Gates v. Superior Court

GRIGNON, J., Dissenting.

When one reads the briefs of the parties in this case, one is immediately struck by the impression that the parties are not litigating the same case. The parties characterize the factual allegations of the complaint in disparate fashion. Clearly, the characterization controls the outcome.

Defendants characterize this case as a simple failure to provide police protection during the course of a riot, which allegedly resulted in injuries to plaintiffs. Defendants assert that they owe no duty to plaintiffs because of the absence of a “special relationship.” Defendants further assert they are statutorily immune from liability under the applicable governmental immunity statutes. The majority adopts defendants’ characterization of the complaint’s factual allegations.

Plaintiffs characterize this case as an intentional violation of their state constitutional and statutory civil rights to be free from racial and ethnic discrimination. Plaintiffs assert that a duty to refrain from racial and ethnic discrimination arises out of the state Constitution and state civil rights acts. Plaintiffs further assert public entities and employees are not immune from liability for such intentional racial and ethnic discrimination. In my view, this is the correct characterization of the complaint’s factual allegations.

This litigation is at the pleading stage; in ruling on a demurrer, the allegations of the complaint are deemed to be true, whatever the true facts may be. Although ultimately this case may factually be determined to be a simple failure to provide police protection, it is pleaded as a case of intentional racial and ethnic discrimination. Defendants owe a duty to plaintiffs to refrain from racial and ethnic discrimination and are not immune from liability for such discrimination. Therefore, the trial court properly overruled defendants’ demurrer to the fifth and sixth causes of action of the complaints.

Allegations of the Complaints

The fifth causes of action are entitled, “Violation of Civil Rights [Civil Code section 51.7].” They allege: defendants “deprived plaintiff[s] of equal *527 protection of the laws by withdrawing protective services and failing to deploy and redeploy police officers in the aforementioned minority communities with the discriminatory intent to deny citizens residing and present in minority communities municipal services while simultaneously aggressively deploying police resources in communities inhabited by predominately Anglo [c]itizens. All defendants thereby deprived individuals residing and present in minority neighborhoods of the right to be free from violence in a manner which bore no rational relation to a legitimate state purpose, and acted with deliberate indifference and reckless disregard for the rights and safety of such citizens and individuals present and travelling through minority communities at all times mentioned herein, entitling plaintiffs] to damages pursuant to Section 51.7 of the California Civil Code.” Defendants, by their acts, “intentionally increased plaintiffs’] vulnerability [] to acts of violence, and thereby deprived plaintiffs] of the right to be free from violence in violation of California Civil Code section 51.7[, subdivision] (a), entitling plaintiffs] to damages.”

The sixth causes of action are entitled, “Violation of Civil Rights [Civil Code section 52].” They allege: Defendants “conspired to violate the plaintiffs’ civil rights, by agreeing to and in fact creating and implementing, the policies and conduct as hereinabove alleged. The above mentioned defendants agreed, through their actions and/or inactions and acquiescence, to use their power and position to violate the plaintiffs’ civil rights by purposely engaging in a policy of discrimination in the distribution of protective services. Defendants^] and each of them, furthered the conspiracy in such a fashion that the conspiracy became an informal and/or formal decision, practice, or policy of the municipal defendants sued herein. Said actions as alleged above were undertaken by each of the individual named defendants in their capacities as final decision-makers pursuant to authority granted to them by the defendant City of Los Angeles and such actions represented official municipal policy and practice, entitling plaintiffs] to damages pursuant to Section 52[, subdivision] (b) of the California Civil Code.”

Demurrer

Defendants demurred to the fifth and sixth causes of actions of the complaints on the grounds of absence of duty and immunity from liability under Government Code sections 821, 845 and 846. Defendants argued the police have no duty to protect a victim from the criminal acts of a third party in the absence of a “special relationship” and no “special relationship” had been alleged. Defendants also argued that, as public entities and employees, they are immune from liability for failure to provide police protection or sufficient police protection (Gov. Code, § 845), for failure to make an arrest *528 (Gov. Code, § 846) and for adopting, failing to adopt or failing to enforce an enactment (Gov. Code, § 821).

Plaintiffs responded that they alleged a duty under Civil Code sections 51.7 and 52 and statutory governmental immunities are inapplicable to civil rights claims. In this court, plaintiffs have expanded their contentions. They assert they have also alleged a duty under the equal protection clause of the state Constitution.

Duty

Before reaching the issue of governmental immunity, it must first be determined whether a public entity or employee owes a duty to a plaintiff. “Conceptually, the question of the applicability of a statutory immunity does not even arise until it is determined that a defendant otherwise owes a duty of care to the plaintiff and thus would be liable in the absence of such immunity.” (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 201-202 [ 185 Cal.Rptr. 252 , 649 P.2d 894 ].) In California, a public entity is not liable for any claim against it except as provided by statute or required by the state or federal Constitution. (Gov. Code, § 815; Cochran v. Herzog Engraving Co. (1984) 155 Cal.App.3d 405, 409 [ 205 Cal.Rptr. 1 ]; Lundeen Coatings Corp. v. Department of Water & Power (1991) 232 Cal.App.3d 816, 832 [ 283 Cal.Rptr. 551 ].) A public entity is liable for injury caused by acts or omissions of its employees in the course and scope of employment. (Gov. Code, § 815.2.) Public employees are liable for injuries caused by their acts or omissions to the same extent as private persons. (Gov. Code, § 820.) “Thus, ‘the general rule is that an employee of a public entity is liable for his torts to the same extent as a private person [citation] and the public entity is vicariously liable for any injury which its employee causes [citation] to the same extent as a private employer [citation].’ ” (Leger v. Stockton Unified School Dist. (1988) 202 Cal.App.3d 1448, 1461 [ 249 Cal.Rptr. 688 ].)

Government Code section 815 provides that a public entity is not liable for injuries except as provided by statute. The phrase “as provided by statute” is to be given its broadest possible meaning. (Levine v. City of Los Angeles (1977) 68 Cal.App.3d 481, 487 [ 137 Cal.Rptr. 512 ].) “It is not interpreted to mean that public entities are liable in tort only when the Legislature has enacted a statute imposing liability which on its face is applicable to public bodies. Rather, a liability is deemed ‘provided by statute’ if a statute defines the tort in general terms.” (Ibid. [Civ. Code, § 1714]; accord, Lopez v. Southern Cal. Rapid Transit Dist. (1985) 40 Cal.3d 780, 785, fn. 2 [ 221 Cal.Rptr. 840 , 710 P.2d 907 ] [Civ. Code, § 2100]; Nestle v. City of Santa Monica (1972) 6 Cal.3d 920, 933-937 [ 101 Cal.Rptr. *529 568 , 496 P.2d 480 ].) Civil Code sections 51.7 and 52 define a tort in general terms. Accordingly, in the absence of an immunity, a public entity and its employees are liable for violations of Civil Code sections 51.7 and 52.

In addition, the state Constitution may provide a cause of action against a public entity independent of any statute providing for liability. (Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 804 [ 185 Cal.Rptr. 758 ].) A constitutional right contained in a self-executing provision of the state Constitution supports a cause of action for damages. {Ibid.) Article I, section 7 of the state Constitution provides: “A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws . . . .” This provision is presumed to be self-executing. ( 135 Cal.App.3d at p. 805 [constitutional right to vote]; Laguna Publishing Co. v. Golden Rain Foundation (1982) 131 Cal.App.3d 816, 851-853 [ 182 Cal.Rptr. 813 ] [constitutional rights to free speech and press]; Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 829-832 [ 134 Cal.Rptr. 839 ] [constitutional right to privacy]; cf. Clausing v. San Francisco Unified School Dist. (1990) 221 Cal.App.3d 1224, 1237 [ 271 Cal.Rptr. 72 ] [constitutional right to safe schools]; Leger v. Stockton Unified School Dist., supra, 202 Cal.App.3d at pp. 1453-1457 [same].) Government Code section 815 is not a bar to a cause of action for violation of a self-executing state constitutional right. (Fenton v. Groveland Community Services Dist., supra, 135 Cal.App.3d at pp. 804-805.)

From the foregoing, it is apparent that, in the absence of immunity, public entities and employees may be liable for violations of a plaintiff’s state constitutional right to equal protection and for violations of Civil Code sections 51.7 and 52. In this case, plaintiffs have sufficiently pleaded violations of these duties by defendants. Although plaintiffs have titled their causes of action statutory violations of Civil Code sections 51.7 and 52, they expressly allege deprivations of their right to equal protection of the laws, a state constitutional right. “Whether plaintiff can prove these allegations, or whether it will be difficult to prove them, are not appropriate questions for a reviewing court when ruling on a demurrer.” (Leger v. Stockton Unified School Dist., supra, 202 Cal.App.3d at p. 1460 .)

Immunity

Once it has been determined a public entity and its employees owe a duty to a plaintiff, it must next be determined whether the public entity and its employees are immune from liability. The existence of a duty does not *530 overcome an immunity barrier to liability; the two concepts must be separately analyzed. (Davidson v. City of Westminster, supra, 32 Cal.3d at p. 202 .) “ ‘[I]n governmental tort cases “the rule is liability, immunity is the exception” . . . .’ ” (Lopez v. Southern Cal. Rapid Transit Dist., supra, 40 Cal.3d at pp. 792-793.)

In this case, defendants assert they are immune from liability under Government Code section 845. Government Code section 845 provides: “Neither a public entity nor a public employee is liable for failure to establish a police department or otherwise to provide police protection service or, if police protection service is provided, for failure to provide sufficient police protection service.” Government Code “section 845 was designed to protect from judicial review in tort litigation the political and budgetary decisions of policymakers, who must determine whether to provide police officers or their functional equivalents.” (Leger v. Stockton Unified School Dist., supra, 202 Cal.App.3d at p. 1463 ; Peterson v. San Francisco Community College Dist. (1984) 36 Cal.3d 799, 815 [ 205 Cal.Rptr. 842 , 685 P.2d 1193 ]; Carpenter v. City of Los Angeles (1991) 230 Cal.App.3d 923, 934-935 [ 281 Cal.Rptr. 500 ].)

Immunity statutes have wide, but not universal, applicability. Governmental immunity statutes may not be applicable when they conflict with other state statutory provisions. (Duarte v. City of San Jose (1980) 100 Cal.App.3d 648, 656 [ 161 Cal.Rptr. 140 ].) Where a governmental immunity conflicts with a liability imposed by a statute outside the Government Tort Claims Act (Gov. Code, § 810 et seq.), we must determine whether the liabilities imposed by the statute “serve a purpose that is frustrated by an immunity . . . .” (Duarte v. City of San Jose, supra, 100 Cal.App.3d at p. 656 .) “If so, . . . the statutory liabilities must prevail.” (Ibid.; Shoemaker v. Myers (1992) 2 Cal.App.4th 1407, 1424-1425 [ 4 Cal.Rptr.2d 203 ]; cf. Mikkelsen v. State of California (1976) 59 Cal.App.3d 621, 629-630 [ 130 Cal.Rptr. 780 ]; O’Hagan v. Board of Zoning Adjustment (1974) 38 Cal.App.3d 722, 728-732 [ 113 Cal.Rptr. 501 ].) In addition, governmental immunities do not defeat invasions of constitutional rights. (Young v. County of Marin (1987) 195 Cal.App.3d 863, 869-870, fn. 3 [ 241 Cal.Rptr. 169 ]; cf. Urbaniak v. Newton (1991) 226 Cal.App.3d 1128, 1141 [ 277 Cal.Rptr. 354 ]; Rancho La Costa, Inc. v. Superior Court (1980) 106 Cal.App.3d 646, 667 [ 165 Cal.Rptr. 347 ]; see Heller v. Norcal Mutual Ins. Co. (1994) 8 Cal.4th 30, 44 [ 32 Cal.Rptr.2d 200 , 876 P.2d 999 ] [issue not reached].) For example, a public entity’s liability for acts of its public employees in the course of their employment *531 motivated by and resulting in racial discrimination is not barred by governmental immunity. (Watson v. Department of Rehabilitation (1989) 212 Cal.App.3d 1271, 1285 [ 261 Cal.Rptr. 204 ]; see Stone v. State of California (1980) 106 Cal.App.3d 924, 930, fn. 8 [ 165 Cal.Rptr. 339 ].) 1

There can be no real question of the inapplicability of the police protection governmental immunity to violations of the state constitutional right to equal protection by a public entity and its employees. The state constitutional right to equal protection is self-executing, permitting a cause of action for damages, and state immunity statutes cannot defeat the liability of a public entity for violations of state constitutional rights.

The question of whether the police protection governmental immunity defeats causes of action based on statutory violations of Civil Code sections 51.7 and 52 is more difficult. I believe, however, the question must be answered in the negative. It is beyond dispute that public entities and employees are immune from suit for personal injuries or property damage incurred by third persons in the course of a riot. (Susman v. City of Los Angeles (1969) 269 Cal.App.2d 803 [ 75 Cal.Rptr. 240 ].) Public entities and employees are not liable whether they provide too little police protection or too much. (Ibid.; Wong v. City of Miami (Fla. 1970) 237 So.2d 132, 134 .) That is not, however, the question presented in this case. The question presented in this case is whether public entities and employees are immune from suit for personal injuries or property damage incurred by third persons as a result of decisions to withhold police protection on the basis of race or ethnicity.

Civil Code section 51.7 states that all individuals in the state have the right to be free from race- or ethnicity-related violence. Civil Code section 52 provides an action for damages and civil penalties against persons who deny an individual his or her right to be free from such violence. These statutory civil rights provisions serve very important public purposes reflecting established constitutional policies, which would be frustrated by the application of a general governmental immunity statute. Police officers who deliberately fail to assist victims of violent crime on the basis of race or ethnicity cannot be immune from suit. Nor can a public entity be immune from suit if it intentionally deploys police personnel in a manner motivated *532 by and resulting in racial or ethnic discrimination. No legitimate governmental interest is served by application of the police protection immunity under these circumstances.

I would deny the petition for a writ of mandate.

A petition for a rehearing was denied March 6, 1995, and the petition of real parties in interest for review by the Supreme Court was denied May 18, 1995. Mosk, J., and Kennard J., were of the opinion that the petition should be granted.

California governmental immunity statutes also are not applicable to federal causes of action, such as violations of the Voting Rights Act ( 42 U.S.C. § 1971 et seq.) and the Civil Rights Act ( 42 U.S.C. § 1981 et seq.). (Fenton v. Groveland Community Services Dist., supra, 135 Cal.App.3d at pp. 807-808; cf. Rossiter v. Benoit (1979) 88 Cal.App.3d 706, 712-714 [ 152 Cal.Rptr. 65 ].)