*1 1057. Fifth Dist. Jan. 1970.] No. [Civ. CONNELLY, Plaintiff
LLOYD G. and Appellant, al., et Defendants and THE STATE OF CALIFORNIA Respondents. *3 Counsel and
L. and M. Watt for Plaintiff Appellant. Miles Reginald Snyder and I. as Amicus Curiae on behalf of Plaintiff Edward Pollack Appellant. Shank, Attorney Assistant General, A. Willard Thomas C. Attorney Lynch, General, Defend- McGuire, General, Attorney K. and Thomas Deputy ants Respondents. F. Walker as Amici C. Field and Henry & Richard Colegate,
Thompson on of Defendants Curiae behalf Respondents.
Opinion marinas, two STONE, three on P. J. owned operated Appellant the Sacramento River and one on the Yolo side of County Sacramento side, located near the County confluence the Sacramento and American Rivers. the latter During December part heavy rains Northern California caused Sacramento River to rise heights. to unusual For days several prior December appellant periodically telephoned State of Water Department Resources in Sacramento about inquire in the anticipated change level the swollen river. alleges it Appellant is the function of this office to information about the supply height and rise, if any, river, in the anticipated water level of the and that people the river along rely upon information given them department. last called Appellant department on December approximately p.m. 22, 1964, at which time he was informed the river to rise expected to a maximum of 24 information, feet. Relying on this set his marina docks so would they feet; float at a maximum river of 26 height four within hours river rose to 29 feet. It alleged time *4 it was dark and appellant was unable to do to save docks his anything apartment structures from extensive as the at damage river remained flood of 29 stage feet for two weeks. Control, filed damages a claim for with the State Board of
Appellant as in Government Code section et He the provided seq. alleged officers, of of servants and the Resources Department Water employees him with inaccurate information to the negligently provided anticipated denied, rise in the River. The claim was Sacramento thereafter appel- His lant commenced this action. first and fourth causes of action are in the of alleged dissemination inaccurate river predicated negligence second, forecasts. He also third and fifth of action height causes pleaded water dams. release of alleging negligent state-operated each of the five of action alleged demurrer to causes Respondents’ amended was sustained without leave second to appellant’s complaint amend, and was thereto. judgment entered pursuant forth, the should
For reasons hereinafter set we conclude that demurrer not have been sustained leave amend as to the first and fourth without information, causes of action erroneous dissemination of predicated upon were but sustained as to the causes of action which un- other properly by a claim as the Government Code. supported precedent required the the case is whether State of Although issue respondent principal California and its are clothed with respondent employees governmental we are with the threshold confronted whether immunity, question appellant First, stated a has cause of action under the general laws negligence. cannot, that asserts of a recipient weather forecast as a respondents rely reasonable its accurateness it person, because is common knowl- fact. conditions not statements of forecasts future are that weather edge nature subject vagaries It understood that such predictions is the cause weatherman’s and that the elements occasionally caprice to go awry. predictions but logic with reason or argue proposition, cannot
We before us. does not rest it pleadings Appellant applicable fact forecast out the mere turned of negligence upon allegations acts of in the gathering he has wrong; specific negligence to be pleaded fourth of action he of known facts. In the cause evaluating alleges defendants, Cali- of named State of that it was duty employees fornia, of Water Resources Department control manage, operate Sacramento, take of the State of California in whose is “to Office efforts to informed of all sources of the increase of the stay reasonable level, and use water informed the river and to stay currently height, care water and to estimating reasonable disseminate height, potential “he accurate information about river.” that Again, alleges and believes and thereon there was a alleges informed breakdown some sort of the office and its river operation measuring depth stations, that there serious including was a miscalculation possibility one of the in the employees negli- office and those in office charge failed . . . that defendants gently detect this miscalculation. each had above named actual had breakdown or knowledge they exercised care, should have had of this breakdown in time to knowledge prevent due. *5 the dissemination of inaccurate information herein alleged.” as is that other argument regard pleading negligence
Respondents’ forecasts of this character are a service the benefit of the public public and, and therefore cannot claim a owed him generally duty appellant he a how- cannot claim breach of a The facts accordingly, alleged, duty. ever, as that businessmen negate not argument, appellant pleaded only but, river use and on forecast information along rely additionally, flood 22, 1964, that on December he to determine the office “telephoned rise; to which the river would identified himself height maximum plaintiff a at stake in the as businessman with deal in a estimate great a proper further that in this information alleged river He reliance height.” upon water feet he his docks so would float at a level two they secured marina by maximum forecast above the appellants. realm of has facts which take him out
Thus appellant pleaded information, and himself receiving general placed amorphous himself as such and identifying making of a businessman by the position him. It the information may and relying upon given personal inquiry unable will be to prove be that if given opportunity appellant well court, a of a but on this satisfaction appeal to the facts alleged, of the sustained without to demurrer complaint entered pursuant judgment as amend, of the factually the allegations complaint we accept leave to Taft, City (Stigall correct. Moreover, it must be owned 289].) pleadings
375 P.2d
demurrer, but under
well be subject
special
and reliance a demurrer is not
sustained
properly
established rules of
the well
pleading,
a
failure to state
cause
amend
ground
without leave to
cannot amend his
it is clear that the
unless
plaintiff
action
negligence,
University
(Wennerholm v.
of action.
state
cause
complaint
Stanford
Medicine,
1358];
141 A.L.R.
School
We he has stated a cause of under Government section which Code action (in- “(a) as statute by that: otherwise provides part Except provided 820.2), caused Section cluding injury liable public employee act or omission to same as a extent person.” private which the complaint counter that the activities
Respondents within the and are govern- involve exercise of discretion predicated 820.2, reads: “Except section mental immunity provided statute, not liable for an injury otherwise provided public employee is where omission was the result from his act or omission the act or resulting him, such discre- vested in whether not the exercise discretion Comment us this tion tells be abused.” Committee Legislative Code, (Note to Gov. restates California law. pre-existing However, Codes.) the enactment of the West’s Annotated Cal. prior Act, Tort Claims activities deemed discretionary 1963 California fact, filed clearly clothed with defined. In decisions *6 act, to the (1968) to subsequent Johnson Cal.2d 782 up California 352], and rest follow no definitive criterion facts to the case. peculiar Generally speaking, largely upon particular two of one of which courts have used immunity, question approaches that “danger would create the finds where to immunity impose liability duties,” zealous in their official insufficiently will be employees public dis- Learned Hand. The other to Judge purports a elaborated theory a the an act within ambit of section 820.2 from discretionary tinguish refined, tenuous, act, excluded subtle if not ministerial sometimes of the characteristics of the performance. analysis Court, Johnson v. a fresh
The
in
took
Supreme
ap-
the
the Judge
to
Hand
that
by rejecting
proach
question
postulate
public
officials will be
zealous unless
insufficiently
attaches to their
The court
it was motivated
discretionary acts.
said
the fact the
largely by
Act, Government
1963 Tort Claims
Code section
an
requires
the
to
“indemnify
entity” only
instances where the
employee
public
acted
the
of or “acted with actual
employee
outside
scope
employment
fraud,
(P. 791.)
malice.”
The court also
the reason-
corruption,
rejected
of cases
ing
between
acts and
distinguish
discretionary
purporting
minis-
acts,
terial
the
this is an
ground
unrealistic exercise
impractical
787.)
semantics. (P.
After
the semantic and
discarding
zealous-perform-
criteria for
an
determining when
act involves an exercise of discretion
.ance
attaches,
and immunity
criterion,
new
Court formulated a
new
Supreme
concerned,
insofar as
California
when a
determining
governmental
activity within
ambit of
as
discretion
delineated in section 820.2.
court used
the doctrine of
as
separation
powers
scaffolding
new
its
“touchstone” of
support
“judicial abstention in areas
which
policy
for basic
decisions has been
co-
responsibility
committed to
ordinate
(P. 793.)
branches
government.”
Leaning heavily upon
(1953)
of Dalehite United States
language
Respondent argues construed here cover the activities involved because the magnitude of risk might cause abandonment this and similar beneficial services. The public . is an extension or inversion of the argument Hand Judge postulate, simply for the entity substituting public employee. argument upshot is that the eliminate the service entity may rather than risk public the disastrous governmental liability arising from consequences negli- forecast. gently prepared case, course, is
Our limited to the to this holding, pleadings peculiar that it ramifications we doubt as ominous portends respondents event, foresee. from the cases cited Court Supreme criteria,1 Johnson to illustrate seems clear application *7 240, 352], Johnson v. 69 782 447 Cal.Rptr. 1In Cal.2d following Washington analyzed pages cases are at “. . United 796-797: . States (9th 1965) 913, (decision place canyon Cir. 351 916 to where to wire across F.2d as
751 we that case. Thus us rationale before come within pleadings ais flood forecasts to issue policy-making determination hold that the within the scope immunity, function, activity governmental discretionary a flood forecast information and disseminating evaluating while gathering, of governmental activities outside scope or ministerial are administrative were these acts whether unprotected the question immunity. Consequently the case. from the facts of be determined must negligently performed an does not lie in argument interest answer to public respondents’ of Johnson attenu- evade rule court to reviewing attempt duties to subsume administrative of “discretion” designed ated definition when decisions. In the past, character that out carry of this policy a with insulating immunity, governmental activity interest justified For insulated Legislature statute. Legislature example, provided act the ministeral from governmental resulting entities against Code, (Gov. in the area of fire of a protection government employee Modesto, City & Moran v. 64 850.4). Heieck §§ 377, was suffered when firemen 411 P.2d loss 229 fire because were unable to prevent plaintiff’s property spread had was water closed valve the water main and there no city employees relocation of the fire valve had been closed to hydrants; permit and, at certain water mains been completed the relocation had although fire, least a month before the not been turned on. date of valve had act, this was a held Palpably ministerial but the Court negligent Supreme Government Code sections 850.2 and 850.4 immunized the city liability.
The Legislature has also
to certain public
immunity
employees
provided
functions,
ministerial
due
exercising
exercising
such as public employee
Lines,
not); United Air
discretionary,
was assumed to be
Inc.
pilot
but failure to warn
was
(9th
1964)
397-398,
sub. nom. United
v. Wiener
dism.
Cir.
335 F.2d
cert.
Lines,
(1964)
Air
Inc. v.
Applying suffered commercial although loss sense that his business installations were the loss did damaged, not result from a commer state, and the cial transaction between him nor from the state’s interference commercial transactions. The with service alleges complaint gratui manner, the state in a tously negligent performed resulting physical there is As no damage allegation of tortious property. interference the state with commercial activities within appellant’s rationale of Johnson, we conclude that section 818.8 does to this apply case. summarize,
To there since in the nothing pleadings to indicate that the state with charged were negligence employees engaged policy or decision or that their making, activities were covered aby specific statute, the order demurrer without sustaining leave to amend *9 action, dis- negligent first causes upon and fourth of predicated forecasts, be of river must reversed. height semination action, second, and fifth causes of The third predicated dams, a of alleged negligent present release water from state-operated the different and to State additional claim presented problem. Appellant’s Board of that his from erroneous informa alleged damages Control resulted tion the rise in the level of the Sacramento River. regarding anticipated Hence, No the dams. mention is made of the of negligence operation Code, an of et action (Gov. the the light requirement seq.) claim, be to of this character a the demurrer as these preceded by proper causes of to action sustained without leave amend. properly
The is reversed insofar as the first and fourth causes action judgment concerned, case is instructions remanded to trial court with permit amend his first and if he is so fourth causes action second, is disposed. judgment affirmed as to the third and fifth causes of action. J.,
Gargano, concurred. and Dissenting. tem.,* DAVID, J. pro judgment Concurring is the basic whether trial should be affirmed. appeal, question court Upon before the trial court states cause amended second complaint stated, be under law. Inde action, can or whether any applicable stated in Government Code of the declarations of immunity pendently I 815, 818.8, and Water Code 820.2 sections cause of action stated. The deficiencies in there is no legal conclude law, rest in the and not factual applicable second amended complaint 1 I obviated amendment. concur holding deficiencies which might barred second, fifth causes of action are failure to third and that the them, but, in a condition precedent support claim as present proper filed. of action existed had claim been addition, no right proper conclude after a de dismissing sustaining a trial court action The judgment though amend will be affirmed leave to upon appeal, without murrer to, differ, relied or be in addition those upon by the considerations Vannini, v. 126-127 America (Bank Cal.App.2d court. trial Evans, 276].) 102]; People Cal.App.2d [57 P.2d court, sitting assignment the Chairman under judge superior *Retired Judicial Council. County allegations Vilardo before us: cause stands or falls 1The Sacramento, appellant’s second Cal.App.2d 413 P.2d Since this presumption that he has stated complaint, apply there no reason not amended Authority, (Faulkner Bridge Toll 40 Cal.2d strongest case. California 251].) Murray, Ruinello not state a cause of action for to and of his does loss injury Appellant the Sacramento floodway situated within River because property stream, (a) and control of flood waters on this management navigable States, exercised with the United is under the jointly power, police injuria; (b) damage absque is damnum no injury action right in, of, accrues because of the increase or acceleration anyone flow *10 river; thereof, (c) the the in control of dams and including operation therefrom, and their overflow the release of water is covered the im- by 6028; (d) declared Code and munity by Water the claim filed with the State Board of Control did not assert any injury negligent failure waters, nor to control flood of the management dams. improper Further, does not state cause of based action negligent forecast of the flood waters in allegedly height would reach (a) River Sacramento because no or to have shown private duty as a existed matter law at the time of alleged due appellant’s damage, forecasts; to him in such relation to (b) estimates of future conditions of or weather water are not the or representations facts which past present actionable, are and if are they held actionable because of respondent’s condition, superior knowledge deduce future still opportunity no cause of action is stated because the state and its are immune employees from suit Code, for negligent (Gov. misrepresentation 818.8 and §§ 822.2); (c) flood forecasts involve the evaluation as well as the collec- data, tion of a fact-finding or process involving quasi-judicial judgment discretion, into the thereby falling directly declared Gov- by ernment Code section 820.2.
Neither the control of flood
waters
a vast river
the weather
system nor
and flood level
are
which have
forecasting
functions
in non
counterparts
governmental
revealed,
So far as research has
cases
relationships.
only
(under
involve
issues
here
directly presented
pro
parallel
Act)
visions of the Federal Tort Claims
sub. nom.
those decided
Mfg.
National
(8th
1954)
Co. v. United States
Cir.
210 F.2d
cert.
778],
den.
I am
447 P.2d
require
I turn to these considerations. amplification *11 court, notice of us is to the judicial before subject The pleading (Dillard McKnight, its v. 34 Cal.2d allegations. even contravention 835]; Corp., 387, Bourdieu v. Seaboard Oil P.2d 11 A.L.R.2d 209 [209 528].) is asserted liability P.2d Where a claim of 38 11 Cal.App.2d [100 such, state, must or its or that against liability officers employees Douglass City v. (cf. be or based a function law duty by prescribed upon 353]). 123, can arise Angeles, liability Los 5 Cal.2d 128 P.2d No [53 misfeasance, laches, exercise of against the state or an unauthorized 171, 140]; v. (Lertora v. 6 Melvin Riley, P.2d power. Cal.2d 177 [57 States, 16, 121 22 P. Gibbons v. United Cal. citing [53 (8 Wall.) 75 that 453].) law, U.S. it is fundamental 269 L.Ed. In [19 City v. (Foxen or power not self-created the action of individuals. duty Valle, Barbara, 1142]; 166 Del 201 Santa Cal. 77 P. Mines v. [134 530].) Public or duties not varied powers by usage Cal. 273 P. [257 58, C.J.S., States, 1037; (81 81, or by construction. enlarged p. p. § § 978.) “It is an that an factor elementary principle indispensible founded is the existence of a of care owed negligence duty which he is alleged wrongdoer injured, or to class of person Quinn, 1, (Routh 488, v. 20 member.” P.2d A.L.R. 491 149 [127 Co., 215]; 733, 1013]; v. Elevator 214 Dahms General Cal. P.2d 737 [7 Ice, Co., Supply 295, & Amaya Home Fuel v. 59 Cal.2d 307 [29 33, 513].) 379 P.2d connection, it should that we are considering mind kept defendants as existed December powers they duties us, statute,
1964.2
and none has
regulation
No
rule or
has been cited
15, 1965,
3176,
July
as Water
page
effective
Code
1965, chapter
2By Statutes
independently or in
department,
that “The
either
provided
first
federal,
state,
agency, is author
any county,
or other
cooperation with any person
forecasting,
forecasts of
necessary
to make
for river
hydrologic data
ized to collect
found,
flow,
been
forecast stream
nor to dis
duty
imposes
seminate information
such forecasts. It is true that
concerning
negligence
terms,
may be
but for
the existence of
pleaded
general
liability,
duty
Bernardino,
(Rubinow County
must be shown.
San
v.
169 Cal.App.2d
67, 71
us,
968].)
P.2d
before
allegations
complaint
nakedly
[336
that a
rested
the state and its
alleging
employees
appellant,
(Dillard McKnight, supra,
state
conclusions of law.
only
law;
re
notice of
judicial
Jackson & Perkins Co.
applicable
Dist.,
Byron-Bethany Irr.
P.2d
P.2d
Cal.App.
Burns,
516];
456];
Hancock v.
Cal.App.2d
Jose,
Mayor
585;
Branham v.
& Common Council
San
Cal.
Colen
Co.,&
Gladding,
McBean
Oppenheimer
In a series of long Swift, Green v. to 47 Cal. referring specially 536; Gray 1500, 622, v. Reclamation District No. 174 Cal. P. [163 639. 1024]; Board, and Clement v. State Reclamation Cal.2d 628 P.2d 897], it has been established that the state acts in such under matters police and that power, occasioned the river flow is damnum damage by absque injuria. claimed Any reason of the increased flow of the damage by river, dams, by overflowing of the release of water from dam to by avoid dam, the greater of of the or calamity the acceleration collapse flow, Board, (Clement of the is not actionable. v. State Reclamation supra; Archer City Angeles, 19, Los 1]; 19 Cal.2d P.2d Albers v. of County Angeles, Los 62 Cal.2d 262-264 [42 Cal.Rptr. of 129]; Country San Gabriel Valley County Club v. Los Angeles, 182 of Cal. 392 1200]; P. A.L.R. Riverside County Flood etc. Dist. Halman, Bauer County Cal.App.2d [69 Cal.Rptr. of Ventura, 1].) 282-283 does claim that not floodwaters overflowed
Appellant the levees which flow, warning, provide stream flood provide for and to for communication neces- sary statute, for the collection dissemination and of such In view of this information.” the importance apparent. of instant decision is ato height rose bank; instead, the water claims that he the river form It is therefore weeks. level for two and that feet at stayed high which stream the levees between defect in that there no obvious works, situated such as maintenance of appellant’s, flowed. The banks, in the state right its subject paramount stream and banks, for stream, bed and to the full use of the federal governments of his works that their has not any Appellant pleaded respective purposes. Code and Navigation as Harbors were authorized under permit, required Code, 221. title section 4000 and California Administrative or littoral owner prevail access right riparian C.J.S., (65 lawful Navigable the state in the exercise of its against purposes. 230.) of the river Waters, adjacent made use The appellant p. banks full in times of water. Through- with own high knowledge peril 22,1964, which height out the on December he concerning day inquired flow him river would reach. No became owing rising special duty flood the state was of his The entire because informed river peril. control of the known system was because emergency operation peril threatened thousands of and millions of dollars worth persons He was which the one property. only general public operation was maintained. clear that last make it the cases cited its exercising police power, condemnation that there was inverse claim
state is not subject appellant’s of his property. be brought against Code “No action shall
Water section 6028 provides: for the recovery or the or its agents employees State department the ground . . . dam damages through any operation (b) . . . following: such defendant is liable virtue of of the to maintenance or issuance or enforcement of orders relative operation (c) (d) dam. Measures taken the dam. Control and regulation I the facts failure Under alleged, protect against during emergency.” *13 am the that this and other considera- opinion statutory provision, above, tions reviewed are of themselves sufficient to sustain general second, demurrer third causes action. and fifth interposed I return to the consideration of contentions asserting appellant’s a existence of cause of action based allegedly negligent misrepre- sentation of the estimated flood maximum Sacramento River. height an flood, had been flow forecasting river
If at the time of the 1964 236, no function, Water Code as now authorized provided would arise of action would and no right exist duty private private is that failure established rule thereof. The well the negligent performance as such of a function or inadequate police-power perform performance 758 whole, state a a breach owed to the of the as duty people thereof,
but it a does constitute a or to member legal injury wrong giving comment, Torts, (Rest. a to individual redress. 2d and on right § (a): clause enactments and are intended “Many legislative only regulations such, for the or the interests of the as community protection at than for the class of public rather individual or large, protection some, state, Such persons. create to the obligation provisions only state, subdivision of a such as Routh See municipal corporation.” Quinn, tax; Stang City Cal.2d negligent computation Beacon, Valley, 980]; City Mill Steitz of 295 N.Y. James, N.E.2d & 163 A.L.R. Harper Torts, 1608; (W.D.Mo. Mid-Central Fish Co. v. United States p. 1953) 792, 797; Jones Czapkay, F.Supp. Cal.App.2d 182].) Cal.Rptr. here, important question regard allegedly negligent posed river, the estimated flood is whether misrepresentation stage of his need for by informing accuracy, appellant, department personal can the service thereby generally impose upon provided special care to him. An affirmative answer has inestimable implications. Sup Apose informs the he has valuable goods police department especially house, and that he has a need for their If thieves special protection. steal, break and is there because a desk told A he sergeant thought would be safe? goods Or a fire in a business suppose rages B, block. at the block, far end of the calls the fire and asks if department think they the fire will to his He is informed the fire spread property. If, chief nevertheless, that will not. the fire does reach his are property, the chief and the serves be held If entity he liable? B is told that the fire will reach his and at property, removes his great expense goods its are the chief and path, his entity liable for the cost when the fire does not reach B’s If at the time of property? television broadcast nightly of the weather C reports in and predictions, he has on phones says hay ground needs to have correct forecast since will he to town go rain, tomorrow if there is to be no is the station liable if the rain comes C is while field? from his away The answer to these is “No.” questions Pierce, (Tomlinson v. 115-116 Cal.App.2d 700].) activities, The state calls attention to the fact that other including economic crop forecasting, forecasting forecasting, population state activities and are have to that considered here. Amici curiae parallel called attention ato action against of Riverside pending County *14 bees, colonies, to recover for plaintiff seeking loss bee and a honey crop, allegedly dissemination of information resulting negligent Commissioner of Agriculture. county that the here, law for it is fundamental represen fail must
The appellant (Lawrence v. fact. tation, actionable, or be of a to be past present must v. 382, 29]; Wilson 126, 12 Am.St.Rep. P. Gayetty, 78 Cal. [20 McKee, Veselich, 455]; v. 760, Finch Rigali & Cal.App. [33 Hind, 131, 90, 1380]; Stockton 51 Cal.App. 18 Cal.App.2d [62 222, 10, 226.) The future Fraud, p. § P. p. 37 C.J.S. [196 § Bureau Farm (Texas is fact. it before it must is always happen opinion; 949, 950.) A (Tex. 285 S.W. Asso. Craddock Civ. Cotton App.) (37 or lie for unfulfilled expectations. cause action does not predictions to flood Fraud, 231.) was held C.J.S. This principle applicable § p. States, Mfg. Co. v. United National and weather forecasting predictions 1950) supra, (8th Coates v. United States Cir. 210 F.2d and in F.2d A.L.R.2d 840]. of this the reason or concedes logic proposition,
The opinion majority claimed in gathering asserts it is in view of the negligence but inapplicable which ultimate information given known facts evaluating upon effect, for mis- was based. In it is said that immunity negligent if cannot exist that alleged negligent gathering representation evaluation known facts the erroneous result. produced United that this has been
The States Court states argument Supreme demon- made and since “. . . as was forcefully consistently rejected, States, strated ... in Hall United supra F.2d nothing 69] [it] 2680(h) more than an that it circumvent denying applies attempt Neustadt, (United States v. 366 U.S. negligent misrepresentation.” 614, 619]; L.Ed.2d the section Federal Tort Claims Code, 822.2.) Act referred to is similar to 818.8 and substantially Gov. §§ Neustadt, court, considered the effect based opinion upon and inaccurate negligent real appraisal property. Code, tort, (Civ. fraud and deceit as a differs from
Misrepresentation,
characteristics
1709, 1710)
deceive are
in that scienter
intent to
§§
as a tort is
latter. The
of negligent misrepresentation
development
Intentional,
Responsibility
(Consult
of recent
Dean
origin.
Carpenter’s
for
24 Ill.
Negligent
Misrepresentation (1930)
and Innocent
L.Rev.
759)
an action
he states
that most
refuse to allow
jurisdictions
(p.
756)
an extension of
but
argues
for negligent misrepresentation,
(p.
words are
than other
on
no different
ground
physical
rule,
conduct.)
Buckley Gray,
375 P.2d rule stated: “Privity not to care injure establish existence of a to exercise ordinary another, assumed but such arise out of a voluntarily relationship duty may if where dictates the existence such duty,” misrepresenta public policy tion is asserted. dilemma these therefore cannot appellant by escape legal posed (1)
considerations:
to create new
declaration
Any
“public policy”
must
in his favor
and its officers
unprecedented liabilities
state
against
statute,
be declared
under
excluding
Government Cede section
by
Code, §§811, 811.8).
(Gov.
therefrom
definition
law
by
decisional
(2) The
solely
holds that
tort of
is
majority opinion
misrepresentation
that
California,
defined in Johnson v.
800.
supra, 69 Cal.2d
If
so,
law,
is
has not stated a cause
and if
of action under existing
has,
he
action,
then
bars his cause of
Code
under Government
(3)
sections 818.8
822.2.
obviously
allegations
complaint
were framed
Torts,
in
with
Restatement Second
section
conformity
page
furnished
relating
information.
If
negligently
gratuitous
then,
section is the
in
law California
again,
causes
action based upon
negligent
barred
the code
misrepresentation
sections last cited.
and negligent misrepresenta
for
declaring immunity misrepresentation
822.2, the
recog
tion
818.8 and
Legislature
in Government Code sections
first,
defined Restatement
existence of both torts.
Only
nized the
552,5
supra. The
in Johnson v.
Torts, section
was discussed
Torts,
who in the course of
reads
follows: “One
section
5Restatement
guidance
for
in their business
supplies
of others
profession
information
business
reliance
subject
liability
harm
their
transactions is
caused
them
(a)
obtaining and
competence
if
he
exercise that care and
information
communicating
fails to
(b)
recipient
justified
expecting,
which its
the information
(i) by
persons
guidance
class of
for whose
person
or one
harm is suffered
tort of
311 of
defined
negligent misrepresentation
separately
Torts,
the Restatement
Second
thusly: “Negligent Misrepresentation
(1)
false
Risk
Harm.
One who
Involving
Physical
gives
negligently
information
another is
harm caused by
subject
physical
information,
action taken
the other in reasonable reliance
such
*17
upon
(a)
other,
(2)
where such harm results
to the
...
Such negligence may
consist of failure
(a)
to exercise reasonable care
ascertaining
information,
(b)
of
or
in the
accuracy
manner in which it is communi-
definition,
cated.”
isit
indicated that
By
harm” includes
“physical
injuries
or
person
property.
to section 552:
A
draws a distinction
reference
note to
311
552,
which
“In this
rule stated
differs from that stated
here
respect
concerned
loss suffered as the result of a negligent
is
with
only
pecuniary
sustained, the gra
loss is
such
only
Where
misrepresentation.[6]
pecuniary
tuitous character of
information
for
any liability
prevents
negligence
Where,
Section,
which
it.
as under the rule stated in this
the harm
giving
results is
or
bodily harm to the
harm
person,
physical
property
affected,
the one
even
there
be a
liability
negligence
though
”7
information is
and the actor derives
benefit from it.
given
no
gratiutously
it
Therefore
to me that
stated
cause
has
appears
plaintiff colorably
him,
action under section
if there is
basic
due to
for unfulfilled
which he was entitled to
predictions
But
second
rely.
appellant’s
flounders,
amended
for these causes of action are
complaint
embraced
within the
afforded
immunities
Government Code
sections 818.8
822.2. Section 818.8
“A
is
entity
not liable
an
provides,
public
injury
(ii)
justifiable
supplied,
information was
because of
his
reliance
ain
transaction in
it was intended to influence his conduct or in a transaction
substantially identical therewith.”
Bertran,
Gagne
6Generally,
15],
consult
v.
reasserted the long-established applied action, hand, and in carrying of courses of on the one negligence choices choice other.9 out the on the characterization as
The situation here does not lend itself alleged was the conduit for ministerial action. The conversation merely telephone evaluation, forecast, a continuum of the allegedly discretionary Legislature, creating areas in have had in mind those exemption, in this must 8“The areas, ‘misrepresentation’; for in other typically which immunity defendants face private California, supra, superfluous.” (Johnson ‘misrepresentation’ v. be would 782, added.) 800. Italics 69 Cal.2d proposed it is stated: “Our 9In Johnson ‘operational’ levels distinction, ‘planning’ that between the sometimes described as States, decision-making (cf. L.Ed. supra, 346 U.S. 35-36 [97 Dalehite v. United 956]), however, although 1427, 1440-1441, guideposts, it basic offers some S.Ct. long presents panacea.” notice is taken of the established California certainly no No Francisco, City County 56 Am. & San Cal. 648 P. doctrine: Sievers Riecks, 50]; Blauth, 153]; 163 Cal. P. Dillwood St.Rep. Perkins Cook, 75, 78, Doeg v. 126 Cal. 88. Cal.App. P. So.Cal.L.Rev. cited, Am.St.Rep. point. but not P. on I am not concerned with the choice to made. discretionary negligently discretion, forecast; make I am concerned with the judgment involved in the river flows. estimating construction,
As a matter definitions statutory statutory “public Code, (Gov. 811.2) (which and of entity” includes “employee” officers* Code, 810.2, 810.4) agents, servants and see Gov. §§ include employees; state, all branches and in this at level. agencies every It does government ladder, exclude those who are on “low on the bureaucratic if rung” fact the law has vested discretion in them. What discretion is so vested must determined the first instance consideration of the under authority which one is authorized or directed to empowered, use his judgment discretion; Constitution, statute, charter, whether that be the ordinance or regulation.
It is the of such laws plethora to so applied many public functionaries that has made virtually impossible enunciate a formula to tidy define discretion;10 defined, nor need it be relation to except specific specific and duties. powers Confusion comes failure to consider the entire phrase, “the exercise of the discretion (italics vested in him” Whether supplied). discretion exists is not determined by considering legislative purposes nor granting immunity, by evaluation of yet legislative purposes it, in granting terms of judicial The Legislature, in policy.11 the sections above, cited has granted whatever immunity, its bases have been in *19 establishing such a of policy immunity. of delegation governmental and powers duties in fields has many
been detailed and
and
precise,
may
indicate or
expressly
limit the choices
of action or inaction conferred. Or as administrators would
only
prefer,
the goals to be attained
described,
bemay
the
leaving
intermediate steps
to their
completely
discretion.12
aTo
the existence
degree,
of discretion has
been spelled out in terms of its antonym, the ministerial
If one
duty.
has
declared,
California,
10As the
782;
have
Johnson
courts
v.
69 Cal.2d
Elder
Anderson,
326,
48];
v.
Cal.App.2d
County
Yuba,
205
331
Cal.Rptr.
Morgan v.
[23
of
938,
508];
Glasner,
230 Cal.App.2d
Cal.Rptr.
942
[41
Glickman
Cal.App.2d
230
120,
Cal.Rptr.
City
Angeles,
Ne
Casek v.
Cal.App.2d
Los
of
Cook,
294]; Doeg v.
134-135
Am.St.Rep.
126 Cal.
216 [58 P.
171].
inversion,
made,
11This curious
to which
principal difficulty
giving
reference
is a
interpreting
California,
effect to or
Rptr.
the dicta of Johnson v.
787 [73 Cal.
447 P.2d
“We
352]:
must still determine what actions
‘discretionary.’
(Gov. Code,
820.2.)
doing,
§
In so
we must of course rely primarily
legislative
on the
purposes
granting
immunity—to
for
government
dual
both
and official—for the latter’s
‘discretionary’ actions.”
Legislature
termini,
having specified
Highway
the
12The
the State
Commission has
route,
complete discretion as to the
and all
respecting
(Hollo
details
its construction.
Purcell,
way
665].)
anIf official has discretion to act or not to act under choices #3, #4, him, the matter before no action lies presented by him against for and not This the others. does not result because of adopting any #2 Rather, it statutory choice, or is because judicial there immunity. having hence, choice, was no breach of at all in no making right It action. therefore is erroneous to assume that an logically statute alternatives, relates to the initial choice solely since in that case there would be need no it.13
Cited California in illustration of the law preexisting perpetuated Towers, is White sections Committee Legislative It states that A.L.R.2d rule is settled that officials are not liable for discretionary governmental acts within the and this only their rule authority, scope applies created, of the main office was accomplishment purpose collateral, but also to acts which incidental and serve to although promote those purposes.14 choice,
The formal decision, or process the recognition contemplates of an issue effect, the accumulation of facts and problem, their weighing the consideration of formal limits to decide authority (juris- diction), the recognition inaction, alternatives of action or possible consideration each, advantages disadvantages including followed, choice of expediency, the course and of the procedure, *20 means and methods to be This of employed. formal process decision-making same, is the essentially executive, whether it be followed a business a a judge, legislative body, or an administrator at level. It be may very formal, but often the trained administrator almost subconsciously may pass through the elements and act.
To have choice a is not the of official vested in him. equivalent discretion The one authorized signing bonds choose what brand ink he uses. may of vests, submit, Discretion I when the law the officer or authorizing permits immunities, intent, specific 13The to exemplify Legislature’s said the are not con page fined to the initial choice of action. Consult fn. infra. 14Thus, forecasting general depart if flood to the power respondent is incident ment, discussed, immunity applies. White v. Towers is infra. the that decision in a a matter such way to decide or control employee events, things, persons, administrative consequences upon has or juridical because in instances be “vested” many Discretion may or plans procedures. time, manner or is as to directive or silent authority place, the legal his own execution, to follow of its the officer or means requiring employee in all these matters. judgment 820.2 includes Code section Government
But immunity specified stated, it, codifies and act if discretionary another of judgment type i.e., law, a number fact-finding, great California exemplified preexisting of cases. v. Lent basic found in Downer of the California law is expression
(1855) 6 Commissioners Cal. 94 Am.Dec. The Board Pilot 489]. license, had ordered and to surrender his plaintiff published pilot’s notice he was no authorized act as he sued longer a pilot. Thereupon, $2,500. individual board members the sum of damages Supreme said, Court that Board Pilot “It is beyond controversy, power quasi Commissioners is and are not answerable. judicial, they They civilly duties, are law officersto whom the has entrusted certain public perform- ance of which exercise unlike a requires the minis- judgment. They officer, defined, terial whose duties are well and who must fail to execute them at his own properly peril. case, trust
“Whenever, the law is obliged from the necessity officer, demands sound an and discretion of policy judgment public he should judgment.” be erroneous any consequences protected.from instances, both
A fundamental
such
declaring
purpose
serves,
fix
a
for the
and
he
is need to
employee
entity
responsi-
attain
the term as defined in
bilities
of decision.
finality
Using
electorate,
Code,
his
Government
a
“public employee”
responsible
administrative
for his
his
power
superiors
performance
appointing
If in
or even a
to redetermine
hindsight,
duty.
jury
judge
permitted
had
what he should have
under
set
circumstances where he
done
given
discretion,
decision is transferred
ultimate
judgment
power
those not
The result of each lawsuit becomes
redefinition
responsible.15
circumstances,
similar
duty.
successive actions involving
be
Charibdis;
tossed between
employee
Scylla
or it may
more classical to
he is on the
bench.16
say
Procrustean
447-448;
(8th ed.)
75,
consult Johnston
Cooley,
Limitations
Constitutional
15 1
*21
Torts,
James,
Columbia,
Harper
2
&
6
L.Ed.
S.Ct.
[30
U.S.
District of
section 29.9.
850], with
City
Angeles,
P.2d
Inyo
In Johnson v. that, serves no stated activities ‘discretionary’ except “Immunity purpose on decisions judgment assure courts refuse policy pass newa of coordinate branches of This is province merely way government.” must of that when decrees courts immunity, stating Legislature County Maloney, follow Mateo v. 71 Cal. (Cf. the law. San of 53].) (or P. decision” whether to establish under immunity “policy view, suit) another with the not consent to thus rests give Legislature, 793) been Johnson has made it here. The further dicta in (p. that the indicating judicial doctrine discretionary-immunity depends upon abstention, self-restraint and based is novel upon separation powers, in California It is a law. not workable tool since the enactment of section
820.2. It does not with the law in that a number comport great preexisting of the cases involve local to which the doctrine of government, separation Comrs., (Staude does 313; not v. Election powers 61 Cal. cf. Laisne apply Optometry, State Board 457], either mandamus or certiorari to review the boards). lies action of local Govern- ment Code 820.4 which the following, Committee Legislative as report gave stated examples discretionary general immunity, (and section 820.2 correlative effect as given to the state by § (b)), subd. illustrate that the did not Legislature limit the granted immunity to employees making level high decisions” “coordinate “policy branches” of Discretional government. has been them- judges applied Arnot, selves, as in Wyatt 86], P. where a Cal.App. was not judge liable in because of damages failure to decide a case before office; Wallace, and in leaving Pickett v. 57 Cal. a holding Supreme Court justice liable judgment given. decisions,
If
discretion
there
vested
with
making
equated
policy
define,
exactitude,
is an
with
deter
immediate
what
necessity
“policy
minations.”
Like Omar
one leaves this consideration
same
Khayam,
door he entered before
Based
argument.
definition
“policy,”
discretionary
decision” is a
determination to
course
“policy
proceed
(Oxford
(3d
action
Univ. Dict.
adopted
advantageous
expedient.
1955),
Bay Municipal Utility
ed.
v. Department
East
Dist.
“policy”;
Works,
Public
People
768 defini- like thereafter causes. By
ossifies initial decision which governs tion, according of or of discretion is deciding, acting “Liberty power decide, allowed Law, within limits by one’s own judgment; power and administra- law ... matters of rules of to regulate positive procedure Perforce, 1955), “discretion.”) one finds (Oxford (3d tion.” Univ. Diet. ed. ride, of horse to in search that antomasia is itself fractious attempted intention. legislative in this was neither reached nor area of discretion involved cause California, supra, Cal.2d Within this
considered in Johnson v. 69 782. area included the of where factual determinations are wide situations range made, of the determination discretion resting judgment cases, Lipman v. Brisbane A which line of of employee. long personnel Dist., 97, 465], 224 Elementary School Cal.2d 359 P.2d 55 Cal.Rptr. [11 Dist., Angeles v. Los School 238 905 [48 Cal.App.2d Tietz Unified 245], are verdict of involve to some examples, degree. the factual or of a council jury, of administrative findings body city officer, discretion,17 or an administrative embrace this of vested type Maloney, San Mateo County supra, v. Cal. 208. 71 States, supra, v. United 181 it was that what Coates F.2d held “ is a has a meaning function or ‘discretionary duty’ long history precise in a sense.” The court held that the collection and legal evaluation dis weather and flood information was included within the Act, action afforded Claims U.S.C. Federal Tort cretionary 2680(a). section It has that been noted there are between differences slight Fuller, (Sava section and Government Code section v. Cal. 820.2 312]), App.2d but the the same where coverage [57 Cal.Rptr. Towers, the breadth of immunity declared White v. Cal.2d supra, 727, 733, act, is considered. Like the federal both 820.2 covers the acts and omissions of any employee. concerned, of the data
I
that the evaluation
have concluded
nature, call
weather,
flow,
their
and of river
very
future predictions
determination of future
information and
pro-
weighing
for subjective
Pasadena,
348],
Gaylord
City
P.
leading
175 Cal.
436 [166
17A
case:
v.
unsafe;
supra,
v.
Johnson
cf.
electric installation
determination that
.”;
Authority
“When,
.
Routh v.
of the Youth
.
opinion
Angeles
tax; Housing Authority
Quinn,
of a
Los
computation
Dockweiler,
794],
County
P.2d
existence
facts
769
therefore falls into the
analogy.
This
jected
quasijudicial
possibilities.
Mason,
v.
P.
supra,
Ballerino
Since the statute has declared
are
called
to determine
we
not
upon
whether the
An
declara
state
to have
ought
immunity.
legislative
explicit
tion
view of
social desira
regardless
judicial
policy,
any
thereof,
effect,
in the
must be
not be
same
bility
given
regarded
as
this court
decision.
doctrine
fashioned
way
immunity
by judicial
Stockton,
(Schwartz Borough
1, 4].)
v.
32
141
A.2d
N.J.
Repeat
[160
the admonitions of
edly,
our
Court are to the same effect in relation
Supreme
construction,
to
statutory
Code Civil Procedure section 1859.
following
enacted,
The court’s function is to construe and
the law as
and not
apply
Miller,
add
thereto
191,
or detract
re
(In
therefrom.
31 Cal.2d
199
P.2d 722].) The fundamental
[187
rule
to ascertain and
effect to
give
Materials,
(Select
the intention of the
Base
v.
Inc.
Board
Legislature.
Equalization,
672];
Cal.2d
County
640
P.2d
Calaveras
v. Brock
[335
Nowak,
325; In
way, 30 Cal.
re
402].)
There where the must read carefully language court, of the facts thereto. The before and limited light postulates to rationalize a in a the skeins of decision hard case sometimes just tangle while yarn clothe the situation. knitting garment to judicial case, is us in immunity, Discretionary urged present predi- forecasts, cated involved in flood making fact-finding process which weather forecasts are a correlative part. was not reached nor
Since this of official and discretion judgment type thereof, the dicta considered in Johnson not Since if otherwise would control our decision. the Legislature applicable, the conse- has declared the already statutory immunity employees, exists, it is immunity where the of the state immunity employee’s quent should such or not conclusions whether that all of the obvious ultimate dicta, in involved were exist as judicial purely policy wilderness, through the court. After its pilgrimage question presented *24 inBut placing established grounds. decision the court was made hand, and acts omissions, the one and on line acts between ministerial and discre- the exercise of judgment in course of or omissions occurring be other, might difficulty to note that there was careful tion on the court California, supra, 69 (Johnson v. criteria in future cases. its applying such 782, have beset 793, 795.) In the case we been Cal.2d present that “the there holding governmental difficulties. On one point, specific actually show that its employee must entitled to immunity, to be entity, encountering and deliberately decision knowingly a considered reached California, supra, v. (Johnson that rise to give complaint.” risks plaintiff’s of discre- 794, This, reach the area 8.) does not Cal.2d fn. again, 69 820.2 law which section It from the preexisting tionary fact-finding. departs within the has been held to fall since non-action codify,18 designed section, and negligent in the omissions are designated immunity; specifically a risk failure to or consider arise omissions preeminently appreciate at all.19 Fuller, supra, Sava v. 249 Cal.
It is intimated in some cases such as
281, 291-292,
cases should not
that casuistres of the
App.2d
pre-Muskopf
Muskopf
be
for discretion. But
relation to the immunity
preserved,
immunities,
declared such
and did not remove them.
Dist.,
v.
Muskopf Corning Hospital
decision, however, it reasserted the of officers and immunity employees them, acts and omissions in the the discretion acting exercise of vested within the while them liable in their scope authority, holding performance rule, 220). of ministerial duties Court cited Illustrating (p. Supreme Lent, Towers, 94, 95; v. supra, supra, Downer 6 Cal. White v. Cal.2d Vial, Biddle, 727; Hardy 494]; Gregoire Cal.2d P.2d v. 579, 581, 220) 111 F.2d with The court stated approval. (p. case decided Lipman Elementary the same v. Brisbane
companion day, Dist., School supra, the court would examine the again (in question statute) the absence of to what extent the would entity public afforded be the same immunity, Lipman (at a matter of judicial policy. 229) p. again asserted the rule as to the acts or discretionary 9. 795 fn. 789 fn. 18Johnson Brown, 1062]; Galli Sharp, 42 Cal.2d 678-679 [268 19Wilson James, Torts, 29.10(3), pp. 1643. Harper & Cal.App.2d 230), (at Chief Justice of officers and then omissions p. employees, stated, definitive to set forth a Gibson “Although possible rule which would instance whether governmental determine in every officials, furnish various factors liable acts of its agency discretionary a means of in a case should have whether the deciding agency particular involved, such as the function immunity, public importance the extent to which free exercise governmental liability might impair function, and the to individuals remedies other affected of availability Further, than tort suits for “There is vital interest in damages.” free and securing trustees in with school judgment dealing independent trustees, fiscal personnel for the problems, being responsible well-being districts, of their would be sensitive financial especially consequences *25 of suits for the district.” damages The district was held immune against tort for the liability acts alleged trustees within their scope authority, and not liable for acts outside of their authority. scope Towers, court again 727, the rule White v. approved supra, 37 Cal.2d 733, that in the the duties of application officers are immunity those within squarely its those essential to the scope, accomplishment main and those which purpose, only serve to incidentally collaterally promote the main purpose.
In Johnson v. California, supra, footnote it is recognized that the 815.2, Government Legislature, by Code section has provided coextensive and “our immunity function is of course limited to this act . . . interpreting We must still determine which actions are ” ‘discretionary.’ At this confusion enters the the occasion for point, Although picture. of the considerations for application extending immunity policy entity when it is was cancelled out the enactment of enjoyed by employee 815.2, it section to seems be asserted that the Legislature empowered courts to determine whether the immunities should be granted recognized, as a matter of It judicial of revision redefinition. is stated in policy 789-790, 4) Johnson fn. that the (pp. Legislature specifically approved Lipman acts.” “The Senate approach defining “discretionary Committee 820.2, on to Comment of the 1963 codification of Judiciary part law, sovereign ‘This section Cali- immunity states: restates pre-existing law,’ (Sen. Lipman, 1963) fornia inter alia. citing Jour. (April 1889.)” supra, v. Hardy (1957) But the “inter alia” included Vial p. v. and White Towers 727. The (1951) supra, Cal.2d Cal.2d 731) latter a list decisions. incorporated discretionary (p. immunity If Lipman was inclusion the Senate so “expressly approved" by report, were the other cases. acts,” Lipman find the criteria for
Turning defining “discretionary indicated, it discusses Muskopf judicial policy As one is disappointed. when it attends entity, immunity or withholding criteria granting statute) (now covered by But the officer employee. the conduct of self-destruc- is turned to Lipman immediately emanation invisible policy v. Cali- (Johnson declared. therein considerations tion of the of one policy is read to the State” 789.) The fornia, Cal.2d supra, “importance such considerations. out of which had Lipman’s co-equal dicta then turns companions Towers, Cal.2d 727 White
legislative approbation,
Vial,
494], and
The court recognizes Legislature (b) Government Code sections 820.2 and subdivision granted by (Johnson be contracted redefinition. by judicial 782, 789, 4.)21 fn. would be most to assume strange Certainly, *26 discretion vested an officer to be deter- that whether is in is employee mined not which whether or would by immunity judicial policy approve attends it.
In view of the established
one cannot
policies
judicial interpretation,
legislative
As noted in
perhaps
policy.
attend the
20Many other considerations
Vial,
Hardy
supra,
Towers, supra,
v.
48 Cal.2d
and
37 Cal.2d
White v.
by frequent unfounded “vindictive and
very
harassment caused
there is a
real
instance,
city,
department
damage
police
the entire
For
in a small
retaliatory
may
suits.”
through
way
their
virtually
manpower,
loss of
while suits make
be immobilized
may
It
difficult to visualize what
be involved
discovery preparation and trial.
is not
Watts,
thing
anywhere. It is one
in
or a violent demonstration
in an outbreak such as
defensé,
Legislature may
but the
well
entity
pay the cost of such
say
will
burden,
brought
political reaction to suits
as a result
discre
the cost
and
consider
tionary
.action,
unfounded.
even when
820.2, quoted
as to section
in footnote
Report
to the Committee’s
21In addition
City
(1965)
below,
Angeles
Cal.App.2d
Los
cited in Ne Casek
131, 139,
and
294], the Committee in relation to
815.2
Cal.Rptr.
Government Code section
6fn.
stated,
many
public
that a
part: “The
courts have held on
occasions
California
discretionary
scope of his
employee
liability
acts within the
is immune from
thought
rule is codified in
employment
the discretion be abused. This
Sectioh
even
section,
protection of
public entity
above
also is entitled
820.2. Under the
Thus,
suggestion
immunity.
appearing
in a dictum
this section nullifies'
that
Lipman
District,
Elementary
Brisbane
School
My colleagues basis Supreme Court has “formulated newa criterion” discretion to basic policy limiting decisions, committed to coordinate branches of government. of fact-finding has eliminated the type the court
If such redefinition it has created new immunity, herein involved from the discretion preexisting 815, which declares any Code section liabilities to Government contrary Committee be declared statute. The Legislative report, new must supra, recognized in Johnson v. would have thereby a caveat such against any to have expressed procedure, be all- flaunted.22 section 820.2 was designed been Government Code No reason for a to cover unless inclusive. exists section forecasting, special (b), and section 820.2 subdivision do not mean what say. they could not have
Appellant
respondents
organize
compelled
manner,
conduct their
office
their
works in
public
any particular
defendants,
as a
to him. As between individual
there
no
private
respondeat
Smith,
superior. (Michel
188 Cal.
P.
Gov.
199 [205
Code,
820.8.)
it,
There
no
could
statute or
he
being
regulation requiring
forecasts,
not have
to make weather nor flood
nor
compelled appellants
could he demand he be furnished
information
respondents’
concerning pre-
dicted flood levels. Such
as a
fact-determina-
forecasting,
required
process,
tion and judgment, the essence of
for errors
discretion.
data,
stripped away because
any alleged negligence
gathering
Neustadt,
was decided in United
States
If “judicial abstention” from official discretion is the basis for controlling Judiciary 22The Senate Committee on to in part: Comment section 820.2 stated that, discretionary “The rule immunity statutory is restated here in form to ensure provided by added], unless otherwise employees statute will public [italics continue to liability remain immune from employment." for discretionary scope their acts of within their (Gov. Code, 820.4, 820.6, In the sections that §§ follow section 820.2 821.6, 820.8, 821.2, 821.4, 821.8) and public several of employees immunities though they regarded are immunity. forth have set even been discretionary as within the specific statutory These immunities are stated in so form that the “ expanded by redefining of entities not ‘discretionary be immunity’ to exclude previously (Senate certain acts that had been considered as discretionary.” Journal, 24, 1963, 1889.) April p. 774 of then
official rather than the declarations immunity, Legislature, instant and control case such abstention.23 state’s management impels waters not only flood elements of highest power, involve police aIf in but in in flood situations. making, negli- policy emergency operations was forecast made incidental breach undertaking, was to gent major of a individual. Under the case of any one public duty, inuring Towers, White v. specifically Legis- approved lature, extends to all areas of official action incidental the main immunity This would include the in purpose. forecasting question. Towers, (which was supra again of White such
Only upon principle all, want cause of action at Lipman) state a in can approved appellant in rule, statute, forecasting underlying or regulation, showing any in relation thereto. duties any 1964 giving authority any imposing law this regard. conclusions of allegations embody only Appellant’s holds, not, the basis all as the majority at absence demurrer, If defendants the individual but of the demurrer. general special them, still cannot be said have vested they partake discretion specific This of the state’s in the entire under immunity enterprise. power police considered, was held in the supra. sufficient federal cases basis the that some undisclosed formal Assuming departmental upon (such functions were authorized functions assumption pleaded 236), no based reason Water Code section there being present and 820.2 that declared in Government Code section say immunity defendants (b), subdivision does not to the individual apply case in to the State of California as well. The Court’s latest Supreme immunity of discre 23“Judicial abstention” as the basis of official exercise tion, (1958) Burns separation powers, in Hancock v. rooted in asserted Cal.App.2d legislative immunity upheld This 456]. Legislature. (1959) Oppenheimer Conversely, of the v. Ashburn committee Cal.App.2d 931], imposing liability despite Penal Code section merits, refusing grant held upon judges corpus a writ habeas on the the court separation powers made such statute under the California Constitution 633-634): immunity (pp. cannot principle The court “The unconstitutional. stated Legislature may have in view. quartered particular cut to the measure the pieces.” as a whole or it ends in So here. It survives government all areas of asserted before Johnson that official It was not statutes, it is true such present generally. Prior principles such rested courts, were based which in the declaration rested on immunities Fisher, 506]; Bradley Stokes, (3 How.) 87 L.Ed. upon Kendall U.S. Dinsman, (7 How.) 89 L.Ed. Wilkes v. U.S. 20 L.Ed. *28 U.S. 618]. (3), (2), page James, Torts, subdivisions & Harper 2In extraordinary writs generally to the use relate is shown abstention doctrine of to control official Madison, Cranch) (1 Marbury action; U.S. policy (2 Dall.) 419 L.Ed. Georgia, U.S. by Chisholm As evidenced L.Ed. 60]. [2 440], Amend the Eleventh liability, provoked but policy did not control this generally. governments state ment, setting pattern field, (1969) Los City Angeles McCorkle Cal. 449 P.2d which follows conventional Rptr. patterns, supports and does conclusions reached negative herein. summarized at
Having conclusions of this my beginning concurring I do not them here. dissenting opinion, repeat I would affirm the of the trial court. judgment for a petitions respondents hearing Burke, J., were denied Court 1970. was of the
Supreme April opinion should be petition granted.