Quigley v. Garden Valley Fire Protection Dist.

IN THE SUPREME COURT OF

CALIFORNIA

REBECCA MEGAN QUIGLEY,

Plaintiff and Appellant,

v.

GARDEN VALLEY FIRE PROTECTION DISTRICT et al.,

Defendants and Respondents.

S242250

Third Appellate District

C079270

Plumas County Superior Court

CV1000225

July 15, 2019

Justice Kruger authored the opinion of the Court, in which

Chief Justice Cantil-Sakauye and Justices Chin, Corrigan, Liu,

Cuéllar, and Groban concurred.

QUIGLEY v. GARDEN VALLEY FIRE PROTECTION

DISTRICT

S242250

Opinion of the Court by Kruger, J.

The Government Claims Act (Gov. Code, § 810 et seq.)

authorizes plaintiffs to bring certain tort claims against public

entities, while also immunizing public entities from liability in

particular circumstances. One of the act’s immunity provisions

bars any statutory liability that might otherwise exist for

injuries resulting from the condition of firefighting equipment

or facilities. (Id., § 850.4.) The question presented is whether

this immunity provision constitutes an affirmative defense that

may be forfeited if not timely raised or instead serves as a

limitation on the fundamental jurisdiction of the courts, such

that the issue can never be forfeited or waived. We conclude

that Government Code section 850.4 immunity does not deprive

a court of fundamental jurisdiction but rather operates as an

affirmative defense to liability.

I.

A.

Enacted in 1963, the Government Claims Act (GCA or Act)

is a comprehensive statutory scheme governing the liabilities

and immunities of public entities and public employees for torts.

(Kiser v. County of San Mateo (1991) 53 Cal.3d 139, 145.) For

many decades before the Act, tort liability for public entity

defendants was barred by a common law rule of governmental

immunity. Over time, however, the common law rule became

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Opinion of the Court by Kruger, J.

“riddled with exceptions,” both legislative and judge-made, and

in 1961 this court abolished the rule altogether. (Muskopf v.

Corning Hospital Dist. (1961) 55 Cal.2d 211, 216 (Muskopf).) In

response to Muskopf, the Legislature temporarily suspended the

decision’s effect (Stats. 1961, ch. 1404, pp. 3209–3210) and

directed the California Law Revision Commission to complete a

study of the issue it had begun some years earlier (see Assem.

Conc. Res. No. 22, Stats. 1957 (1956-1957 Reg. Sess.) res.

ch. 202, p. 4590; Cal. Government Tort Liability Practice

(Cont.Ed.Bar 4th ed. 1999) Legislative Response: Government

Claims Act, § 1.40; DeMoully, Fact Finding for Legislation: A

Case Study (1964) 50 A.B.A. J. 285). The end product of the

commission’s study was a series of recommendations (see, e.g.,

Recommendation Relating to Sovereign Immunity, No. 1—Tort

Liability of Public Entities and Public Employees (Jan. 1963) 4

Cal. Law Revision Com. Rep. (1963) p. 801), on which the

Legislature relied in enacting the GCA (see DeMoully, at

p. 286).1

The basic architecture of the Act is encapsulated in

Government Code section 815. Subdivision (a) of that section

makes clear that under the GCA, there is no such thing as

common law tort liability for public entities; a public entity is

not liable for an injury “[e]xcept as otherwise provided by

statute.” (Gov. Code, § 815; see Guzman v. County of Monterey

(2009) 46 Cal.4th 887, 897.) The GCA provides several grounds

1

When first enacted, the statute was known as the Tort

Claims Act; the Legislature later retitled it the Government

Claims Act. (Stats. 2012, ch. 759, § 5; see also Recommendation:

Statutory Cross-References to “Tort Claims Act” (June 2011) 41

Cal. Law Revision Com. Rep. (2011) p. 285; City of Stockton v.

Superior Court (2007) 42 Cal.4th 730, 740–742.)

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Opinion of the Court by Kruger, J.

for public entity liability, including, as relevant here, for injuries

caused “by a dangerous condition of [a public entity’s] property”

that was created through an employee’s negligence. (Gov. Code,

§ 835, subd. (a).)

But even when there are statutory grounds for imposing

liability, subdivision (b) of section 815 provides that a public

entity’s liability is “subject to any immunity of the public entity

provided by statute.” (Gov. Code, § 815, subd. (b).) Government

Code section 850.4 (section 850.4), the provision at issue in this

case, establishes one such immunity: “Neither a public entity,

nor a public employee acting in the scope of his employment, is

liable for any injury resulting from the condition of fire

protection or firefighting equipment or facilities or,” with the

exception of certain motor vehicle accidents, “for any injury

caused in fighting fires.” Section 850.4 was enacted at the

recommendation of the Law Revision Commission. The

commission’s report to the Legislature explained section 850.4’s

purpose as follows: “There are adequate incentives to careful

maintenance of fire equipment without imposing tort liability;

and firemen should not be deterred from any action they may

desire to take in combatting fires by a fear that liability might

be imposed if a jury believes such action to be unreasonable.” (4

Cal. Law Revision Com. Rep., supra, at p. 862; see Heieck and

Moran v. City of Modesto (1966) 64 Cal.2d 229, 233, fn. 3 (Heieck

and Moran).)2

2

The Assembly and Senate Committee reports largely

adopted the commission’s commentary, noting that the

commission’s comments generally “reflect the intent” of the

committees in approving the provisions. (Assem. Com. on Ways

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QUIGLEY v. GARDEN VALLEY FIRE PROTECTION DISTRICT

Opinion of the Court by Kruger, J.

B.

In September 2009, a wildfire known as the Silver Fire

broke out in the Plumas National Forest. Employees of two local

fire protection districts managed a base camp set up at a local

fairground for the firefighting response. The base camp

management team allowed firefighters resting in between

firefighting shifts to sleep in tents and sleeping bags near a

portable shower unit. Plaintiff Rebecca Megan Quigley, a

United States Forest Service firefighter, was sleeping in this

area when she was run over by a water truck servicing the

shower unit. She sustained serious and permanent injuries.

Quigley sued three base camp managers—the facility unit

leader, logistics chief, and camp safety officer—as well as their

employers, the Chester Fire Protection District and the Garden

Valley Fire Protection District.3 She alleged that defendants

were negligent in permitting firefighters to sleep in the area

where she was run over, without roping the area off or posting

signs forbidding vehicles from entering. She claimed defendants

had thereby created a “dangerous condition” of public property,

for which public entities may be held liable under section 835 of

the Government Code.

In their answer, defendants alleged 38 affirmative

defenses, including 11 defenses asserting immunity under 17

& Means, Rep. on Sen. Bill No. 42 (1963 Reg. Sess.) 3 Assem. J.

(1963 Reg. Sess.) p. 5440; Sen. Com. on Judiciary, Rep. on Sen.

Bill No. 42 (1963 Reg. Sess.) 2 Sen. J. (1963 Reg. Sess.) p. 1885.)

3

Although defendants initially contended that the three

base camp managers were federal employees, they later

stipulated that these individuals were employees of the local fire

protection districts.

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Opinion of the Court by Kruger, J.

individually cited sections of the GCA. These individually cited

defenses ranged from property inspection immunity (Gov. Code,

§ 818.6) to discretionary act immunity (id., § 820.2). Defendants

did not allege the immunity conferred by section 850.4. They

did, however, raise a fifteenth affirmative defense that cited

inclusively to all immunities under the GCA: “A public entity

and its employees are immune from liability for damages alleged

in the complaint and Defendants assert all defenses and rights

granted to them by the provisions of Government Code sections

810 through 996.6, inclusive.”

Trial began more than four years after the complaint was

filed. After Quigley’s counsel completed his opening statement,

defense counsel presented a written motion for nonsuit, in which

defendants for the first time invoked section 850.4. Quigley

objected on the ground that defendants had waived any

argument they might have under section 850.4 by failing to

invoke the immunity in their answer. (See Code Civ. Proc.,

§ 430.80, subd. (a).)4

4

The parties’ use of the term “waiver” tracks the language

of section 430.80, subdivision (a) of the Code of Civil Procedure:

“If the party against whom a complaint or cross-complaint has

been filed fails to object to the pleading, either by demurrer or

answer, that party is deemed to have waived the objection,”

subject to certain exceptions. The statute’s use of the term

“waiver” differs from the way we generally use this term: “As

we have explained in various contexts, ‘ “waiver” means the

intentional relinquishment or abandonment of a known right.’

. . . [¶] . . . [Waiver] differs from the related concept of

forfeiture, which results when a party fails to preserve a claim

by raising a timely objection.” (Lynch v. California Coastal Com.

(2017) 3 Cal.5th 470, 475–476.) Nonetheless, because the

relevant statute uses the term “waiver,” we use it here as well.

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Opinion of the Court by Kruger, J.

The trial court overruled Quigley’s objection, reasoning

that defendants could not have waived section 850.4 immunity

because “governmental immunity is jurisdictional and can’t be

waived.” On the merits, the trial court agreed with defendants

that Quigley’s cause of action sought recovery for injuries caused

by a condition of firefighting facilities—namely, the base camp—

and was thus barred by section 850.4 immunity.

Quigley later renewed her objection in a motion for a new

trial, which the court denied. In ruling on that motion, the court

offered a different rationale for entertaining defendants’ late-

raised section 850.4 argument. It held that defendants did not

waive section 850.4 immunity because defendants’ “general

allegation [in the fifteenth affirmative defense] that [they] were

immune from liability as public entities and public employees is

sufficient to assert governmental immunity under section

850.4.”

On appeal, Quigley again renewed her objection to

defendants’ belated invocation of section 850.4 immunity. The

Court of Appeal rejected the argument. Without addressing

whether defendants’ omnibus pleading of the entire GCA was

adequate to preserve defendants’ section 850.4 argument, the

Court of Appeal agreed with the trial court that defendants

could not have waived the issue because section 850.4 is

“jurisdictional” and therefore may be raised “at any time.”

Proceeding to the merits, the Court of Appeal also agreed with

the trial court that section 850.4 immunity applies to injuries

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QUIGLEY v. GARDEN VALLEY FIRE PROTECTION DISTRICT

Opinion of the Court by Kruger, J.

resulting from the condition of a firefighting base camp, and

thus affirmed the award of nonsuit to defendants.5

The Court of Appeal recognized that its jurisdictional

ruling created a conflict with McMahan’s of Santa Monica v.

City of Santa Monica (1983) 146 Cal.App.3d 683. In McMahan’s,

a corroded city water main broke, spewing water that damaged

the plaintiff’s store. The city argued for the first time on appeal

that it was immune from the plaintiff’s damages claim under

section 850.4, because the water pipe was “fire protection

equipment.” The appellate court declined to consider the

argument, taking the view that section 850.4 provides an

affirmative defense that the city waived by failing to plead and

prove it before the trial court.

The Court of Appeal criticized McMahan’s for failing to

distinguish between those sections of the GCA that provide

“qualified” immunity and those that provide “absolute”

immunity. The Court of Appeal reasoned that the first kind of

immunity provision creates an affirmative defense because the

public entity must make some sort of affirmative showing to

establish the immunity applies. The court pointed to De La Rosa

v. City of San Bernardino (1971) 16 Cal.App.3d 739, on which

McMahan’s had relied, as one example of a qualified immunity

in action. De La Rosa did not concern immunity under section

850.4, but instead concerned design immunity under

Government Code section 830.6; to invoke that immunity, a

5

Whether the Court of Appeal was correct to hold that

Quigley’s alleged injuries “result[ed] from the condition of fire

protection or firefighting equipment or facilities” within the

meaning of section 850.4 is a question that falls outside of the

scope of our grant of review, and we do not address it here.

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Opinion of the Court by Kruger, J.

public entity must show that it has maintained public property

in conformity with an approved plan or design.

The Court of Appeal observed that section 850.4 imposes

no similar requirement. The court instead likened section 850.4

to the governmental immunity at issue in Hata v. Los Angeles

County Harbor/UCLA Medical Center (1995) 31 Cal.App.4th

1791 (Hata), which concerned the immunity of public entities for

injuries to inpatients of mental institutions (Gov. Code, § 854.8,

subd. (a)(2)). In Hata, the Court of Appeal reversed the trial

court’s ruling that the county defendant waived this immunity

by failing to raise it before trial. Among the many reasons the

court gave for this conclusion, the Hata court explained that

because the inpatient immunity statute contains “no

requirement the public entity make any type of affirmative

showing” (Hata, at p. 1804), the immunity it provides is

“absolute” (id. at p. 1803), and therefore is “jurisdictional and

may be raised at any time” (id. at p. 1804). Agreeing with Hata

on this point, the Court of Appeal in this case concluded that

because section 850.4 requires no affirmative showing on the

part of defendants, it could be raised at any time and was not

waived.

We granted review to resolve the conflict between the

Court of Appeal’s decision and McMahan’s about whether the

governmental immunity set forth in section 850.4 is

jurisdictional or instead may be forfeited if not timely raised.

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QUIGLEY v. GARDEN VALLEY FIRE PROTECTION DISTRICT

Opinion of the Court by Kruger, J.

II.

A.

We begin with a necessary note about terminology. As we

have long recognized, the term “jurisdiction” has “many

different meanings.” (Abelleira v. District Court of Appeal

(1941) 17 Cal.2d 280, 287 (Abelleira).) Here we are concerned

with jurisdiction in what we typically refer to as its

“fundamental sense”: specifically, the power of the court over

the subject matter of the case. (Id. at p. 288; see Varian Medical

Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 196.) A lack of

fundamental jurisdiction is the “ ‘ “ ‘entire absence of power to

hear or determine the case.’ ” ’ ” (Kabran v. Sharp Memorial

Hospital (2017) 2 Cal.5th 330, 339 (Kabran).) Because it

concerns the basic power of a court to act, the parties to a case

cannot confer fundamental jurisdiction upon a court by waiver,

estoppel, consent, or forfeiture. (Ibid.) Defects in fundamental

jurisdiction therefore “may be raised at any point in a

proceeding, including for the first time on appeal,” or, for that

matter, in the context of a collateral attack on a final judgment.

(People v. Chavez (2018) 4 Cal.5th 771, 780.) By contrast, other

sorts of objections a defendant might have on the merits—

including an objection that liability is barred by an affirmative

defense—are ordinarily deemed “waived” if the defendant does

not raise them in its demurrer or answer to the complaint.

(Code Civ. Proc., § 430.80, subd. (a).)

Quigley argues that the statutory immunities under the

GCA do not deprive a court of fundamental jurisdiction to hear

a tort case against a government entity, but instead operate as

affirmative defenses that must be pleaded and proved or are

deemed waived. Defendants, for their part, urge that section

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Opinion of the Court by Kruger, J.

850.4 deprives a court of subject matter jurisdiction where it

applies, such that it may be raised at any time—indeed, even

after judgment has become final.

In evaluating these competing claims, we begin with the

usual presumption that statutes do not limit the courts’

fundamental jurisdiction absent a clear indication of legislative

intent to do so. (E.g., Kabran, supra, 2 Cal.5th at pp. 342–343.)

California’s superior courts are courts of general jurisdiction,

which means they are generally empowered to resolve the legal

disputes that are brought to them. (Cal. Const., art. VI, §§ 1, 10;

see generally 20 Am.Jur.2d (2015) Courts, § 66, p. 464 [“Courts

of general jurisdiction have the power to hear and determine all

matters, legal and equitable, except insofar as these powers

have been expressly denied.”].) Although the Legislature may

impose reasonable restrictions on the fundamental jurisdiction

of the courts, our cases reflect “a preference for the resolution of

litigation and the underlying conflicts on their merits by the

judiciary.” (Kabran, at pp. 342–343.) The power of the courts to

resolve cases is the essential underpinning of the judiciary’s

ability to “ ‘effectively . . . function as a separate department of

government.’ ” (Id. at p. 343.) “ ‘Consequently an intent to

defeat the exercise of the court’s jurisdiction will not be supplied

by implication.’ ” (Ibid.) If the Legislature means to withdraw

a class of cases from state court jurisdiction, we expect it will

make that intention clear. (See, e.g., International Assn. of Fire

Fighters, Local 188, AFL-CIO v. Public Employment Relations

Bd. (2011) 51 Cal.4th 259, 270 [“This court will not infer a

legislative intent to entirely deprive the superior courts of

judicial authority in a particular area; the Legislature must

have expressly so provided or otherwise clearly indicated such

an intent.”].)

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Opinion of the Court by Kruger, J.

On its face, section 850.4 contains no clear indication of a

legislative intent to limit the fundamental jurisdiction of the

courts. Section 850.4 provides, as relevant here: “Neither a

public entity, nor a public employee acting in the scope of his

employment, is liable for any injury resulting from the condition

of fire protection or firefighting equipment or facilities[.]”

Nothing in the language of this provision suggests it was

intended to withdraw a class of cases from the courts’ power to

adjudicate. Unlike some other provisions that have been

understood to have such an effect, section 850.4 makes no

reference to the jurisdiction of the courts, nor does it otherwise

speak to the courts’ power to decide a particular category of

cases. (Cf., e.g., Pub. Util. Code, § 1759, subd. (a) [“No court of

this state, except the Supreme Court and the court of appeal, to

the extent specified in this article, shall have jurisdiction to

review, reverse, correct, or annul any order or decision of the

[Public Utilities Commission][.]”], discussed in San Diego Gas &

Electric Co. v. Superior Court (1996) 13 Cal.4th 893, 916; Bus.

& Prof. Code, § 6100 [“For any of the causes provided in this

article, arising after an attorney’s admission to practice, he or

she may be disbarred or suspended by the Supreme Court.”],

discussed in Jacobs v. State Bar (1977) 20 Cal.3d 191, 196.)

Section 850.4 instead reads as a substantive bar to tort

liability, much like other privileges or immunities provisions

that shield particular actors or activities from otherwise

applicable liability for tortious conduct. Quigley sued under

Government Code section 835, which makes public entities

liable for injuries arising from a dangerous condition of public

property. Section 850.4 provides a justification or excuse from

liability that would otherwise exist under section 835, based on

considerations of policy. (See Heieck and Moran, supra, 64

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Opinion of the Court by Kruger, J.

Cal.2d at p. 233, fn. 3.) As a general rule, such matters must “be

pleaded and proved by one who seeks thereby to destroy the

seemingly tortious character of his conduct, and so protect

himself from being subject to liability.” (Rest.2d Torts, § 10,

com. c, pp. 17–18.)

Consistent with this understanding, we have previously

described other GCA statutory immunities as affirmative

defenses to liability. Government Code section 830.6, for

example, immunizes public entities for injuries caused by a

properly approved plan or design of public property. We have

explained that this design immunity is a “defense” that a public

entity should “raise[] . . . by appropriate pleadings.” (Teall v.

City of Cudahy (1963) 60 Cal.2d 431, 435; see also Cornette v.

Department of Transportation (2001) 26 Cal.4th 63, 66 [“[A]

public entity may avoid [section 835] liability by raising the

affirmative defense of design immunity.” (Italics omitted.)].)

Similarly, Government Code section 835.4 absolves a public

entity of liability for a dangerous condition under Government

Code section 835 where the act or omission that created the

condition was “reasonable.” We have held that this immunity,

too, “clearly creates an affirmative defense.” (Metcalf v. County

of San Joaquin (2008) 42 Cal.4th 1121, 1138; see also Hibbs v.

Los Angeles County Flood Control Dist. (1967) 252 Cal.App.2d

166, 172.)

It is true, as the Court of Appeal observed, that section

850.4 differs from these other immunity provisions in that it

creates an “absolute,” rather than “qualified,” immunity—that

is to say, the immunity is not conditioned on a showing that the

defendant acted in a reasonable or procedurally proper manner,

or any similar requirement. But absolute privileges and

immunities, too, ordinarily apply only if the defendant invokes

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Opinion of the Court by Kruger, J.

them. Courts have held, for example, that the absolute

litigation privilege in Civil Code section 47, subdivision (b)—a

provision that operates “as a limitation on liability, precluding

use of . . . protected communications and statements as the basis

for a tort action other than for malicious prosecution” (Moore v.

Conliffe (1994) 7 Cal.4th 634, 638, fn. 1, italics omitted)—is an

affirmative defense subject to principles of forfeiture and waiver

(Stevens v. Snow (1923) 191 Cal. 58, 64; see also, e.g., Cruey v.

Gannett Co. (1998) 64 Cal.App.4th 356, 367). Or to take another

example, the common law has long granted judges absolute

immunity from liability for their judicial acts. (Soliz v. Williams

(1999) 74 Cal.App.4th 577, 585–586; see also, e.g., Pierson v. Ray

(1967) 386 U.S. 547, 554 [similarly describing the common law

immunity].) This immunity, too, generally has been understood

to constitute an affirmative defense, not a limitation on court

jurisdiction. (E.g., Boyd v. Carroll (5th Cir. 1980) 624 F.2d 730,

732–733; Plyer v. Burns (S.C. 2007) 647 S.E.2d 188, 194–195;

Dallas County v. Halsey (Tex. 2002) 87 S.W.3d 552, 553; BCL

Enterprises v. Dept. of Liquor Control (Ohio 1997) 675 N.E.2d 1,

4.)6

6

Even were it otherwise—that is, even if it were the

plaintiff’s burden to plead around an absolute immunity, rather

than the defendant’s burden to invoke the immunity as an

affirmative defense—that would not necessarily mean the

immunity is jurisdictional in nature, as the Court of Appeal in

this case reasoned. The GCA’s provision requiring plaintiffs to

have timely filed a claim for money or damages with a public

entity as a prerequisite to bringing suit (Gov. Code, § 945.4) is a

case in point: In State of California v. Superior Court (Bodde)

(2004) 32 Cal.4th 1234, 1239, we held that a plaintiff’s “failure

to allege facts demonstrating or excusing compliance with the

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Opinion of the Court by Kruger, J.

Notwithstanding section 850.4’s resemblance to other

affirmative defenses, defendants argue that the GCA’s roots in

the doctrine of sovereign immunity support affixing the

jurisdictional label instead. As noted, the GCA was enacted

after this court abolished the common law rule of governmental

immunity in Muskopf, supra, 55 Cal.2d 211. Defendants reason

that because the Legislature enacted the GCA to restore

governmental immunity from liability as “the overarching rule,”

subject only to those exceptions created by statute, courts must

lack power to hear a tort claim against a public entity where an

immunity provision like section 850.4 applies.

Defendants’ argument assumes that the Legislature’s

evident intent to limit the tort liability of public entities in the

GCA (even when there is an applicable statutory basis for

liability, as Government Code section 835 provides here) means

the Legislature must also have intended to withdraw a class of

tort cases from the fundamental jurisdiction of the courts. This

assumption is unfounded, for reasons Muskopf itself made clear:

California law has long distinguished between limitations on

the substantive liability of public entities, on the one hand, and

limitations on the power of the courts to hear cases involving

public entities, on the other. (See Muskopf, supra, 55 Cal.2d at

pp. 217–218.)

Granted, for some time in our history, the distinction

between these two kinds of limitations had little practical

[GCA’s] claim presentation requirement subjects a claim

against a public entity to a demurrer for failure to state a cause

of action.” But even so, we explicitly rejected the notion that a

plaintiff’s failure to allege compliance “divests the court of

jurisdiction over a cause of action against a public entity.” (Id.

at p. 1239, fn. 7.)

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relevance. At common law, the doctrine of sovereign immunity

had two strands: a procedural immunity from suit without the

government’s consent and a substantive immunity from liability

for the conduct of government. (State Dept. of State Hospitals v.

Superior Court (2015) 61 Cal.4th 339, 347.) Combined, the effect

of these two features was to close California courts to

individuals injured by the negligence of public entities and

employees. (See Welsbach Co. v. State of California (1929) 206

Cal. 556, 558.) For individuals injured by state employees, for

example, the only possible remedy was payment via a private

appropriation bill enacted by the Legislature. (Ibid.; see

generally Van Alstyne, Governmental Tort Liability: Judicial

Lawmaking in a Statutory Milieu (1963) 15 Stan. L.Rev. 163,

168–169.)

But as Muskopf explained, various legal developments

would disentangle the two strands of sovereign immunity

doctrine in California. (See Muskopf, supra, 55 Cal.2d at

pp. 217–218.) In 1885, the Legislature passed an act permitting

certain named individuals to “institute an action against the

State of California in any Court of competent jurisdiction” for

property damages that the individuals sustained from the

state’s construction of a new canal. (Stats. 1885, ch. 123, § 1,

p. 107, discussed in Green v. State (1887) 73 Cal. 29 (Green).)

The Legislature followed this narrow authorization to file suit

with a broader one, authorizing “[a]ll persons who have, or shall

hereafter have, claims on contract or for negligence against the

State not allowed by the State Board of Examiners . . . to bring

suit thereon against the State in any of the Courts of this State

of competent jurisdiction[.]” (Stats. 1893, ch. 45, § 1, p. 57,

discussed in Denning v. State (1899) 123 Cal. 316 (Denning).)

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In subsequent cases interpreting these statutes, this court

held that the statutes eliminated the state’s procedural

immunity to suit, thus opening the courts to the adjudication of

the specified claims. (Green, supra, 73 Cal. at pp. 32–33;

Denning, supra, 123 Cal. at p. 319.) But we rejected the idea

that the Legislature, by offering the state’s consent to suit, also

intended to eliminate the state’s substantive immunity from

liability. (Green, at p. 33; Denning, at p. 319; see also Melvin v.

State (1898) 121 Cal. 16, 22–23; Chapman v. State (1894) 104

Cal. 690, 693–694.) Instead, we held, the state could rely on the

common law principles that states are immune from liability for

damages caused by the negligence or misfeasance of their

employees (Denning, at p. 324) and that states are not liable for

remote and consequential damages to property stemming from

public works (Green, at pp. 34–39).

By the time of Muskopf, similar provisions granting

legislative consent to suit were not uncommon. As Muskopf

noted, the California Constitution itself contemplates the

granting of such consent in suits against the state (Cal. Const.,

art. III, § 5, former art. XX, § 6), and the Legislature had enacted

a “ ‘sue and be sued’ ” statute applicable to hospital districts, the

subject of the particular controversy in Muskopf. (Muskopf,

supra, 55 Cal.2d at p. 217, citing Health & Saf. Code, § 32121,

subd. (b).) But Muskopf acknowledged that such provisions did

not displace common law limitations on the substantive liability

of the relevant public entities. The court explained that

“[p]revious cases . . . have differentiated between the state’s

consenting to be sued and its substantive liability, and have held

that the language used in [Health and Safety Code] section

32121, subdivision (b), and in article [III], section [5], gives only

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Opinion of the Court by Kruger, J.

the state’s consent to be sued and does not waive any defenses

or immunities.” (Muskopf, at p. 217.)

The Muskopf court therefore held that, notwithstanding

an applicable grant of legislative consent to bring suit against a

public entity, it was a separate question whether the common

law barred courts from imposing substantive liability.

Ultimately it answered the latter question in the negative,

discarding the common law rule of “governmental immunity

from tort liability” as “mistaken and unjust” insofar as it

operated to deny compensation to individuals harmed by a

public entity’s wrongs. (Muskopf, supra, 55 Cal.2d at p. 213; see

id. at pp. 216–217.)

When the California Law Revision Commission made its

recommendations about legislative responses to Muskopf, it

likewise focused primarily on questions of substantive public

entity liability, and it dealt separately with questions

concerning the amenability of public entities to suits in state

courts. The commission proposed what ultimately became

Government Code section 945, which provides simply: “A public

entity may sue and be sued.” The commission’s comment on the

proposed section explains: “Section 945 is new. This section will

eliminate any doubt that might otherwise exist as to whether a

tort action might be defeated on the technical ground that a

particular local public entity is not subject to suit. The section

does not, however, impose substantive liability; some other

statute must be found that imposes such liability.”

(Recommendation Relating to Sovereign Immunity, No. 2—

Claims, Actions and Judgments Against Public Entities and

Employees (Jan. 1963) 4 Cal. Law Revision Com. Rep. (1963)

p. 1042.)

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QUIGLEY v. GARDEN VALLEY FIRE PROTECTION DISTRICT

Opinion of the Court by Kruger, J.

In sum, the history indicates that the GCA’s liability and

special immunity provisions, like section 850.4, were addressed

to questions of substantive liability. As for the separate

question whether public entities are amenable to suit in state

courts, it appears the Legislature sought to put any doubts to

rest when it broadly waived common law immunity from suit for

all public entities in Government Code section 945.

Given this background, there is little basis for defendants’

assumption that the Legislature intended the immunity

conferred by section 850.4 to function as a partial withdrawal of

the state’s consent to suit when a plaintiff brings a claim under

a liability-providing section of the Act. In the absence of clearer

indication that such was the Legislature’s intent, we presume

the opposite: that is, that the Legislature did not intend to limit

the fundamental power of the courts to hear the legal disputes

that are brought to them. (Kabran, supra, 2 Cal.5th at pp. 342–

343.)7

B.

In arguing that section 850.4 creates a jurisdictional bar,

defendants rely heavily on a series of cases that generally

describe governmental tort immunity as “jurisdictional.” These

cases, however, appear to conflate lack of fundamental

jurisdiction with acts in excess of jurisdiction. “ ‘Even when a

court has fundamental jurisdiction . . . the Constitution, a

7

The parties present competing arguments about the

nature of sovereign, or governmental, immunity based on semi-

analogous law from other jurisdictions. We are not bound by

any of these approaches in interpreting our own law, and the

unique features and history of the GCA and the state’s sovereign

immunity in our courts temper the conclusions we may draw

from these arguments.

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QUIGLEY v. GARDEN VALLEY FIRE PROTECTION DISTRICT

Opinion of the Court by Kruger, J.

statute, or relevant case law may constrain the court to act only

in a particular manner, or subject to certain limitations.’

[Citation.] We have described courts that violate procedural

requirements, order relief that is unauthorized by statute or

common law, or otherwise ‘ “fail[] to conduct [themselves] in the

manner prescribed” ’ by law as acting ‘ “in excess of

jurisdiction.” ’ ” (Kabran, supra, 2 Cal.5th at pp. 339–340.)

Attending to this “distinction is important because the remedies

are different.” (People v. Lara (2010) 48 Cal.4th 216, 225.)

Again, when a court lacks fundamental jurisdiction, it has no

power to hear or determine the case, and the parties cannot cure

that fundamental absence of power. But so long as a court

possesses fundamental jurisdiction, an act that it takes in excess

of jurisdiction is “ ‘valid until set aside, and parties may be

precluded from setting it aside by such things as waiver,

estoppel, or the passage of time.’ ” (Kabran, at p. 340.)

The cases on which defendants rely do not acknowledge

this distinction or explain why the application of a statutory

immunity ought to rank as jurisdictional in the fundamental

sense. Each case simply cites the last for the proposition that

governmental immunity is jurisdictional and thus cannot be

waived and may be raised for the first time on appeal. (Paterson

v. City of Los Angeles (2009) 174 Cal.App.4th 1393, 1404, fn. 5

[“Appellants contend that this defense was waived because it

was not sufficiently asserted in the answer. Governmental

immunity is a jurisdictional question [citation], and thus is not

subject to the rule that failure to raise a defense by demurrer or

answer waives that defense.”]; Richardson-Tunnell v. Schools

Ins. Program for Employees (SIPE) (2007) 157 Cal.App.4th

1056, 1061 [“Government tort immunity is jurisdictional and

may be raised for the first time on appeal.”]; Inland Empire

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QUIGLEY v. GARDEN VALLEY FIRE PROTECTION DISTRICT

Opinion of the Court by Kruger, J.

Health Plan v. Superior Court (2003) 108 Cal.App.4th 588, 592

[“[G]overnmental immunity from liability is a jurisdictional

matter that can be raised for the first time on appellate

review.”]; Hata, supra, 31 Cal.App.4th at p. 1795

[“[G]overnmental tort immunity . . . is a jurisdictional issue that

may be raised at any time, even for the first time on appeal.”];

Hooper v. City of Chula Vista (1989) 212 Cal.App.3d 442, 454,

fn. 11 [reasoning that a GCA immunity raises “a jurisdictional

question subject to judicial determination” that “may be reached

on appeal even if not adequately asserted in the trial court”];

Kemmerer v. County of Fresno (1988) 200 Cal.App.3d 1426, 1435

[“[G]overnmental immunity is a jurisdictional question and may

be raised on appeal even though not used as a basis for the

general demurrer in the lower court.”]; Buford v. State of

California (1980) 104 Cal.App.3d 811, 826 [“[T]wo defects of

substance—lack of jurisdiction and failure to state a cause of

action—are not waived by a failure to demur and may be raised

for the first time on appeal. [Citations.] Since governmental

immunity is jurisdictional [citation] and can properly preclude

a cause of action, we can appropriately address the applicability

of section 854.8.”].)

The apparent root of this doctrinal branch is State of

California v. Superior Court (Rodenhuis) (1968) 263 Cal.App.2d

396, a case decided soon after the enactment of the GCA. There,

the court considered a petition for a writ of prohibition filed by

the State of California, which sought to restrain the superior

court from proceeding to trial on a claim seeking damages for

personal injuries sustained on a state beach. The state argued

that it was immune from liability because the plaintiff’s

evidence could not establish the requisite elements of a

dangerous condition of public property claim under Government

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QUIGLEY v. GARDEN VALLEY FIRE PROTECTION DISTRICT

Opinion of the Court by Kruger, J.

Code section 835. Before considering the merits of the state’s

argument, the Court of Appeal first addressed the plaintiff’s

preliminary contention that prohibition was inappropriate to

address this issue and that the state should instead be required

to raise the issue on appeal. (Rodenhuis, at p. 398.) In rejecting

this argument, the Rodenhuis court reasoned that “[i]t is well

established that the defense of sovereign immunity presents a

jurisdictional question properly raised by prohibition.” (Ibid.)

For that proposition, it relied on this court’s decision in People

v. Superior Court (Pierpont) (1947) 29 Cal.2d 754, a case

preceding both Muskopf and the GCA, in which we held that the

defense of common law sovereign immunity “presents a

jurisdictional question” properly addressed by prohibition.

(Pierpont, at p. 756; Rodenhuis, at p. 398.)

Whatever the merits of Rodenhuis’s reasoning, its

conclusion did not amount to a holding that sovereign immunity

deprives a court of fundamental jurisdiction, because

prohibition is proper to address judicial action taken either

without jurisdiction or in excess of jurisdiction. (Code Civ. Proc.,

§ 1102; Abelleira, supra, 17 Cal.2d at pp. 287–291 [explaining

that prohibition lies to restrain judicial acts taken in excess of

jurisdiction and without jurisdiction, but not to correct mere

errors of law].) In deciding that the state could raise its defense

of sovereign immunity by application for writ of prohibition, the

Rodenhuis court had no need or occasion to determine whether

governmental immunity divests a court of fundamental

jurisdiction.

The Courts of Appeal that have held that statutory

immunities in the GCA are jurisdictional in the fundamental

sense have done so only by removing Rodenhuis’s statement

about the jurisdictional nature of governmental immunity from

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QUIGLEY v. GARDEN VALLEY FIRE PROTECTION DISTRICT

Opinion of the Court by Kruger, J.

its proper context. Rodenhuis did not hold that GCA immunities

are jurisdictional in the fundamental sense, such that they

cannot be waived or forfeited, and for the reasons given above,

we reject that conclusion.8

III.

Having determined that section 850.4 immunity operates

as an affirmative defense and not a jurisdictional bar, the

question remains whether defendants in this case adequately

invoked the immunity in their answer and, if they did not,

whether the defense should be deemed waived or forfeited.

Defendants maintain that they raised the immunity in

their answer, when, in their fifteenth affirmative defense, they

claimed to “assert all defenses and rights granted to them by the

provisions of Government Code sections 810 through 996.6,

inclusive.” They suggest that this citation to the entire GCA was

sufficient to raise section 850.4 as an affirmative defense and

put Quigley on notice that they intended to rely on it. In denying

Quigley’s motion for a new trial, the trial court accepted this

argument, ruling that defendants’ “general allegation that

[they] were immune from liability as public entities and public

employees” in their answer was sufficient to assert section

8

We disapprove of Paterson v. City of Los Angeles, supra,

174 Cal.App.4th 1393, Richardson-Tunnell v. Schools Ins.

Program for Employees (SIPE), supra, 157 Cal.App.4th 1056,

Inland Empire Health Plan v. Superior Court, supra, 108

Cal.App.4th 588, Hata v. Los Angeles County Harbor/UCLA

Medical Center, supra, 31 Cal.App.4th 1791, Hooper v. City of

Chula Vista, supra, 212 Cal.App.3d 442, Kemmerer v. County of

Fresno, supra, 200 Cal.App.3d 1426, and Buford v. State of

California, supra, 104 Cal.App.3d 811, to the extent they

suggest that statutory immunities in the GCA deprive courts of

fundamental jurisdiction.

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QUIGLEY v. GARDEN VALLEY FIRE PROTECTION DISTRICT

Opinion of the Court by Kruger, J.

850.4. Quigley counters that “[t]he primary function of a

pleading is to give the other party notice so that it may prepare

its case” (Harris v. City of Santa Monica (2013) 56 Cal.4th 203,

240), and she argues that defendants’ whole-act pleading

provided insufficient notice that defendants intended to rely on

the affirmative defense provided by section 850.4, given the 50-

plus immunity provisions contained in the Act.

The Court of Appeal has yet to consider these arguments,

as it upheld the trial court’s decision to entertain defendants’

assertion of section 850.4 immunity solely on the basis that the

immunity is jurisdictional and may be raised at any time.

Having rejected that conclusion, we will remand the case so the

Court of Appeal may address the parties’ remaining arguments

in the first instance. Specifically, assuming the issue is

adequately preserved, the court must determine whether

defendants’ whole-act pleading in the fifteenth affirmative

defense sufficiently raised the defense provided by section 850.4,

in light of the requirements of Code of Civil Procedure section

431.30, subdivision (g) and the general notice purposes of our

pleading rules. If the Court of Appeal determines that section

850.4 immunity was not adequately raised in defendants’

answer, the case should be remanded to permit the trial court to

decide whether to exercise its discretion to allow the belated

assertion of the defense after the commencement of the trial.

(See Moss Estate Co. v. Adler (1953) 41 Cal.2d 581, 585

[“[W]hether the filing of an amended pleading should be allowed

at the time of trial is ordinarily committed to the sound

discretion of the trial court.”].)

23

QUIGLEY v. GARDEN VALLEY FIRE PROTECTION DISTRICT

Opinion of the Court by Kruger, J.

IV.

We reverse the judgment of the Court of Appeal and

remand for further proceedings not inconsistent with this

opinion.

KRUGER, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CHIN, J.

CORRIGAN, J.

LIU, J.

CUÉLLAR, J.

GROBAN, J.

24

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion Quigley v. Garden Valley Fire Protection District

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 10 Cal.App.5th 1135

Rehearing Granted

__________________________________________________________________________________

Opinion No. S242250

Date Filed: July 15, 2019

__________________________________________________________________________________

Court: Superior

County: Plumas

Judge: Janet Hilde

__________________________________________________________________________________

Counsel:

Jay-Allen Eisen Law Corporation, Downey Brand, Jay-Allen Eisen; Law Offices of Reiner & Slaughter,

Reiner, Slaughter, McCartney & Frankel, Russell Reiner, Todd E. Slaughter and April K. Gesberg for

Plaintiff and Appellant.

Alan Charles Dell’Ario for Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiff and

Appellant.

Lewis Brisbois Bisgaard & Smith, Joseph A. Salazar, Jr., Jeffry A. Miller, Lann G. McIntyre and Jonna D.

Lothyan for Defendants and Respondents.

Pollak, Vida & Barer and Daniel P. Barer for League of California Cities, California State Association of

Counties, California Association of Joint Powers Authorities, California Special Districts Association and

International Municipal Lawyers Association as Amici Curiae on behalf of Defendants and Respondents.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Jay-Allen Eisen

Downey Brand

621 Capitol Mall, 18th Floor

Sacramento, CA 95814-4731

(916) 444-1000

Jeffry A. Miller

Lewis Brisbois Bisgaard & Smith

701 B Street, Suite 1900

San Diego, CA 92101

(619) 699-4971