Purpose and Scope of Statutes

Government Code section 820.2 provides:

“Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.”

(Gov. Code § 820.2.)

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.”

(Gov. Code § 821.6.)

Section 820.2 provides immunity only for the acts or omissions that are “the result of the exercise of the discretion” vested in a public employee. .... “[T]o be entitled to immunity the state must make a showing that such a policy decision, consciously balancing risks and advantages, took place. The fact that an employee normally engages in 'discretionary activity' is irrelevant if, in a given case, the employee did not render a considered decision” (Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 794 citing Johnson v. State of California (1968) 69 Cal.2d 782)

Public Employee Immunity and Public Works

Govt. Code § 830.6. “Neither a public entity nor a public employee is liable under this chapter for an injury caused by the plan or design of a construction of, or an improvement to, public property where such plan or design has been approved in advance of the construction or improvement by the legislative body of the public entity or by some other body or employee exercising discretionary authority to give such approval or where such plan or design is prepared in conformity with standards previously so approved, if the trial or appellate court determines that there is any substantial evidence upon the basis of which:

1. a reasonable public employee could have adopted the plan or design or the standards therefor or
2. a reasonable legislative body or other body or employee could have approved the plan or design or the standards therefor.

Notwithstanding notice that constructed or improved public property may no longer be in conformity with a plan or design or a standard which reasonably could be approved by the legislative body or other body or employee, the immunity provided by this section shall continue for a reasonable period of time sufficient to permit the public entity to obtain funds for and carry out remedial work necessary to allow such public property to be in conformity with a plan or design approved by the legislative body of the public entity or other body or employee, or with a plan or design in conformity with a standard previously approved by such legislative body or other body or employee. In the event that the public entity is unable to remedy such public property because of practical impossibility or lack of sufficient funds, the immunity provided by this section shall remain so long as such public entity shall reasonably attempt to provide adequate warnings of the existence of the condition not conforming to the approved plan or design or to the approved standard. However, where a person fails to heed such warning or occupies public property despite such warning, such failure or occupation shall not in itself constitute an assumption of the risk of the danger indicated by the warning.” Govt. Code Sec. 830.6.

“The rationale behind design immunity 'is to prevent a jury from simply reweighing the same factors considered by the governmental entity which approved the design.’” (Grenier v. City of Irwindale (1997) 57 Cal. App. 4th 931, 939.) ”[T]o permit reexamination in tort litigation of particular discretionary decisions where reasonable men may differ as to how the discretion should be exercised would create too great a danger of impolitic interference with the freedom of decision-making by those public officials in whom the function of making such decisions has been vested.” (Id.)

Employees Without Immunity

In Southern California Rapid Transit Dist. v. Superior Court (1994) 30 Cal.App.4th 713, the court held “that a transit district board of directors and inspector general were not immune from individual liability under Government Code section 820.2 in a whistleblower retaliation lawsuit the plaintiff brought under the California False Claims Act” [i.e. Government Code section 12653].” (Southern California Rapid Transit Dist., supra, at 726].)

Similarly, in Conn v. Western Placer Unified School District (2010) 186 Cal.App.4th 1163, the court reached the same conclusion with respect to Education Code sections 44113 and 44114:

“[Sec.] 820.2 provides for the discretionary immunity of the act or omission of a public employee only where ‘the act was the result of the exercise of the discretion vested’ in the employee. A supervisor employee has no discretion, vested or otherwise, under the Act to recommend the removal of [an employee] in violation of section 44113. Thus section 44113 is a statute which provides ‘otherwise’ than Government Code section 820.2.” (Id. at 1178.)