Filed 2/16/16 Larson v. Barber CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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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or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

HARVEY EUGENE LARSON,

Plaintiff and Appellant,

v.

MARK BARBER et al.,

Defendants and Respondents.

D067668

(Super. Ct. No. 37-2013-00031367-

CU-ON-CTL)

APPEAL from a judgment of the Superior Court of San Diego County, 

Timothy B. Taylor, Judge. Affirmed.

Harvey Eugene Larson, in pro. per., for Plaintiff and Appellant.

McDougal, Love, Eckis, Boehmer & Foley and Margaret A. Gregory for 

Defendant and Respondent Mark Barber.

Thomas Montgomery, County Counsel, Morris G. Hill, Carra L. Rhamy and 

Erica R. Cortez, Deputy County Counsel, for Defendants and Respondents Paul J. Pfingst 

and Genaro Ramirez.
2

In April 2000 a jury convicted Harvey Eugene Larson of resisting an executive 

officer and exhibiting a deadly weapon to a police officer to resist arrest. (Pen. Code, 

§§ 69, 417.8.) In 2002 this Court affirmed Larson's conviction. (People v. Larson

(Feb. 08, 2002, D035935) (Larson I).) 

Now, some 13 years after his conviction, Larson has sued Mark Barber, the police 

officer who arrested him; Paul Pfingst, who was district attorney when Larson was tried;

and Genaro Ramirez, the deputy district attorney who prosecuted the case, for alleged 

"legal malpractice" and false imprisonment. The trial court sustained demurrers without 

leave to amend. 

Larson appeals, contending the court (1) should have filed his motion for default 

judgment rather than sustaining demurrers; (2) incorrectly sustained the demurrers; and 

(3) abused its discretion in denying leave to amend. Larson's reply brief states,

"Appellant is still false[ly] imprisoned by respondents and bogus rulings of criminal 

courts" and "requests that the Court release him from custody."

We affirm. Larson's claims are precluded by prosecutorial immunity under 

Government Code1 section 821.6 and by his standing conviction. (See Susag v. City of 

Lake Forest (2002) 94 Cal.App.4th 1401, 1412-1413 (Susag).) Larson cannot 

collaterally attack his criminal conviction through a civil case.

 

1 Hereafter, all statutory references are to the Government Code unless otherwise 

specified.
3

I.

FACTUAL AND PROCEDURAL BACKGROUND

A. Larson's Criminal Conviction and Postconviction Challenges

In April 2000 a jury convicted Larson of resisting an executive officer and 

exhibiting a deadly weapon to a police officer to resist arrest. (Pen. Code, §§ 69, 417.8.) 

The jury found true allegations that Larson personally used a deadly and dangerous 

weapon in resisting the officer. (Pen. Code, § 12022, subd. (b)(1).) After Larson 

admitted he had suffered one serious felony prior conviction, three serious/violent felony 

prior convictions and three prior prison term convictions, the court sentenced him to an 

indeterminate prison term of 34 years to life. (Larson I, supra, D035935.) In 2002 this 

Court affirmed Larson's conviction, rejecting his claims the court erroneously denied his 

pretrial request to represent himself and committed instructional error. (Ibid.) 

Larson has unsuccessfully challenged this conviction and sentence in numerous

petitions for a writ of habeas corpus in state and federal courts: In re Larson (Aug. 13, 

2004, D044749); In re Larson (Jan. 29, 2009, D054184); In re Larson (Feb. 11, 2009, 

S164455); Larson v. Carrasco (S.D.Cal., Aug. 23, 2010, Civ. No. 09-cv-745-L(PCL)) 

2010 U.S. Dist. Lexis 86448 (habeas petition remanded to consider equitable tolling 

issue); Larson v. Carrasco (S.D.Cal., Dec. 27, 2010, Civ. No. 09-cv-745-L(PCL)) 2010 

U.S. Dist. Lexis 137876; Larson v. Carrasco (S.D.Cal., Feb. 25, 2011, Civ. 

No. 09-cv-745-L(PCL)) 2011 U.S. Dist. Lexis 18547; In re Larson (Oct. 11, 2011, 

D060609); In re Larson (Mar. 14, 2012, S198485); In re Larson (Sept. 21, 2012, 

D062576); Larson v. Carrasco (S.D.Cal., Feb. 28, 2013, Civ. No. 09-cv-745-L(PCL)) 
4

2013 U.S. Dist. Lexis 27901; Larson v. Carrasco (S.D.Cal., Mar. 25, 2013, Civ. 

No. 09-cv-745-L(PCL)) 2013 U.S. Dist. Lexis 42003. 

Additionally, in 2014, this Court affirmed an order and judgment rejecting 

Larson's petition for sentence recall under the Three Strikes law (Pen. Code, § 1170.126). 

(People v. Larson (Apr. 2, 2014, D063899).)

B. Larson's Other Prison Litigation

Larson's litigiousness goes well beyond challenging the conviction that underlies 

the instant appeal. He is also the plaintiff in these other cases, all of which have been 

denied, dismissed, or otherwise determined to lack merit: Larson v. Runnels (E.D.Cal., 

Jan. 25, 2008, No. 2:06-cv-1413 ALA P) 2008 U.S. Dist. Lexis 5604 (asserting his 8th 

and 14th Amend. rights have been violated because of a ban on tobacco products in 

prison—dismissed); Larson v. Gonzales (E.D.Cal., Oct. 15, 2008, 

No. CV F 08 0740 AWI WMW PC) 2008 U.S. Dist. Lexis 81555 (claiming he is illegally 

housed in administrative segregation—claims denied, action dismissed unless Larson 

pays $350 filing fee); Larson v. Runnels (E.D.Cal., Sept. 14, 2007, 

No. CIV S-06-1934 FCD GGH P) 2007 U.S. Dist. Lexis 71024, at p. *4 (alleging when 

prison is on lockdown, the food is served cold and the court should lift the ban on 

tobacco, but offering to " 'keep quiet' " about the cold food if tobacco ban is lifted—

dismissed, with leave to amend); Larson v. Schwarzenegger (E.D.Cal., Oct. 31, 2006, 

No. CIV S-06-0940 GEB GGH P) 2006 U.S. Dist. Lexis 79444 (alleging denial of due 

process under 14th Amend. to be allowed to smoke tobacco in prison—magistrate 

recommends dismissal); Larson v. Patton (E.D.Cal., Sept. 5, 2007, 
5

No. CIV S-07-1043 FCD JFM P) 2007 U.S. Dist. Lexis 65418 (alleging constitutional 

rights violated by defendants' refusal to reassign him from building porter to clerical 

work in prison—magistrate recommends dismissal); Larson v. McDonald (E.D.Cal., 

July 22, 2008, No. CIV S-07-1955 JAM GGH P) 2008 U.S. Dist. Lexis 56022 (alleging 

he was improperly transferred from High Desert State Prison to the California 

Correctional Institution—magistrate recommends dismissal); Larson v. Runnels 

(E.D.Cal., Mar. 1, 2007, No. CIV S-06-2094 FCD KJM P) 2007 U.S. Dist. Lexis 19287,

at pp. *3-*4 (dismissing his complaint because it is "so vague and conclusory" that it 

"fails to state a claim for relief"); Larson v. Runnels (E.D.Cal., Dec. 21, 2007,

No. CIV S-07-0806 FCD DAD P) 2007 U.S. Dist. Lexis 93906, at pp.*5-*6 (alleging his 

8th and 14th Amend. rights violated by failing to begin process of recalling his 

commitment because of his "exceptional behavior" demonstrating he would be "a 

positive asset to the community" as evidenced by his design for an electric powered 

police car—magistrate recommends dismissal); Larson v. Doe (E.D.Cal., Oct 23, 2007, 

No. CIV S-07-0664 LKK KJM P) 2007 U.S. Dist. Lexis 81123 (alleging defendants have 

ignored a doctor's recommendation that he be placed in a prison with specific mental 

health treatment options—dismissed with leave to amend); Larson v. McDonald 

(E.D.Cal., Dec. 10, 2007, No. CIV S-07-1955 LEW GGH P) 2007 U.S. Dist. Lexis 95792 

(alleging he is being transferred to a new prison because of misconduct of others—

dismissed with leave to amend); Larson v. McDonald (E.D.Cal., Jan. 8, 2009, 

No. 2:07-cv-01955-HDM-RAM) 2009 U.S. Dist. Lexis 946 (alleging for the first time he 

is a drug addict who requires drug treatment program and defendants have transferred 
6

him to a facility that does not have such program—dismissed); Larson v. Runnels

(E.D.Cal., Dec. 21, 2006, No. CIV S-06-1413-MCE-CMK-P) 2006 U.S. Dist. Lexis

94676, at p. *4 (" 'Motion for Default Judgment' " denied); Larson v. Runnels (E.D.Cal., 

May 2, 2007, No. CIV S-06-1985 LKK KJM P) 2007 U.S. Dist. Lexis 36271, at 

pp. *3-*4 ("court finds the complaint to be too vague to determine whether the current 

action is frivolous," but appears to complain about the processing of his mail—dismissed 

with leave to amend); Larson v. Runnels (E.D.Cal., Oct. 10, 2008, 

No. CIV S-06-1794 GEB DAD P) 2008 U.S. Dist. Lexis 116583, at p. *5 ("allegations in 

plaintiff's complaint are barely legible and are so vague and conclusory that the court is 

unable to determine whether the current action is frivolous or fails to state a claim for 

relief"—dismissed with leave to amend); Larson v. Runnels (E.D.Cal., Oct. 23, 2009, 

No. 2:06-CV-01794 ODW) 2009 U.S. Dist. Lexis 105518 (alleging stolen package from 

prison mail system—dismissed with leave to amend).

On December 28, 2015, the Superior Court of San Diego County issued an order 

declaring Larson a vexatious litigant, entering a prefiling order, and requiring plaintiff to 

furnish security. (Larson v. Judge David J. Danielsen (Super. Ct. San Diego County, 

2015, No. 37-2015-00013940-CU-PN-CTL).) On January 8, 2016, this Court summarily 

denied Larson's petition for a writ of mandate/prohibition challenging that order. (Larson 

v. Superior Court (Jan. 8, 2016, No. D069536).)
7

C. Larson Sues Barber, Pfingst, and Others

In January 2013, while self-represented and incarcerated, Larson filed a complaint 

against Barber, Pfingst, Ramirez and others.2 Larson alleges "legal malpractice" and 

false imprisonment arising from his arrest and subsequent conviction in 2000 for resisting 

an executive officer and exhibiting a deadly weapon to a police officer to resist arrest. 

Larson's complaint alleges he is falsely imprisoned and a "police arrest false report [sic]"

was not signed under oath. Larson also alleges there was insufficient evidence of 

probable cause for his arrest and detainment. He further alleges that he took a lie detector 

test, which was " 'inconclusive,' " but with one more " 'point' " to the right, it would have 

been scored " 'truth.' " Larson alleges he offered to take another "stipulated lie detector 

examination," but the court would not allow lie detector evidence to be shown at trial. 

He alleges there was no probable cause for his arrest, and he was not charged by 

complaint or indictment. 

D. Demurrers

Pfingst, Ramirez, and Barber filed demurrers to Larson's complaint. Pfingst and 

Ramirez asserted prosecutors do not owe a duty of care to criminal defendants, and even 

if they did, a district attorney (and deputy district attorney) are immune from liability for 

instituting or prosecuting any judicial proceeding under section 821.6. Pfingst and 

Ramirez also argued that Larson's "own allegations affirmatively show that he was 

 

2 Larson did not serve any other defendants. 
8

imprisoned under 'due forms of law,' " which therefore precludes liability for false 

imprisonment.

Barber, represented by separate counsel, made essentially the same arguments, 

citing Heck v. Humphrey (1994) 512 U.S. 477 (Heck) and Yount v. City of Sacramento 

(2008) 43 Cal.4th 885 (Yount) for the proposition that Larson's standing conviction 

barred his false imprisonment claims. Larson filed tardy oppositions to both demurrers.

E. The Court Sustains the Demurrers Without Leave to Amend

The court sustained the demurrers, stating, "[Larson]'s claim of false imprisonment 

is belied by the absence of any allegation in the complaint that his conviction has been 

reversed, invalidated, or expunged . . . and . . . section 821.6 provides immunity from 

liability for injury caused by instituting or prosecuting any judicial proceeding within the 

scope of employment, even if the employee acts maliciously and without probable

cause." On March 13, 2015, the court entered judgment against Larson. This appeal 

followed. 

II.

DISCUSSION

A. Larson's Noncompliance with Rules of Court

California Rules of Court,3 rule 8.204(a)(1)(B) provides that each brief must 

"[s]tate each point under a separate heading or subheading summarizing the point, and 

support each point by argument and, if possible, by citation of authority . . . ." An 

 

3 All subsequent rule references are to the California Rules of Court.
9

appellant's headings must "take the form of propositions, which if sustained would lend 

substantial support to appellant's request for a reversal." (Lady v. Worthingham (1942) 

55 Cal.App.2d 396, 397.) The reason for this rule is to assist the court and counsel in 

identifying and responding to specific assertions of trial court error. These rules apply to 

Larson even though he is self-represented. In a civil case, a party may choose to act as 

his or her attorney, and he or she is entitled to the same, but no greater, consideration than 

that afforded to other litigants and attorneys. Larson, representing himself, is not entitled 

to any special or lenient treatment. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-

985.) 

The headings in Larson's brief are: "Overview and Procedural Posture,"

"Applicable Standards," "Request for Judicial Notice," and "Discussion and Ruling." 

None of these headings denotes or describes a cognizable issue on appeal. Larson's brief 

is mostly a stream of consciousness recital of alleged facts and scattered legal arguments. 

We are not compelled to sort through Larson's brief to try to select those claims 

that are not separately captioned but seem worthy of comment. Nor will we undertake to 

fashion viable arguments for Larson from his numerous comments about the rulings or 

evidence that led to his criminal conviction. Although in light of Larson's violation of 

rule 8.204 we could deem all issues waived or forfeited, we address the issues as we best 

discern them. However, if we have overlooked an argument buried or lurking in Larson's 

brief under a topic heading that does not identify an argument, the issue is deemed 

forfeited or waived. (Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 
10

1830, fn. 4 ["The failure to head an argument as required by . . . rule [8.204(a)(1)(B)] 

constitutes a waiver."].)

B. The Clerk Properly Refused to File Larson's Motion for Default Judgment

1. Procedural Background

On November 14, 2014, Larson served the summons and complaint on Pfingst, 

and on November 18, 2014, on Barber. Larson did not serve any other defendants.

On December 23, 2014 (39 days after service), County Counsel filed a demurrer 

on behalf of Pfingst. 

On January 22, 2015 (65 days after service), Barber's attorneys filed his demurrer. 

On February 13, 2015, County Counsel also filed a demurrer on behalf of 

Ramirez.

Meanwhile, after Pfingst's demurrer was filed, Larson sent a self-drafted document 

entitled "Motion for Default Judgment" to the court clerk on December 30, 2014, and 

again apparently sent the same document for filing on January 15, 2015.

On January 9, 2015, in a document entitled "Notice to Filing Party," the clerk 

returned Larson's Motion for Default Judgment, stating, "Your motion is not set and is 

being returned in light of Defendant's appearance via Demurrer . . . ." 

Larson contends the clerk should have filed his Motion for Default Judgment 

because (1) "[s]ummons show default judgment may be granted if defendant does not 

respond in 30 days[,]" and (2) "[j]udgment if defendant fails to answer complaint." 
11

2. Analysis

Larson's arguments fail for at least two reasons. First, even after 30 days have 

expired, if no default yet has been entered, a defendant may file a responsive pleading to 

a complaint. The court clerk cannot refuse to accept the responsive pleading for filing 

merely because the time to respond has expired. (Goddard v. Pollock (1974) 37 

Cal.App.3d 137, 141.) Moreover, contrary to Larson's assertions, a responsive pleading 

includes not only an answer, but also a demurrer. (Code Civ. Proc., § 585, subd. (a).) 

Here, Pfingst filed his demurrer before Larson attempted to file his Motion for Default 

Judgment.

Second, even if Larson's Motion for Default Judgment had been submitted for 

filing before any demurrer was filed, and even if it were construed as a request for entry 

of default (as distinguished from request for entry of default judgment), the court would

have been required to reject it because Larson did not use the mandatory Judicial Council 

form for requesting entry of default. 

The California Constitution gives the Judicial Council of California the power to 

"adopt rules for court administration, practice and procedure." (Cal. Const., art. VI, § 6, 

subd. (d).) The Judicial Council has adopted a rule making the use of certain forms 

mandatory. (Rule 1.31; § 68511.) The "Request for Entry of Default (Application to 

Enter Default)," form No. CIV-100, is mandatory. (Rule 1.31(b) & (c); see Cal. Rules of 

Court, appen. A, Judicial Council Legal Forms List.) The form may be found online at: 

<www.courts.ca.gov/forms> [as of Feb. 11, 2016]. 
12

Larson did not use the mandatory Judicial Council form. Use of the mandatory 

form for requesting entry of default is important because in addition to containing 

information used to indicate whether it is being used to enter a default or a default 

judgment (a distinction Larson's self-drafted document ignores and confuses), the 

mandatory form also contains sections that must be filled out in certain circumstances to 

comply with statutory requirements. For example, if the form is to be used to request 

entry of default, the plaintiff must fill out a declaration under Code of Civil Procedure 

section 585.5, something Larson's self-drafted document does not contain.4 

Because Larson failed to use the mandatory Judicial Council form, the court clerk 

lacked authority to file Larson's fatally defective and improper request to enter default 

judgment. Therefore, the clerk properly rejected his Motion for Default Judgment for 

filing. 

C. The Court Properly Sustained the Demurrers Without Leave to Amend

1. Standard of Review

An order sustaining a demurrer is reviewed de novo. " 'We treat the demurrer as 

admitting all material facts properly pleaded, but not contentions, deductions or 

conclusions of fact or law. [Citation.] We also consider matters which may be judicially 

noticed.' [Citation.] Further, we give the complaint a reasonable interpretation, reading it 

 

4 Code of Civil Procedure section 585.5, subdivision (a) states: "Every application 

to enter default under subdivision (a) of Section 585 shall include, or be accompanied by, 

an affidavit stating facts showing that the action is or is not subject to Section 1812.10 or 

2984.4 of the Civil Code or subdivision (b) of Section 395."
13

as a whole and its parts in their context. [Citation.] When a demurrer is sustained, we 

determine whether the complaint states facts sufficient to constitute a cause of action. 

[Citation.] And when it is sustained without leave to amend, 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.)

2. Negligence Claims Barred by Immunity

"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." (§ 821.6.) " 'California courts construe 

section 821.6 broadly in furtherance of its purpose to protect public employees in the 

performance of their prosecutorial duties from the threat of harassment through civil 

suits.' " (Richardson-Tunnell v. School Ins. Program for Employees (SIPE) (2007) 157 

Cal.App.4th 1056, 1062 (Richardson-Tunnell).)

Section 821.6 immunity applies to a public prosecutor. (Miller v. Filter (2007) 

150 Cal.App.4th 652, 666.) "The immunity is absolute, applying even if the prosecutor 

'acts maliciously and without probable cause' [citations], such as by concealing 

exculpatory evidence [citations]." (Ibid.) Section 821.6 also applies to police officers. 

(Asgari v. City of Los Angeles (1997) 15 Cal.4th 744, 757.) 

Section 821.6 not only protects against claims for malicious prosecution, but also 

bars actions for negligence. (Amylou R. v. County of Riverside (1994) 28 Cal.App.4th 
14

1205, 1210-1211 [police officers investigating crime immune from liability for negligent 

infliction of emotional distress]; Kayfetz v. State of California (1984) 156 Cal.App.3d 

491, 497 [collecting cases].) 

"The test of immunity is not the timing of the offending conduct but whether there 

is a causal relationship between the act and the prosecution process. Thus, if the act is 

taken as part of the process, it is protected by the immunity in section 821.6." (County of 

Los Angeles v. Superior Court (2009) 181 Cal.App.4th 218, 229.) Although immunity 

under section 821.6 is broad, it does not bar an action for false arrest or false 

imprisonment. (Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 719-720.)

Because the purpose of section 821.6 is to allow the efficient functioning of the 

criminal justice system by enabling public employees to do their jobs without threat of 

civil lawsuits, courts have applied section 821.6 at the pleading stage to reject attempts to 

impose liability for a wide variety of causes of action arising out of criminal or 

administrative investigations. (E.g., Richardson-Tunnell, supra, 157 Cal.App.4th 1056

[judgment on the pleadings]; Jager v. County of Alameda (1992) 8 Cal.App.4th 294 

[demurrer].)

Here, Larson alleges the police and prosecutors lied, fabricated evidence, and 

would not allow Larson to present exculpatory evidence. In his brief, Larson asserts 

Barber "committed perjury" and the "results of a stipulated lie detector examination were 

not considered" at his trial.

Because the acts of misconduct Larson alleges and argues were all part of the 

prosecution of the crimes of which he was charged, the conduct is absolutely immune 
15

under section 821.6 and the court properly sustained the demurrer to Larson's first cause 

of action.

3. Larson's Conviction Bars His False Imprisonment Claims

In Heck, the United States Supreme Court considered whether a state prisoner may 

challenge the constitutionality of his conviction in a suit for damages under title 42 

United States Code section 1983. (Heck, supra, 512 U.S. at p. 478.) Noting that title 42 

United States Code section 1983 created a species of tort liability, Heck recognized that 

"civil tort actions are not appropriate vehicles for challenging the validity of outstanding 

criminal judgments." (Heck, at p. 486.) The Court therefore held that "when a state 

prisoner seeks damages in a [title 42 United States Code section] 1983 suit, the [trial] 

court must consider whether a judgment in favor of the plaintiff would necessarily imply 

the invalidity of his conviction or sentence; if it would, the complaint must be dismissed 

unless the plaintiff can demonstrate that the conviction or sentence has already been 

invalidated." (Heck, at p. 487; see Beets v. County of Los Angeles (2011) 200 

Cal.App.4th 916, 923.) 

In Susag, supra, 94 Cal.App.4th 1401, this Court applied the Heck rule to claims

under both title 42 United States Code section 1983 and related state tort law. Susag was 

convicted of resisting arrest. (Susag, at p. 1406.) After he was convicted, Susag filed a 

civil action alleging, among other things, false imprisonment, arising from the same

incident that led to his conviction. (Id. at p. 1407.) This Court noted an essential element 

of resisting arrest is that the officer must be engaged in the lawful performance of his or 

her duties. (Id. at p. 1409.) Thus, Susag's civil claims, if proven, would necessarily 
16

imply the invalidity of his conviction for resisting arrest by an officer. Accordingly, this

Court determined Susag's state law claims were barred. (Id. at p. 1412.) Moreover, 

several public policy concerns compelled that result—Susag could not profit from his 

own illegal act and should bear the sole responsibility for the consequences of his act, and 

a determination contrary to the result in the criminal proceedings would engender 

disrespect for the courts and discredit the administration of justice. (Ibid.)

Later, in Yount, the California Supreme Court confirmed that the Heck analysis 

applies equally to a plaintiff's claims under both title 42 United States Code section 1983 

and analogous state tort law. (Yount, supra, 43 Cal.4th at p. 902.) 

Under these authorities, the relevant question here is whether success in Larson's 

civil case for false imprisonment would necessarily imply or demonstrate the invalidity of 

his earlier conviction for resisting an executive officer under Penal Code section 69. If 

so, the civil claim is barred under Susag and Yount.

Under California law, the elements of a tortious claim of false imprisonment are: 

"(1) the nonconsensual, intentional confinement of a person, (2) without lawful privilege, 

and (3) for an appreciable period of time, however brief." (Easton v. Sutter Coast 

Hospital (2000) 80 Cal.App.4th 485, 496.) The second element, "without lawful 

privilege," is key here. For Larson to succeed on a false arrest/false imprisonment claim

in his civil case, he must establish the defendants did not have a lawful privilege to arrest 

or imprison him.

However, Larson's conviction under Penal Code section 69 required the 

prosecution to establish Larson resisted an executive officer who was engaged in the 
17

performance of his or her lawful duties. Lawfulness of the arrest is an essential element 

of this offense. (See CALCRIM No. 2651 ["To prove that the defendant is guilty of this 

crime, the People must prove that: [¶] 1. The defendant willfully and unlawfully used 

(violence/ [or] a threat of violence) to try to (prevent/ [or] deter) an executive officer 

from performing the officer's lawful duty; AND [¶] 2. When the defendant acted, 

(he/she) intended to (prevent/ [or] deter) the executive officer from performing the 

officer's lawful duty." (Italics added.)].) "[I]t is . . . a 'well-established rule that when a 

statute makes it a crime to commit any act against a peace officer engaged in the 

performance of his or her duties, part of the corpus delicti of the offense is that the officer 

was acting lawfully at the time the offense was committed.' " (People v. Cruz (2008) 44 

Cal.4th 636, 673.)

Larson's false arrest/false imprisonment cause of action is barred by Susag, 

because if there were to be a finding in his favor on false arrest/imprisonment, such 

finding necessarily would challenge the validity of his conviction for violating Penal 

Code section 69. (Susag, supra, 94 Cal.App.4th at pp. 1409-1410 [action for false 

imprisonment barred by standing conviction for resisting or obstructing a peace officer].) 

Because Larson's conviction has not been deemed invalid, his false imprisonment claims

fail, and the court properly sustained the demurrers to that cause of action.5

 

5 Larson's reliance on Rezek v. City of Tustin (C.D.Cal., Feb. 6, 2014, 

No. SACV 11-1601-DOC (RNBx)) 2014 U.S. Dist. Lexis 15117 for a contrary result is 

misplaced. Unlike Larson, in Rezek, the defendant was acquitted of resisting arrest.
18

D. No Abuse of Discretion in Denying Leave to Amend

The court denied Larson leave to amend, stating:

"Plaintiff in his tardy opposition requests leave to amend . . . , and it is 

ordinarily an abuse of discretion to deny such a request unless the inability 

to state a valid cause of action is clear. In this respect, plaintiff has the 

burden to show in what manner he can amend the complaint and how the 

amendment will change the legal effect of the pleading. . . . He makes no 

effort to comply with this requirement. He fails to articulate how he could 

amend the complaint and the legal impact of that amendment. Leave to 

amend is therefore denied."

Larson contends the court abused its discretion in denying leave to amend because 

he had proven that "[s]ection 821.6 does not immunize a public employee from liability 

for false arrest or imprisonment . . . [,] and it follows that under the concept of respondeat 

superior, a public employer is responsible for the tort of false imprisonment by the 

conduct of a public employee. [Citations.] Appellant requested that the City of El Cajon 

and County of San Diego are included as defendants or allowed to amend." (Sic.)

The court did not abuse its discretion in denying leave to amend. As explained, 

Larson's false imprisonment cause of action is barred by his standing conviction. Any 

amendment to name additional public entity defendants under a respondeat superior 

theory of vicarious liability would be subject to the same fatal bar. A court does not 

abuse its discretion in denying leave to amend to assert a claim that is barred as a matter 

of law. (Royalty Carpet Mills, Inc. v. City of Irvine (2005) 125 Cal.App.4th 1110, 1124.)
19

DISPOSITION

The judgment is affirmed. Barber, Pfingst and Ramirez are awarded their costs on 

appeal. (Rule 8.278(a).)

IRION, J.

WE CONCUR:

MCINTYRE, Acting P. J.

PRAGER, J.*

 

* Judge of the San Diego Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.