HOINES v. BARNEY CLUB INC

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Court of Appeal, First District, Division 3, California.

David A. HOINES, Plaintiff and Appellant, v. BARNEY'S CLUB, INC., et al., Defendants and Respondents.

Civ. 42161.

Decided: June 29, 1979

James Moore King, Santa Cruz, for plaintiff and appellant. Yale W. Rohlff, Owen, Melbye & Rohlff, Redwood City, for defendants, appellees and respondents.

Appellant filed a complaint against respondents Nevada corporations doing business in California, upon the legal theories of assault, battery, false imprisonment, malicious prosecution and intentional infliction of emotional distress. Respondents answered with the affirmative defense that “prior to the institution of this lawsuit, and for valid consideration, plaintiff did, in writing, release these answering defendants from any and all claims allegedly set forth in plaintiff's complaint on file herein.”

The events which inspired this lawsuit occurred when appellant was arrested by employees of the South Tahoe Nugget Club, taken to the courthouse, booked on a charge of disturbing the peace and released after posting bail in the amount of $25. On the next day, the district attorney agreed to dismiss the charge if appellant would sign a release of any claims against the club and the governmental agencies involved. Appellant signed the release, his $25 was returned and the charges were dismissed by the court upon the recommendation of the district attorney.

In the court below, the validity of the release was tried separately before a jury. The testimony of appellant and the district attorney differed as to the conversation prior to the release and the motives which informed their agreement. The court instructed the jury that the release would be unlawful if the district attorney had proposed it in anticipation of gaining an advantage over appellant in future litigation but would not be improper if the district attorney had been motivated by compassion and fairness.1

The jury found in respondents' favor and appellant here contends, as he did below, that, whatever the motivations of the district attorney, the release was void and of no effect because such a bargain is contrary to public policy. We are thus confronted with the question which was reserved in Leonard v. City of Los Angeles (1973) 31 Cal.App.3d 473, 477, 107 Cal.Rptr. 378 where the court, after holding that a defendant's stipulation to probable cause for arrest was unobjectionable though made in order to foreclose a lawsuit, added that a different question would be presented were the prosecutor to agree to dismissal in exchange for a promise not to pursue civil litigation.

The dismissal of the charge against appellant in exchange for a release of respondents from civil liability is a contract which contravenes public policy because it is a compromise of a crime and therefore inconsistent with the Penal Code. (See Bowyer v. Burgess (1960) 54 Cal.2d 97, 4 Cal.Rptr. 521, 351 P.2d 793.) Penal Code section 153 provides that “Every person who, having knowledge of the actual commission of a crime, takes money or property of another, or any gratuity or award, or any engagement, or promise thereof, upon any agreement or understanding to compound or conceal such crime, or to abstain from any prosecution thereof, or to withhold any evidence thereof, except in the cases provided for by law, in which crimes may be compromised by leave of court . . .” is guilty of a crime. Respondents contend that this is a case in which compromise is provided for by law and direct our attention to Penal Code sections 1377, 1378 and 1379. But those sections permit compromise only when the person injured “has a remedy by civil action” and that person appears before the court in which the criminal action is pending, acknowledges that he or she has received satisfaction and the court enters the reason for the dismissal in the minutes. It is not contended that anything of the sort occurred when the charge was dismissed against appellant. Moreover, the charge against appellant was not one that could be compromised in such a manner because disturbing the peace is not a misdemeanor which can be remedied “by a civil action.” Disturbing the peace is not one of those offenses, like battery or theft, “in which by their very nature there is an overlapping of the civil remedy and the public remedy by way of prosecution for a crime.” (People v. O'Rear (1963) 220 Cal.App.2d Supp. 927, 930-931, 34 Cal.Rptr. 61, 63.)

Since the agreement between the district attorney and appellant compromised a criminal offense in derogation of the California Penal Code2 and since it “has long been the hornbook law that consideration which is void for illegality is no consideration at all,” (Allen v. Jordano's Inc. (1975) 52 Cal.App.3d 160, 166, 125 Cal.Rptr. 31, 34), the release is void and unavailing as a defense to appellant's cause of action.

The judgment is reversed.

I dissent. The majority holding will inevitably lead to the unnecessary prosecution of a multitude of minor misdemeanors that would otherwise be dismissed in the interests of justice. It is, therefore, the court's holding that contravenes public policy, not the agreement entered into by the parties.

Appellant David Hoines was arrested by employees of the South Tahoe Nugget Club, South Lake Tahoe, Nevada, for disturbing the peace. At the time of the incident, Hoines was a student at the University of Santa Clara Law School. He had graduated from San Jose State University with a major in criminal law and administration of justice. These facts are pertinent because they bear upon Mr. Hoines' sophistication and ability to understand and appreciate what he was doing in connection with the “release of all claims” which he ultimately signed.

Within two hours Hoines was released on bail and was directed to appear the next morning in the Justice Court of Douglas County, Nevada, for arraignment. Shortly before the hour set for his arraignment, Hoines went to the office of the local district attorney to discuss the charges. He told the deputy district attorney he wanted to sign a complaint against respondent South Tahoe Nugget Club. He was advised that the district attorney would argue against the issuance of such complaint, and further that the district attorney's investigation revealed that there was probable cause for Hoines' arrest the previous evening. The deputy district attorney advised Hoines, however, that he was inclined to dismiss the criminal charges if Hoines would sign a release. The deputy district attorney knew Hoines was a law student and potential lawyer, and was sympathetic with Hoines' concern that the arrest would have an adverse effect on his being qualified to practice law in California. The deputy district attorney also felt that the offense was minor, as upon conviction it would result in a fine of no more than the $25 bail that had been posted, and that it was not in the interest of justice on behalf of the people of the State of Nevada to prosecute a jury trial on the misdemeanor charge. He was of the further opinion that since there was probable cause for the arrest of Hoines on the disturbing the peace charge, it would be unfair to respondents to fail to obtain a release of any civil liability from appellant.

Upon signing the release Hoines was given back the $25 bail money he had posted and the charges were dismissed by the court upon recommendation of the district attorney. It is apparent that when Hoines signed the release, he did so voluntarily, knowing full well the import, meaning and effect of the release, and that he was not subjected to any threat requiring him to sign the release. There is no suggestion that Mr. Hoines was coerced into signing the release. He was out of custody on minimal bail. He had the right to trial, an avenue he was free to take. The release in question releases respondents from “all claims . . . growing out of . . . the arrest of the undersigned.” There is no dispute that if the release is valid, it does in fact insulate respondent from any civil liability arising out of the arrest of Mr. Hoines.

In Hoines' action here, the court directed that the issue of validity of the release be decided first. To determine that issue, the jury was instructed as follows: “If the District Attorney used or threatened the criminal process of the court against Mr. Hoines solely for the purpose of gaining an advantage over Mr. Hoines in possible future civil litigation that would be improper and unlawful. (P) On the other hand, if the District Attorney thought (1) he had a case against Mr. Hoines which he could properly and honestly present to a court or jury and (2) that the dismissal was for motives of compassion, fairness, and bringing legal issues to a complete termination, and (3) was fully and fairly presented to the court, that would not be improper.” By its verdict the jury determined that the release was valid.

The majority agrees with appellant that the release is against public policy. In so holding, the majority cites Penal Code section 153, which provides in relevant part as follows: “COMPOUNDING CRIMES. Every person who, having knowledge of the actual commission of a crime, takes money or property of another, or any gratuity or reward, or any engagement, or promise thereof, upon any agreement or understanding to compound or conceal such crime, or to abstain from any prosecution thereof, or to withhold any evidence thereof, except in the cases provided for by law, in which crimes may be compromised by leave of court, is punishable as follows: . . .”

It is apparent that this section was not designed to preclude the action by the district attorney complained of here. The common law offense of compounding a crime has been defined as “the making by one directly injured by the commission of a crime of an agreement not to inform against or prosecute the offender in return for a reward, bribe or reparation for the injury.” (15A Am.Jur.2d, Compounding Crimes, s 1, p. 767.) In an article titled “Compounding Crimes: Time for Enforcement ?” (Hastings L.J. 175), the elements of compounding are described as (1) knowledge of the commission of the original crime, (2) an agreement not to report or prosecute that crime, and (3) the receipt of consideration. There is no suggestion in either the annotation or the article and the numerous cases cited in both that compounding statutes have been applied other than to individuals who receive consideration for their agreement not to prosecute.

What the majority is suggesting, of course, is that the district attorney committed a crime in obtaining the release agreement. This revelation, I am sure, will come as something of a shock to district attorneys throughout Nevada and California, where the practice of obtaining such releases is and for many years has been commonplace.

The only California case touching on the subject is Leonard v. City of Los Angeles (1973) 31 Cal.App.3d 473, 107 Cal.Rptr. 378. The Leonard court held that a voluntary stipulation entered into by an arrested person that his arrest was made with probable cause was valid and admissible in a civil action as a defense in a false imprisonment suit. Appellant concedes that either the release agreement entered into here or a stipulation to probable cause would at least defeat his causes of action for false imprisonment and malicious prosecution. The fact is, however, that both stipulations of probable cause and releases of the kind involved in this suit have been used to eliminate the potential of Any civil litigation arising out of an incident and are designed to serve exactly the same function. There is in fact no practical difference and no difference is intended by the parties. The function of both is simply to eliminate the possibility of civil litigation arising out of the arrest.

It might appear that a broadly worded release and a stipulation are similar only to the extent that both foreclose causes of action for false imprisonment and malicious prosecution. However, as a practical matter, when an individual has stipulated that his arrest was proper, any other causes of action arising out of the incident, such as those asserted here, simply dissolve. It is therefore apparent that the majority holding here in effect constitutes a disagreement with the holding of Leonard.

The majority's notion that the kind of release involved here is against public policy is contrary to a legislative scheme for the dismissal of criminal actions. Penal Code sections 1377 and 1378 specifically provide for the dismissal of misdemeanor actions when the injured victim acknowledges that he has received satisfaction. The majority correctly points out that these sections are not applicable to this case, and then suggests that the release here was not consistent with section 1379. I recognize that section 1379 provides that an offense shall not be compromised other than as provided in sections 1378 and 1379. I read that section to preclude the Victim of an offense from accepting some consideration in exchange for an agreement not to prosecute other than as provided by sections 1378 and 1379. I do not read those sections as prohibiting the district attorney's actions here, but conclude that they evidence a legislative desire to dispose of criminal charges when a victim is made whole or is disinclined to have the perpetrator of the crime prosecuted.

While a district attorney must seek court approval pursuant to Penal Code section 1385 for dismissing a prosecution, it is well settled that the decision to bring criminal charges is a matter committed to the discretion of the district attorney in his role as part of the executive branch of the government. (People v. Municipal Court (1972) 27 Cal.App.3d 193, 204, 103 Cal.Rptr. 645; see also Gov.Code, ss 26500-26502.)

Municipal court judges for many years have been accustomed to dismissing minor misdemeanor cases on motion of the district attorney upon assurance that law enforcement officers, public agencies or private parties will not be subjected to civil litigation by the criminal defendant. This occurs not infrequently in shoplifting cases, disturbances involving husbands and wives, and a myriad of other disturbance situations. Often, the arrest and temporary detention of a person pending posting of bail or the releasing of the individual on his own recognizance is sufficient to defuse an otherwise volatile situation, to the end that further criminal prosecution is unnecessary and undesirable. Further prosecution in many cases would cause embarrassment in employment, unnecessary matrimonial hostility or, as in the instant case, a possible thwarting of a future career. The reasons are multitudinous for the district attorney not to want to pursue the prosecution of a person arrested with probable cause for a minor public offense, in the best interest not only of society but of the individual involved. At the same time, it is reasonable to seek to protect the arresting officer or the complaining individual from the burden of civil litigation arising out of the incident.

If this tool is taken away from the district attorneys, their options will be much more limited and there will be a likelihood that many cases which otherwise would have been dismissed will be prosecuted, to the detriment of society as well as the victim and the defendant. Therefore, I suggest that public policy requires that these kinds of agreements, including stipulations of probable cause for arrest, be given judicial sanction.

I would affirm the judgment.

FOOTNOTES

1.  The instruction reads as follows: “If the District Attorney used or threatened the criminal process of the court against Mr. Hoines solely for the purpose of gaining an advantage over Mr. Hoines in possible future civil litigation that would be improper and unlawful. (P) On the other hand, if the District Attorney thought (1) he had a case against Mr. Hoines which he could properly and honestly present to a court or jury and (2) that the dismissal was for motives of compassion, fairness, and bringing legal issues to a complete termination, and (3) was fully and fairly presented to the court, that would not be improper.”

2.  It was in derogation of the Nevada Code too. Nevada has similar statutes prohibiting compounding and compromising misdemeanors (Nevada Revised Statutes, sections 178.564, 178.566 and 178.568) as do most states (see Comment, Compounding Crimes, (1975) 27 Hast.L.J. 175).

HALVONIK, Associate Justice.

WHITE, P. J., concurs.