Opinion
Gоvernment Code section 818 provides: “Notwithstanding any other provision of law, a public entity is not liable for damages awarded under section 3294 of the Civil Code[ 1 ] or other damages imposed primarily for the sake of example and by way of punishing the defendant.” 2 In this writ proceeding, we are asked to address the novel question of whether section 818 precludes the award of the civil penalty specified in the Unruh Civil Rights Act (Civ. Code, § 51 et seq. [Unruh Act]) for the violation of certain of its provisions.
After the petitioner, Los Angeles County Metropolitan Transportation Authority (MTA), was sued by the real party in interest, Jerrold J. Lyons (Lyons), for, among other things, a violation of the Unruh Act, it moved to strike Lyons’s claim for recovery of the Unruh Act’s statutory civil penalty of $25,000. The MTA argued that such civil penalty was barred by section
After a review of the relevant statutory provisions (including related legislative history) and case law, we conclude that the trial court correctly determined that the civil penalty sought by Lyons is not barred by section 818. We therefore will deny the MTA’s petition for a writ of mandate.
FACTUAL AND PROCEDURAL BACKGROUND
On August 21, 2002, Lyons was riding an MTA bus traveling down Santa Monica Boulevard in West Hollywood. The bus driver made a series of taunting, derogatory and homophobic remarks directed at Lyons. The taunting continued until the bus reached Lyons’s stop at La Cienega Boulevard. As Lyons moved to leave, the driver gestured to blow him a kiss “in a deliberately humiliating and demeaning fashion.” Lyons slapped the driver on his wаy out of the bus. The driver then grabbed Lyons by the backpack, forcibly restrained him, and began beating him severely. The driver knocked Lyons to the ground and continued to restrain, beat, and kick him and pull his hair. The driver was six feet four inches tall and weighed about 280 pounds. Lyons was five feet nine inches tall and weighed 135 pounds.
Eventually, after bus passengers and other bystanders helped to separate the driver from Lyons, Lyons gathered his belongings and escaped. After boarding the bus again and driving a short distance, the driver caught up with Lyons, left the bus to chase him on foot, and resumed beating him. Lyons’s resulting injuries included: a broken rib, clumps of hair tom from his scalp, a laceration to his head, a hyper-extended knee, abrasions over much of his body, and other injuries.
On August 20, 2003, Lyons filed this action against MTA, the driver, and a number of Doe defendants. He alleged causes of action for assault, battery, false imprisonment, intentional infliction of emotional distress, negligence, and violation of the Unruh Act against all defendants. In the allegations under the Unruh Act, Lyons charged violations of Civil Code section 51.7. 3 In addition to other remedies, Lyons requested the enforcement of a $25,000 civil penalty for each offense alleged, as provided by Civil Code section 52(b)(2) 4
On October 2, 2003, the MTA filed a motion to strike the allegations supporting Lyons’s claim for a civil penalty under the Unruh Act, as well as the related portions
A hearing was held on the matter on January 9, 2004. Following argument by the parties, the trial court indicated it believed that the $25,000 civil penalty allowed by the Unruh Act was not really to “penalize the county or set up the county as an example. But this is basically to somehow make whole the victim of this act that is prohibited.” The court thus concluded thаt the primary purpose of the $25,000 penalty was to make whole, not to punish. Accordingly, the trial court denied the MTA’s motion. The MTA then filed this petition for writ of mandate. Due to the novelty of the factual context in which this issue was raised by MTA’s petition, we issued an order to show cause and set the matter on calendar.
CONTENTIONS OF THE PARTIES
MTA argues that it is a public entity and section 818 precludes the imposition of any civil penalty under the Unruh Act because, in the context of this case, such penalty constitutes punitive or exemplary damages. MTA contends that there is only a narrow exception to the operation of section 818. Under that exception, MTA argues, civil penalties may be imposed against public entities, only where the state has set up a comprehensive regulatory scheme and seeks to impose penalties for violations of those regulations against entities subject to the regulation, whether public or private. MTA argues that the Unruh Act is not such a comprehensive regulatory scheme, but rather has broad application to prevent discrimination against California citizens and therefore, such “narrow exception” has no application in this case.
Lyons disputes this argument and contends that, under the plain language of the Unruh Act, the civil penalty does not constitute punitive or exemplary damage, but rather was intended to and does serve other public purposes including the award of a minimum compensation to the victim of a defendant’s discriminatory conduct. Thus, the civil penalty specified in Civil Code section 52, subdivision (b)(2), does not offend the provision in section 818 declaring that, to be prohibited, a damage award must be “imposed primarily for the sake of example and by way of punishing the defendant.” (Italics added.) This construction of the Unruh Act’s civil penalty, Lyons argues, is fully consistent with the legislative history of section 818 and prior relevant case law.
DISCUSSION
1. Standard of Review.
The standard of review for the denial of a motion to strike punitive damages allegations is de novo.
(Cryolife, Inc. v. Superior Court
(2003)
2. The Unruh Act Makes a Clear Distinction Between Punitive Damages and a Civil Penalty.
In the Unruh Act, the Legislature expressly provided that a successful plaintiff
The first thing that one notices about these statutory provisions is that the Legislature has authorized both an award of punitive damages and an award of a civil penalty. Plainly, the Legislature regarded these as separate remedies. Further, the civil penalty is to be awarded to the successful plaintiff in the sum of $25,000. The statute leavеs the court (or jury) with no discretionary choice, contrary to the other three bases of recovery. The “actual” damages that plaintiff is entitled to recover depend upon proof of their existence and amount. The “amount” of punitive damages (including the option to award zero) is left to the discretion of the trier of fact (whether court or jury) and the award of attorney’s fees is left to the trial court’s discretion. The civil penalty, however, must be awarded in the sum of $25,000 provided a plaintiff has proven a violation of section 51.7. Put another way, if plaintiff establishes that he or she was a victim of the condemned discriminatory conduct, then his or her minimum recovery will be $25,000.
By separately providing for exemplary damages and a civil penalty, the Legislature obviously intended for the twо categories of relief to be distinct from one another. For section 818 to apply to the civil penalty remedy specified in Civil Code section 52, subdivision (b)(2), 5 its remedial purpose would need to be “primarily for the sake of example and by way of punishing the defendant” (italics added); in other words, substantially the same purpose as the remedy provided in section 52, subdivision (b)(1).
But a construction that these two subdivisions serve the same remedial purpose would be unacceptable for at least two reasons. First, it would render one or the other superfluous. Under settled principles of statutory interpretation, however, “a construction that renders a word surplusage should be avoided.”
(Delaney
v.
Superior Court
(1990)
Second, it would tend to create double recoveries. So long as no doublе recovery results, a plaintiff may recover multiple remedies in tort for damages arising from the same conduct by the defendant. (See 6 Witkin, Summary of
Cal. Law (9th ed. 1987) Torts, § 1334, p. 792.) For example, in appropriate cases, punitive damages and statutory civil penalties may be awarded in the same action.
(Greenberg v. Western Turf Ass’n.
(1903)
We must presume the Legislature intended neither to create an impermissible double recovery nor to include surplus language in the statute. Thereforе, we have no trouble concluding that section 52, subdivision (b)(2), establishes a separate remedial category that is distinct from the exemplary damages provided for in section 52, subdivision (b)(1).
3. The Legislative History of the Unruh Act Demonstrates a Legislative Emphasis on the Nonpunitive Element of the Civil Penalty Provision
Some version of section 52 has been on the books since 1905 when it provided a specified monetary remedy for certain violations of California’s public accommodations law. For example, it stated that any person who denied another’s rights to full use and enjoyment of public accommodations in the state because of race or color would be liable in damages for an amount of not less than $50. Over the years, the section has been amended to (1) add types of public accommodations and amusements that were subject to the law, (2) increase the statutory minimum recovery, (3) add protected groups, (4) differentiate the remedies for different types of violations, (5) allow for enforcement by public prosecutors, and (6) change the remedy from solely a statutory minimum recovery to a civil penalty awarded over and above actual damages.
For most of the last century, the code sections now known collectively as the Unruh Act were written so as to punish all denials of civil rights in public accommodations alike. In other words, the law provided civil enforcement to protect all citizens’ equal rights to full participation in society, and it made little difference how such rights might be denied. Today, however, the law recognizes that when a violation is committed through violence or intimidation, different rights are violated and different remedies are required. The Ralph Civil Rights Act of 1976 (§ 51.7) specifies, in particular, that all persons in the state have a civil right to be free from violence and intimidation targeted against individuals because of their actual or perceived membership in a particular social group. The Legislature simultaneously added section 52, subdivision (b), to provide multiple special remedies for this very different class of violations.
Section 52, subdivision (b), took its current shape over the course of amendments in the 1980’s and 1990’s. Until 1986, section 52, subdivision (b), provided that whoever violated another person’s civil rights under section 51.7 would be liable for actual damages plus a $10,000 civil penalty. In 1986, the Legislature amended the statute to make violators additionally liable for an amount determined by the fact finder not to exceed three times actual damages. The statute was amended again in 1989 to clarify that the $10,000 civil penalty was
In response to an increase in hate crimes, the Legislature again amended the bill in 1991. In Senate Bill No. 98 (1991-1992 Reg. Sess.), the cap on punitive damages to be awarded by the fact finder under section 52, subdivision (a), was removed. The expectation apparently was that, in appropriatе cases, large exemplary damage awards would contribute to shutting down or severely deterring the illegal activities of organized hate groups. In addition, the amendment increased the civil penalty under section 52, subdivision (b)(2), from $10,000 to $25,000 to reflect the increase in the Cost of Living Index; and deleted a provision which provided that the civil penalty be prorated among multiple offenders so as to punish each individually and to avoid rewarding those committing hate crimes in concert with others by permitting them to pay a lower monetary penalty than offenders acting alone. The bill also amended the penal code to increase the maximum criminal penalty for perpetrators of certain hate crimеs. 7
According to the report the Senate Judiciary Committee prepared at the time, the purpose of these amendments was “to provide more effective remedies for victims of hate motivated crime and violence.” (Sen. Com. on Judiciary, Rep. on Sen. Bill No. 98 (1991-1992 Reg. Sess.).) The bill was expected to “enable more victims of hate violence to pursue redress through the filing of civil rights actions.”
(Ibid).
The Senate Rules Committee report contained substantially the same analysis. Finally,
It is apparent from this legislative history that section 52 has at least two important nonpunitive purposes. The first is simply to provide increased compensation to the plaintiff. The second purpose, and perhaps the more important one, is to encourage private parties to seek redress through the civil justice system by making it more economically attractive for them to sue. A concern had been raised repeatedly that the civil penalties were insufficient and that hate crime victims were not taking advantage of them, very likely owing to the fact that some victims suffered little actual damages. If not for the civil penalty, many such litigants would neither have the economic incentive, nor the means to retain counsel to pursue perpetrators under the statute. Under the current wording of section 52, subdivision (b)(2), the civil penalty clearly provides a minimum compensatory recovery even in those cases where the plaintiff can show little or no actual damages.
Although the only portion of the statute that is directly relevant to the case at hand is subdivision (b)(2) (which provides for the civil penalty), it is also apprоpriate to consider it in some context. When examined in the context of the other amendments, including the enhancement of criminal penalties, removal of the cap on punitive damages, and mandatory civil rights education for attorneys, it is clear that the current version of section 52, subdivision (b)(2), is part of a larger body of law designed to further a clear legislative intent to have the civil rights laws taken seriously and be vigorously enforced by encouraging private parties to litigate such claims. Acceptance of MTA’s argument that section 818 grants it immunity in this area would defeat this important component of the anti-hate crime legislation.
This history reinforces our conclusion that the civil penalty of sectiоn 52, subdivision (b)(2) is not solely punitive. While it may have some punitive characteristics, it clearly serves to advance the Legislature’s intent to encourage and aid private parties to help in enforcing the civil rights laws by bringing civil suits against perpetrators of hate crimes. The civil penalty also helps to ensure that plaintiffs receive ample compensation, irrespective of their actual damages. Because of these important nonpunitive remedial functions, section 52, subdivision (b)(2), does not fall within the scope of government immunity under section 818. To hold otherwise would compromise private parties’ ability to litigate claims under section 51.7 and thus undercut the legislative intent behind providing a statutory recovery to which plaintiffs are automatically entitled upon proof of liability, rеgardless of actual damages. This conclusion is also fully supported by relevant case law dealing with the application of section 818 in different factual contexts.
4. The Unruh Act’s Civil Penalty Is Not Imposed “Primarily’’ For Punishment,
As already noted, section 818 provides: “Notwithstanding any other provision of law, a public entity is not liable for damages
In
Helfend v. Southern California Rapid Transit District
(1970)
In
State Department of Corrections v. Workmen’s Comp. Appeals Board
(1971)
The issue in
People ex rel. Younger v. Superior Court
(1976)
In
Kizer
v.
County of San Mateo
(1991)
Similarly, nowhere in the Tort Claims Act does it say that public entities should be immune from civil penalties that the Legislature has deemed necessary for the effective enforcement of civil rights laws and effective compensation of victims. As the
Kizer
court put it, “ ‘[g]iven the unquestionable importance of this legislative purpose [assuring a uniform standard of quality health care], we perceive no significant public policy reason to
exempt a state licensed health-care facility from liability for penalties under the Act simply because it is operated by a public rather than a private entity, even though it is the taxpayer who ultimately bears the burden when such penalties are imposed on а publicly owned facility. The citation and penalty provisions of the Act serve to encourage compliance with state mandated standards for patient care and to deter conduct which may endanger the well-being of patients. City councils and county boards of supervisors are ás likely as private entities to heed the threat of monetary sanctions and make certain that their facilities are operated in compliance with the law.’ ”
(Kizer, supra,
A recent California case on section 818 immunity is
Marron v. Superior Court
(2003)
Clearly, section 818 does shield the state from punishment simply for the sake of punishment. There are good reasons for this rule. As explained in
McAllister
v.
South Coast Air Quality etc. Dist.
(1986)
“Government Code section 818 was not intended to proscribe all punitive sanctions.”
(Kizer, supra,
As this case plainly illustrates, there are distinctions to be drawn between
punitive
damages and civil penalties. The latter often do more than just punish, and they are not awarded on the same basis as pure punitive damages. For example, in
Beeman
v.
Burling
(1990)
In
People v. First Federal Credit Corp.
(2002)
DISPOSITION
The petition for a writ of mandate is denied. The order to show cause issued on March 30, 2004 is discharged. Lyons shall recover his appellate costs in these writ proceedings.
Klein, P. 1, and Aldrich, 1, concurred.
Notes
Civil Code section 3294 provides for exemplary damages in “an action for the breach of an obligation not arising frоm contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud or malice . . . .”
We hereafter refer to Government Code section 818 simply as section 818.
Civil Code section 51.7, guarantees freedom from violence or intimidation. That section reads in relevant part: “(a) All persons within the jurisdiction of this state have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of their race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, disability, or position in a labor dispute, or because another person perceives them tо have one or more of those characteristics. . . . HO . . . [f] (b) As used in this section, ‘sexual orientation’ means heterosexuality, homosexuality, or bisexuality.” (Italics added.)
Civil Code section 52, subdivision (b) provides, in relevant part: “Whoever denies the right provided by Section 51.7 or 51.9, or aids, incites, or conspires in that denial, is liable for each and every offense for the actual damages suffered by any person denied that right and, in addition, the following: HO (1) An amount to be determined by a jury, or a court sitting without a jury, for exemplary damages. HO (2) A civil penalty of twenty-five thousand dollars ($25,000) to be awarded to the person denied the right provided by Section 51.7 in any action brought by the person denied the right, ... [‘¡0 (3) Attorney’s fees as may be determined by the court.”
Unless otherwise stated, all statutory references are to the Civil Code (other than the previously defined Gov. Code, § 818).
There had been some uncertainty expressed as to whether the state could assert a claim to the civil penalty award. The 1989 amendment ended that uncertainty.
In addition, Senate Bill No. 98 introduced civil rights training as a component of California attorneys’ mandatory continuing legal education requirement for the purposes of ensuring a level of knowledge of civil rights law among members of the bar, increasing the pool of attorneys willing and able to represent hate crime victims, and to increase awareness of the civil and criminal penalties which are available to deter hate crime activity.