DAVID, J. pro tem.,[fn*] Concurring and Dissenting. [fn*] Retired judge of the superior court, sitting under assignment by the Chairman of the Judicial Council.

The judgment of the trial court should be affirmed. Upon appeal, the basic question is whether the second amended complaint before the trial court states a cause of action, or whether any can be stated, under the applicable law. Independently of the declarations of immunity stated in Government Code sections 815, 818.8, 820.2 and 822.2, and Water Code section 6028, I conclude there is no legal cause of action stated. The deficiencies in the second amended complaint rest in the applicable law, and not in factual deficiencies which might be obviated by amendment. I concur in holding that the second, third and fifth causes of action are barred by failure to present a proper claim as a condition precedent to support them, but, in addition, conclude no right of action existed had a proper claim been filed. The judgment of a trial court dismissing an action after sustaining a demurrer without leave to amend will be affirmed upon appeal, though the considerations may differ, or be in addition to, those relied upon by the trial court. ( Bank of America v. Vannini, 140 Cal.App.2d 120, 126-127 [ 295 P.2d 102]; People v. Evans, 249 Cal.App.2d 254 [ 57 Cal.Rptr. 276].)

Appellant does not state a cause of action for injury to and loss of his property situated within the floodway of the Sacramento River because (a) the management and control of flood waters on this navigable stream, exercised jointly with the United States, is under the police power, and any injury or damage is damnum absque injuria; (b) no right of action accrues to anyone because of the increase in, or acceleration of, the flow in the river; (c) the control of dams and the operation thereof, including their overflow and the release of water therefrom, is covered by the immunity declared by Water Code section 6028; and (d) the claim filed with the State Board of Control did not assert any injury from negligent failure to control flood waters, nor improper management of the dams.

Further, appellant does not state a cause of action based upon the allegedly negligent forecast of the height flood waters would reach in the Sacramento River because (a) no public or private duty is shown to have existed as a matter of law at the time of appellant's alleged damage, due to him in relation to such forecasts; (b) estimates of future conditions of weather or water are not the representations of past or present facts which are actionable, and if they are held actionable because of respondent's superior knowledge or opportunity to deduce the future condition, still no cause of action is stated because the state and its employees are immune from suit for negligent misrepresentation (Gov. Code, §§ 818.8 and 822.2); and (c) flood forecasts involve the evaluation as well as the collection of data, a fact-finding or quasi-judicial process involving judgment and discretion, thereby falling directly into the immunity declared by Government Code section 820.2.

Neither the control of flood waters in a vast river system nor the weather and flood level forecasting are functions which have counterparts in nongovernmental relationships. So far as research has revealed, the only cases which involve the issues directly presented here (under the parallel provisions of the Federal Tort Claims Act) are those decided sub. nom. National Mfg. Co. v. United States (8th Cir. 1954) 210 F.2d 263, cert. den. 347 U.S. 967 [98 L.Ed. 1108, 74 S.Ct. 778], cited with approval in United States v. Neustadt, 366 U.S. 696, 702 [6 L.Ed.2d 614, 619, 81 S.Ct. 1294]; Bartie v. United States (5th Cir. 1964) 326 F.2d 754, cert. den. 379 U.S. 852 [13 L.Ed.2d 55, 85 S.Ct. 98]. (Consult also Western Mercantile Co. v. United States (W.D.Mo. 1953) 111 F. Supp. 799; Mid-Central Fish Co. v. United States (W.D.Mo. 1953) 112 F. Supp. 792.) In the principal case, it was asserted that property damage could and allegedly would have been avoided by the owner's removal of his property from the path of the floodwaters, but for the negligently inaccurate forecast. Immunity of the government and its employees was declared to defeat the actions; and in a concurring opinion it was noted that despite the stated immunities no cause of action existed at all. Another similar result was reached in Bartie v. United States, supra, in respect to damage caused by Hurricane Audrey in June 1957.

I am satisfied that neither the holding nor the applicable dicta of Johnson v. California, 69 Cal.2d 782 [ 73 Cal.Rptr. 240, 447 P.2d 352], require a contrary conclusion. It is in this respect that the principal differences arise with the conclusions reached by my eminent colleagues, perplexed by the apparent recrudescence of the conflicts between judicial doctrine and legislative intention, thought to have been definitively settled by the Tort Claims Act of 1963.

I turn to the amplification of these considerations.

The pleading before us is subject to the judicial notice of the court, even in contravention of its allegations. ( Dillard v. McKnight, 34 Cal.2d 209 [ 209 P.2d 387, 11 A.L.R.2d 835]; Bourdieu v. Seaboard Oil Corp., 38 Cal.App.2d 11 [ 100 P.2d 528].) Where a claim of liability is asserted against the state, or its officers or employees as such, that liability must be based upon a function or duty prescribed by law (cf. Douglass v. City of Los Angeles, 5 Cal.2d 123, 128 [ 53 P.2d 353]). No liability can arise against the state by misfeasance, laches, or an unauthorized exercise of power. ( Lertora v. Riley, 6 Cal.2d 171, 177 [ 57 P.2d 140]; Melvin v. California, 121 Cal. 16, 22 [53 P. 416], citing Gibbons v. United States, 75 U.S. (8 Wall.) 269 [19 L.Ed. 453].) In public law, it is fundamental that power or duty is not self-created by the action of individuals. ( Foxen v. City of Santa Barbara, 166 Cal. 77 [ 134 P. 1142]; Mines v. Del Valle, 201 Cal. 273 [ 257 P. 530].) Public powers or duties are not varied by usage or enlarged by construction. (81 C.J.S., States, § 81, p. 1037; § 58, p. 978.) "It is an elementary principle that an indispensible factor to liability founded upon negligence is the existence of a duty of care owed by the alleged wrongdoer to the person injured, or to a class of which he is a member." ( Routh v. Quinn, 20 Cal.2d 488, 491 [ 127 P.2d 1, 149 A.L.R. 215]; Dahms v. General Elevator Co., 214 Cal. 733, 737 [ 7 P.2d 1013]; Amaya v. Home Ice, Fuel Supply Co., 59 Cal.2d 295, 307 [ 29 Cal.Rptr. 33, 379 P.2d 513].)

In this connection, it should be kept in mind that we are considering the powers and duties of the defendants as they existed in December 1964. No statute, rule or regulation has been cited to us, and none has been found, which imposes any duty to forecast stream flow, nor to disseminate information concerning such forecasts. It is true that negligence may be pleaded in general terms, but for liability, the existence of duty must be shown. ( Rubinow v. County of San Bernardino, 169 Cal.App.2d 67, 71 [ 336 P.2d 968].) The allegations of the complaint before us, nakedly alleging that a duty rested upon the state and its employees to appellant, state only conclusions of law. ( Dillard v. McKnight, supra, 34 Cal.2d 209, re judicial notice of the applicable law; Jackson Perkins Co. v. Byron-Bethany Irr. Dist., 136 Cal.App. 375, 380 [ 29 P.2d 217, 30 P.2d 516]; Hancock v. Burns, 158 Cal.App.2d 785, 790 [ 323 P.2d 456]; Branham v. Mayor Common Council of San Jose, 24 Cal. 585; Colen v. Gladding, McBean Co., 166 Cal. 354 [ 136 P. 289]; Oppenheimer v. Ashburn, 173 Cal.App.2d 624, 628 [ 343 P.2d 931].)

The Sacramento River is a navigable stream and a public way. (Harbors Nav. Code, § 105.) The improvement, management and control of the river, including flood control, is jointly undertaken with the United States. For over a hundred years there have been both legislative and judicial declarations that the recurrent floods on the Sacramento-San Joaquin Rivers have been detrimental to the peace, health, safety and welfare; these declarations resulted in the construction of a vast system of dams, levees, weirs and by-passes to regulate the flow of the rivers, and to minimize the damage from recurrent flooding.

In a long series of cases, referring specially to Green v. Swift, 47 Cal. 536; Gray v. Reclamation District No. 1500, 174 Cal. 622, 639 [ 163 P. 1024]; and Clement v. State Reclamation Board, 35 Cal.2d 628 [226 P.2d 897], it has been established that the state acts in such matters under the police power, and that damage occasioned by the river flow is damnum absque injuria. Any damage claimed by reason of the increased flow of the river, by the overflowing of dams, by the release of water from a dam to avoid the greater calamity of collapse of the dam, or by the acceleration of the flow, is not actionable. ( Clement v. State Reclamation Board, supra; Archer v. City of Los Angeles, 19 Cal.2d 19, 24 [ 119 P.2d 1]; Albers v. County of Los Angeles, 62 Cal.2d 250, 262-264 [ 42 Cal.Rptr. 89, 398 P.2d 129]; San Gabriel Valley Country Club v. County of Los Angeles, 182 Cal. 392 [ 188 P. 554, 9 A.L.R. 1200]; Riverside County Flood etc. Dist. v. Halman, 262 Cal.App.2d 510, 519 [ 69 Cal.Rptr. 1]; Bauer v. County of Ventura, 45 Cal.2d 276, 282-283 [ 289 P.2d 1].)

Appellant does not claim that floodwaters overflowed the levees which form the river bank; instead, he claims that the water rose to a height of 29 feet and stayed at that high level for two weeks. It is therefore obvious that there was no defect in the levees between which the stream flowed. The maintenance of works, such as appellant's, situated upon the stream and its banks, is subject to the paramount right in the state and federal governments to the full use of the stream, bed and banks, for their respective purposes. Appellant has not pleaded that any of his works were authorized under permit, as required by Harbors and Navigation Code section 4000 and California Administrative Code, title 23, section 221. The right of access of a riparian or littoral owner may not prevail as against the state in the exercise of its lawful purposes. (65 C.J.S., Navigable Waters, § 67, p. 230.) The appellant made use of the river and adjacent banks with full knowledge of his own peril in times of high water. Throughout the day on December 22, 1964, he inquired concerning the height which the rising river flow would reach. No special duty became owing to him because the state was informed of his peril. The entire river and flood control system was in emergency operation because of the known peril which threatened thousands of persons and millions of dollars worth of property. He was only one of the general public for which the operation was maintained.

In exercising its police power, the cases last cited make it clear that the state is not subject to appellant's claim that there was inverse condemnation of his property.

Water Code section 6028 provides: "No action shall be brought against the State or the department or its agents or employees for the recovery of damages . . . through the operation of any dam upon the ground that such defendant is liable by virtue of any of the following: . . . (b) The issuance or enforcement of orders relative to maintenance or operation of the dam. (c) Control and regulation of the dam. (d) Measures taken to protect against failure during an emergency." Under the facts alleged, I am of the opinion that this statutory provision, and the other considerations reviewed above, are of themselves sufficient to sustain the general demurrer interposed to the second, third and fifth causes of action.

I return to the consideration of appellant's contentions asserting the existence of a cause of action based upon the allegedly negligent misrepresentation of the estimated maximum flood height of the Sacramento River.

If at the time of the 1964 flood, river flow forecasting had been an authorized function, as now provided by Water Code section 236, no private duty would exist and no private right of action would arise for the negligent performance thereof. The well established rule is that failure to perform or inadequate performance of a police-power function such as this may be a breach of duty owed to the people of the state as a whole, but it does not constitute a legal wrong or injury to a member thereof, giving a right to individual redress. (Rest. 2d Torts, § 288, and comment on clause (a): "Many legislative enactments and regulations are intended only for the protection of the interests of the community as such, or of the public at large, rather than for the protection of any individual or class of persons. Such provisions create only an obligation to the state, or some subdivision of the state, such as a municipal corporation." See Routh v. Quinn, supra, 20 Cal.2d 488, negligent computation of tax; Stang v. City of Mill Valley, 38 Cal.2d 486 [ 240 P.2d 980]; Steitz v. City of Beacon, 295 N.Y. 51, 56 [ 64 N.E.2d 704, 706, 163 A.L.R. 342]; 2 Harper James, Torts, § 29.2, p. 1608; Mid-Central Fish Co. v. United States (W.D.Mo. 1953) 112 F. Supp. 792, 797; Jones v. Czapkay, 182 Cal.App.2d 192, 201 [ 6 Cal.Rptr. 182].)

The important question posed here, in regard to the allegedly negligent misrepresentation of the estimated flood stage of the river, is whether the appellant, by informing the department of his personal need for accuracy, thereby can impose upon the service generally provided a special duty of care as to him. An affirmative answer has inestimable implications. Suppose A informs the police department he has especially valuable goods in his house, and that he has a special need for their protection. If thieves break in and steal, is there liability because a desk sergeant told A he thought the goods would be safe? Or suppose a fire rages in a business block. B, at the far end of the block, calls the fire department and asks if they think the fire will spread to his property. He is informed by the fire chief that it will not. If, nevertheless, the fire does reach his property, are the chief and the entity he serves to be held liable? If B is told that the fire will reach his property, and at great expense removes his goods from its path, are the chief and his entity liable for the cost when the fire does not reach B's property? If at the time of the nightly television broadcast of the weather reports and predictions, C phones in and says he has hay on the ground and needs to have a correct forecast since he will go to town tomorrow if there is to be no rain, is the station liable if the rain comes while C is away from his field? The answer to these questions is "No." ( Tomlinson v. Pierce, 178 Cal.App.2d 112, 115-116 [ 2 Cal.Rptr. 700].)

The state calls attention to the fact that other public activities, including crop forecasting, economic forecasting and population forecasting, are state activities and are parallel to that considered here. Amici curiae have called attention to a pending action against the County of Riverside by a plaintiff seeking to recover for loss of bees, bee colonies, and a honey crop, allegedly resulting from negligent dissemination of information by the county Commissioner of Agriculture.

The appellant must fail here, for it is fundamental law that the representation, to be actionable, must be of a past or present fact. ( Lawrence v. Gayetty, 78 Cal. 126, 131 [20 P. 382, 12 Am.St.Rep. 29]; Wilson v. Rigali Veselich, 138 Cal.App. 760, 764 [ 33 P.2d 455]; Finch v. McKee, 18 Cal.App.2d 90, 93 [ 62 P.2d 1380]; Stockton v. Hind, 51 Cal.App. 131, 136 [ 196 P. 122]; 37 C.J.S. Fraud, § 6, p. 222, § 10, p. 226.) The future is always opinion; it must happen before it is a fact. ( Texas Farm Bureau Cotton Asso. v. Craddock (Tex. Civ. App.) 285 S.W. 949, 950.) A cause of action does not lie for unfulfilled predictions or expectations. (37 C.J.S. Fraud, § 11, p. 231.) This principle was held applicable to flood forecasting and weather predictions in National Mfg. Co. v. United States, supra, 210 F.2d 263, and in Coates v. United States (8th Cir. 1950) 181 F.2d 816 [19 A.L.R.2d 840].

The majority opinion concedes the reason or logic of this proposition, but asserts it is inapplicable in view of the claimed negligence in gathering and evaluating known facts upon which the ultimate information given appellant was based. In effect, it is said that immunity for negligent misrepresentation cannot exist if it is alleged that negligent gathering and evaluation of known facts produced the erroneous result.

The United States Supreme Court states that this argument has been made and consistently rejected, since ". . . as was forcefully demonstrated . . . in Hall v. United States, supra [ 274 F.2d 69] [it] is nothing more than an attempt to circumvent § 2680(h) by denying that it applies to negligent misrepresentation." ( United States v. Neustadt, supra, 366 U.S. 696, 703 [6 L.Ed.2d 614, 619]; the section of the Federal Tort Claims Act referred to is substantially similar to Gov. Code, §§ 818.8 and 822.2.) The court, in Neustadt, considered the effect of an opinion based upon a negligent and inaccurate appraisal of real property.

Misrepresentation, as a tort, differs from fraud and deceit (Civ. Code, §§ 1709, 1710) in that scienter and intent to deceive are characteristics of the latter. The development of negligent misrepresentation as a tort is of recent origin. (Consult Dean Carpenter's Responsibility for Intentional, Negligent and Innocent Misrepresentation (1930) 24 Ill. L.Rev. 749, in which he states (p. 759) that most jurisdictions refuse to allow an action for negligent misrepresentation, but argues (p. 756) for an extension of liability on the ground that words are no different than other physical conduct.) The early rule, stated in Buckley v. Gray, 110 Cal. 339 [42 P. 900, 52 Am.St.Rep. 88, 31 L.R.A. 862], allowed no recovery for negligent misrepresentations except where there was some duty or privity between the one making the statement and the one relying thereon, as in the case of one who had contracted for a title report and relied upon it, or one who employed a surveyor to make a survey and relied upon it, and the like.

The requirement of privity was abandoned by the California Supreme Court in Biakanja v. Irving, 49 Cal.2d 647 [ 320 P.2d 16, 65 A.L.R.2d 1358], in instances where a plaintiff is a constructive third-party beneficiary to the engagement for an opinion or service between contracting parties. It indicated that imposition of liability is refused when any potential advantage to a third party plaintiff was only a collateral consideration of the transaction, citing for this proposition MacKown v. Illinois Publishing Printing Co., 289 Ill. App. 59 [ 6 N.E.2d 526], and the leading case of Jaillet v. Cashman, 115 Misc. 383 [189 N.Y.S. 743] affirmed 235 N.Y. 511 [ 139 N.E. 714], and 202 App. Div. 805 [194 N.Y.S. 947].

In Biakanja v. Irving, supra, the defendant, not a qualified attorney, drew a will for a testator, the invalidity of which was to partially disinherit the plaintiff, contrary to the testator's intention. Despite lack of privity, the plaintiff was allowed to recover.

Judicial notice may be taken that in December 1964 the Department of Water Resources had supervisory powers over the maintenance and operation of the flood control works of the Sacramento River Flood Control Project (Wat. Code, § 8360) and the maintenance and operation of certain units or portions of the works involved, such as levees, bypasses, channels and overflow channels of the Sacramento River (Wat. Code, § 8361). It is apparent that for the department's own purposes it was necessary to estimate the height, speed and volume of river flows. It is a matter of common knowledge that this involves collection and consideration of data respecting the snowfall in the Sierras, and the precipitation thereon, the melting of the former, and the state of the latter under predicted future weather conditions, the runoff on the multitude of watersheds, the capacity and rate of flow in the Sacramento River and its various tributaries, the safe capacity of dams, their available storage capacity, and the rate of flow in and out of them, the effect of any break in the levees, and of diversion of water in the safety valves and bypasses, and the effect on the outflow by the predicted tides at the debouchment of the rivers in Suisun Bay. The temperature which melts the snow, the precipitation of snow and rain from the skies, are uncontrollable factors in incidence, duration and amounts. It is common knowledge that such predictions are frequently thwarted by nature. Along the river, readings are taken of the height of the flow at difference times and places, constituting a running post-audit on the opinions and conclusions previously reached. Can appellant, as a third party gratuitously given upon request information as to an estimated future height of the river flow, maintain this suit on the ground he received negligent misinformation? In this connection, it is to be noted that the direct cause of damage alleged was the rise in the waters of the river. The information given had no causal connection with that fact. As the water level rose inch by inch, he had as full knowledge of what was happening as did respondents. (Cf. Belcher v. City County of San Francisco, 69 Cal.App.2d 457 [ 158 P.2d 996].) His pleaded reliance was equivocal; he tied his docks for a flood two feet higher than that indicated in the information received. In Merrill v. Buck, 58 Cal.2d 552, 561-562 [ 25 Cal.Rptr. 456, 375 P.2d 304], the rule is stated: "Privity of contract is not necessary to establish the existence of a duty to exercise ordinary care not to injure another, but such duty may arise out of a voluntarily assumed relationship if public policy dictates the existence of such a duty," where misrepresentation is asserted.

The appellant therefore cannot escape the legal dilemma posed by these considerations: (1) Any declaration of "public policy" to create new and unprecedented liabilities in his favor against the state and its officers must be declared by statute, under Government Code section 815, excluding therefrom by definition decisional law (Gov. Code, §§ 811, 811.8). (2) The majority opinion holds that the tort of misrepresentation is solely that defined in Johnson v. California, supra, 69 Cal.2d 782, 800. If that is so, appellant has not stated a cause of action under existing law, and if he has, then immunity bars his cause of action, under Government Code sections 818.8 and 822.2. (3) The allegations of the complaint obviously were framed in conformity with Restatement Second of Torts, section 311, page 106, relating to negligently furnished gratuitous information. If this section is the law in California then, again, the causes of action based upon negligent misrepresentation are barred by the code sections last cited.

In declaring immunity for misrepresentation and negligent misrepresentation in Government Code sections 818.8 and 822.2, the Legislature recognized the existence of both torts. Only the first, defined in Restatement of Torts, section 552, was discussed in Johnson v. California, supra. The tort of negligent misrepresentation is separately defined in section 311 of the Restatement Second of Torts, thusly: "Negligent Misrepresentation Involving Risk of Physical Harm. (1) One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results (a) to the other, . . . (2) Such negligence may consist of failure to exercise reasonable care (a) in ascertaining the accuracy of the information, or (b) in the manner in which it is communicated." By definition, it is indicated that "physical harm" includes injuries to person or property.

A note to section 311 draws a distinction in reference to section 552: "In this respect the rule stated here differs from that stated in § 552, which is concerned only with pecuniary loss suffered as the result of a negligent misrepresentation.[] Where only such pecuniary loss is sustained, the gratuitous character of the information prevents any liability for negligence in giving it. Where, as under the rule stated in this Section, the harm which results is bodily harm to the person, or physical harm to the property of the one affected, there may be a liability for negligence even though the information is given gratiutously and the actor derives no benefit from it."

Therefore it appears to me that plaintiff colorably has stated a cause of action under section 311, if there is any basic duty due to him, for unfulfilled predictions upon which he was entitled to rely. But appellant's second amended complaint flounders, for these causes of action are embraced within the immunities afforded by Government Code sections 818.8 and 822.2. Section 818.8 provides, "A public entity is not liable for an injury caused by misrepresentation by an employee of the public entity, whether or not such misrepresentation be negligent or intentional." Section 822.2 provides, "A public employee acting in the scope of his employment is not liable for an injury caused by his misrepresentation, whether or not such misrepresentation be negligent or intentional, unless he is guilty of actual fraud, corruption or actual malice." If one can infer that Johnson v. California, supra, 69 Cal.2d 782, in its statements concerning misrepresentation, holds that there is no liability for the tort of misrepresentation, except under the conditions therein stated, the substance of section 552 of the Restatement of Torts, appellant has no cause of action.

Upon appeal, I am concerned additionally with the relevance of Government Code section 820.2: "Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the discretion vested in him, whether or not such discretion be abused." By Government Code section 815.2, subdivision (b) nonliability of the employee carries with it nonliability of the principal, the public entity. The federal cases cited to the court made this argument most attractive, since they squarely hold under comparable sections of the Federal Tort Claims Act that flood and weather forecasting were discretionary functions, and denied liability. (Consult, again, National Mfg. Co. v. United States, supra, 210 F.2d 263, approved in United States v. Neustadt, supra, 366 U.S. 696; Coates v. United States, supra, 181 F.2d 816.) The point is made that the process of prediction involves judgment and discretion, qualifying for the exemption.

The holding in Johnson v. California, supra, 69 Cal.2d at page 794, reasserted and applied the long-established distinction between discretionary choices of courses of action, on the one hand, and negligence in carrying out the choice on the other.

The situation alleged here does not lend itself to any characterization as ministerial action. The telephone conversation was merely the conduit for the forecast, a continuum of the discretionary evaluation, which allegedly was negligently made. I am not concerned with the discretionary choice to make the forecast; I am concerned with the judgment and discretion involved in estimating the river flows.

As a matter of statutory construction, the statutory definitions of "public entity" (Gov. Code, § 811.2) and of "employee" (which includes officers, agents, servants and employees; see Gov. Code, §§ 810.2, 810.4) include all branches and agencies of government in this state, at every level. It does not exclude those who are on a "low rung" on the bureaucratic ladder, if in fact the law has vested discretion in them. What discretion is so vested must be determined in the first instance by consideration of the authority under which one is empowered, authorized or directed to use his judgment and discretion; whether that be the Constitution, a statute, charter, ordinance or regulation.

It is the plethora of such laws applied to so many public functionaries that has made it virtually impossible to enunciate a tidy formula to define discretion; nor need it be defined, except in specific relation to specific powers and duties. Confusion comes by failure to consider the entire phrase, "the exercise of the discretion vested in him" (italics supplied). Whether discretion exists is not determined by considering the legislative purposes for granting immunity, nor yet by evaluation of legislative purposes in granting it, in terms of judicial policy. The Legislature, in the sections cited above, has granted the immunity, whatever its bases may have been in establishing such a policy of immunity.

The delegation of governmental powers and duties in many fields has been detailed and precise, and may expressly indicate or limit the choices of action or inaction conferred. Or as administrators would prefer, only the goals to be attained may be described, leaving the intermediate steps completely to their discretion. To a degree, the existence of discretion has been spelled out in terms of its antonym, the ministerial duty. If one has a special right to performance of a duty arising out of an office, trust or station, he may compel the performance of that duty, and in some instances may recover damages for injury resulting from nonperformance. (Code Civ. Proc., § 1094 et seq.) In contrast, the general attribute of official discretion is that action or inaction pursuant thereto is for the purposes or benefit of the public served by the functionary, and not for any specific individual.

If an official has discretion to act or not to act under choices #1, #2, #3, and #4, presented by the matter before him, no action lies against him for adopting #2 and not the others. This does not result because of any statutory or judicial immunity. Rather, it is because having the choice, there was no breach of duty at all in making the choice, and hence, no right of action. It therefore is logically erroneous to assume that an immunity statute relates solely to the initial choice of alternatives, since in that case there would be no need for it.

Cited in illustration of the preexisting California law perpetuated by the 1963 liability sections by the Legislative Committee is White v. Towers, 37 Cal.2d 727, 733 [ 235 P.2d 209, 28 A.L.R.2d 636]. It states that the rule is settled that governmental officials are not liable for discretionary acts within the scope of their authority, and this rule applies not only to the accomplishment of the main purpose for which the office was created, but also to acts which although incidental and collateral, serve to promote those purposes.

The formal process of choice, or decision, contemplates the recognition of an issue or problem, the accumulation of facts and weighing their effect, the consideration of any formal limits upon the authority to decide (jurisdiction), the recognition of possible alternatives of action or inaction, the consideration of the advantages and disadvantages of each, including expediency, the choice of the course to be followed, and of the procedure, means and methods to be employed. This process of formal decision-making is essentially the same, whether it be followed by a business executive, a judge, a legislative body, or an administrator at any level. It may be very formal, but often the trained administrator almost subconsciously may pass through the elements and act.

To have a choice is not the equivalent of official discretion vested in him. The one signing authorized bonds may choose what brand of ink he uses. Discretion vests, I submit, when the authorizing law permits the officer or employee to decide or control a matter in such a way that the decision has juridical or administrative consequences upon persons, things, events, plans or procedures. Discretion may be "vested" in many instances because the legal directive or authority is silent as to the time, place, manner or means of its execution, requiring the officer or employee to follow his own judgment in all these matters.

But the immunity specified in Government Code section 820.2 includes another type of judgment and discretionary act if it, as stated, codifies the preexisting California law, i.e., fact-finding, exemplified in a great number of cases.

The basic expression of the California law is found in Downer v. Lent (1855) 6 Cal. 94 [95 Am.Dec. 489]. The Board of Pilot Commissioners had ordered the plaintiff to surrender his pilot's license, and published notice he was no longer authorized to act as a pilot. Thereupon, he sued the individual board members for damages in the sum of $2,500. The Supreme Court said, "It is beyond controversy, that the power of the Board of Pilot Commissioners is quasi judicial, and they are not civilly answerable. They are public officers to whom the law has entrusted certain duties, the performance of which requires the exercise of judgment. They are unlike a ministerial officer, whose duties are well defined, and who must fail to execute them properly at his own peril.

"Whenever, from the necessity of the case, the law is obliged to trust to the sound judgment and discretion of an officer, public policy demands that he should be protected from any consequences of an erroneous judgment."

A fundamental purpose for declaring immunity in such instances, both for the employee and the public entity he serves, is a need to fix responsibilities and to attain finality of decision. Using the term as defined in the Government Code, a "public employee" is responsible to the electorate, his appointing power or his administrative superiors for his performance of duty. If in hindsight, a jury or even a judge is permitted to redetermine what he should have done under a given set of circumstances where he had judgment and discretion, the ultimate power of decision is transferred to those not responsible. The result of each lawsuit becomes a redefinition of his duty. In successive actions involving similar circumstances, the employee may be tossed between Scylla and Charibdis; or it may be more classical to say he is on the Procrustean bench.

Who is to determine whether in fact an error of judgment has been made? The determination itself involves judgment or discretion to the same degree as the original issue. A second determination may be as prone to error as the first, and unfair to the employee or the entity, because of judging the prevision by the result.

In Johnson v. California, supra, 69 Cal.2d 782, 794, footnote 8, it is stated that, "Immunity for 'discretionary' activities serves no purpose except to assure that courts refuse to pass judgment on policy decisions in the province of coordinate branches of government." This is merely a new way of stating that when the Legislature decrees immunity, the courts must follow the law. (Cf. County of San Mateo v. Maloney, 71 Cal. 205, 208 [12 P. 53].) The "policy decision" whether to establish immunity (or under another view, not to give consent to suit) thus rests with the Legislature, and has been made by it here. The further dicta in Johnson (p. 793) indicating that the discretionary-immunity doctrine depends upon judicial self-restraint and abstention, based upon the separation of powers, is novel in California law. It is not a workable tool since the enactment of section 820.2. It does not comport with the preexisting law in that a great number of the cases involve local government, to which the doctrine of separation of powers does not apply ( Staude v. Election Comrs., 61 Cal. 313; cf. Laisne v. State Board of Optometry, 19 Cal.2d 831, 847 [ 123 P.2d 457], either mandamus or certiorari lies to review the action of local boards). Government Code section 820.4 and following, which the Legislative Committee report gave as examples of the discretionary immunity, stated in general in section 820.2 (and given correlative effect as to the state by § 815.2, subd. (b)), illustrate that the Legislature did not limit the granted immunity to employees making high level "policy decisions" in "coordinate branches" of the government. Discretional immunity has been applied to judges themselves, as in Wyatt v. Arnot, 7 Cal.App. 221, 226 [ 94 P. 86], where a judge was not liable in damages because of failure to decide a case before leaving office; and in Pickett v. Wallace, 57 Cal. 555, holding a Supreme Court justice not liable for a judgment given.

If vested discretion is equated with the making of policy decisions, there is an immediate necessity to define, with exactitude, what are "policy determinations." Like Omar Khayam, one leaves this consideration by the same door he entered before the argument. Based upon the definition of "policy," a "policy decision" is a discretionary determination to proceed upon a course of action adopted as advantageous or expedient. (Oxford Univ. Dict. (3d ed. 1955), "policy"; East Bay Municipal Utility Dist. v. Department of Public Works, 1 Cal.2d 476 [ 35 P.2d 1027], quoting from People v. Board of Education, 54 Cal. 375, 377.) The adoption of a "policy" may imply a fixed course or rule of action, the antithesis to discretion, to the extent it ossifies the initial decision which thereafter governs like causes. By definition, discretion is "Liberty or power of deciding, or of acting according to one's own judgment; in Law, the power to decide, within limits allowed by positive rules of law . . . to regulate matters of procedure and administration." (Oxford Univ. Dict. (3d ed. 1955), "discretion.") Perforce, one finds that the attempted antomasia is itself a fractious horse to ride, in search of legislative intention.

The area of discretion involved in this cause was neither reached nor considered in Johnson v. California, supra, 69 Cal.2d 782. Within this area are included the wide range of situations where factual determinations are made, the determination resting upon the judgment and discretion of the employee. A long line of personnel cases, of which Lipman v. Brisbane Elementary School Dist., 55 Cal.2d 224 [ 11 Cal.Rptr. 97, 359 P.2d 465], and Tietz v. Los Angeles Unified School Dist., 238 Cal.App.2d 905 [ 48 Cal.Rptr. 245], are examples, involve this to some degree. The verdict of the jury, the factual findings of an administrative body or of a city council or an administrative officer, embrace this type of vested discretion, as in County of San Mateo v. Maloney, supra, 71 Cal. 205, 208.

In Coates v. United States, supra, 181 F.2d 816, it was held that what is a "'discretionary function or duty' has a long history of precise meaning in a legal sense." The court held that the collection and evaluation of weather and flood information was included within the immunity for discretionary action afforded by the Federal Tort Claims Act, 28 U.S.C. § 2680(a). It has been noted that there are slight differences between that section and Government Code section 820.2 ( Sava v. Fuller, 249 Cal.App.2d 281, 288 [ 57 Cal.Rptr. 312]), but the coverage is the same where the breadth of immunity declared by White v. Towers, supra, 37 Cal.2d 727, 733, is considered. Like the federal act, section 820.2 covers both the acts and omissions of any employee.

I have concluded that the evaluation of the data concerned, and of the future predictions of weather, and of river flow, by their very nature, call for subjective weighing of information and determination of future projected possibilities. This therefore falls into the quasijudicial analogy. Perhaps Ballerino v. Mason, supra, 83 Cal. 447 [23 P. 530] is comparable. Consider also, Porter v. Haight, 45 Cal. 631, 638-639.

Since the statute has declared it, we are not called upon to determine whether the state ought to have immunity. An explicit legislative declaration of public policy, regardless of any judicial view of the social desirability thereof, must be given effect, and may not be regarded in the same way by this court as the doctrine of immunity fashioned by judicial decision. ( Schwartz v. Borough of Stockton, 32 N.J. 141 [ 160 A.2d 1, 4].) Repeatedly, the admonitions of our Supreme Court are to the same effect in relation to statutory construction, following Code of Civil Procedure section 1859 The court's function is to construe and apply the law as enacted, and not to add thereto or detract therefrom. ( In re Miller, 31 Cal.2d 191, 199 [ 187 P.2d 722].) The fundamental rule is to ascertain and give effect to the intention of the Legislature. ( Select Base Materials, Inc. v. Board of Equalization, 51 Cal.2d 640 [ 335 P.2d 672]; Calaveras County v. Brockway, 30 Cal. 325; In re Nowak, 184 Cal. 701 [ 195 P. 402].) Intentions at odds with intentions articulated in statutes cannot be ascribed to the Legislature. ( People v. Knowles, 35 Cal.2d 175, 183 [ 217 P.2d 1], cert. den. Knowles v. California, 340 U.S. 879 [95 L.Ed. 639, 71 S.Ct. 117].) The language should never be construed to nullify the will of the Legislature. ( Rose v. California, 19 Cal.2d 713, 723 [ 123 P.2d 505].) It is our duty to give effect to such principles. ( Auto Equity Sales, Inc. v. Superior Court, 57 Cal.2d 450 [ 20 Cal.Rptr. 321, 369 P.2d 937].) Incidental statements of conclusions by the Supreme Court, not necessary to the decision in which they appear, are not to be regarded as authority, but only as dicta. ( Simmons v. Superior Court, 52 Cal.2d 373, 378 [ 341 P.2d 13]; Stockton Theatres, Inc. v. Palermo, 47 Cal.2d 469, 474 [ 304 P.2d 7]; Trinity County v. McCammon, 25 Cal. 117; cf. Alberton v. Superior Court, 265 Cal.App.2d 812, 816 [ 71 Cal.Rptr. 553].)

There are instances, also, where the language must be read carefully in the light of the facts before the court, and limited thereto. The postulates to rationalize a just decision in a hard case sometimes tangle the skeins of yarn while knitting a judicial garment to clothe the situation.

Discretionary immunity, as urged upon us in the present case, is predicated upon the fact-finding process involved in making flood forecasts, in which weather forecasts are a correlative part.

Since this type of official judgment and discretion was not reached nor considered in Johnson v. California, supra, 69 Cal.2d 782, the dicta thereof, if otherwise applicable, would not control our decision. Since the Legislature already has declared the statutory immunity of employees, and the consequent immunity of the state where the employee's immunity exists, it is obvious that all of the conclusions whether or not such immunity should exist as judicial policy were purely dicta, not involved in any ultimate question presented to the court. After its pilgrimage through this wilderness, the decision of the court was made upon established grounds. But in placing the line between ministerial acts and omissions, on the one hand, and acts or omissions occurring in the course of the exercise of judgment and discretion on the other, the court was careful to note that there might be difficulty in applying its criteria in future cases. ( Johnson v. California, supra, 69 Cal.2d 782, 793, 795.) In the present case we have been beset by such difficulties. On one point, there is a specific holding that "the governmental entity, to be entitled to immunity, must show that its employee actually reached a considered decision knowingly and deliberately encountering the risks that give rise to plaintiff's complaint." ( Johnson v. California, supra, 69 Cal.2d 782, 794, fn. 8.) This, again, does not reach the area of discretionary fact-finding. It departs from the preexisting law which section 820.2 was designed to codify, since non-action has been held to fall within the immunity; omissions are specifically designated in the section, and negligent omissions arise preeminently from failure to appreciate or consider a risk at all.

It is intimated in some cases such as Sava v. Fuller, supra, 249 Cal.App.2d 281, 291-292, that casuistres of the pre- Muskopf cases should not be preserved, in relation to the immunity for discretion. But Muskopf declared such immunities, and did not remove them.

In Muskopf v. Corning Hospital Dist., 55 Cal.2d 211 [ 11 Cal.Rptr. 89, 359 P.2d 457], the Supreme Court asserted its judicial policy of abrogating the immunity of the state and its agencies from tort liability. In the same decision, however, it reasserted the immunity of officers and employees for acts and omissions in the exercise of the discretion vested in them, acting within the scope of their authority, while holding them liable in performance of ministerial duties (p. 220). Illustrating the rule, the Supreme Court cited Downer v. Lent, supra, 6 Cal. 94, 95; White v. Towers, supra, 37 Cal.2d 727; Hardy v. Vial, 48 Cal.2d 577 [ 311 P.2d 494]; and Gregoire v. Biddle, 177 F.2d 579, 581, with approval. The court stated (p. 220) that in the companion case decided the same day, Lipman v. Brisbane Elementary School Dist., supra, 55 Cal.2d 224, the court would again examine the question (in the absence of statute) to what extent the public entity would be afforded the same immunity, as a matter of judicial policy. Lipman (at p. 229) again asserted the immunity rule as to the discretionary acts or omissions of officers and employees, and then (at p. 230), Chief Justice Gibson stated, "Although it may not be possible to set forth a definitive rule which would determine in every instance whether a governmental agency is liable for discretionary acts of its officials, various factors furnish a means of deciding whether the agency in a particular case should have immunity, such as the importance to the public of the function involved, the extent to which governmental liability might impair free exercise of the function, and the availability to individuals affected of remedies other than tort suits for damages." Further, "There is a vital public interest in securing free and independent judgment of school trustees in dealing with personnel problems, and trustees, being responsible for the fiscal well-being of their districts, would be especially sensitive to the financial consequences of suits for damages against the district." The district was held immune from tort liability for the alleged acts of the trustees within the scope of their authority, and not liable for acts outside the scope of their authority. The court again approved the rule of White v. Towers, supra, 37 Cal.2d 727, 733, that in the application of immunity the duties of public officers are those squarely within its scope, those essential to the accomplishment of the main purpose, and those which only incidentally and collaterally serve to promote the main purpose.

In Johnson v. California, supra, 69 Cal.2d 782, 787, footnote 3, it is recognized that the Legislature, by Government Code section 815.2, has provided coextensive immunity and "our function is of course limited to interpreting this act . . . We must still determine which actions are 'discretionary.'"

At this point, confusion enters the picture. Although the occasion for application of the policy considerations for extending immunity to the entity when it is enjoyed by the employee was cancelled out by the enactment of section 815.2, it seems to be asserted that the Legislature empowered the courts to determine whether the granted immunities should be recognized, as a matter of judicial policy of revision and redefinition. It is stated in Johnson (pp. 789-790, fn. 4) that the Legislature specifically approved the Lipman approach in defining "discretionary acts." "The Senate Committee on Judiciary Comment to section 820.2, part of the 1963 codification of sovereign immunity law, states: 'This section restates the pre-existing California law,' citing Lipman, inter alia. (Sen. Jour. (April 24, 1963) p. 1889.)" But the "inter alia" included Hardy v. Vial (1957) supra, 48 Cal.2d 577, and White v. Towers (1951) supra, 37 Cal.2d 727. The latter incorporated a list (p. 731) of discretionary immunity decisions. If Lipman was "expressly approved" by inclusion in the Senate report, so were the other cases.

Turning to Lipman to find the criteria for defining "discretionary acts," one is disappointed. As Muskopf indicated, it discusses judicial policy criteria for granting or withholding immunity to the entity, when it attends the conduct of the officer or employee. But (now covered by statute) the invisible policy emanation of Lipman immediately is turned to self-destruction of one of the policy considerations therein declared. ( Johnson v. California, supra, 69 Cal.2d 782, 789.) The "importance to the State" is read out of such considerations.

The dicta then turns upon Lipman's companions which had co-equal legislative approbation, White v. Towers, 37 Cal.2d 727 [ 235 P.2d 209, 28 A.L.R.2d 636], and Hardy v. Vial, 48 Cal.2d 577 [ 311 P.2d 494], and states, contrary to these cases ( Johnson v. California, supra, 69 Cal.2d 782-791): "The danger that public employees will be insufficiently zealous in their official duties does not serve as a basis for immunity in California." Indemnity and defense now provided for the employee, and the subjection of the entity to liability are assigned for the reason for this judicial view. But since the Legislature has declared such immunities, this is clearly dicta.

The court recognizes that the Legislature did not intend that the immunity granted by Government Code sections 820.2 and 815.2, subdivision (b) be contracted by judicial redefinition. ( Johnson v. California, supra, 69 Cal.2d 782, 789, fn. 4.) Certainly, it would be most strange to assume that whether discretion is vested in an officer or employee is to be determined by whether or not judicial policy would approve the immunity which attends it.

In view of the established policies of judicial interpretation, one cannot believe that in Johnson, the court intends as sweeping a program of redefinition as can be inferred from the dicta.

My learned colleagues conclude otherwise, on the basis that the Supreme Court has "formulated a new criterion" limiting discretion to basic policy decisions, committed to coordinate branches of government.

If by such redefinition the court has eliminated the type of fact-finding discretion herein involved from the preexisting immunity, it has created new liabilities contrary to Government Code section 815, which declares any new liability must be declared by statute. The Legislative Committee report, which in Johnson v. California, supra, 69 Cal.2d 782, 789, was recognized to have expressed a caveat against any such procedure, would thereby have been flaunted. Government Code section 820.2 was designed to be all-inclusive. No reason exists for a special section to cover forecasting, unless section 820.2 and section 815.2, subdivision (b), do not mean what they say.

Appellant could not have compelled the respondents to organize and conduct their public office and their public works in any particular manner, as a private duty to him. As between individual defendants, there is no respondeat superior. ( Michel v. Smith, 188 Cal. 199 [ 205 P. 113]; Gov. Code, § 820.8.) There being no statute or regulation requiring it, he could not have compelled appellants to make weather nor flood forecasts, nor could he demand he be furnished respondents' information concerning predicted flood levels. Such forecasting, as a process, required fact-determination and judgment, the essence of discretion. The immunity for errors is not stripped away because of any alleged negligence in gathering data, as was decided in United States v. Neustadt, supra, 366 U.S. 696. The information given appellant had no causative effect in the rise of the river, and if the future prediction can be called negligent because it did not become fact, it was only a remote cause of appellant's damage. ( Rubinow v. County of San Bernardino, supra, 169 Cal.App.2d 67.) Appellant was in all likelihood no worse off than if he had had no forecast at all.

If "judicial abstention" from controlling official discretion is the basis for official immunity, rather than the declarations of the Legislature, then the instant case impels such abstention. The state's management and control of flood waters involve the highest elements of the police power, not only in policy making, but in operations in emergency flood situations. If a negligent forecast was made incidental to the major undertaking, it was breach of a public duty, not one inuring to any individual. Under the case of White v. Towers, supra, 37 Cal.2d 727, specifically approved by the Legislature, immunity extends to all areas of official action incidental to the main purpose. This would include the forecasting in question.

Only upon such principle of White v. Towers, supra (which was again approved in Lipman) can appellant state a cause of action at all, for want of showing of any statute, rule, or regulation, underlying forecasting in 1964 giving any authority or imposing any duties in relation thereto. Appellant's allegations embody only conclusions of law in this regard. The absence of any duty at all is not, as the majority holds, the basis of special demurrer, but of the general demurrer. If the individual defendants cannot be said to have specific discretion vested in them, they still partake of the state's immunity under the police power in the entire enterprise. This was held sufficient in the federal cases considered, supra.

Assuming that upon some undisclosed formal basis the departmental functions pleaded by appellant were authorized functions (such assumption being based upon the present Water Code section 236), there is no reason to say that the immunity declared in Government Code section 820.2 and section 815.2, subdivision (b), does not apply to the individual defendants and to the State of California as well. The Supreme Court's latest case in this field, McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252 [ 74 Cal.Rptr. 389, 449 P.2d 453], which follows conventional patterns, supports and does not negative the conclusions reached herein.

Having summarized my conclusions at the beginning of this concurring and dissenting opinion, I do not repeat them here.

I would affirm the judgment of the trial court.

The petitions of the appellant and the respondents for a hearing by the Supreme Court were denied April 1, 1970. Burke, J., was of the opinion that the petition should be granted.