibson v. J. C. Penney Co., Inc. (1958) 165 Cal.App.2d 640, 644-646, 331 P.2d 1057.) Assuming that a defendant has produced evidence sufficient to get to the jury on the issue of justification, since the plaintiff ultimately is not entitled to relief unless the arrest was unlawful, the risk of nonpersuasion of the jury i. e., the burden of proof is on him.2

In the instant case, defendant has produced evidence that, if believed by the jury, would constitute probable cause for the arrest. Under such circumstances, the presumption of unlawfulness of a warrantless arrest has served its function and plaintiff has met the burden of going forward with the evidence; with the question thus before the jury, it was not error to instruct the jury that plaintiff bore the ultimate burden of proving that the arrest had been made without probable cause (and thus unlawfully).

Plaintiff next claims that the court erred in refusing to give BAJI instruction Nos. 2.02 (failure to produce available stronger evidence) and 2.03 (willful suppression of evidence). Presumably both instructions were offered because of the loss or destruction of the evidence seized at the time of the arrest. Plaintiff claims that the production of this evidence would have proven that the pliers were not among the objects found in the bag produced by Garcia at the time of the arrest.

There was no error. Plaintiff fails to cite any evidence that suggests that it was within the defendants' power to produce the evidence sought by plaintiff. The only evidence we have found in our own review of the record suggests that the evidence is not available. In the absence of some showing that it is within the power of the party producing inferior evidence to produce evidence of a higher degree, BAJI instruction No. 2.02 should not be given. (Holland v. Kerr (1953) 116 Cal.App.2d 31, 37, 253 P.2d 88.) Moreover, it would have been error to give an instruction on willful suppression of evidence in the absence of some evidence that a defendant had willfully suppressed the evidence. (Thomas v. Gates (1899)126 Cal. 1, 5-7, 58 P. 315.)

We have examined the remaining instructions as to which plaintiff contends the trial court erred in refusing and find the contentions without merit. For the most part these are instructions that would have been appropriate only if the court had found that Dahlke was acting in a private capacity at the time of the arrest or they relate to the causes of action as to which a nonsuit was granted. The remaining instructions deal with subjects that were adequately covered by instructions given by the court.

IV. Sufficiency of the evidence.

When a verdict is attacked as being unsupported by the evidence, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, that will support the conclusion reached by the jury. (Crawford v. Southern Pacific Co. (1935) 3 Cal.2d 427, 429, 45 P.2d 183.)

Plaintiff admits that there was contradictory evidence to his testimony concerning his arrest and treatment while in jail. He contends, however, that because of (1) major discrepancies between the testimony of Dahlke, the arresting officer, and Ruddy, who assisted him, and between their testimony and other evidence, (2) the failure to locate some of the items allegedly taken, and (3) the failure to produce the items allegedly stolen, this court should find the evidence insufficient to support the verdict.

In effect, he asks this court to judge the effect and value of the evidence, to weigh the evidence, and to resolve conflicts in the evidence in his favor. This we cannot do. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court. (Crawford v. Southern Pacific Co., supra, 3 Cal.2d at p. 429, 45 P.2d 183. “The cold record cannot give the look or manner of the witnesses; their hesitations, their doubts, their variations of language, their precipitancy, their calmness or consideration. A witness may convince all who hear him testify that he is disingenous and untruthful, and yet his testimony, when read, may convey a most favorable impression.” (Maslow v. Maslow (1953) 117 Cal.App.2d 237, 243, 255 P.2d 65, 69.)

In spite of any alleged discrepancies in the testimony of defendants' witnesses, the jury obviously believed the officers and rejected as untrue the conflicting testimony of plaintiff. The evidence supports the verdict.

We have considered plaintiff's remaining contentions that the court erroneously excluded evidence, and failed to take judicial notice of a record of the Huntington Beach Police Department listing property taken from Garcia's truck, and find the contentions without merit. The plaintiff has failed to demonstrate that the evidence was of substantial probative value on any issue in the case. (See Evid. Code, s 352.)

The judgment is affirmed.


1.  Our discussion is to be distinguished from cases considering the burden of proof on the prosecution in a criminal case to justify an arrest without a warrant. (See generally, People v. James (1977) 19 Cal.3d 99, 137 Cal.Rptr. 447, 561 P.2d 1135; People v. Johnson (1968) 68 Cal.2d 629, 68 Cal.Rptr. 441, 440 P.2d 921; Badillo v. Superior Court (1956) 46 Cal.2d 269, 294 P.2d 23; Witkin, Cal. Evidence (2d ed. 1966) ss 61, 243, pp. 64, 208.) In such cases, other weighty considerations are involved, e. g., the general presumption of innocence, the constitutional and other rights of the accused, and the policies behind the exclusionary rule.

2.  The logic and basic soundness of this approach to warrantless arrests can be further demonstrated by comparing it to the rules for cases involving arrests with warrants or cases where, although the arrest was without a warrant, the plaintiff's own pleading or evidence shows the arrest was justified. In both types of cases, the courts have required the plaintiff to show that the arrest was nevertheless unlawful. (See Davis v. Pacific Teleph. etc. Co. (1899) 127 Cal. 312, 57 P. 764; Bulkley v. Klein (1962) 206 Cal.App.2d 742, 23 Cal.Rptr. 855; Coverstone v. Davies, supra, 38 Cal.2d 315, 230 P.2d 876; Brown v. Meier & Frank Co. (1939) 160 Or. 608, 86 P.2d 79; and cases collected at 35 C.J.S. False Imprisonment s 55, p. 736.) This is simply a reflection of the obvious; since the tort consists of “false” imprisonment, once the evidence is in and the issue of justification is framed, the ultimate risk of nonpersuasion is on the plaintiff if the trier of fact is not persuaded the arrest was unlawful, plaintiff will get no relief.

MORRIS, Associate Justice.

GARDNER, P. J., and TAMURA, J., concur.