Opinion
For Opinion on Hearing, see 44 Cal.Rptr. 796, 402 P.2d 868.
Harold W. Kennedy, County Counsel, and Lloyd S. Davis, Chief Trial Deputy, for petitioner.
No appearance for Respondent.
Wise, Kilpatricks&sClayton, Long Beach, for real party in interest.
FRAMPTON, Justice pro tem.
This is a petition for writ of prohibition to restrain the trial court from taking further proceedings in, or for a writ of mandate to compel the dismissal of, an action entitled Hawley v. County of Los Angeles, Number 778991, on the ground that said court is without jurisdiction of the subject matter by reason of certain immunity provisions contained in the 1963 Governmental Tort Liability Act. (Govt.Code, §§ 810 to 995.8, Stats.1963, ch. 1681, pp. 3266-3289.)
The cause of action was filed September 1, 1961, and is for personal injuries claimed Prior to the selection of the jury and since the status of plaintiff as a patient in the Psychiatrict Unit of the Los Angeles Psychiatric Unit of the Los Angeles claimed injury did not appear upon the face of the pleadings, it was stipulated that 'the plaintiff was transferred from a medical ward to the Psychiatric Unit (Unit III) of the Los Angeles General Hospital at approximately 4:00 p. m. on September 6, [1960], and that she fell from a bed in the admitting room at 5:05 p. m.'
The real party in interest claims the evidence will show that the plaintiff's injuries were proximately caused by the negligence of the agents and employees of petitioner, in the course and scope of their employment, in failing to employ proper restraints upon her, in order to prevent her fall.
The stipulation indicates that plaintiff was transferred pursuant to an 'Application for Emergency Admission' made under section 5050.3 of the Welfare and Institutions Code. It was urged by petitioner that, under these circumstances, plaintiff was barred from recovery by reason of the provisions of section 854.8 of the Government Code, added by the Statutes of 1963, which reads in part '(a) Notwithstanding any other provision of law * * * a public entity is not liable for * * * (2) An injury to any person committed or admitted to a mental institution. * * *' Petitioner objected to further proceedings in the trial court on the ground that, under the agreed facts, the court was without jurisdiction of proceed other than to enter its order of dismissal of the action. The trial court then suggested that the constitutionality of the retroactive application of the 1963 tort liability act, of which section 854.8 above quoted is a part, be tested by a writ proceeding. Petitioner's objection was overruled and the action was placed off calendar pending the outcome of the proceeding.
Section 6000 of the Welfare and Institutions Code, in effect at the time of the accident, provided in part as follows: 'The board of supervisors of each county may maintain in the county hospital * * * suitable facilities and hospital service for the detention, supervision, care, and treatment of persons who are mentally ill, mentally disordered, mentally deficient or retarded, or who are alleged to be such. * * *' Section 6001 provided 'As used in this chapter 'county psychopathic hospital' means the hospital, ward, or facility provided by the county pursuant to the provisions of Section 6000.' Section 5050.3 provided in part as follows: 'When any person becomes so mentally ill as to be likely to cause injury to himself or others and to require immediate care, treatment, or restraint, a peace officer or health officer, who has reasonable cause to believe that such is the case, may take the person into custody for his best interest and protection and place him as provided in this section. The person believed to be mentally ill may be admitted and detained in the quarters provided in any county hospital or state hospital upon application of the peace officer or health officer. * * *
'The superintendent or physician in charge of the quarters provided in such county hospital or state hospital may care for and treat the person for a period not to exceed seventy-two (72) hours, excluding Sundays and nonjudicial days. * * *' (Welf.s&sInst.Code, § 5050.3; see also § 6002.)
Under the foregoing statutes, plaintiff was a person who, at the time of the accident, had been admitted to the county psychopathic hospital, within the purview of section 6005 of the Welfare and Institutions Code, and section 845.8 of the Government Code, assuming that the latter section is valid and may be given retrospective People v. Scherbing,
Regents of University of California v. Superior Court,Plaintiff's cause of action accrued on September 6, 1960, prior to the decision in Muskopf v. Corning Hospital Dist., 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457. The 1963 legislation above referred to was made retroactive 'to the full extent that it constitutionally can be so applied.' (Stats.1963, ch. 1681, § 45, pp. 3288-3289.)
The doctrine of governmental immunity was originally court made. When there is negligence, the rule is liability immunity is the exception. Although it is not a tort for government to govern, and basic policy decisions of government within constitutional limitations are therefore nontortious, it does not follow that the state is immune from liability for the torts of its agents. These considerations are relevant to the question whether, in any given case, the state through its agents has committed a tort, but once it is determined that it has, it must meet its obligation therefor. (Muskopf v. Corning Hospital Dist., supra.) It follows that, at common law, the sovereign was liable, under the doctrine of respondeat suerior, for the torts of its agents and that it was a judicially created doctrine which prevented the enforcement of that liability. Consequently we do not deal here with a cause of action resting on a statute enacted by the Legislature, as was the case in Pacific Gas etc. Co. v. State of California, 214 Cal. 369, 373, 6 P.2d 78; Southern Service Co., Ltd. v. Los Angeles, 15 Cal.2d 1, 11, 97 P.2d 963; and People v. Union Oil Co., 48 Cal.2d 476, 481, 310 P.2d 409, cited and relied upon by petitioner. A cause of action whether in contract or in tort is property. (Haro v. Southern Pacific R. R. Co., 17 Cal.App.2d 594, 597, 62 P.2d 441; Estate of Waits, 23 Cal.2d 676, 678, 146 P.2d 5; Finley v. Winkler, 99 Cal.App.2d, Supp. 887, 890, 222 P.2d 345; Neale v. Depot Railway Co., 94 Cal. 425, 429, 29 P. 954; Nielsen v. Gillespie, 97 Cal.App. 319, 320, 275 P. 500; 1 Witkin, Summary of Calif.Law, 7th ed., p. 772.) It follows, therefore, that on September 6, 1960, plaintiff had a vested property right in her cause of action against petitioner. The Legislature is without power to impair or destroy the obligations of contractual or vested rights, and any statute which affects a vested right such as the one here under consideration cannot be given retroactive operation. (Estate of Thramm, 80 Cal.App.2d 756, 765, 183 P.2d 97; City of Los Angeles v. Pac. Elec. Ry. Co., 168 Cal.App.2d 224, 234-235, 335 P.2d 1042; Estate of Arms, 186 Cal. 554, 563, 199 P. 1053; Estate of Wellings, 197 Cal. 189, 194, 240 P. 21.) The provisions of section 854.8 of the Government Code added by the Legislature in 1963 may not, therefore, be constitutionally applied in such manner as to bar recovery by plaintiff on a cause of action based upon a right which vested prior to its adoption. (Jones v. City of Los Angeles, 215 Cal.App.2d 155, 30 Cal.Rptr. 124.)
The same reasoning would apply to sections 856, 855.6, 855.8 and 820.2 of the Government Code, each of which was adopted by the Legislature in 1963 and is urged by petitioner as a bar to plaintiff's cause of action. In addition, none of these sections, if retrospectively applied, operate to absolve either the petitioner or its employees for the alleged tortious act herein involved, insofar as the record now before us sets out the contentions of the parties. Nothing in the record before us indicates that plaintiff's cause of action rests upon the making or the failure to make a physical or mental examination (Govt.Code, § 855.6), or a violation of the 'Discretionary Act Doctrine,' nor does she complain of her admission to the facility, or of any diagnosis of her condition, nor of any other of the acts referred to in the sections cited.
Petitioner asserts that neither the federal nor the state constitution prohibits the enactment of retrospective laws, citing American States W. S. Co. v. Johnson, 31 Cal.App.2d 606, 88 P.2d 770, and Southern Cal. Edison Co. v. Johnson, 55 Cal.App.2d 638, 131 P.2d 43. Both of these cases deal
There is dictum in the case of WRIGHT V. ARCADE SCHOOL DIST., 230 Cal.App.2d ----, ----, 40 CAL.RPTR. 812, 816-817, (OCT. 19, 1964) on the subject of the retrospective application of the 1963 legislation as follows, 'A comment is in order, linking this decision with current statutory law on governmental tort immunity. The accident in suit occurred in 1959. At that time Education Code section 903, imposing negligence liability on school districts, was in force. It was repealed by 1963 legislation which dealt comprehensively with tort liability of public entities and public employees. (Gov. Code, secs. 810-895.8; Stats. 1963, ch. 1681.) Such legislation 'applies retroactively to the full extent that it constitutionally can be so applied.' (Stats. 1963, ch. 1681, sec. 45(a).) Under this legislation public employees and public entities are exempted from liability for acts or omissions resulting from the exercise of discretion. (Gog. Code, secs. 815.2; 820.2.) The discretionary nature of defendant school district's decision to withhold or confer crossing guard protection at the El Camino Avenue intersection stood revealed, as a matter of law, from the opening statement of plaintiff's trial counsel. It was not a circumstance which had to await demonstration by the defense. (Cf. Teall v. City of Cudahy, supra, 60 Cal.2d at p. 435, [34 Cal.Rptr. 869, 386 P.2d 493].) Thus, the nonsuit would be sustained by application of the 1963 legislation as well as by the 'common law' approach which we have adopted.'
Advance Report Citation: 230 A.C.A. 287, 296-297.
This dictum, we believe, goes no further than to say that if a cause of action has been created by an act of the Legislature (Ed. Code, § 903), then such a cause of action may be destroyed by subsequent legislative act repealing the statute which created the cause of action and that the latter statute may constitutionally be given effect retrospectively if the Legislature should so declare.
In CITY OF BURBANK V. SUPERIOR COURT, 231 Cal.App.2d ----, 42 CAL.RPTR. 23, the plaintiff had filed a cause of action based upon an alleged dangerous and defective condition of public property. This cause of action had accrued after the adoption of the moratorium statute which provided in part 'On or after the 91st day after the final adjournment of the 1963 Regular Session of the Legislature, an action may be brought and maintained in the manner prescribed by law on any cause of action which arose on or after February 27, 1961 and before the 91st day after the final adjournment of the 1963 Regular Session, and upon which an action was barred during that period by the provisions of this act, if and only if both of the following conditions are met: (1) a claim based on such cause of The court held that, under the circumstances, the City of Burbank had the right, after the adoption of the 1963 legislation, to amend its answer to set forth any new and additional defenses provided by section 835.4 of the Government Code enacted in 1963 as part of the comprehensive legislation relating to governmental tort liability. The Legislature, in adopting the moratorium statute, had the right to define the area in which governmental agencies would become liable for negligence resulting in injuries to others, where the cause of action based upon such negligence would accrue after the adoption of the moratorium statute. (SHAKESPEARE V. CITY OF PASADENA, 230 Cal.App.2d ----, 40 CAL.RPTR. 863).
Advance Report Citation: 231 A.C.A. 722.
Advance Report Citation: 230 A.C.A. 416, 420-422.
Petitioner urges that section 6005 of the Welfare and Institutions Code bars recovery in this case. This section was added by the Legislature in 1949 and was in full force and effect at the time plaintiff's cause of action arose. It reads as follows: 'Any superintendent or person in charge of the county psychopathic hospital, and any public officer, public employee, or public physician who either admits, causes to be admitted, delivers, or assists in delivering, detains, cares for, or treats, or assists in detaining, caring for or treating, any person pursuant to this chapter shall not be rendered liable thereby either civilly or criminally.' The chapter referred to provides generally for the admission and treatment of mentally ill persons to private as well as public institutions. (See Welf.s&sInst. Code, §§ 5750 et seq.) The section is barren of any reference to negligence. The Legislature in enacting this section no doubt recognized that persons who were mentally ill, although in dire need of care and treatment, would be incapable of legally consenting thereto, and that confinement and treatment without legal consent, regardless of the degree of care involved in administering the treatment, could result in a charge of battery or false imprisonment and civil litigation based upon such charges.
We believe that had the Legislature intended to absolve the persons named in section 6005 of the Welfare and Institutions Code as it was enacted in 1949 from liability for injuries caused by their negligent or wrongful acts or omissions, it would have been very simple for them to have done so in a few words. In construing a statute, the function of the court is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted. (Code Civ.Proc. § 1858.) We do not believe the language of the statute to be broad enough to exculpate the persons named therein from responsibility for their wrongful or negligent acts or omissions which cause injury to another within the category described.
Respondent also urges that, even if the 1963 statute could constitutionally be applied retroactively to this cause of action, it creates no bar to her proceeding with her suit because section 854.8 of the Government Code, on which petitioner relies, is an unconstitutional denial of equal protection of the laws. Since this point has not been briefed by petitioner, and since, in the view we take of the issue of retroactivity, it need not be decided, we express no opinion thereon.
Under the pleadings and stipulations here presented, plaintiff is entitled to proceed on her cause of action against petitioner under the doctrine of respondeat superior. (Muskopf v. Corning Hospital Dist., supra, The petition is denied.
KINGSLEY, J., concurs.
FILES, Presiding Justice.
I would issue the alternative writ.
The question which confronts us is whether the Constitution requires that the Muskopf decision be given unlimited retroactivity or whether the Legislature may define the area within which it applies. The conventional doctrine that court decisions apply retrospectively while legislatures act only prospectively is based upon the theory that the Legislature makes the policy and the courts fill in the details. But in the area of government tort liability the roles have been reversed. The Supreme Court established a new policy in the Muskopf case and the Legislature filled in the details by the liability statute enacted in 1963.
In Thelander v. Superior Court, 58 Cal.2d 811, 814, 26 Cal.Rptr. 643, 644, 376 P.2d 571, 572, the Supreme Court clearly intimated that the Legislature had power to make a new statute applicable to pending cases in this area. The court said: 'If additional legislation is enacted during the moratorium period making governmental immunity applicable in such cases, a judgment on the pleadings would be proper.' The Thelander opinion does not disclose whether the cause arose before or after the 1961 moratorium act, but it may be assumed that if that date had been a material fact the court would have said so.
In Flournoy v. State of California, 230 A.C.A. 579, 41 Cal.Rptr. 190, the court held that a defense created by Government Code section 835.4, enacted in 1963, could be applied to a cause of action which arose in 1955. In City of Burbank v. Superior Court, 231 A.C.A. 722, at page 730, 42 Cal.Rptr. 23, the court adopted the reasoning of the Flournoy case as one of two alternate grounds of decision.
The majority opinion here would distinquish the Flournoy decision because it upheld a code section which 'provided an additional defense,' while the present case involves a section which 'could destroy entirely a cause of action.' I find no substance in the distinction. Where the 'additional defense' is applicable, the cause of action is destroyed just as effectively as though the Legislature had said that the action may not be brought.
If the majority opinion is correct in its theory of property rights, the result is to give life to a small number of older claims which are not now barred by judgment or limitations. This little segment is declared to contain inviolable property, though similar claims arising earlier or later were and are worthless. I do not believe the Constitution requires such incongruity.
The legislative declaration of retroactivity should not be held unconstitutional as applied to the facts of this case.