¶1I dissent.
¶2The majority .holding in the present case affirming a judgment of dismissal following an order sustaining defendant’s demurrer to plaintiff’s complaint without leave to amend, adds another ease to the growing'list of those recently decided by this court which have arbitrarily deprived a plaintiff of his right to a trial on the merits.
¶3Plaintiff’s complaint stated a cause of action for malicious prosecution and defendant’s demurrer thereto should have been overruled. Defendant Towers’ affidavit (made part of the complaint) stated that he was an “investigator” for the California Division of Fish and Game. The trial court, in sustaining the demurrer to the complaint without leave to amend, repeated that averment and then held, in his memorandum *735opinion, that “it would seem that an Inspector of the Fish and Game Commission” should be immune from civil liability for malicious prosecution. (Emphasis added.)
¶4The Fish and Game Code provides in section 20 that: ‘1 The commission shall, from time to time, employ such deputies, with, or without pay, clerks, assistants and other employees as they may need to discharge in proper manner the duties imposed upon them by law.” Section 21 provides, in part, that: “All deputies appointed to enforce the provisions of this code are public officers and have all the powers and authorities of peace officers to make arrests for violations of this code, and may serve all processes and notices throughout the State ...” (Emphasis added.) The trial judge and a majority of this court have assumed too much. Only deputies, by provision of the code, have authority to make arrests and serve processes and notices. In what category is an “Investigator” or an “Inspector”? It has been assumed throughout that one in Towers’ position is a deputy. If he is actually a deputy who was appointed to enforce the provisions of the code, then, and then only, is this court privileged to decide whether the immunity from civil suit for malicious prosecution should be extended to him. But before that may be legally done, there are questions of fact presented for determination- — his capacity and the scope of his authority. Under the pleadings there is absolutely no way for anyone to know what an investigator of the Fish and Game Commission is, or what his duties, power and authority are. The majority of thisicourt maintain that because plaintiff did not affirmatively allege anything to the contrary, it was to be “assumed” that Towers was a law enforcement officer who had authority to enforce laws for the protection of fish and game. With this I can not agree. If Towers was a deputy at the time the prosecution was commenced and empowered to institute actions on behalf of the commission, that was a matter of defense and a plaintiff is not required to anticipate defenses. (Jaffe v. Stone, 18 Cal.2d 146, 159 [114 P.2d 335, 135 A.L.R. 775]; Pulvermacher v. Los Angeles Co-ordinating Committee, 61 Cal.App.2d 704, 708 [143 P.2d 975].) Defendant Towers’ affidavit, which led to the prosecution of plaintiff in the federal court, was filed on April 29, 1949. The events which led to the prosecution of the plaintiff were alleged to have occurred on October 3, 1948; the first proceeding against him was filed on October 5, 1948. The affidavit of defendant, filed in April, 1949, is the only basis for holding that he, as an investigator, *736should be extended immunity from civil suit. It has also been assumed that because he was an investigator on that date he was so employed on October 3d and 5th, 1948. In my opinion, to assume such facts for the purpose of sustaining a demurrer to the complaint is an unwarranted and arbitrary exercise of judicial power.
¶5Plaintiff has alleged the successful termination of the prosecutions against him — he has alleged malice and want of probable cause — -he has alleged the injury suffered by him as a result thereof to his damage in a certain sum. He certainly should not be required to allege, in addition, that the defendant had the right to arrest him while acting within the scope of his authority. What if the plaintiff had alleged that defendant was an “employee” (§20) of the Fish and Game Commission and had incorporated defendant’s affidavit in which it was averred that he was employed as a janitor in the ■ offices of the commission? Would this court then assume that he was a deputy, on the day the prosecution was commenced, and acting within the scope of his authority so that immunity from civil liability could be extended to him? Probably.
¶6It has been specifically held in this state that deputy fish and game commissioners are liable in damages for unlawfully confiscating fish, and for torts committed in connection with such confiscation, even though they acted under a mistaken belief that the confiscation was proper (Noack v. Zellerbach, 11 Cal.App.2d 186, 188 [53 P.2d 986] [hearing denied]; Silva v. MacAuley, 135 Cal.App. 249 [26 P.2d 887, 27 P.2d 791] [hearing denied]). Assuming for the moment that an investigator is a deputy, if deputies are liable in damages when they are acting in good faith, albeit mistakenly, why should they not be held liable if the action is taken with malice ? The Restatement of Torts (§ 656 [d]) states that only public prosecutors are immune from such liability and that the immunity does not apply to all persons whose function it is to aid in the enforcement of the criminal law. While it may be admitted that malicious prosecution is a disfavored action, the policy should not be pressed further to the extreme of practical nullification of the tort, and the consequent defeat of the other important policy which underlies it, of protecting the individual from the injury caused by unjustifiable criminal prosecution (Jaffe v. Stone, 18 Cal.2d 146, 159 [114 P.2d 335, 135 A.L.R. 775]; Schubkegel v. Gordino, 56 Cal.App.2d 667, 672 [113 P.2d 475]; Pulvermacher v. Los Angeles Co-ordinating Committee, supra). The plaintiff here should have been permitted *737to prove, if he could, that defendant was not acting within the scope of his authority and therefore not entitled to the privilege of immunity. This court, in affirming the action taken by the trial court, has decided that defendant investigator or inspector was acting within the scope of his authority without even being sure that he was so employed at the time of the first prosecution. Having made these assumptions, it is then arbitrarily held, that whatever his official duties were, immunity from civil liability should be extended to him'. Plaintiff has, in effect, been denied his day in court as the result of this holding.
¶7As is usual in these cases, this court settled a conflict in policy by deciding that the police should be favored in the “fearless and effective administration of the law.” I agree that the police should not be unduly hampered but surely the individual citizen is entitled to some protection and should be reimbursed or compensated for injury done to him without right and with malice. Are the police, or any employees of ■ any governmental body, to be given carte blanche to arrest, or bring unwarranted criminal actions, without probable cause, and with malice, and go scot free ? Again, in this case, the one injured by the malicious prosecution is said to have a remedy under the penal statutes (People v. Mayen, 188 Cal. 237 [205 P. 435, 24 A.L.R. 1383]; People v. Rochin, 101 Cal.App.2d 140 [225 P.2d 1, 913], [cert, granted]). I should like to have brought to my attention any such case where a plaintiff has been successful, or even where a prosecution has been instituted. It is absurd to suggest that any district attorney, or superior officer, is going to take criminal action against one of his subordinates at the request of one injured by an unwarranted prosecution, especially where the prosecutor has relied upon the testimony of the subordinate as a basis for the prosecution. Furthermore, even if a plaintiff did succeed in a criminal action against an officer, would the conviction be of any aid to him financially 1 A plaintiff who has been subjected to malicious prosecution has been injured not only in his reputation, but in a monetary sense in that he has been put to the expense of defending himself against such unfounded charges. The majority opinion states that public officers should be protected from “vindictive and retaliatory damage suits.” The reverse situation is presented here: Any employee, clerk, assistant, investigator, inspector or deputy is, by this holding, protected when he has instigated the com*738mencement and prosecution of a vindictive and malicious suit. This is true because the allegations of plaintiff’s complaint must be taken as true, and he has alleged that the action was brought with malice and without probable cause. Any officer of the law is in a better position to defend himself against a malicious prosecution action than is a defendant in a criminal case. The Fish and Game Code, for example, specifically provides (§21.5) that the attorney for the Division of Fish and Game shall act as counsel in defense of any officer or deputy in any suit for damages brought against such officer or deputy alleged to have occurred as the result of the negligence or misconduct of the officer or deputy while engaged in the performance of his official duties. But a private individual who has been subjected to malicious and unwarranted criminal prosecution has no such free defense avalaible to him. He must, at his own expense, hire his own lawyer and pay his own costs. I am at a loss to understand how the problematical “resort to such "penal action” (Pen. Code, § 170) provides “some measure of protection for the individual citizen” and how it “would subserve the public interest far better than would a resort to civil litigation against the public officer.” (Majority opinion.)
¶8The plaintiff contends, and I agree, that the holding in this case is a major step toward statism. This case extends the doctrine of immunity to one who labels himself an “investígator” on the assumption that such an employee is a deputy commissioner acting within the scope of his authority in bringing such an action. One has only to read the cases cited by the majority to see how the doctrine has been unnecessarily stretched and expanded to cover almost any type of employee. For this court to reach out and extend immunity from civil liability under the pleadings in this case, is to lay a foundation for an extension of the privilege that is, to my mind, unthinkable. The protection of individual rights should be zealously guarded from unwarranted police action, and the privilege of police immunity should be available only to those whose clear-cut duty it is to apprehend violators of the laws of this state. The privilege of immunity should not be extended to those whose duties, power and authority are undefined.
¶9Under the pleadings in the case at hand, plaintiff was entitled to proceed to trial for a determination of the questions of fact presented, and I would therefore reverse the judgment and direct the trial court to overrule the demurrer.
¶10Schauer, J., concurred.