Nesby v. City and County of San Francisco

Full title: STANCY NESBY, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO…

Court: Court of Appeal of California

Date published: Feb 19, 2009

No. A115620 (Cal. Ct. App. Feb. 19, 2009)

Opinion

A115620

2-19-2009

STANCY NESBY, Plaintiff and Appellant, v. CITY AND COUNTY OF SAN FRANCISCO et al. Defendant and Respondent.

Not to be Published in Official Reports

Dondero

INTRODUCTION

Police officers for defendant City and County of San Francisco (the City) booked a woman who falsely identified herself as plaintiff Stancy Nesby (the impostor). When she later absconded, bench warrants for her arrest were issued in plaintiffs name (the warrants), and plaintiff was taken into custody multiple times by outside law enforcement agencies. She brought suit against the City and its employees, claiming they had caused her injuries by failing to verify the impostors identity and by not taking remedial action to prevent her arrest. The trial court sustained the Citys demurrer without leave to amend as to all but two causes of action, eventually granted summary judgment on the remaining claims, and denied her subsequent motion for leave to file an amended complaint.

In reviewing these rulings, we consider whether a public entity may be held liable for the mistakes of law enforcement personnel in the identification of a criminal offender in the course of their official duties. We conclude that public employees are immune from liability for their acts and omissions in this regard (Gov. Code, § 821.6), that plaintiffs detentions were privileged, as they were made pursuant to lawful process, and that City law enforcement agencies had no duty to protect her in the absence of a special relationship, which she has not established. Accordingly, we affirm, as these allegations do not support liability against the City, and plaintiff has not shown that she can amend to state a viable cause of action.

FACTUAL BACKGROUND

The Impostor

In January 1999, the San Francisco Police Department (SFPD) arrested a woman on felony drug charges, who identified herself using plaintiffs name and personal information, including her drivers license number, date of birth, and address. SFPD officers fingerprinted her and recorded the FBI number associated with her fingerprints, but booked her in plaintiffs name. (See Pen. Code § 7(21) ["To `book signifies the recordation of an arrest in official police records, and the taking by the police of fingerprints and photographs of the person arrested, or any of these acts following an arrest"].) SFPD arrested the impostor a number of times in 1999 on similar charges, and she falsely identified herself as plaintiff each time.

In March 2000, after pleading guilty to multiple felony drug offenses, the impostor was convicted and received probation.¹ When she stopped reporting to probation the following year and failed to appear in court on related charges, two bench warrants for her arrest were issued in plaintiffs name and disseminated in law enforcement databases statewide.²

1 Neither the Probation Department nor any other agency involved in the impostors prosecution identified her by any other name. In other words, the only name any agency of the City had for the impostor was that of plaintiff.

2 "A warrant of arrest is a written order, signed by a magistrate, and generally directed to a peace officer, commanding the arrest of the defendant." (4 Witkin & Epstein, Cal. Crim. Law (3d ed. 2000), Pretrial Proceedings, § 18, p. 216; see Pen. Code, § 813 et seq.)

The April 30, 2002 Hearing

In late 2001, plaintiff learned of the warrants and retained an attorney, C. Don Clay (Clay), to have the identity error corrected. On April 30, 2002, she appeared in criminal court with Clay to establish that she was not the person sought under the warrants. Louise Statzer (Statzer), a fingerprint technician with the Citys Identification Bureau (ID Bureau), took her fingerprints, compared them with the impostors, and advised the criminal court that plaintiffs prints did not match SFPD records for the person sought under the warrants. Statzer told the criminal court that she would put a "be advised" notation on the impostors "SF number,"³ notifying officers not to confuse the impostor with the true Stancy Nesby, "giv[ing] a particular finger as an identifying mark." Statzer also agreed to take a photograph of the impostor to the San Francisco Sheriffs Department (SFSD) warrant bureau (Warrant Bureau) and have it attached to the warrants. At Clays request, the criminal court asked Statzer to search for prior arrests to determine the impostors identity and indicated an intent to eventually substitute the impostors correct name on the warrants if possible. Statzer agreed to run the fingerprints through the state database and report back to the court. The criminal court placed the matter on calendar for follow-up but kept the bench warrants outstanding in plaintiffs name.

3 The "SF number" is the unique identifier assigned to each individual arrested by the City.

Clay had no further communication on this matter with the criminal court, SFPD, or SFSD. He testified: "The understanding was they were going to put in a process or a procedure to identify her as not being the person . . . subject to the arrest. Because thats basically all you can do. You still have an outstanding warrant because you have a case number. But . . . whether or not this is the individual, thats a whole different issue."

The Citys Efforts on Plaintiffs Behalf

When plaintiff was fingerprinted on April 30, 2002, ID Bureau employees gave her a copy of the impostors mug shot profile, which contained the impostors photograph, and advised her to carry it with her to avoid arrest.

After the hearing, Statzer entered a notation on the impostors record in the Bay Area Law Enforcement Database, the only database into which she could enter information: "BE ADVISED: DO NOT CONFUSE WITH THE STANCY NESBY, WHO HAS AN ULNAR LOOP IN THE RIGHT THUMB." Additionally, she took a photograph of the impostor to the Warrant Bureau and was present when it was attached to the warrants. She also sent a request to the California Department of Justice regarding records associated with the fingerprints of plaintiff and the impostor.

On May 9, 2002, Statzer searched a state criminal database for the impostors true name, but her search revealed no other names for the impostors California identification number and fingerprints. She informed the criminal court of her search results, and the warrants remaining outstanding and unaltered.

Plaintiffs Encounters with Law Enforcement

On July 26, 2002, the Shasta County Sheriffs Department (Shasta County) stopped plaintiff for speeding. Plaintiff told the officers about the warrants, explained the identity error, and showed them the mug shot profile. The officers took her to the station, where she was fingerprinted after waiting "a little while." Shasta County contacted the SFSD Warrant Bureau, which sent the impostors fingerprints for comparison, and within an hour, Shasta County determined that plaintiff was not the subject of the warrants. Nonetheless, Shasta County charged her with possession of a stolen cell phone they found in her car and kept her in jail for three or four days.

In September 2002, a criminal investigator for the Shasta County District Attorney (Forrester) went to plaintiffs home and took her to the station for fingerprinting to confirm her identity. He did not arrest her. After plaintiff was fingerprinted, he took her fingerprints to the Shasta County ID Lab, which compared them to the impostors fingerprints the City had sent in July 2002 and confirmed that plaintiff was not sought under the warrants. Forrester then took plaintiff home.

Less than two months later, on November 9, 2002, the California Highway Patrol (CHP) stopped plaintiff for speeding. She told the officers about the warrants and showed them related documents, including the mug shot profile. After the City confirmed that the warrants were outstanding, the CHP took plaintiff to jail and asked the Warrant Bureau to fax the warrant abstracts so it could book her, but the City refused to do so until she was fingerprinted. The officers were unable to fingerprint her in a timely manner, so they released her without booking her.

Plaintiffs next encounter with law enforcement took place around 11 p.m. on September 3, 2003, when a Berkeley police officer stopped her vehicle. She told the officer about the warrants and showed him related documents, including the mug shot profile. The officer ripped up the documents and transported her to jail, where she was fingerprinted and kept in a holding cell. She urged the officers to fax her fingerprints to the City for verification of her identity, but they did not do so and instead transported her to the Oakland and Santa Rita jails for pickup by the City. She was released the morning of September 4, 2003, after an Alameda public defender intervened and Berkeley police contacted the City about the warrants.

After her release that morning, plaintiff was stopped again by the Oakland Police Department because her car registration was invalid. She told the officer about the warrants and explained that she was the victim of identity theft. The officer took her to the station but did not fax her fingerprints to the City. She was released several hours later after another officer contacted the City and confirmed that she was not the subject of the warrants.

Berkeley police stopped plaintiff again less than two weeks later, on September 16, 2003. Plaintiff explained the identity error, but the officer told her he was going to take her to the station for fingerprinting. She was not taken into custody, however, as another officer arrived at the scene and informed him of the warrant error.

A year later, on September 18, 2004, Berkeley police officers investigating a local robbery approached a parked car in which plaintiff was sitting and began to question her. She immediately showed them documents relating to the warrants, including recent newspaper articles about the impostors use of her name. The officers took her to the station but released her four hours later without booking her, after they contacted the SFSD Warrant Bureau and learned that they had the wrong person in custody.

Further Assistance from the City

After her encounter with Shasta County in July 2002, plaintiff called Clay, who told her "there was nothing else he [could] do," so she retained another attorney right away, as she felt "that [she] had an obligation for somebody to do something because I kept going to jail after I had already paid a lawyer to help me to . . . get this over with." Her new attorney made several calls on her behalf, but was unable to resolve the problem.

Accordingly, after the incidents with law enforcement in September 2003, plaintiff went to the ID Bureau seeking assistance. City employees gave her a fingerprint card that contained a copy of her drivers license and an advisory note not to confuse her with the impostor, who had a different California identification number. Plaintiff was stopped by Vacaville police, but showed the fingerprint card and was not taken into custody.

Nonetheless, plaintiff returned to the City in October 2003, and City employees provided her a record clearance letter stating that her verified fingerprints confirmed her innocence. Specifically, the letter noted: "Bench Warrant # 576880 issued on 09/14/2001 . . . and Bench Warrant #579116 issued on 10/19/2001 . . . DO NOT BELONG to . . . the true Stancy Nesby, date of birth May 12, 1976. These two Warrants . . . have been flagged by the Warrant Bureau of [SFSD] . . . ." Plaintiff was stopped by police on several other occasions, but was not taken to jail when she showed the records clearance letter.

Shortly after this visit, plaintiff retained another attorney and at his direction, went again to the ID Bureau in June 2004 to obtain a copy of her rap sheet. Employees fingerprinted her to confirm she was not wanted under the warrants, then made the following notation in the local database: "BE ADVISED: DO NOT CONFUSE WITH THE STANCY [NESBY] WHO HAS A 3-IN SCAR ON BACK OF HER LEFT HAND [BETWEEN] INDEX AND MIDDLE FINGER."

Recall of the Warrants

In September 2004, the San Francisco District Attorneys Office (the D.A.) reviewed the impostors files at the request of a judge. The D.A. ran the impostors FBI number and on September 21, 2004, obtained her FBI rap sheet, which reflected her true name. Concluding that the impostor was no longer a major threat to society, as she had not been arrested on any additional felonies since she absconded, the D.A. moved the next day to terminate her probation. After the D.A. identified the true name of the impostor, the court ordered that court records be amended to reflect that name, terminated her probation, and recalled the warrants.

PROCEDURAL HISTORY

On September 7, 2004, plaintiff filed suit against the City and its employees (Does 1 through 100), including SFPD and SFSD officials and supervisory personnel. She alleged seven causes of action: negligence/negligent infliction of emotional distress (NIED), including allegations of negligent hiring, training, and supervision, intentional infliction of emotional distress (IIED), false imprisonment, unreasonable search and seizure (Cal. Const., art. 1, § 13), violation of her due process and equal protection rights (Cal. Const., art. 1, § 7(a)), interference with her civil rights by threats or intimidation (Civ. Code, § 52.1), and violence on account of her race or color (Civ. Code, § 51.7). She later filed a First Amended Complaint (FAC) that contained the same causes of action and substantially similar allegations, but added allegations relating to her encounter with Berkeley police on September 18, 2004, after suit was filed. The trial court sustained the Citys demurrer to the FAC in its entirety, in reliance on authority holding that public entities are immune from liability except as provided by statute (Gov. Code, § 815, subd. (a)) and have no mandatory duty to correct court records as to the identity of the subject of a warrant. (See Lopez v. City of Oxnard (1989) 207 Cal.App.3d 1 (Lopez).) The trial court granted plaintiff leave to amend "to plead that [the City] failed to perform a mandatory statutory duty."

Plaintiff filed a 76-page Second Amended Complaint (SAC) that set forth 14 causes of action, including those in the FAC for: ordinary negligence (second cause of action), false imprisonment (fifth cause of action); IIED (sixth cause of action), NIED (seventh cause of action), unreasonable search and seizure (Cal. Const., art. I, § 13) (ninth cause of action), violation of due process and equal protection (Cal. Const., art. I, § 7) (tenth cause of action), and state civil rights violations under Civil Code sections 52.1 (eleventh cause of action) and 51.7 (twelfth cause of action). The SAC also adds causes of action for: breach of a mandatory duty (Gov. Code, § 815.6) (first cause of action), negligence based on the assumption of a special duty of protection (third cause of action), violation of privacy (Cal. Const., art. I, § 1) (eighth cause of action), and equitable claims for injunctive relief (thirteenth cause of action) and a declaratory judgment (fourteenth cause of action). The SAC also asserts a separate cause of action for vicarious liability (fourth cause of action). Although plaintiff brings all causes of action except one (fourteenth cause of action for a declaratory judgment) against both the City and its employees, the SAC does not indicate whether she proceeds against the City directly or vicariously.

The Citys Demurrer to the SAC

The City filed a demurrer to the SAC and requested judicial notice of plaintiffs government claim, the warrants and attached printouts from a statewide law enforcement database (CLETS), the minutes of the April 30, 2002 criminal proceedings, and the record clearance letter. Plaintiff did not object, but filed a post-argument request for judicial notice of the "electronic warrants." The trial court did not rule on either request.

On July 14, 2005, the trial court issued an order overruling the demurrer as to plaintiffs third and fourth causes of action against the City for the negligence of its employees, concluding that the SAC sufficiently alleged that "defendant [had] made a promise to undertake a special duty on behalf of plaintiff." The trial court sustained the demurrer as to the 12 remaining causes of action without leave to amend. Concluding that the enactments on which plaintiff relied simply set forth prohibitions or rights and did not impose an obligatory duty to take specified official action, the trial court held that plaintiff had failed to assert a mandatory duty. For that reason, it sustained the demurrer as to her first (mandatory duty), second (ordinary negligence), eighth (privacy), ninth (unreasonable search and seizure), and tenth (due process/equal protection) causes of action. The trial court further concluded that the SACs allegations did not support false imprisonment (fifth cause of action), IIED (sixth cause of action), or state civil rights violations (eleventh and twelfth causes of action) and that in these circumstances NIED (seventh cause of action) is not a separate cause of action, distinct from negligence.

The Citys Motion for Summary Judgment

The City filed an answer to the third and fourth causes of action remaining and on April 7, 2006, filed a motion for summary judgment, or in the alternative, summary adjudication. In support of the motion, the City filed a statement of undisputed material facts, identifying 51 facts and supporting evidence. Plaintiff purported to dispute at least 20 of these facts, in part or in their entirety, and filed a statement of 54 additional facts. We set out the facts material to our analysis in our discussion of the motion below.

On June 8, 2006, the trial court granted summary judgment, concluding that neither the City nor its employees owed a special duty to plaintiff, that quasi-judicial immunity protected City employees from liability, and that plaintiffs action was barred as to her first three and seventh arrests because she had failed to file a timely government tort claim for these incidents.

Plaintiffs Motion for Leave to File a Third Amended Complaint

A week later, plaintiff filed a motion to stay entry of judgment so she could seek leave to amend and on June 21, 2006, submitted her request for leave to file a proposed Third Amended Complaint (TAC). She claimed that evidence disclosed by the City Attorneys Office on May 25, 2006, confirmed that the City knew of the impostors identity in January 1999 and that the May 2006 deposition testimony of CHP officers revealed that the City had delayed its response to law enforcement inquiries, prolonging her detentions. She also claimed that the City had "either requested, verified[,] or ratified the warrants at issue . . . ." Plaintiff sought to add a cause of action for negligent misrepresentation, claiming the Citys knowledge of the impostors identity gave rise to a duty to either correct its mistakes or give her the impostors identity information so she could do so. The proposed TAC also asserts a cause of action for failure to warn based on a similar duty stemming from her dependency on the City and seeks to "reinstate" her causes of action for false imprisonment, IIED, and state civil rights violations.

The City opposed a stay and claimed that plaintiffs motion for leave to amend improperly sought to relitigate the trial courts earlier orders sustaining the demurrer without leave to amend and granting summary judgment. Accordingly, the City contended, she could obtain the relief she sought only in her motion for new trial or on appeal. The trial court denied both motions on July 26, 2006, noting: "Plaintiff is to raise issues in motion for new trial."⁴

4 The trial court heard the motion for new trial the same day. We do not deem this significant, however, as the trial court had advised the parties of its tentative ruling in this regard at the hearing on July 14, 2006, and plaintiff raised these issues in her motion for new trial.

Relying on the same "new evidence" set out in the proposed TAC, plaintiff sought in her motion for new trial to reinstate several causes of action. She also contended that the trial court had erred in granting summary judgment and in sustaining the demurrer as to all but two of her causes of action. On July 27, 2006, the trial court denied the motion, concluding that plaintiff had failed to establish any basis for such relief.

The trial court entered judgment the next day. Plaintiff filed a timely notice of appeal from the judgment and the trial courts orders sustaining the demurrers to the FAC and SAC, denying plaintiffs motion for leave to file a third amended complaint, and denying the motion for new trial (new trial order).⁵

5 As plaintiff does not address the new trial order in her briefs, she has abandoned this assertion of error. (See Baugh v. Garl (2006) 137 Cal.App.4th 737, 746 (Baugh).)

DISCUSSION

I. The Government Claims Act

Since this case turns in large part on the potential tort liability of a public entity, we seek to underscore the controlling principles at the outset. The Government Claims Act (the Act) governs the potential liability of public entities and their employees and confines it to "rigidly delineated circumstances." (Williams v. Horvath (1976) 16 Cal.3d 834, 838; accord, State of California v. Superior Court (2004) 32 Cal.4th 1234, 1243.) The Act distinguishes between public entities, which are immune from liability except as provided by statute (Gov. Code, § 815), and public employees, who may be held liable to the same extent as private persons (Gov. Code, § 820). Under the Act, a public entity may be held vicariously liable for injuries caused by the acts and omissions of its employees acting within the scope of their employment. (Gov. Code, § 815.2, subd. (a); see Hoff v. Vacaville Unified School Dist. (1998) 19 Cal.4th 925, 932 (Hoff) [to the same extent as private employer].) A specific statutory basis is required, however, to hold a public entity directly liable for its own conduct. (Eastburn v. Regional Fire Protection Authority (2003) 31 Cal.4th 1175, 1183 (Eastburn).) Liability under these principles is subject to specific immunities set out in the Act and generally provided by statute, as well as the defenses otherwise available to private persons. (See Gov. Code, § 815, subd. (b).)

Having set out the framework for our analysis, we consider the trial courts order sustaining the Citys demurrer to the SAC without leave to amend (the demurrer order), the summary judgment, and the order denying leave to file a third amended complaint.⁶

6 We do not consider the order sustaining the demurrer to the FAC, as plaintiff has waived error in this regard by electing to amend her complaint. (See Leibert v. Transworld Systems, Inc. (1995) 32 Cal.App.4th 1693, 1698-1699.) The orders sustaining the demurrer to the SAC and denying leave to amend are reviewable on appeal from the judgment. (See Jennings v. Marralle (1994) 8 Cal.4th 121, 128; Code Civ. Proc., § 472c.)

II. The Demurrer Order

We review the demurrer order de novo and determine independently whether the SAC states a cause of action. (See Holiday Matinee, Inc. v. Rambus, Inc. (2004) 118 Cal.App.4th 1413, 1421.) On appeal, plaintiff has the burden to show that the SAC alleges facts sufficient to establish every element of each cause of action. (See Rakestraw v. California Physicians Service (2000) 81 Cal.App.4th 39, 43 (Rakestraw).) We affirm if the SAC fails to plead, or the City negates, any essential element (see id. at p. 43), or if the allegations "clearly disclose some defense or bar to recovery." (Casterson v. Superior Court (2002) 101 Cal.App.4th 177, 183, italics omitted.) In determining these issues, we accept as true all facts properly pleaded or subject to judicial notice, but not "contentions, deductions, or conclusions of fact or law."⁷ (See Evans v. City of Berkeley (2006) 38 Cal.4th 1, 6 (Evans).)

7 The parties do not cite to the allegations in the SAC and rely instead on evidence in the record. We do not consider subsequent proceedings, factual allegations not contained in the SAC, or evidence of which we may not take judicial notice. Accordingly, we treat these evidentiary citations as factual allegations and address extraneous allegations in considering whether plaintiff can amend to state a cause of action.

On appeal, plaintiff challenges the demurrer order as to her first (mandatory duty), second (negligence), fifth (false imprisonment), sixth (IIED), eighth (privacy), eleventh (Civ. Code, § 52.1), and twelfth (Civ. Code, § 51.7) causes of action.⁸ We address each in turn, considering first, whether the SACs allegations state a direct cause of action against the City, and then whether the alleged conduct of City employees may give rise to vicarious liability (Gov. Code, § 815.2, subd. (a)). (See Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1127 (Zelig).)

8 Plaintiff has abandoned her ninth and tenth causes of action under the California Constitution. She relies on constitutional provisions to support her first (mandatory duty), and eleventh (Civ. Code, § 52.1) causes of action, but does not attempt to establish independent causes of action for damages. (See Baugh, supra, 137 Cal.App.4th at p. 746; Katzberg v. Regents of University of California (2002) 29 Cal.4th 300, 313, fn. 13, 315, fn. 16 (Katzberg) [setting out the framework for determining whether a state constitutional right gives rise to a damages cause of action].) As she also fails to raise her thirteenth and fourteenth causes of action (equitable relief) on appeal, she has waived error in this regard as well.

A. Plaintiffs Direct Causes of Action Against the City

Contrary to plaintiffs assertion, the Citys liability for its own acts and omissions does not turn "`on ordinary and general principles of tort law," regardless of whether it has created a risk of harm. Direct tort liability of a public entity requires "a specific statute declaring [it] to be liable, or at least creating some specific duty of care . . . ." (Eastburn, supra, 31 Cal.4th at p. 1183.)

Government Code section 815.6 provides for such liability when a public entity fails to discharge "a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury . . . ."⁹ To state a cause of action under this section, plaintiff must assert an enactment that (1) imposes a mandatory rather than a discretionary duty, and (2) was enacted to protect against the kind of injury she suffered. (See Thompson v. City of Lake Elsinore (1993) 18 Cal.App.4th 49, 54.) "Enactments" include statutes and constitutional provisions. (Gov. Code, § 810.6.)

9 In such cases, the public entity is liable for injuries of the kind proximately caused by its breach unless it establishes that it exercised reasonable diligence to discharge the duty. (Gov. Code, § 815.6; see Brenneman v. State of California (1989) 208 Cal.App.3d 812, 816-817, fn. 2 [rebuttable presumption of negligence, analogous to Evid. Code, § 669].)

To establish her statutory predicate of "enactment," plaintiff relies on Penal Code section 850, subdivision (b) (section 850(b)), which identifies the information to be contained in telegraphic warrants and abstracts of original warrants, contending that the warrant abstracts in this case lacked particularity, as they described the impostor only as a Black female and did not include her height, eye color, weight, and hair color.¹⁰ Section 850(b) states that an abstract of warrant "shall contain the following information: the warrant number, the charge, the court or agency of issuance, the subjects name, address and description, the bail, [and] the name of the issuing magistrate or authority . . . ."

10 On appeal, plaintiff contends that the warrant "abstracts" in this case were deficient, apparently referring to the electronic warrants disseminated in law enforcement databases. The SAC alleges deficiencies only in the bench warrants, however, not the abstracts or electronic warrants. Nonetheless, as plaintiff could cure this defect by amendment, we consider whether section 850(b) creates a mandatory duty. For ease of reference, we use the term "abstract" to refer to both electronic warrants and abstracts of warrant.

Section 850(b) does not purport to require law enforcement entities to describe the subject with particularity or to guarantee the accuracy of the information included in the abstract, as plaintiff suggests.¹¹ Indeed, it requires only a "description" of the subject and leaves the degree of specificity to officer discretion.¹² (§ 850(b).) "It is not enough . . . that the public entity or officer have been under an obligation to perform a function if the function itself involves the exercise of discretion." (See Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 498 (Haggis).) The presence of options generally does not suggest a mandatory duty. Such a duty arises "only where the statutorily commanded act [does] not lend itself to a normative or qualitative debate over whether it was adequately fulfilled." (de Villers v. County of San Diego (2007) 156 Cal.App.4th 238, 260 (de Villers).) At its core, plaintiffs first cause of action reflects this type of dispute, as it turns on alleged deficiencies in the descriptions provided in the warrant abstracts. Accordingly, notwithstanding the Legislatures use of the term "shall," we are unpersuaded that section 850(b) creates a mandatory duty. When an enactment confers the exercise of discretion on government officials, such language is not enough alone to support liability. (See Sutherland v. City of Fort Bragg (2000) 86 Cal.App.4th 13, 20.)

11 We note that in asserting a mandatory duty under this section, plaintiff was forced to look outside the statute itself to case law discussing the particularity required by the state and federal constitutions.

12 We question whether the statute creates a mandatory duty even to include the items identified, as this appears to involve some exercise of discretion as well. (See People v. Backus (1979) 23 Cal.3d 360, 389 [rejecting the argument that all of the items specified in section 850(b) must be included in the warrant, even when they are not applicable].)

Plaintiffs first cause of action also fails because section 850(b) was not designed to protect against the particular kind of injury she suffered. (See Haggis, supra, 22 Cal.4th at p. 499.) She must show that her injury was "`one of the consequences the [enacting body] sought to prevent through imposing the alleged mandatory duty." (See Hoff, supra, 19 Cal.4th at p. 939, fn. omitted.) We therefore are called upon to determine the legislative purpose for imposing the duty. (See Haggis, supra, 22 Cal.4th at p. 499.) Plaintiff contends, without authority, that section 850(b) was intended to "assure the apprehension of subjects wanted pursuant to warrants and to avoid the drag-net round up of a class of people who would fit a generalized description." The legislative history of section 850 belies this assertion.

In 1965, the Legislature amended section 850 to allow an abstract of warrant to be sent by telegraph or teletype and to make the abstract as effective as the warrant itself. (Leg. Counsel, Rep. on Assem. Bill No. 2525 (1965 Reg. Sess.) p. 1.) The portion of the amendment later designated as subdivision (b) "[specified] the information that the abstract is to contain." (Ibid.; see Stats. 1965, ch. 1936, § 1, p. 4466; Assem. Bill No. 2525 (1965 Reg. Sess.) § 1; Stats. 1971, ch. 194, § 1, p. 260.) This amendment was introduced at the request of the California Warrant Officers Association (CWOA) to materially reduce the amount of space needed by the overloaded teletype system, while retaining "all that is necessary for effective police work." (J.F. Coakley, District Attorneys & Peace Officers Associations of the State of California, letter to Governor Edmund G. Brown: re Assem. Bill No. 2525 (1965 Reg. Sess.) July 13, 1965; CWOA, mem. ["An abstract containing the necessary elements will do the job and not clutter up the teletype system"]; Assemblyman Edwin L. Zberg, sponsor of Assem. Bill No. 2525 (1965 Reg. Sess.), letter to Governor Edmund G. Brown, July 1, 1965.) Thus, subdivision (b) of section 850 was enacted, not to impose an additional duty on law enforcement officers, but to relieve them of the obligation to include all the information from the original paper warrant. This provision aims at controlling the detail that must be transmitted to various law enforcement agencies for use in discerning whether a particular warrant applies to a certain individual. A physical description no doubt assists officers in correctly identifying the proper subject. Nonetheless, "[t]hat the enactment `confers some benefit on the class to which plaintiff belongs is not enough; if the benefit is `incidental to the enactments protective purpose, the enactment cannot serve as a predicate for liability under section 815.6." (Haggis, supra, 22 Cal.4th at p. 499.)

We also reject plaintiffs assertion for the first time on appeal that a mandatory duty arises under Civil Code section 43, which provides a right of protection from bodily restraint or harm.¹³ The "`question is whether the enactment . . . was intended to impose an obligatory duty to take specified official action to prevent particular foreseeable injuries . . . ." (Clausing v. San Francisco Unified School Dist. (1990) 221 Cal.App.3d 1224, 1239 (Clausing). Section 43 is simply a declaration of rights; it does not impose an affirmative duty to act. (See Clausing, supra, 221 Cal.App.3d at pp. 1239-1241.) The authority on which plaintiff relies does not establish a mandatory duty under section 43 or even consider this issue. (See Jones v. Kmart Corp. (1998) 17 Cal.4th 329, 338.)¹⁴

13 New theories generally may not be raised on appeal, but in reviewing a demurrer, we search the facts to see if plaintiff can make out a claim for relief under any theory. (Smith v. Commonwealth Land Title Ins. Co. (1986) 177 Cal.App.3d 625, 629-630.)

14 Below, plaintiff also asserted mandatory duties under the California Constitution (Cal. Const., art. I, §§ 1, 7, 13). She refers to these provisions on appeal, but does not provide any authority or analysis establishing that they create a mandatory duty to take affirmative action. (See Clausing, supra, 221 Cal.App.3d at pp. 1239-1241.) We therefore deem them waived. (See Benach v. County of Los Angeles (2007) 149 Cal.App.4th 836, 852 [appellant must do more than assert that the judgment is wrong; she must affirmatively demonstrate error through reasoned argument and discussion of legal authority].)

The trial court therefore properly concluded that plaintiff had not asserted a mandatory duty and dismissed her first cause of action (Gov. Code, § 815.6). Nonetheless, it also dismissed her second cause of action (negligence) for this reason. This analysis confuses the need for a statutory basis for a direct cause of action against a public entity with one form of such liability. (Compare Gov. Code, § 815 with id. at § 815.6.) It also overlooks another statutory provision that provides for vicarious liability. (See Gov. Code, § 815.2, subd. (a).) However, despite the error plaintiff identifies in the trial courts reasoning, we must affirm the demurrer order if it is correct on any ground. (See Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329-330; accord, J.B. Aguerre, Inc. v. American Guarantee & Liability Ins. Co. (1997) 59 Cal.App.4th 6, 15-16 .) We conclude that plaintiff cannot prevail directly against the City in any case for ordinary negligence or negligent hiring, training, and supervision, as no statutory basis for such liability exists. (See Gov. Code, § 815; Eastburn, supra, 31 Cal.4th at p. 1183; de Villers, supra, 156 Cal.App.4th at pp. 251-257.) As she has not otherwise alleged a specific statutory duty breached by the City itself,¹⁵ we affirm the demurrer order as to all direct causes of action against the City and turn to its liability for the acts and omissions of its employees.¹⁶

15 The trial court also dismissed plaintiffs eighth, ninth, and tenth causes of action for the same reason. She does not challenge the demurrer order, however, as to any direct constitutional cause of action against the City. Although she attempts to state a privacy cause of action, she relies solely on employee conduct. She also asserts state civil rights violations, but again relies on alleged wrongdoing by employees rather than any affirmative act of the City itself or its failure to perform a mandatory duty. Moreover, as she does not provide any authority and analysis to establish that these provisions can support a direct cause of action against a public entity (Gov. Code, § 815), we assume that she does not seek to proceed directly against the City in this regard.

16 By its terms, Government Code section 815.6 applies only to public entities and officials, not employees. (Lebbos v. State Bar (1985) 165 Cal.App.3d 656, 667; see Gov. Code, § 815.6 ["Where a public entity is under a mandatory duty . . . ."].)

B. The Citys Vicarious Liability for Employee Conduct

A public entity may be held vicariously liable for injury caused by an employees conduct within the scope of employment if the employee could be held liable. (Gov. Code, § 815.2, subd. (a).) Accordingly, we consider the liability of City employees, who may be held liable to the same extent as private persons under general tort principles. (See Gov. Code, § 820; de Villers, supra, 156 Cal.App.4th at p. 249; Lugtu v. California Highway Patrol (2001) 26 Cal.4th 703, 715-716.)

1. Fifth Cause of Action (False Imprisonment)

To state a cause of action for false imprisonment, the SAC must allege facts showing: nonconsensual, intentional confinement for an appreciable length of time, without lawful privilege. (See Fermino v. Fedco, Inc. (1994) 7 Cal.4th 701, 715.) False arrest is one way of committing a false imprisonment. (Asgari v. City of Los Angeles (1997) 15 Cal.4th 744, 752, fn. 3); Moore v. City & County of San Francisco (1970) 5 Cal.App.3d 728, 735 (Moore).) A formal arrest is not necessary, however, as detention or restraint alone may constitute imprisonment. (See Moore, supra, at p. 735.) Plaintiff proceeds, not against the officers who detained her, but against City law enforcement personnel whose acts and omissions allegedly led to the issuance of warrants in her name. Assuming that one who does not personally restrain another may commit false imprisonment,¹⁷ we conclude that plaintiff cannot establish an essential element of her fifth cause of action: that her detentions were without lawful privilege.

17 Plaintiff contends that one who authorizes, encourages, directs, assists, or procures an unlawful arrest commits false imprisonment. The City questions the continuing validity of this contention in light of Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 375 [litigation privilege (Civ. Code, § 47, subd. (b)) protects reports of crime to law enforcement].) We need not decide this issue, as we conclude that demurrer was proper in any case.

A detention is privileged if it is legally authorized, as when it is made pursuant to lawful process, such as a valid warrant. (See Muller v. Reagh (1963) 215 Cal.App.2d 831, 836-837 (Muller), citing 2 Witkin, Cal. Procedure, Pleading, § 383, pp. 1360-1361, fn. omitted [unlawful arrest is not privileged]; accord, Garcia v. City of Merced (E.D.Cal., January 10, 2008, No. 1:07-CV-00867-OWW-DLB) 2008 U.S.Dist. Lexis 2135, 36.) In such cases, the imprisonment is not "false" even if the proceedings are groundless and the warrant is procured for an improper purpose. (Collins v. City and County of San Francisco (1975) 50 Cal.App.3d 671, 677 (Collins); Moore, supra, 5 Cal.App.3d at p. 735; see Rest.2d Torts, § 123 & com. a, p. 210 ["even though the court, through lack of information or otherwise, has issued it for the arrest of a person in fact innocent of the offense alleged"].) Thus, when the confinement is legally authorized under valid process, no false imprisonment has occurred, and those alleged to have caused it may be held liable only for malicious prosecution. (Collins, supra, 50 Cal.App.3d at pp. 676-677.) "`[T]he difference is one of the regularity of the legal process under which the plaintiffs interests have been invaded." (Bulkley v. Klein (1962) 206 Cal.App.2d 742, 746, citing Prosser on Torts (2d ed. 1955) at p. 646; accord, Collins, supra, 50 Cal.App.3d at p. 677.)

Accordingly, as the SAC asserts that plaintiff was arrested on the warrants, she must plead around the privilege by alleging "facts constituting the invalidity of the legal process" — i.e., that the warrants were invalid on their face. (See Muller, supra, 215 Cal.App.2d at pp. 836-837.) We disregard her conclusory allegations that the warrants were "facially defective" and "patently invalid" and look instead to the specific facts alleged: that each of the warrants contained a false name and inaccurate or incomplete address information and did not include a date of birth, physical description, or other identifying information for the impostor. (See ibid.; Evans, supra, 38 Cal.4th at p. 6.)

Such allegations do not relate to the validity of legal process. Process is facially valid if it proceeds from a court having jurisdiction of the subject matter and contains nothing that ought reasonably to apprise the officer it was issued without authority. (Muller, supra, 215 Cal.App.2d at pp. 837-838; Vallindras v. Massachusetts etc. Ins. Co. (1954) 42 Cal.2d 149, 155 (Vallindras) ["`[u]nless there is a clear absence of jurisdiction"]; see Lopez, supra, 207 Cal.App.3d at p. 8 ["Peace officers must execute all process and orders which are apparently regular on their face and issued by competent authority, even if there were defects in the proceedings upon which they were issued"]; see also Civ. Code, § 43.55, subd. (b) [for purposes of arresting officer immunity, defining "warrant of arrest regular upon its face" to include paper arrest warrants issued by judicial order and judicial orders "entered into an automated warrant system by law enforcement or court personnel"].) We conclude that the warrants in this case were valid.¹⁸ (See Evid. Code, §§ 459, 452, subd. (d).)

18 In so holding, we note that in plaintiffs federal action against the City of Oakland in connection with her detention on the San Francisco warrants (Nesby v. City of Oakland (N.D.Cal., Mar. 19, 2007, No. C 05-3555 JL) 2007 U.S.Dist. Lexis 22574), the district court determined that the warrants at issue here were facially valid and met the particularity requirements of Penal Code section 850 and the Fourth Amendment. (See id. at pp. 38-42.) Likewise, in an unrelated federal case, Judge (now Justice) Manella, upheld an arrest of the wrong person on a facially valid warrant notwithstanding discrepancies between the plaintiff and the physical description in the warrant where the names, dates of birth, and physical descriptions were similar. (See Nguyen v. County of Orange (C.D.Cal., March 3, 2000, No. CV98-5286 NM) 2000 U.S.Dist. Lexis 19616, 3-4, 21.)

We are not persuaded by plaintiffs contention that the warrants were facially invalid because the subject was not correctly named or described with particularity. The authority on which she relies in this regard addresses the constitutionality of an arrest under the Fourth Amendment. A different standard governs the validity of warrants for purposes of civil liability. (See Vallindras, supra, 42 Cal.2d at p. 155 [holding it proper to recognize one standard for habeas corpus relief and another for civil damages from a law enforcement officer].)

As the SAC shows a lawful privilege, the acts alleged therein do not constitute false imprisonment and may support only malicious prosecution, to which prosecutorial immunity applies. (Gov. Code, § 821.6; Collins, supra, 50 Cal.App.3d at pp. 676-677.) Plaintiffs attempt to allege malice does not affect this analysis. (See Stallings v. Foster (1953) 119 Cal.App.2d 614, 619 ["`in malicious prosecution the detention is malicious but under due forms of law, whereas in false imprisonment the detention is without color of legal authority"]; accord, Collins, supra, 50 Cal.App.3d at p. 676.) The authority on which she relies also is inapplicable, as it addresses the liability of an arresting officer who both obtains a warrant and personally serves it. (See McKay v. County of San Diego (1980) 111 Cal.App.3d 251, 253; Laible v. Superior Court (1984) 157 Cal.App.3d 44, 47.) Here, out-of-county law enforcement acted on the outstanding warrants.

2. Plaintiffs Remaining Causes of Action

Second Cause of Action (Negligence)

The SAC alleges that City employees breached a duty "not to cause unreasonable, unnecessary[,] or unjustified harm to plaintiff" and failed "to properly enforce and uphold [SFPD] . . . rules and regulations, Penal Code statutes and the [California Constitution]." Specifically, plaintiff claims they (1) failed to verify the impostors identity when booking her, by checking DMV records, analyzing her fingerprints, or obtaining other identification, and (2) furnished inaccurate information on which the criminal court relied in issuing the warrants. The City asserts that its employees are immune from liability for this conduct, as it was "incidental to the criminal investigation of the impostor and her prosecution for failure to appear." (See Gov. Code, § 821.6.) We agree, and, for that reason, conclude that the City may not be held vicariously liable in negligence.¹⁹ (See Gov. Code, § 815.2, subd. (b) [a public entity may not be held liable for acts of employee who is immune from liability].)

19 Although we recognize that governmental immunity does not arise conceptually until we determine the existence of a duty of care (see Davidson v. City of Westminster (1982) 32 Cal.3d 197, 201-202 (Davidson)), we proceed directly to the immunity question in this instance, in the interest of expediency and judicial economy. (See Caldwell v. Montoya (1995) 10 Cal.4th 972, 978, fn. 3 [exception to "duty before immunity" rule].)

Government Code section 821.6 provides: "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." This section immunizes activities relating to criminal investigations and the accusation of possible suspects so that law enforcement personnel may perform their duties efficiently and effectively without harassment and fear of personal liability. (See Cappuccio, Inc. v. Harmon (1989) 208 Cal.App.3d 1496, 1501 (Cappuccio).) Courts construe section 821.6 immunity broadly, giving it an "`expansive interpretation" in the service of its purpose. (Miller v. Filter (2007) 150 Cal.App.4th 652, 666-667; Ingram v. Flippo (1999) 74 Cal.App.4th 1280, 1292.) Accordingly, it extends beyond the actual target of the proceedings to the claims of others, like plaintiff, who are injured as a result of the institution or prosecution of a judicial proceeding. (See Amylou R. v. County of Riverside (1994) 28 Cal.App.4th 1205, 1211-1214 (Amylou R.).) In determining whether section 821.6 bars a particular cause of action, we look to the conduct from which it arises and consider its relationship to the initiation or prosecution of criminal proceedings.²⁰ (See Cappuccio, supra, 208 Cal.App.3d at p. 1498.) If the acts and omissions alleged are part of this process, they fall under the protection of section 821.6. (See id. at p. 1499.)

20 Plaintiff concedes that City employees acted in the scope of employment, and, indeed, she must do so to hold the City vicariously liable. (See Gov. Code, § 815.2, subd. (a).)

Prosecutorial immunity encompasses the filing of a criminal complaint and extends to activity taken in preparation of any "`essential step" toward the institution of formal proceedings. (Blackburn v. County of Los Angeles (1974) 42 Cal.App.3d 175, 177-178; Amylou R., supra, 28 Cal.App.4th at pp. 1209-1210.) The identification of a suspect, during the booking stage and in later proceedings against her, is an integral part of bringing charges against her and prosecuting her criminally. Indeed, it is difficult to identify a task undertaken by law enforcement officers that is more central to this process. Identification of a suspect encompasses the documentation of personal information and the investigation necessary to confirm or refute the suspects identity. City employees are immune from liability for all alleged acts and omissions in connection with and incidental to this activity. (See Amylou R., supra, 28 Cal.App.4th at p. 1210 [investigations and incidental acts are protected]; Johnson v. City of Pacifica (1970) 4 Cal.App.3d 82, 83-85 (Johnson) [same].)

Likewise, providing information in connection with the criminal courts issuance of bench warrants was incidental to the impostors prosecution. Prosecution does not end with the filing of a complaint or even a guilty plea. (See Randle v. City and County of San Francisco (1986) 186 Cal.App.3d 449, 456-457 & fn. 8 (Randle); Kayfetz v. State of California (1984) 156 Cal.App.3d 491, 498 [extends through disposition].) Plaintiff argues that immunity does not apply because the alleged tort occurred after completion of the judicial proceedings, i.e., when the impostor was convicted in early 2000.²¹ She misunderstands the nature of warrants in this regard. The criminal proceedings against the impostor, aka "Stancy Nesby," were not completed with her guilty plea and sentencing. The warrants here were issued for probation violations in a court proceeding arising from alleged noncompliance by "Stancy Nesby" with her ongoing probationary status.²² Whether we deem this a separate proceeding or part of her prosecution and conviction for felony drug offenses, the issuance of the warrants was part of her prosecution. (See Randle, supra, 186 Cal.App.3d at pp. 456-457 & fn. 8 [prosecute means "to proceed against a person criminally"]; Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 719 [prosecute means "`to pursue for redress or punishment of a crime . . . before a legal tribunal"].) The information City employees provided or failed to provide for use in preparing the warrants was incidental to this process. (See Amylou R., supra, 28 Cal.App.4th at p. 1210.)

21 The case on which plaintiff relies for this proposition, Ogborn v. City of Lancaster (2002) 101 Cal.App.4th 448 (Ogborn) [Second District], is distinguishable. In Ogborn, a code enforcement officer bulldozed a house the plaintiffs rented pursuant to a nuisance abatement order. (See id. at pp. 453-456.) The court held that section 821.6 did not bar their cause of action for conversion, which arose out of the destruction of their personal belongings, as these were not part of the nuisance proceedings. (See id. at p. 463.) We also note that other appellate districts emphasize the cause, not the timing, of the injury in applying immunity. (See Cappuccio, supra, 208 Cal.App.3d at p. 1499 [Sixth District, relying on Kayfetz, supra, 156 Cal.App.3d 491(First District)]; see also Gov. Code, § 821.6 [no liability for "injury proximately caused by . . . ."], italics added.)

22 The individual identified in the warrants, "Stancy Nesby," was facing two probation violations and state prison.

Plaintiff asserts that section 821.6 immunity "does not apply to conduct predicated on the execution of warrants," relying on Bell v. State of California (1998) 63 Cal.App.4th 919, 929. She overstates that courts holding. In Bell, the court refused to extend immunity to state employment investigators who had instructed police officers to arrest the wrong man because "neither of [them] had anything to do with initiating a prosecution, nor were they investigating anything. They were simply seeing to the execution of a warrant." (Id. at p. 929.) Indeed, the investigators had been assigned to supervise the execution of the warrant and were on the scene, personally directing the arresting officers. (Id. at pp. 924-926.) That was not the case here.

California courts have applied immunity in situations like ours. In Johnson, supra, 4 Cal.App.3d 82, for example, police officers allegedly provided information to the district attorney that led to criminal charges against the plaintiff and his arrest. (Id. at pp. 83-84.) The plaintiff contended that the reporting officers conducted an insufficient investigation and that the charges against him resulted from the officers negligence and misrepresentations in this regard. (Ibid.) Recognizing that to "institute" a judicial proceeding means "`to originate and get established [or] cause to come into existence," the court held that the alleged activity was protected. (Id. at p. 85.)

The court in Javor v. Taggart (2002) 98 Cal.App.4th 795 (Javor) applied section 821.6 immunity to state enforcement action against the wrong person due to identity theft. After the plaintiffs identification number was used without his consent, the State Uninsured Employers Fund mistakenly identified him as the uninsured employer of an injured worker to whom it had paid benefits and recorded a lien against his home. (Id. at pp. 799-800.) In holding the Fund immune from liability for its mistake, the court noted: "[T]hough [the Fund] may, on occasion, misidentify the responsible employer, it is `"`better to leave unredressed [such] wrongs . . . than to subject [the Fund] to the constant dread of retaliation."" (Id. at p. 809.)

Section 821.6 dictates the same result here. Although we sympathize with plaintiffs plight, we conclude that the alleged conduct falls within an area of law enforcement activity to which the Legislature, for significant policy reasons, has afforded protection.²³ (See Cappuccio, supra, 208 Cal.App.3d at p. 1501.) Though this may sometimes produce harsh results, California courts have consistently recognized that the need to protect such activity outweighs competing interests, including the rights of third parties. (White, supra, 37 Cal.2d at p. 729 [noting the "apparent conflict between the public policy of protecting individual citizens from oppressive official action and the equally well established policy of promoting the fearless and effective administration of the law for the whole people"]; accord, Collins, supra, 50 Cal.App.3d at p. 678; see Randle, supra, 186 Cal.App.3d at p. 457.) In White, supra, 37 Cal.2d 727, the California Supreme Court addressed this issue in a law enforcement context: "We are aware of the fact that in thus surrounding peace officers with immunity in cases of this sort, hardship may result to some individuals. However, experience has shown that the common good is best served by permitting law enforcement officers to perform their assigned tasks without fear of being called to account in a civil action for alleged malicious prosecution." (See id. at p. 730.)

23 "The efficient functioning of our system of law enforcement is dependent largely upon the investigation of crime and the accusation of offenders . . . . A breakdown of this system at the investigative or accusatory level would wreak untold harm. . . . To rule otherwise would place every honest law enforcement officer under an unbearable handicap and would redound to the detriment of the body politic." (White v. Towers (1951) 37 Cal.2d 727, 729-730 (White); accord, Cappuccio, supra, 208 Cal.App.3d at p. 1501.)

We conclude, accordingly, that City employees are immune from negligence liability for this conduct and that plaintiffs second cause of action must fail. (See Johnson, supra, 4 Cal.App.3d at pp. 84, 87-88 [policy applies "with greater force" to negligence].) In so holding, we also conclude that the SAC does not state a cause of action against the City vicariously for negligent hiring, training, and supervision, as it contains no factual allegations of wrongful conduct by those who hired, trained, or supervised the employees who allegedly caused plaintiffs arrests. (See Evans, supra, 38 Cal.4th at p. 6.)

Finally, we reject plaintiffs assertion, for the first time on appeal, that the failure to take remedial action or assist the criminal court in doing so constituted a breach of the duty of ordinary care, rather than a duty arising from a special relationship.²⁴ She relies in this regard on employee promises to take sufficient corrective action and communications to the criminal court during the April 30, 2002 hearing, claiming employees increased the risk of harm to her by failing to disclose the impostors identity and falsely representing that the impostors true name was unknown and could only be traced through the state database. As we conclude below, these allegations show only a failure by City employees to eliminate a risk already in existence. In the absence of a special relationship, therefore, they had no duty to assist her. The TACs proposed causes of action for failure to warn and negligent misrepresentation fail for the same reason, as they turn on a duty to disclose the impostors identity.²⁵

24 This court critically observes that plaintiff has introduced several contentions, this being one, for the first time on appeal. Generally, an appellate court will not consider issues the lower court did not consider. (See Gonzalez v.County of Los Angeles (2004) 122 Cal. App.4th 1124, 1131; Green v. City of Oceanside (1987) 194 Cal.App.3d 212, 219-225 & 224, fn. 4.)

25 We note, in any case, that City employees may be immune from liability for this conduct as well, at least to the extent they failed to provide information to plaintiff and the criminal court. (See Gov. Code, § 821.6; Randle, supra, 186 Cal. App. 3d 449, 452 [police officers suppression of exculpatory evidence during criminal trial].)

Eighth Cause of Action (Privacy (Cal. Const., art. I, § 1))

In her eighth cause of action, plaintiff asserts that City employees portrayed her in a false light by causing the association of her name with the impostors crimes in law enforcement databases. Prosecutorial immunity bars this cause of action as well, as it turns on conduct virtually identical to that she asserts as negligence: the use of her name in booking and incident reports and the failure to check public records to verify the impostors identity.²⁶ (See Gov. Code, § 821.6; Richardson-Tunnell v. Schools Ins. Program for Employees (SIPE) (2007) 157 Cal.App.4th 1056, 1066.)

26 In light of our conclusion in this regard, we need not determine whether violation of the privacy clause supports an independent cause of action for damages. The California Supreme Court has not yet considered this issue, but has set out the framework for determining whether a state constitutional right gives rise to a cause of action for damages. (See Katzberg, supra, 29 Cal.4th at pp. 317-328.) Plaintiff provides no analysis of the Katzberg factors, relying instead on authority decided prior to that decision.

Sixth Cause of Action (IIED) ²⁷

27 The trial court properly concluded that the SAC does not state a cause of action for NIED, as this is not an independent tort, but part of plaintiffs negligence causes of action. (See Marlene F. v. Affiliated Psychiatric Medical Clinic, Inc. (1989) 48 Cal.3d 583, 588.)

Plaintiff does not set out in her opening brief the elements of her sixth cause of action or support them with specific factual allegations from the SAC, referring generally to "Respondents conduct" and "acts and omissions." To the extent she relies on errors in booking the impostor and inaccurate information in the warrants, prosecutorial immunity (Gov. Code, § 821.6) bars liability. (See Gillan v. City of San Marino (2007) 147 Cal.App. 4th 1033, 1048.) Moreover, noting the same concerns expressed in footnote 24, we also conclude as a matter of law that the conduct asserted in her reply brief, failing to disclose the impostors identity to her and the criminal court or to inform them that exculpatory information had not been entered in law enforcement databases accessible to outside jurisdictions, was not extreme and outrageous, an essential element of IIED. (See Cervantez v. J. C. Penney Co. (1979) 24 Cal.3d 579, 593.) We have little doubt that plaintiff found the consequences of the initial identity error outrageous, but no reasonable person could find the conduct itself—the failure to intervene beneficially when one has no legal duty to do so—"so extreme as to exceed all bounds of that usually tolerated in a civilized community." (See id. at p. 593.) Plaintiff does not cite authority to the contrary.

Eleventh and Twelfth Causes of Action (Civ. Code, §§ 52.1, 51.7)

Plaintiffs eleventh cause of action asserts interference, by threats, intimidation, or coercion, with the exercise and enjoyment of her rights under state law. (See Civ. Code, § 52.1.) We conclude that she has waived this cause of action as to all alleged constitutional provisions except the privacy clause (Cal. Const., art. I, § 1), as she fails to cite in her opening brief any specific allegations from the SAC to establish interference with these rights.²⁸ Moreover, although she addresses her privacy rights elsewhere in her opening brief, the alleged conduct on which she relies is protected by prosecutorial immunity (Gov. Code, § 821.6). For the same reasons, we conclude that she cannot state a cause of action under Civil Code section 43.

28 The general rule is that arguments raised in a reply brief for the first time will not be considered. (REO Broadcasting Consultants v. Martin (1999) 69 Cal.App.4th 489, 500 (REO).) Neither the court nor the City is obligated to connect the dots presented herein in a Joycean manner.

Demurrer also was proper as to plaintiffs twelfth cause of action, which asserts a violation of her right to be free from violence or threat of violence on account of race or color. (See Civ. Code, §§ 51.7, 52, subd. (b) [liability for denial of section 51.7 rights, as well as aiding, inciting, or conspiring in that denial].) She claims that race was a substantial factor in her arrests, but does not support this conclusion with any facts alleged in the SAC. The allegations on which she relies in her reply brief also fail to establish error below, in the absence of any authority that the alleged racial animus of third parties supports a cause of action against City employees under Civil Code section 51.7. We further conclude that plaintiff cannot cure this legal deficiency with allegations that the warrants lacked particularity and called generally for the arrest of a Black female. As discussed above, prosecutorial immunity (Gov. Code, § 821.6) protects the conduct of City employees incidental to the preparation and management of lawful process, such as the warrants, and extends to the information included, or not included, therein. (See Gates v. Superior Court (1995) 32 Cal.App.4th 481, 510-513 [Gov. Code, § 845 (immunity for police protection), and Civ. Code, § 51.7].) In any case, plaintiff provides no authority or analysis demonstrating that such allegations are sufficient to establish violence "on account of" race or color. (See Civ. Code, § 51.7.)

Having concluded that the trial court properly sustained the demurrer to all causes of action plaintiff raises on appeal, we turn to its denial of leave to amend.

C. Denial of Leave to Amend

We review the trial courts denial of leave to amend at the demurrer stage for abuse of discretion, and reverse if plaintiff demonstrates a reasonable possibility that she can cure her pleading by amendment. (See Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1081.) To meet this burden, she "`must show in what manner [she] can amend [her] complaint and how that amendment will change the legal effect of [her] pleading." (Rakestraw, supra, 81 Cal.App.4th at p. 43.) She may make this showing for the first time on appeal. (See Quan v. Truck Ins. Exchange (1998) 67 Cal.App.4th 583, 590; Code Civ. Proc., § 472c.)²⁹ Nonetheless, "it is the trial courts discretion that is at issue; the reviewing court may only determine, as a matter of law, whether the trial courts discretion was abused . . . . [A]n abuse of discretion [is] found, absent an effective request for leave to amend in specified ways, only if a potentially effective amendment was both apparent and consistent with the plaintiffs theory of the case." (CAMSI IV v. Hunter Technology Corp. (1991) 230 Cal.App.3d 1525, 1542 (CAMSI IV), italics original; accord, Hillsboro Properties v. City of Rohnert Park (2006) 138 Cal.App.4th 379, 394 (Hillsboro Properties).)

29 Plaintiff contended in post-argument briefing below that the City had concealed convictions remaining in her name until after the deadline had passed for filing the SAC and that these convictions supported causes of action for failure to warn, misrepresentation, and a common law privacy action, as well as her existing constitutional claims. She does not raise these proposed amendments on appeal.

To meet this burden, plaintiff must propose specific factual amendments. (See People ex rel. Brown v. PowerEx Corp. (2007) 153 Cal.App.4th 93, 112-113.) Although she generally asserts that the trial court abused its discretion in denying leave to amend, she does not expressly identify the factual amendments she proposes. Combining in her Statement of Facts the SACs factual allegations and a multitude of others she presumably intends to add, she asserts them all together in support of each cause of action. As we are able to discern from her opening brief and the proposed TAC how she seeks to amend, we consider whether the trial court acted within its discretion in denying her leave to do so.³⁰

30 Plaintiff has waived the new factual allegations she asserts in her reply brief, as well as those she asserts for the first time in support of different causes of action. (See Baugh, supra, 137 Cal.App.4th at p. 746.) We ordinarily do not consider arguments presented for the first time in a reply brief because such review would deprive the respondent of an opportunity to counter the arguments and generally, is not fair. (Reichardt v. Hoffman (1997) 52 Cal.App.4th 754, 764; Hibernia Sav. and Loan Soc. v. Farnham (1908) 153 Cal. 578, 584.)

Plaintiff asserts that City employees "ordered or ratified [her] arrest" by "verifying and serving the warrants which [they] knew did not pertain to her."³¹ We conclude that amendment in this regard was not apparent to the trial court or consistent with plaintiffs theory of the case below, which sought to hold the City liable for the role of its employees in causing the warrants to be issued in her name and in failing to correct errors in this regard, not their conduct in verifying and serving the warrants. We note that this new theory implicates the conduct of different employees and in fact, directly conflicts with specific allegations in the SAC. For example, plaintiff asserts in the SAC that on Shasta Countys request for verification, the Warrant Bureau sent the impostors fingerprints and established her innocence. In another instance, she acknowledges that CHP released her after contacting the Warrant Bureau, which sent the impostors mug shot profile and fingerprints. (See CAMSI IV, supra, 230 Cal.App.3d at p. 1542 [inconsistent allegations and attempt to change legal theories to those omitted earlier for tactical reasons]; accord, Hillsboro Properties, supra, 138 Cal.App.4th at p. 394 [allegations denying receipt of a fair return were inconsistent with plaintiffs position below that its right to recover was not dependent on denial of a fair return]). The trial court did not abuse its discretion in failing to anticipate these contradictory allegations.

31 After a subject is detained on a warrant, the Warrant Bureau confirms the warrant and requests that the subject be taken into custody for fingerprinting. A warrant is served when the subject is booked.

We also reject plaintiffs new allegations in support of negligent hiring, training, and supervision, as we conclude that they do not state a cause of action. On appeal, "[t]he plaintiff must set forth factual allegations that sufficiently state all required elements of [a] cause of action. [Citations.] Allegations must be factual and specific, not vague and conclusionary." (Rakestraw, supra, 81 Cal.App.4th at pp. 43-44.) Plaintiff asserts "dysfunction and general incompetence in [the Citys] Warrant Bureau and ID Bureau," including the lack of skills and poor training in the Warrant Bureau, and alleges that "[u]nqualified personnel were assigned to train unskilled staff" and "[c]ritical documents were trashed . . . ." Neither these vague allegations nor the evidence plaintiff cites reflect wrongful conduct by anyone responsible for hiring, training, or supervising the City employees who allegedly caused her injury.

The proposed TAC also presents allegations purporting to show that the City knew the impostors identity in 1999, seeking to establish the intent element of false imprisonment and to impose a duty on the City to disclose the impostors identity to plaintiff and the criminal court. Plaintiff has not shown, however, that such knowledge would cure the defects we have identified above. (See Gov. Code, § 821.6 [immunity "even if [the employee] acts maliciously and without probable cause"]; Collins, supra, 50 Cal.App.3d at p. 677 [no false imprisonment if arrest is on a valid warrant even if for an improper purpose].)

The trial court properly denied leave to amend.

III. The Summary Judgment

The trial court granted summary judgment on plaintiffs third cause of action for negligence based on a duty arising from a special relationship.³² We review the judgment de novo, and though we apply the same general principles applicable at the trial court level, we determine independently the construction and effect of facts presented below as a matter of law. (See Saldana v. Globe-Weis Systems Co. (1991) 233 Cal.App.3d 1505, 1511-1515; Kolodge v. Boyd (2001) 88 Cal.App.4th 349, 355-356.) Summary judgment is proper if the materials submitted by the parties show that there is no triable issue of material fact and the moving party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subd. (c).)

32 The trial court also disposed of plaintiffs fourth cause of action, which sought to hold the City vicariously liable in this regard. As the Citys negligence liability is purely derivative, we address only the substantive negligence (third) cause of action.

We must first identify the issues framed by the pleadings, then consider whether the City has established facts negating plaintiffs claims and justifying a judgment in its favor. (See Hamburg v. Wal-Mart Stores, Inc. (2004) 116 Cal.App.4th 497, 503.) If we conclude that the City has made a prima facie showing in this regard, we determine whether plaintiff has demonstrated the existence of a triable issue of fact. (See ibid.)

The SACs third cause of action for negligence asserts employee promises and acts of assistance that allegedly created a special relationship giving rise to a duty to protect plaintiff and take remedial action on her behalf.

The Citys Showing

The City produced evidence of the actions Statzer agreed to take at the April 30, 2002 hearing, the statements of other ID Bureau employees who told plaintiff they would make a notation in the computer database regarding a scar on her hand, and other assistance provided by City employees. The City emphasized that no employee promised to remove plaintiffs name from the warrants or take the warrants out of the system.

The City contended that Statzers conduct did not increase the existing risk of harm to plaintiff or induce her to reasonably rely to her detriment, noting, in addition, that plaintiff did not forego protecting herself in reliance on the assurances and advice of other employees who assisted her. Moreover, the City asserted as undisputed fact that, after her first arrest, plaintiff knew she could not count on the mug shot profile to protect her and took steps to protect herself by contacting her attorney, retaining new counsel, and seeking further assistance from the City.

Plaintiffs Showing

Plaintiff purported to dispute almost half of the Citys facts, at least in part, but her attempts to do so consisted of the assertion of additional, consistent facts of her own, conclusions challenging the Citys facts without supporting evidence, and evidence supporting immaterial distinctions. Accordingly, the Citys facts remained undisputed. Plaintiff asserted as additional facts that employees represented the promised notations and the impostors mug shot profile would prevent her arrest; that Statzer had entered the promised notations only in a local database, not accessible to other jurisdictions even though she knew the warrants were maintained statewide; and that SFSD Senior Deputy Newcomer had learned of the identity error and instructed a clerk to flag the warrants, but never followed up.

Plaintiff responded to the Citys reliance argument with evidence that she believed after the April 30, 2002 hearing that she would not be arrested, that "everything was handled"—"a done deal," and that she had shown the mug shot profile to officers during at least three of her encounters with law enforcement before being taken into custody.³³

33 Plaintiff also asserted "additional facts" relating to performance problems in the Warrant Bureau, its failure to timely respond to other agencies requests for verification of the warrants, and its failure to remove the warrants from the system after she was "served." These "facts" are outside the scope of the issues remaining after the trial courts demurrer order, and we do not consider them. (See Turner v. Anheuser-Busch, Inc. (1994) 7 Cal.4th 1238, 1252; Ann M. v. Pacific Plaza Shopping Center (1993) 6 Cal.4th 666, 673 [motion for summary judgment is directed to the issues framed by the pleadings].)

The Trial Courts Order

The trial court concluded that: (1) no City employee promised to protect plaintiff from future arrest or to input sufficient identifying information into "`all appropriate law enforcement databases"; (2) Statzers past acts of assistance did not entitle plaintiff to detrimentally rely on her for future benefits in the absence of an express promise that future assistance would be forthcoming, which Statzer did not make; (3) the statements of other employees constituted advice or suggestions, not promises giving rise to a special duty or liability if the mug shot did not work; and in any case, (4) no special duty existed after plaintiffs first arrest, as the undisputed facts showed that she was not relying on the statements of City employees, specifically, that she knew she could not rely on them or the mug shot profile and had taken steps to protect herself.³⁴

34 The trial court also concluded that City employees had acted at the instruction of the criminal court, that all of plaintiffs interactions with City employees when she was fingerprinted occurred as a result of and in connection with the court proceedings, and that City employees therefore were protected by quasi-judicial immunity, as they had acted "at the behest of the Court as part of [its] management of its own bench warrants." Finally the trial court determined that plaintiffs suit was barred as to her first three and seventh arrests, as she had failed to present a timely government claim regarding those incidents. As we conclude that summary judgment was proper for the other reasons cited by the trial court, we need not address quasi-judicial immunity and the claim presentation requirement.

Discussion

The existence of a duty is an essential element of a negligence cause of action and the issue on which plaintiffs third cause of action stands or falls. (See Artiglio v. Corning, Inc. (1998) 18 Cal.4th 604, 614.) She asserts a duty by City employees to assist her and protect her from arrest on the warrants. This is a question of law for the court. (See Thompson v. County of Alameda (1980) 27 Cal.3d 741, 750.)

All persons owe a duty to use due care in their own actions to avoid creating an unreasonable risk of injury to others. (Minch v. Department of California Highway Patrol (2006) 140 Cal.App.4th 895, 908 (Minch).) By contrast, those who have not created a risk of harm generally have no duty to take affirmative action to assist or protect another. (Williams v. State of California (1983) 34 Cal.3d 18, 23 (Williams).)³⁵ Although public employees are paid to act in service of the general public, their official duties do not support liability for failing to prevent injury to an individual; like private citizens, they generally have no duty to come to the aid of others. (Ibid.; Zelig, supra, 27 Cal.4th at p. 1129; Walker v. County of Los Angeles (1987) 192 Cal.App.3d 1393, 1398 (Walker).) Likewise, although law enforcement officers owe duties to the public as a whole, they take on no greater obligation to individual citizens. (See Williams, supra, 34 Cal.3d at p. 24, fn. 3.)

35 Plaintiff did not contend below that the same City employees who allegedly caused the identity error and created her risk of arrest under the warrants failed to assist and protect her, and does not do so on appeal. Moreover, she provides no authority or analysis establishing that the acts and omissions of one City employee during booking may give rise to a duty on the part of other employees or the City itself to take remedial action.

A duty of protection or assistance may arise, however, from a special relationship created by an employees words or conduct. (M.B. v. City of San Diego (1991) 233 Cal.App.3d 699, 704-705 (M.B.); Minch, supra, 140 Cal.App.4th at p. 905.) To establish such a relationship, plaintiff must demonstrate that an employee assumed a duty to her greater than that generally owed to members of the public. (See Walker, supra, 192 Cal.App.3d at p. 1398.) Courts apply this doctrine narrowly to "a limited class of unusual cases." (Minch, supra, 140 Cal.App.4th at p. 905.) In urging us to recognize such a relationship, plaintiff contends that City employees undertook a duty to her by voluntarily providing assistance³⁶ and by implied and express promises to provide a particular level of protection. (See Zelig, supra, 27 Cal.4th at p. 1129; Walker, supra, 192 Cal.App.3d at p. 1399.) She also claims she was dependent on City employees, who by their conduct and promises, lulled her into a false sense of security, inducing her detrimental reliance on them for protection.³⁷ (See Walker, supra, 192 Cal.App.3d at p. 1399; Adams v. City of Fremont (1998) 68 Cal.App.4th 243, 281-282 (Adams).)

36 Some cases treat a voluntary undertaking as a form of special relationship. (See, e.g., Davidson, supra, 32 Cal.3d at p. 206; Walker, supra, 192 Cal.App.3d at p. 1399; Minch, supra, 140 Cal.App.4th at p. 901.) Others characterize it as a separate but related doctrine. (See, e.g., Williams, supra, 34 Cal.3d at pp. 27-28; Zelig, supra, 27 Cal.4th at p. 1129; Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 248-249 (Delgado).)

37 For the first time on appeal, plaintiff seeks to impose a duty on City employees based on their relationship with other law enforcement agencies, who allegedly enforced the warrants at the Citys "behest." She contends for this reason that City employees had a duty to intervene and control the conduct of the arresting officers. (See Davidson, supra, 32 Cal.3d at p. 203.) She did not assert this theory below, and none of the material facts relates to enforcement of the warrants at the Citys "behest." She therefore has waived this argument, as well as the assertion in her reply brief of a special relationship based on foreseeability, under Delgado, supra, 36 Cal.4th at pp. 235-236. (See Los Angeles County Dept. of Children etc. Services v. Superior Court (1998) 62 Cal.App.4th 1, 10 [waiver by failure to raise in the trial court]; REO, supra, 69 Cal.App.4th at p. 500 [waiver by failure to raise in the opening brief].)

As we explain below, we conclude that the City met its burden to demonstrate that plaintiff could not establish a special relationship on any of these theories, as the undisputed facts show that City employees did not increase the risk of harm to her or induce her detrimental reliance. We conclude, further, that plaintiff failed to produce evidence to raise a triable issue of fact in this regard.

We note at the outset that summary judgment was proper to the extent plaintiff sought to impose a duty on the City itself or on officers who did not volunteer or promise to assist her. The relationship established by one employees voluntary acts or statements and any corresponding duty are limited to that particular employee and cannot be expanded to impose a duty on other City employees or the City itself. (See Baker v. City of Los Angeles (1986) 188 Cal.App.3d 902, 907-909 (Baker); City of Santee v. County of San Diego (1989) 211 Cal.App.3d 1006, 1012, 1017-1018 (City of Santee) ["The act of one sheriff cannot . . . draft the entire sheriffs department into an army of Good Samaritans . . . ."]; Zelig, supra, 27 Cal.4th at pp. 1130-1131 [law enforcement agency itself is not in a special relationship].) Having so concluded, we consider the grounds on which plaintiff asserts a special relationship with particular City employees.

One with no duty to provide assistance in the first instance may assume a duty of due care by voluntarily undertaking to come to the aid of another. (Williams, supra, 34 Cal.3d at p. 23.) Accordingly, a public employee who, by words or conduct, voluntarily assumes a protective duty toward a citizen and undertakes action on her behalf is held to the same standard of care as a private person. (Id. at p. 24; see Gov. Code, § 820.) The employee may be liable for failing to use due care in the performance of the undertaking if he increases the risk of harm to the citizen, or harm results from her reliance. (Williams, supra, at p. 23.) He may abandon the undertaking at any time, however, if his assistance has not worsened the plaintiffs position. (City of Santee, supra, 211 Cal.App.3d at p. 1015.) The issue is whether the employee "`has got himself into such a relation with the plaintiff, that he has begun to affect [her] interests . . . adversely, as distinguished from merely failing to confer a benefit . . . ." (Sullivan v. City of Sacramento (1987) 190 Cal.App.3d 1070, 1078, citing Prosser & Keeton on Torts (5th ed. 1984) § 56, p. 375; accord, City of Santee, supra, at p. 1016.)

We conclude that the City employees acts of assistance do not give rise to liability based on a voluntary undertaking, as plaintiff cannot satisfy an essential element of this theory —an increase in the risk of harm or injury resulting from her reliance. (See Williams, supra, 34 Cal.3d at p. 23.) First, to the extent these acts constitute a voluntary undertaking of a duty of due care, no alleged breach of this duty increased plaintiffs pre-existing risk of arrest created by the issuance of bench warrants in her name. Indeed, City employees took action likely to decrease this risk: attempting to determine the impostors name, noting plaintiffs distinctive fingerprint pattern in the local database, and providing her with the mug shot profile, fingerprint card, and record clearance letter. Plaintiff has not shown that these affirmative acts of assistance created, increased, or changed the risk of harm to her; she simply claims that City employees should have done more to help her. (See City of Santee, supra, 211 Cal.App.3d at pp. 1015-1016.)

For example, plaintiff concludes that City employees increased her risk of arrest by (1) failing to disclose the impostors name and destroying records containing the impostors true name, thereby causing the warrants to remain outstanding, (2) failing to warn her of the risk of arrest, and (3) failing in their undertaking to enter exculpatory information into law enforcement databases, as they did not do so in databases accessible to other jurisdictions. But such purported omissions did not make her arrest under the warrants any more likely; at worst, they simply failed to eliminate the existing risk. Indeed, plaintiff asserts in her reply brief: "Had [the City] moved to correct its errors and remedy its wrongful conduct, as it should have, the harm to Ms. Nesby would have been lessened." This does not equate to an increase in the risk of harm. (See City of Santee, supra, 211 Cal.App.3d at pp. 1015-1016.)

Plaintiff also has failed to produce evidence of detrimental reliance. In her briefs, she simply concludes that she "detrimentally relied on Respondent to take the necessary steps to protect her from being arrested . . ." and that she was "lulled into a false sense of security." Neither these statements of ultimate fact nor her subjective belief that the matter was resolved show detrimental reliance; she must produce evidence that she worsened her position in reliance on the acts undertaken by City employees. (See City of Santee, supra, 211 Cal.App.3d at pp. 1015-1016 [instances of sheriffs deputies voluntarily reporting street light outages did not permit continued reliance by City of Santee that this would always be the case].)

For the first time in her reply brief, plaintiff sets out particular actions she would have taken if she had not relied on the City. Foregoing action to protect ones own interests may constitute detrimental reliance. (Hernandez v. KWPH Enterprises (2004) 116 Cal.App.4th 170, 180; see Johnson v. County of Los Angeles (1983) 143 Cal.App.3d 298, 304-305 [wife of suicidal arrestee refrained from interfering while her husband was in custody in reliance on promises of officers to provide him with medical attention and notify her before his release].) Plaintiff claims she otherwise would have asked the criminal court to recall the warrants, to amend them to reflect John Doe as the subject, and to ensure that the "be advised" notation was entered into statewide databases. Even if true, such reliance did not worsen her position in any way; again, it simply failed to eliminate the existing risk. Moreover, the undisputed facts show that she took steps after her first arrest to protect herself. (See M.B., supra, 233 Cal.App.3d at p. 708 [plaintiff took precautionary action and did not merely rely on police representations].)³⁸

38 Plaintiff retained counsel to represent her interests and correct these problems. Yet, even her lawyer acknowledged that the warrants were appropriately outstanding under the circumstances, and none of her representatives took further legal action to resolve the warrants after the April 30, 2002 hearing.

When the volunteers conduct simply leaves the plaintiff in her initial position of peril, no liability results. (City of Santee, supra, 211 Cal.App.3d at pp. 1015-1016; Adams, supra, 68 Cal.App.4th at p. 304 (dis. opn. of Kline, J.) [justifying the absence of liability for nonfeasance: "`[T]he defendant has left him just as he was before; no better off, it is true, but still in no worse position; he has failed to benefit him, but he has not caused him any new injury nor created any new injurious situation"].)

We further conclude that, by these acts of assistance, City employees did not assume a duty to protect plaintiff from future detention on the warrants. No such duty arises in the absence of an express promise that future assistance will be forthcoming. (See Baker, supra, 188 Cal.App.3d at pp. 907-908 [no duty to aid indefinitely]; City of Santee, supra, 211 Cal.App.3d at p. 1013 [past acts do not impose continuing duty to aid].) There is no evidence that any employee made such a promise. We also reject plaintiffs assertion in her "additional facts" that City employees promised to enter information into "appropriate law enforcement databases," as the evidence she cites does not support this "fact." Nor does liability arise from any promises that the evidence may establish, as plaintiff has not shown that she worsened her position in any way in reliance on them. (See M.B, supra, 233 Cal.App.3d at p. 705 [rejecting liability where the police have not induced reliance on a specific promise of protection and concluding that the risk of harm as the result of the employees acts must be something more than that to which the plaintiff was already exposed].)

Plaintiffs failure to produce evidence of detrimental reliance also precludes a special duty resulting from her alleged dependency on City employees. She is mistaken in her contention that reliance is not required in this context. (See Minch, supra, 140 Cal.App.4th at p. 902-903 [special relationship cannot arise solely from dependency].)³⁹ Moreover, she did not produce evidence below of facts showing dependency and provides no reasoned analysis of this issue on appeal.

39 Plaintiff cites Williams, supra, 34 Cal.3d 18 in contending that an "express promise and reliance thereon are not indispensable elements of a special relationship." The court in Williams went on to state however: "Such a relationship has also been found when the conduct of a police officer, in a situation of dependency, results in detrimental reliance on him for protection." (Williams, supra, 34 Cal.3d at pp. 25, 28, fn. 9, italics omitted [disapproving Clemente v. State of California (1980) 101 Cal.App.3d 374, 379-380 on this ground].)

We therefore conclude that plaintiff has not produced evidence to raise a triable issue of fact as to the Citys liability on her third and fourth causes of action. Accordingly, we hold that summary judgment was proper and turn to the trial courts denial of leave to file a third amended complaint.

III. Denial of Leave to File a Third Amended Complaint

We will not disturb the trial courts denial of plaintiffs motion for leave to file a proposed Third Amended Complaint (TAC) absent a showing of "a manifest or gross abuse of discretion." (Berman v. Bromberg (1997) 56 Cal.App.4th 936, 945 (Berman).) Plaintiff has the burden to make this showing on appeal. (Ibid.) In considering this issue, we recognize a policy of great liberality in permitting amendment at any stage of the proceedings. (See ibid.) Nonetheless, when a plaintiff has failed to explain a delay or has not acted diligently, we are less likely to find an abuse of discretion. (Melican v. Regents of University of California (2007) 151 Cal.App.4th 168, 175 (Melican).)

Plaintiff claims "newly discovered evidence" justifies her belated request for leave to amend, contending that the City had withheld material evidence from her, showing: (1) that it had known the impostors identity since 1999,⁴⁰ and (2) that it had verified and served warrants it knew did not pertain to her. (See Arthur L. Sachs, Inc. v. City of Oceanside (1984) 151 Cal.App.3d 315, 319.) She has failed to demonstrate, however, that the City engaged in discovery misconduct or that it prevented her from producing this evidence at the summary judgment hearing on May 31, 2006.⁴¹

40 Specifically, the proposed TAC contends that the City learned of the impostors true identity through her FBI number in January 1999 when it ran her fingerprints through local, state, and federal databases. The "new" allegation that she contends this evidence supports is not altogether new. The SAC asserts that the City had concealed the impostors identity from her, an allegation that contains an implication of knowledge.

41 A number of statutory provisions, privileges, and third party privacy rights govern a public entitys disclosure of confidential documents and information. (See, e.g., Evid. Code, § 1040; Pen. Code, §§ 11076, 11081, 11105, 11140-11143, 13300-13305; Gov. Code, § 6254.) The production of these documents under a stipulated protective order was not improper.

We note first, that the source of the FBI rap sheet on which plaintiff relies was not the City, but the District Attorneys office (D.A.) acting in its capacity as an agent of the state. (See Pitts v. County of Kern (1998) 17 Cal.4th 340, 362 [concluding that a district attorney represents the state when preparing to prosecute and prosecuting criminal violations of state law].) The City advised plaintiff on December 14, 2005, that the D.A. had information regarding the impostor, but that she would have to obtain it directly from that agency, as it was acting, not for the City, but for the state in its capacity as a public prosecutor. Yet, plaintiff did not subpoena this information until March 2006, shortly before the motion for summary judgment was heard.

Moreover, plaintiff obtained the evidence on which she relies in asserting a duty to disclose the impostors identity—which would have supported her third cause of action for negligence—before the summary judgment hearing.⁴² On appeal, she cites to deposition testimony obtained on January 9, 2006, Statzers declaration in support of summary judgment, filed April 7, 2006, Statzers April 19, 2006 deposition testimony, and other deposition testimony and documents obtained on May 22, 2006. In addition, she received the impostors FBI rap sheet—the central piece of "new evidence" asserted in her motion—six days before the hearing on the motion for summary judgment.

42 Plaintiff claims the City did not dispute below that the evidence was newly discovered. The City took the position, however, that plaintiffs proper mechanism of relief was a motion for new trial and raised the issue in connection with that motion.

Likewise, in asserting allegations regarding the verification and service of the warrants below, plaintiff relied primarily on the May 17-18, 2006 deposition testimony of CHP officers. On appeal, she also supports these allegations with daily warrant check logs and warrant status documents produced in May 2005, a year before the motion for summary judgment. She also relies on the deposition testimony of witnesses deposed on May 4, 2006, and May 23, 2006.

Plaintiff did not bring this evidence to the trial courts attention at the hearing or seek leave to amend until three weeks later. By all appearances, she held onto it until the trial court ruled against her and then brought it out in a last-ditch attempt to salvage her case. The allegations in the proposed TAC lend support to this analysis.⁴³

43 The City argued below, and the trial court apparently concluded, that what plaintiff was truly seeking was not leave to amend, but another bite at the apple. Indeed, the proposed TAC repackages her third cause of action as negligent misrepresentation and negligent failure to warn, reasserts the allegations of dependency she raised on summary judgment, and emphasizes conduct alleged in the SAC. It also seeks to reassert a number of causes of action the trial court dismissed. As her motion required the trial court to decide the same matter on which it had previously ruled in sustaining the Citys demurrer without leave to amend, it was, in effect, an untimely motion for reconsideration of this order. (See Curtin v. Koskey (1991) 231 Cal.App.3d 873, 878; Sole Energy Co. v. Petrominerals Corp. (2005) 128 Cal.App.4th 187, 193 [the nature of a motion is determined by the relief sought, not the label attached to it]; Bennett v. Suncloud (1997) 56 Cal.App.4th 91, 96-97 [demurrer to cause of action to which an earlier demurrer was overruled]; Rains v. Superior Court (1984) 150 Cal.App.3d 933, 943 [motion for reconsideration based upon different facts in proposed complaint]; Code Civ. Proc., § 1008, subd. (a) [within 10 days of service of notice of entry of the order].)

Denying leave to amend is not an abuse of discretion when the plaintiff knows that a claim has not been pleaded and takes no action until summary judgment has been granted against her. (Fisher v. Larsen (1982) 138 Cal.App.3d 627, 649 (Fisher), disapproved on other grounds in Readers Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 259, fn. 11.) We reject plaintiffs contention that it is an abuse of discretion in every case to deny leave to amend where the opposing party was not misled or prejudiced by the amendment. (See Berman, supra, 56 Cal.App.4th at p. 945.) "[E]ven if a good amendment is proposed in proper form, unwarranted delay in presenting it may—of itself—be a valid reason for denial." (Roemer v. Retail Credit Co. (1975) 44 Cal.App.3d 926, 939; accord, Melican, supra, 151 Cal.App.4th at p. 175.) We conclude, in any case, that the trial court could reasonably have determined that prejudice to the City would result, as the June 26, 2006 trial date had passed, a continuance would have been necessary to address the new allegations, and the parties had agreed to a shortened notice period on summary judgment to avoid such a delay. (See Denham v. Superior Court (1970) 2 Cal.3d 557, 564 [the trial courts order is presumed correct and supported by the record, and we indulge all inferences to support it on matters as to which the record is silent].)

Kirby v. Albert D. Seeno Construction Co. (1992) 11 Cal.App.4th 1059 (Kirby) does not call for a different result. In Kirby, the First Appellate District held it an abuse of discretion to deny leave to amend after a summary judgment order and before entry of judgment. (Id. at pp. 1063-1064.) In that case, however, the court reversed the summary judgment because the defendant had merely cast doubt on the sufficiency of the complaint, and treated it as a motion for judgment on the pleadings. (Id. at pp. 1067-1068.) Following such a challenge to the pleadings, it is an abuse of discretion to deny leave to amend if it is reasonably possible that a defect in a complaint can be cured by amendment. (Id. at p. 1069.) This broad standard does not apply to other motions for leave to amend. (See Berman, supra, 56 Cal.App.4th at p. 945.)

We conclude that the trial court acted within its discretion in denying plaintiffs motion to file the TAC.

DISPOSITION

For these reasons, we affirm the judgment, as well as the orders sustaining the demurrer without leave to amend and denying leave to file a third amended complaint, with costs to the City.

We concur:

SIMONS, ACTING P. J.

NEEDHAM, J.