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Court of Appeal, First District, Division 2, California.

Salvador CALVILLO–SILVA et al., Plaintiffs and Appellants, v. HOME GROCERY et al., Defendants and Respondents.

No. A065066.

Decided: March 28, 1996

Tanke & Willemsen, Tony J. Tanke, Belmont, Joseph W. Carcione, Jr., Redwood City, for Plaintiffs and Appellants. Renee Welze Livingston, Sheila T. Addiego, Bledsoe, Cathcart, Diestel, Livingston & Pedersen, San Francisco, for Defendants and Respondents.

Civil Code section 847,1 enacted in 1985 and not heretofore judicially construed, provides landowners limited immunity from liability for any injury or death that occurs upon their property during the course of or after the commission of certain felonies by the injured or deceased person.   This case calls upon us to determine the circumstances in which the immunity comes into play.

Salvador Calvillo–Silva and his wife Bertha Calvillo–Silva (“appellants”) appeal the trial court's order granting summary judgment in favor of respondents Ramon O. Block and John R. Pacheco, individually and doing business as Home Grocery;  Don R. Pacheco;  and Robert F. Sharp, III in an action against respondents for injuries suffered by Salvador Calvillo–Silva (“Calvillo–Silva”) during a robbery of the Home Grocery store.   The court found respondents were immunized from liability for Calvillo–Silva's injuries pursuant to section 847.   Appellants claim the court erred because section 847 does not immunize a landowner from liability for conduct unrelated to the use or condition of land, and is therefore inapplicable to this case, which, as will be seen, involves an intentional shooting.   They further contend that even if section 847 is applicable, proximate cause is not established as a matter of law by Calvillo–Silva's conviction of attempted grand theft based on a nolo contendere plea, but rather is an issue of fact to be resolved at trial, and, moreover, there are triable issues of material fact concerning whether respondents' conduct was “willful, wanton, or criminal” pursuant to section 847, subdivision (f).

We shall reverse the judgment, but for a reason different from those brought to our attention by the parties.2


The parties advance substantially differing accounts of the central events that occurred on October 12, 1990, at Home Grocery, a small food store in Menlo Park. According to respondents, Calvillo–Silva and three other men attempted to rob the store, then being tended by employees Don Pacheco and Robert Sharp.   One suspect held a gun to Pacheco's head, struck him, and demanded money from the cash register and safe.   Another suspect, positively identified by Sharp as Calvillo–Silva, held a knife to Sharp's throat.   When the gunman lowered his gun momentarily, Pacheco fired the store's handgun and hit Calvillo–Silva.   The three other robbers were never apprehended.

Appellants offer a completely different story.   According to them, Calvillo–Silva innocently entered the store to buy a soda.   As he approached the front counter to pay for the drink, three unknown men entered the premises, pushed him aside, and attempted to rob the store.   Fearing for his safety, Calvillo–Silva tried to leave, but Pacheco fired the store's handgun at him.   The bullet hit Calvillo–Silva in the spine and he fell to the ground in an adjacent parking lot.   Sharp grabbed the gun from Pacheco and pursued the robber who had held Pacheco at gunpoint.   As he returned to the store, Sharp saw Calvillo–Silva on the ground and pointed the gun at him, yelling, “Don't move, don't move.”   As a result of the shooting, Calvillo–Silva is now a paraplegic.   While Sharp claimed Calvillo–Silva held a knife to his throat, Pacheco never saw Calvillo–Silva with a knife and the alleged knife was never found.

Calvillo-Silva was charged with burglary (Pen.Code, § 459) attempted robbery (Pen.Code, § 664/211), false imprisonment (Pen.Code, § 236), and assault with a deadly weapon.  (Pen.Code, § 245, subd. (a).)  The information also alleged the personal use of a deadly weapon and the use of a firearm by another principal.  (Pen.Code, § 12022, subds.(b) and (d).)  Calvillo–Silva entered into a plea agreement, pleading nolo contendere to felony attempted grand theft.  (Pen.Code, §§ 664, 487.)   The court dismissed the remaining counts and suspended imposition of sentence.   Insisting he was innocent of any crime, appellants claim Calvillo–Silva entered his plea of nolo contendere solely out of fear he might nonetheless be convicted because, like those who did rob the store, he is Latino.

On October 11, 1991, appellants commenced this civil proceeding, alleging assault, battery, negligence, premises liability, intentional and negligent infliction of emotional distress, and loss of consortium against the two owners of Home Grocery and their employees as well as the owner of the property, for the injuries sustained during the robbery.

Respondent Daniel Dieguez, the owner of the property, moved for summary judgment.   At the hearing on that motion the court independently raised the question whether appellants' action was barred by the immunity for landowners created by section 847, a statute not theretofore relied upon by any party.   The court requested briefing on this issue and subsequently granted Dieguez's summary judgment motion on the basis of the statutory immunity.3  Thereafter, the remaining respondents filed motions for summary judgment and summary adjudication of issues primarily on the same basis.   The court granted those motions as well 4 and entered judgment in respondents' favor on February 15, 1994.   This timely appeal followed.


Section 847 provides limited immunity from liability to landowners for injuries suffered by persons injured on the landowner's property during or after the commission of any one of twenty-four enumerated felonies or type of felonies and any attempt to commit a specified felony.5  Appellants initially contend section 847 is applicable only to conditions of land—that is, to breach of the duty of a possessor of land to exercise reasonable care to put his or her land in a condition safe for those who come upon it—not to conduct unrelated to the land.6  Because the injuries Calvillo–Silva suffered during the robbery were indisputably the result of Pacheco's act, which respondents appear to concede was unrelated to any condition of the land itself or structure on the land, appellants insist that act is not within the scope of the statute.

Appellants rely heavily on the legislative history of section 847, including the then recent judgments in several controversial civil cases, which appear to have prompted the legislation.   In the most celebrated of these cases, a plaintiff who sustained serious injuries when he fell through the skylight on the roof of a Redding high school he was then in the process of burglarizing received a settlement of $260,000 plus $1,200 per month for the rest of his life.   In another case, a jury awarded almost half a million dollars to a plaintiff for injuries she sustained in an accident she had while trespassing on a ranch in Hollister on a stolen motorcycle.  (Sen. Com. on Judiciary, legislative bill file on AB 200 (1985–86 Reg. Sess.).)   It appears that in each of these cases liability was posited solely on conduct relating to a condition of the land.

Appellants also cite a press release in which the author of the bill, Assemblyman Alister McAlister, responded to arguments that section 847 would encourage vigilantism by private landowners, explaining:  “The CTLA [California Trial Lawyers Association] and labor joined in claiming the measure would sanction hidden ‘spring guns,’ and would encourage landowners to commit violent attacks upon hapless trespassers, despite the bill's express guarantee that it ‘does not limit the liability of an owner which otherwise exists for willful, wanton, or felonious conduct, or for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity,’ and despite the fact that the bill's clear purpose is not to immunize anyone from liability for deliberate or reckless and irresponsible assaults, but is solely aimed at preventing landowners' liability to felonious trespassers for alleged defective conditions of real estate.”  (January 9, 1985 Press Release from Assemblyman Alister McAlister, p. 4, italics added.)   Respondents rely on the italicized language as evidence the statute was not intended to apply to conduct.

 Such a limited intent cannot be reconciled either with the language of the statute or with its purpose.   Subdivision (f) of section 847 provides that the “statute does not limit the liability of an owner or an owner's agent which otherwise exists for willful, wanton, or criminal conduct, or for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity.”   The limitation on immunity for “willful, wanton, or criminal conduct” necessarily implies that conduct that does not rise to this level—i.e., conduct which is merely negligent—is covered by the immunity.   (See People ex rel. Cranston v. Bonelli (1971) 15 Cal.App.3d 129, 135, 92 Cal.Rptr. 828 [if statute contains express exception, it will be presumed no other exceptions were intended by Legislature].)   The language of subdivision (f), which is, of course, the first place we must look to discern its purpose, indicates that section 847 extends to a landowner's conduct unrelated to any condition or use of the land.  (See Wiley v. Southern Pacific Transportation Co. (1990) 220 Cal.App.3d 177, 191, 269 Cal.Rptr. 240, citing People v. Aston (1985) 39 Cal.3d 481, 489, 216 Cal.Rptr. 771, 703 P.2d 111.)

Furthermore, the press release of Assemblyman McAlister upon which appellants so heavily rely is not at all inconsistent with an intention to immunize conduct unrelated to conditions of the property, even indulging the questionable theory that the views of the author of a measure necessarily provide a reliable indication of what other legislators thought.  (See California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal.3d 692, 699–701, 170 Cal.Rptr. 817, 621 P.2d 856;  In re Marriage of Bouquet (1976) 16 Cal.3d 583, 589–590, 128 Cal.Rptr. 427, 546 P.2d 1371.)   Before stating that the bill is concerned with defective conditions of real estate, Assemblyman McAlister was at pains to emphasize that his measure would not encourage “violent attacks on hapless trespassers” given the bill's guarantee that “willful, wanton, or criminal conduct” is not protected.   His statement is entirely consistent with the granting of immunity to conduct that cannot be described as “willful or wanton” or, to use his alternative phrase, “deliberate or reckless.”

 We must also remember that the breadth of a statute's application, like the meaning of its words, is determined by the legislative purpose.  (See, e.g., Friends of Mammoth v. Board of Supervisors (1972) 8 Cal.3d 247, 259, 104 Cal.Rptr. 761, 502 P.2d 1049;  Leslie Salt Co. v. San Francisco Bay Conservation & Development Com. (1984) 153 Cal.App.3d 605, 618, 200 Cal.Rptr. 575.)   The overall purpose of section 847, evident both from the language and history of the statute, “is to protect landowners and possessors from lawsuits brought by persons injured on the property during the commission of a crime.”  (Sen. Com. on Judiciary Rep. on AB 200, p. 3.) Given this design, there is no basis in policy to differentiate between a landowner's negligence which takes the form of conduct unrelated to the land, and that manifested by a condition of the land itself.   The legislative history reveals a consensus that, by permitting a convicted felon to recover damages from a negligent victim for injuries sustained during the commission of a crime, our tort system was excessively permissive and unjust.   The perceived injustice is as applicable to situations in which the landowner's negligence consists of conduct unrelated to a condition of the land as to those in which the act or omission does relate to the physical condition of the property.   A burglar injured when his victim accidentally slams a door on his hand would not recover damages more justifiably than a burglar injured by a negligently unsecured door that falls upon him.   The injustice arises from a factor equally present in both situations:  the indifference of the law to the fact that the injured or deceased person's felonious conduct was a factor contributing to the injury or death, and that such conduct is a far graver wrong than any negligence of the landowner, both in terms of its social consequences and the indignation it ordinarily arouses.   The need to deter and punish crime, the Legislature in effect determined, outweighs any benefits that might accrue from the imposition of liability on a party whose conduct was merely negligent.

Appellants argue that construing the statute to immunize conduct unrelated to the physical condition of the land would license vengeful attacks by landowners endeavoring to summarily suppress or punish trespassers.   We are unpersuaded.   As noted, subdivision (f) expressly excepts “willful, wanton, or criminal conduct” from the immunity it provides.   The vigilantism appellants claim would be encouraged if the immunity were applied to conduct unrelated to a condition of the land must consist of “willful” (even if not also “wanton” or “criminal”) acts of the sort specifically excepted from the grant of immunity.   Thus, section 847 effectuates the Legislature's goal of immunizing landowners from liability for negligence that injures certain wrongdoers on their property without countenancing untoward acts of summary justice.

Nothing in the legislative history clearly suggests an intent to exclude negligent acts or omissions unrelated to the condition of the land from the ambit of the proposed immunity.   It is true that the two civil cases of primary interest to the Legislature, earlier described, involved conditions of land.   The Legislature was also aware, however, of a third case, commenced by the estate of a robber who suffered a fatal seizure when physically apprehended outside a San Jose convenience store he had just robbed.   Although legislators appeared satisfied that liability could not properly be imposed in this wrongful death action, the legislative history discloses concern that there was no legal basis upon which the defendant could successfully demur, presumably the reason the case settled for $1,500.  (Sen. Com. on Jud., legislative bill file on AB 200.)   Because it clearly involved conduct unrelated to a condition of land, the Legislature's interest in this case supports the broader reading of section 847.

The language of the statute itself, its purpose and the absence of any indication the Legislature contemplated that section 847 was to be narrowly applied, so as to apply only to conditions of land, requires us to give the statute the wider application essential to provide landowners the broad protection the Legislature evidently had in mind.   Accordingly, we conclude that an owner's negligent conduct is protected under section 847 even if not tied to the physical condition of his or her property or a use thereon, provided the conduct is not “willful, wanton, or criminal” within the meaning of subdivision (f) of the statute.

Although we agree with the trial court that conduct unrelated to the physical condition of the property is within the ambit of the immunity statute, we do not think that it is the dispositive issue in this case.


Appellants contend that even if section 847 is applicable to a property owner's or his agent's conduct unrelated to the condition of the land, summary judgment was nonetheless erroneously granted in this case because there existed triable issues of material fact regarding whether Calvillo–Silva' felonious conduct proximately or legally caused his injury, as required by subdivision (d) of section 847, and whether the conduct attributable to the landowner was “willful, wanton, or criminal,” within the meaning of subdivision (f).

 We conclude that there are triable issues in this case, but not those just described.   As will be seen, whether appellant's conduct was the proximate cause of his injury and whether respondents' conduct was “willful, wanton, or criminal” beg the fundamental question genuinely presented by this case;  namely, whether the conduct at issue here was even negligent, which is the predicate for applying the statutory immunity.  “[T]he question of the applicability of a statutory immunity does not even arise until it is determined that a defendant owes a duty of care to the plaintiff and thus would be liable in the absence of such immunity.”  (Davidson v. City of Westminster (1982) 32 Cal.3d 197, 201–202, 185 Cal.Rptr. 252, 649 P.2d 894.)   If, as respondents assert in their answer, they had no duty to plaintiff and their conduct was not negligent but reasonable, they would have no need of any immunity, and it would be immaterial whether their conduct was “willful, wanton, or criminal” or whether Calvillo–Silva's conduct was the proximate cause of his own injury.

Respondents contest this order of inquiry, which they believe has been obviated by the immunity statute.   They contend that, unless the injurious act was “willful, wanton or criminal,” it is immaterial whether the landowner owed a duty of care to the plaintiff and, if so, whether the act was negligent.   We reject this contention, as well as the concomitant claim that the court below properly determined that Pacheco's injurious act was neither “willful” nor “wanton.”


Like all words, the term “willful” is an “inexact symbol,” incapable of providing “an invariant meaningor assured definiteness.”  (Frankfurter, Some Reflections on the Reading of Statutes (1947) 47 Colum.L.Rev. 527, 528.)   The sense this word conveys will invariably be influenced by the context in which it appears.  (Spies v. United States (1942) 317 U.S. 492, 497, 63 S.Ct. 364, 367, 87 L.Ed. 418;  Goodhew v. Industrial Acc. Com. (1958) 157 Cal.App.2d 252, 256, 320 P.2d 515.  [“The word ‘willful’ is used in different statutes with different shades of meaning.”].)

The Penal Code defines “willfulness” as “simply a purpose or willingness to commit the act, or make the omission referred to.”  (Pen.Code, § 7, subd. (1).)  In People v. Richie (1994) 28 Cal.App.4th 1347, 34 Cal.Rptr.2d 200, we noted that standard jury instructions which explain the meaning of the phrase “willful or wanton” define “willful” as “intentional,” and therefore somewhat different from the meaning of “wanton,” which includes a “ ‘reckless disregard of consequences.’ ”  (Ibid., quoting People v. Schumacher (1961) 194 Cal.App.2d 335, 340, 14 Cal.Rptr. 924, and citing People v. McNutt (1940) 105 P.2d 657, 40 Cal.App.2d Supp. 835, 837.)   As Justice Werdegar has pointed out, however, there are cases, both criminal and civil, that construe willfulness “as conveying more than mere volition.”  (Kwan v. Mercedes–Benz of North America (1994) 23 Cal.App.4th 174, 182, 28 Cal.Rptr.2d 371.)   Thus, for example, where a crime involves harm or the risk of harm to another, willfulness has been interpreted to imply not just intent to act but knowledge of the harm that might result or at least conscious disregard of safety.  (Ibid., citing People v. Odom (1937) 19 Cal.App.2d 641, 645–646, 66 P.2d 206 and People v. McNutt, supra, 105 P.2d 657, 40 Cal.App.2d Supp. at pp. 837–838.)   For example, where, as in Kwan, the defendant is alleged to have made an actionable misrepresentation, his or her culpability turns on whether there was knowledge of the truth or falsity of the representation.

 Acknowledging the “slipperiness” of the term (Kwan, supra, 23 Cal.App.4th at p. 183, 28 Cal.Rptr.2d 371), we believe that for purposes of section 847 willfulness must be construed as connoting simply intentionality or purposefulness.   There are several reasons.

First, though it may not always be the case, the word “willful” usually does not connote bad faith or an evil purpose, either in law or in common parlance.  (See People v. Richie, supra, 28 Cal.App.4th at p. 1361, 34 Cal.Rptr.2d 200, quoting Webster's New Collegiate Dict. (1977) at pp. 1318, 1341.)   Thus, for example, the standard jury instruction defining “willfully,” which is given in criminal cases when the term is included in the statutory definition of the offense charged, states that “[t]he word ‘willfully’ does not require any intent to violate the law, or to injure another, or to acquire any advantage.”  (CALJIC No. 1.20.)   This is true as well in the civil context.   Thus, for example, Justice Werdegar agreed that “moral blameworthiness is not a necessary element of willful conduct” under the provision of the Civil Code she was construing in Kwan. (Kwan v. Mercedes–Benz of North America, Inc., supra, 23 Cal.App.4th at p. 181, 28 Cal.Rptr.2d 371, citing Ibrahim v. Ford Motor Co. (1989) 214 Cal.App.3d 878, 882–884, 263 Cal.Rptr. 64.)   Secondly, unlike cases such as Kwan, in which the word “willful” appears alone in the statute being construed, the word appears in section 847 together with the words “wanton or criminal,” which independently, though in the disjunctive, connote reckless disregard of consequences and evil intent.   Such differentiated use of the words “wanton” and “criminal” renders it pointless to impute the same or similar meanings to the word “willful.”   Finally, and most significantly, interpreting the word “willful” in section 847 to include an aspect of recklessness or moral blameworthiness, as respondents urge, would not only render the words “wanton or criminal” surplusage, but conflict with the apparent intent of the Legislature.


 The Legislature was aware that enactment of section 847 would effectively restore the doctrine of contributory negligence with respect to a limited class of acts.   As noted by one of the legislative committees that considered the measure, the doctrine of contributory negligence discarded in this state by the decision of our high court in Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226—which completely barred recovery by a plaintiff whose negligence contributed in any degree to the injury suffered—“probably would have operated to bar cases such as the one in Redding which gave rise to the bill․  Thus AB 200 would in effect, if not in name, resurrect the contributory negligence doctrine for these cases.”  (Sen. Com. on Judiciary Rep. on AB 200 (1985–86 Reg. Sess.) p. 7.)   Contributory negligence was, however, never a defense where the injuries complained of were intended by the defendant, in the sense that the defendant knew either that the harm was resulting from his conduct or substantially certain to result.  (See Restatement Second, Torts, § 825 (1979) and § 481 (1965).)   As has authoritatively been said, “ ‘if the consequences of which the plaintiff complains were intended by the defendant, contributory negligence is out of the case.’   On this proposition all agree.” 7  (Harper, James & Gray, The Law of Torts (2d ed.), § 22.5, at p. 293, quoting Williams, Joint Torts and Contributory Negligence (1951), at p. 198;  accord, Bartosh v. Banning (1967) 251 Cal.App.2d 378, 385, 59 Cal.Rptr. 382;  Villines v. Tomerlin (1962) 206 Cal.App.2d 448, 458, 23 Cal.Rptr. 617.)   The immunization of intentional acts would therefore go far beyond the limited restoration of the doctrine of contributory negligence that the Legislature had in mind.

 Immunization of intentionally injurious acts would also be inconsistent with longstanding provisions of the Civil and Penal Codes which the Legislature left untouched when it enacted section 847.  Civil Code section 50 provides that “[a]ny force may be used to protect from wrongful injury the person or property of oneself, or of a wife, husband, child, parent, or other relative, or member of one's family, or of a ward, servant, master or guest.”   However, the self-defense allowed under section 50 is an affirmative defense which must be affirmatively pleaded (Dutro v. Castoro (1936) 16 Cal.App.2d 116, 117, 60 P.2d 182) and, as such, the burden of proof by a preponderance of the evidence remains with the defendant.  (Marriott v. Williams (1908) 152 Cal. 705, 710–711, 93 P. 875;  Carlson v. Wald (1984) 151 Cal.App.3d 598, 601, 199 Cal.Rptr. 10;  Boyer v. Waples, (1962) 206 Cal.App.2d 725, 727, 24 Cal.Rptr. 192;  Galloway v. United Railroads of S.F. (1924) 69 Cal.App. 770, 774, 232 P. 491.)   The burden of proof imposed by section 50 would, however, be a dead letter if the immunity provided by section 847 is deemed peremptorily applicable to the intentional use of force.   Given that broad meaning, section 847 would relieve a landowner who injures or kills a trespasser of the responsibility to show that he acted reasonably in self-defense and that the amount of force employed was also reasonable under the circumstances.  (Deevy v. Tassi (1942) 21 Cal.2d 109, 119–120, 130 P.2d 389;  McLean v. Colf (1918) 179 Cal. 237, 238–239, 176 P. 169.)   The principle for which Civil Code section 50 stands is not inapplicable to the situation contemplated by section 847, where the plaintiff had committed or was in the process of committing a crime at the time he or she suffered injury or death.   In California, as under the common law, the use of deadly force is sanctioned “only in situations where the felony being committed was ‘forcible and atrocious,’  ․ [so that it may be said] that the perpetrator's conduct ‘threatened, or was reasonably believed to threaten, death or serious bodily harm.’ ”  (Gilmore v. Superior Court (1991) 230 Cal.App.3d 416, 422, 281 Cal.Rptr. 343, quoting People v. Ceballos (1974) 12 Cal.3d 470 at pp. 478, 479, 116 Cal.Rptr. 233, 526 P.2d 241;  see also, 1 Witkin & Epstein, Cal.Criminal Law (2d ed.) § 248 at p. 284 [“the fact that the intrusion is felonious does not automatically bestow the right to use deadly force.”] and § 396, at p. 454 [“it is a crime to kill wrongfully although the victim is himself a murderer or rapist or adulterer”].)

The immunization of intentional acts under section 847 would also be hard to reconcile with provisions of the Penal Code the Legislature also left unchanged.   The use of force allowed under Civil Code section 50 is similarly permitted under Penal Code section 197, subdivision (3), which provides that even homicide is justifiable “[w]hen committed in defense of habitation, property or person, against one who manifestly intends and endeavors, by violence or surprise, to commit a felony or to do some great bodily injury, and imminent danger of such design being accomplished․” 8  However, as under Civil Code 50, a defendant who asserts this defense has the burden of proof.   It would be anomalous if a landowner immune under section 847 from civil liability for injury or death caused by his or her intentional use of force could nonetheless be prosecuted criminally for the same act.   The exemption of “criminal conduct” from the immunity provided by section 847 indicates the absence of any legislative desire to protect landowners whose conduct might subject them to criminal charges.

 If the Legislature wanted to relieve landowners who deliberately injured or killed felonious trespassers of the burdens imposed under Civil Code section 50 and Penal Code section 197, subdivision (3), and the large and ancient body of common law consistent with the principle those statutes represent, “one would expect to find some mention of it in the statute itself, or at least in the author's explanations of the bill's purpose.”  (Union Pacific Railroad Co. v. State Bd. of Equalization (1991) 231 Cal.App.3d 983, 1006, 282 Cal.Rptr. 745.)   There is no indication of such a dramatic and consequential purpose.   On the contrary, as just noted, the exemption of criminal conduct from the statutory immunity reflects an opposite intent.   Assemblyman McAllister's statement that “the bill's clear purpose is not to immunize any one from liability for deliberate or reckless and irresponsible assaults” [Italics added.]—which responded to the claims of opponents of his measure that it would create a “license to kill”—additionally suggests the absence of any intent to immunize intentional acts.  Section 847 must be construed in pari materia, not in conflict, with Civil Code section 50 and Penal Code section 197, subdivision (3).  “It is assumed that whenever the legislature enacts a provision it has in mind previous statutes relating to the same subject matter.   In the absence of any express repeal or amendment, the new provision is presumed in accord with the legislative policy embodied in those prior statutes.   Thus they all should be construed together.”  (2B Sutherland, Statutory Construction (5th ed. 1992) § 51.02, p. 121, fns. omitted;  Brusso v. Running Springs Country Club, Inc. (1991) 228 Cal.App.3d 92, 101–102, 278 Cal.Rptr. 758.)   For this and the other reasons we have discussed, we conclude that use of the word “willful” in section 847 must be understood as an effort by the Legislature to draw a distinction between intentional acts and those which are negligent—that is, acts consisting merely of conduct below the standard established by law for the protection of others against unreasonable risk of harm.  (Restatement Second, Torts, §§ 282, 283 284(a) (1965);  Colich & Sons v. Pacific Bell (1988) 198 Cal.App.3d 1225, 1242, 244 Cal.Rptr. 714 [defining “willful misconduct” as “something different from and more than negligence, however gross”].)   As used in subdivision (f) of section 847, the word “willful” clarifies that an injury or death that was intentionally caused is not within the immunity and remains facially actionable.

Accordingly, Pacheco's use of force, which was indisputably intended to injure Calvillo–Silva, is outside the ambit of the statutory immunity.


 The inapplicability of the immunity does not, of course, mean that Pacheco's act was necessarily wrongful and that there is liability.   The authentic issue in this case is the one the parties were focusing upon until the trial court diverted their attention by improperly raising the issue of the immunity;  namely, whether respondent's act was reasonable.   A defendant is subject to liability for an intentionally injurious act only if his conduct “is generally culpable and not justifiable under the circumstances.”  (Restatement Second, Torts, § 870;  5 Witkin, Summary of California Law (9th ed.), Torts, § 17.)   As earlier indicated, the defense in this case was not that Pacheco's action was unintentional, and therefore not “willful or wanton,” but that it was reasonable in the circumstances.   Relying upon Civil Code section 50, respondents alleged in their answer that Pacheco “acted in the reasonable belief of imminent and immediate danger and justifiable selfdefense, defense of others or defense of property.”   Although, as we have observed, deadly force or force likely to cause bodily harm is ordinarily not justified merely in defense of property, as in ejecting a trespasser or recovering a chattel (Deevy v. Tassi, supra, 21 Cal.2d 109, 119, 130 P.2d 389;  Restatement Second, Torts, § 81), there are circumstances in which the use of such force may be excusable.  (See, e.g., Nakashima v. Takase (1935) 8 Cal.App.2d 35, 46 P.2d 1020.)   The fundamental questions are whether the one exercising force acted reasonably in self-defense and whether the amount of force employed was also reasonable under the circumstances.9

Whether, in the circumstances presented to him, Pacheco used reasonable force to defend himself or others or in defense of property presents triable issues of fact to be determined by the jury.


A final issue needs to be addressed because it may arise again at trial after remand:  whether the trier of fact may look behind the plea that lead to Calvillo–Silva's criminal conviction.   Pointing out that a plea of guilty in a criminal case is ordinarily not conclusive in civil proceedings (People v. Goodrum (1991) 228 Cal.App.3d 397, 402, 279 Cal.Rptr. 120), appellants contend it would be unfair to bar them from explaining why Calvillo–Silva pled guilty in spite of his asserted innocence of any crime.

Attempted robbery and assault with a deadly weapon, the two felonies with which Calvillo–Silva was originally charged, and attempted grand theft, the lesser included crime of robbery to which he ultimately pleaded nolo contendere,10 are all included in the list of felonies to which section 847 applies. (§ 847, subds.(b) and (e).)   If the immunity statute applied to this case, the ruling of the trial court that appellant was collaterally estopped from relitigating his guilt would have been correct.

 The purpose of section 847 is not simply to insulate landowners from liability, but to relieve them as well of the need to either defend against or settle claims by plaintiffs whose criminal conduct on their land is within the scope of the statute.   As noted in an analysis prepared for the Assembly Committee on the Judiciary, “Supporters [of the bill] point out that the mere filing of such a claim requires the landowner (or his insurer) to retain counsel to dispose of the matter and that frequently these claims are settled for the nuisance value of avoiding trial costs.”  (Assem. Com. on Judiciary analysis of AB 200, as amended May 16, 1985, p. 2.)   The Legislature considered different methods for determining whether a plaintiff committed an enumerated crime.   It rejected an earlier version of AB 200 that would have required a judicial determination in civil court whether the plaintiff committed the crime beyond a reasonable doubt (see Assem.Com. on Judiciary analysis of AB 200, as amended May 16, 1985, pp. 3–4), choosing instead to make the fact of conviction dispositive, even if it resulted from a negotiated plea.11  (Cf. Wiley v. Southern Pacific Transportation Co., supra, 220 Cal.App.3d at p. 192, fn. 8, 269 Cal.Rptr. 240.) To routinely permit injured criminals whose convictions are based on guilty pleas to litigate the facts underlying their pleas would mean that, in such situations, the civil suit against the landowner could rarely be resolved without trial, which would defeat the purpose of the immunity.

 The immunity statute does not, however, apply to this case, as we have observed, and there is no policy or other reason to suspend the general rule permitting a party to contest in a civil court the truth of his plea in a criminal proceeding.   In Teitelbaum Furs, Inc. v. Dominion Ins. Co. (1962) 58 Cal.2d 601, 25 Cal.Rptr. 559, 375 P.2d 439, Justice Traynor explained why a plea of guilty should not be made conclusive in a subsequent civil proceeding.   The public policy of limiting litigation by preventing a party who has had one fair trial on an issue from again drawing it into controversy must, he said, be considered together with the policy that a party shall not be deprived of a fair adversary proceeding in which to fully present his case.  “When a plea of guilty has been entered in the prior action, no issues have been ‘drawn into controversy’ by a full presentation of the case.   It may reflect only a compromise or a belief that paying a fine is more advantageous than litigation.   Considerations of fairness to civil litigants and regard for the expeditious administration of criminal justice combine to prohibit the application of collateral estoppel against a party who, having pleaded guilty to a criminal charge, seeks for the first time to litigate his cause in a civil action.”  (Id., at pp. 605–606, 25 Cal.Rptr. 559, 375 P.2d 439, citation omitted;  see also, People v. Goodrum, supra, 228 Cal.App.3d 397, 402, 279 Cal.Rptr. 120;  In re Estate of McGowan (1973) 35 Cal.App.3d 611, 618, 111 Cal.Rptr. 39.)

The judgment of the superior court is reversed and the case remanded for further proceedings in accordance with the views expressed herein.   Costs on appeal to appellants.

I concur in the ultimate result reached by the majority, i.e., to reverse, but I profoundly dissent from the reasoning process by which that result is accomplished, a process which I respectfully submit amounts to a judicial emasculation of the statute.

The majority opinion correctly concludes, in part II, that the statute applies to more than simply injuries caused by conditions of land.   Immediately after this, however, it errs by leaping to the conclusion that “whether the conduct at issue here was even negligent ․ is the predicate for applying the statutory immunity.”  (See maj. opn., p. 558.)   In sum and substance, the majority has thus amended Civil Code section 8471 to limit its applicability to negligence actions only.   They thus deny the statutory immunity to a defendant who allegedly injures a felon-plaintiff by an intentional act.   I vigorously dissent from this gratuitous and unjustified limitation on the statute.

The starting place, of course, is the statute itself.   Nothing in its language even remotely hints that the statute is limited to negligence actions.   Indeed, the operative language suggests quite to the contrary:  it is that “[a]n owner ․ of any estate ․ in real property ․ shall not be liable to any person for any injury or death that occurs upon that property during the course of or after the commission of any of the felonies [thereafter specified].” (§ 847, subd. (a), emphasis added.)   Surely, if the Legislature wanted to limit its grant of immunity to injuries or death caused by the negligence of the owner of the real property interest, it could have simply and easily said so in this subdivision;  it didn't, and the conclusion is inescapable that no such limitation was intended.

The legislative history, indeed one part of it cited by the majority, supports this conclusion.   The second of three “Background Cases for AB 200” cited in one part of the legislative history of that bill is summarized as follows:  “The estate of a robber who had a fatal seizure when apprehended outside of the Sacramento Seven–Eleven store he had just robbed, settled for $1,500.00 in a wrongful death action.   Although there was no argument for liability in that the seizure was not the result of the capture, there also was no basis on which to demur.   Defense attorney's fees were $1,200.00 to $1,500.00.” 2  (Sen. Com. on Judiciary, legislative bill file on AB 200 (1985–86 Reg. Sess.))   Surely this description of the second “background case” for the statute makes manifest that the Legislature thought it was immunizing intentional, as well as negligent, conduct.

Additionally, throughout the extensive legislative history of the statute the terms used in describing the types of actions covered by the proposed legislation are those for “any injury,” on behalf of “injured persons,” for “injury or death,” or for “injuries.”   Nowhere is any limitation to actions for negligence suggested.

Indeed, any such limitation would be a rarity in an immunity statute.   For example, and as our colleagues in the Second District pointed out just last year, the governmental immunities set forth in sections 815 et seq. of the Government Code apply to both negligent and intentional torts.  (See Gates v. Superior Court (1995) 32 Cal.App.4th 481, 508, 510, 38 Cal.Rptr.2d 489.) 3

Justice Kline finds such an intention to limit the immunity to negligence implied in a single reference in the legislative history to the desire of the supporters of the bill to return to the law of contributory negligence as it obtained prior to Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 1226.   The answer is quite simple:  surely the Legislature wanted to preclude the application of comparative negligence per the Li court but, from its unambiguous words plus the legislative history, it wanted to do more than this.   It also wanted to provide immunity to owners of interests in real property who were threatened with suits “for any injury” by a felon-plaintiff.

The restriction the majority grafts onto section 847 is also counter-intuitive.   Can it seriously be contended that the Legislature did not intend to immunize the following hypothetical civil defendants equally as much as it intended to immunize the next Redding High School District-defendant:

— the ex-college football player who tackles an armed robber as the latter exits his liquor store after holding it up?

— the homeowner who slams a window down on the hand of a would-be burglar?

— the housewife who, while being sexually assaulted in her kitchen, stabs her assaulter with a kitchen knife?

The answers are as obvious as similar imaginable examples are multitudinous.   But the majority's regrettable exercise in judicial legislation would deny any of these hypothetical civil defendants the statutory immunity of section 847.

The majority's principle argument in favor of its limitation on section 847 is that it is confirmed by the language of subdivision (f) excepting from the immunity “willful, wanton, or criminal conduct.”   By equating the term “willful” to “intentional,” it attempts to reinforce its theory that the statute is limited to actions for injuries caused by negligence.

To its credit, the majority cites and quotes from Justice Werdegar's recent and thoughtful decision in Kwan v. Mercedes–Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 180–187, 28 Cal.Rptr.2d 371 (hereafter Kwan ), wherein the nuances and shadings of the word “willful” are carefully noted and discussed.   That extensive opinion, including the authorities it discusses, makes it unnecessary to now expend much more paper and typeset in analyzing the maze of cases, both in and out of California, concerning the meaning of “willful.”   I think it is abundantly clear from Justice Werdegar's analysis in that case that the term generally has a pejorative or negative connotation, i.e., means something more than simply “intentional.”

If further authority is needed with respect to the meaning of “willful,” especially when used in conjunction with the word “wanton,” I offer CALJIC No. 12.85, an instruction we cited with approval in People v. Richie (1994) 28 Cal.App.4th 1347, 34 Cal.Rptr.2d 200 (hereafter Richie ), a decision heavily relied on by the majority.   That instruction reads in part:  “ ‘Willful or wanton’ means an act or acts intentionally performed with a conscious disregard for the safety of persons or property.   It does not necessarily include an intent to injure.”  (CALJIC No. 12.85.) 4

Also supportive of this interpretation is the quotation from Prosser, Law of Torts (4th ed.1971) § 2, pp. 9–10, relied on by our Supreme Court in Taylor v. Superior Court (1979) 24 Cal.3d 890, 894–895, 157 Cal.Rptr. 693, 598 P.2d 854.   There, Dean Prosser is quoted as saying “ ‘Something more than the mere commission of a tort is always required for punitive damages.   There must be circumstances of aggravation or outrage, such as spite or “malice,” or a fraudulent or evil motive on the part of the defendant, or such a conscious and deliberate disregard of the interests of others that his conduct may be called wilful [sic] or wanton.’  ( [Citation.], fns. omitted, italics added.)”

The use of “willful” in conjunction with the clearly negative terms “wanton” and “criminal” further supports this conclusion.   The majority agrees, as of course it must, that the term “wanton” connotes reckless and dangerous conduct, and nothing need be said about the connotations of the term “criminal.”   But, says the majority, because the disjunctive term “or” is used in the statute,5 to give the word “willful” a negative connotation is to “render the words ‘wanton or criminal’ surplusage.”  (See maj. opn., pp. 11–12.)   But this is, respectfully, a non-sequitur:  accepting the connotation of recklessness or moral blameworthiness inherent in the word “wanton” does not make the next term, “criminal,” surplusage;  neither, for the same reason, does giving the first term, “willful,” some negative connotation render the other terms redundant.   A much easier explanation than that posited by the majority is that the three words represent descriptions of action or conduct which are, in ascending order, morally blameworthy.

The majority finds justification for their limitation of section 847 in the Legislature's failure to explain how that section interrelates to either section 50 or Penal Code section 197, subdivision (3).   Both sections, the majority points out, put the burden of proof of any self-defense claim on the party relying on either statute.   Additionally, and as it also notes, a defense based on section 50 must be affirmatively pleaded by a defendant in a civil action.   The Legislature could not have intended, the majority says, to grant complete immunity for intentional conduct which injures another, even a wrongdoer, when otherwise the one inflicting the injury would bear the burden of proof of the reasonableness or justifiability of his or her conduct.

The majority's problems in this area completely perplex me.   In the first place, the Legislature knew it was not writing in a vacuum:  subdivision (g) of section 847 flatly says:  “The limitation on liability provided by this section shall be in addition to any other available defense.”

And even if that were not clear enough, I suggest that the problem the majority sees here simply does not exist.   What the Legislature obviously intended to accomplish was to eliminate, to the maximum extent possible, the need for a defendant in a civil lawsuit brought by a felon-plaintiff to expend time and resources defending himself or herself if the predicates for the immunity are present.6  If those predicates are present, the defendant can hopefully escape the litigation via a demurrer or a motion for summary judgment.7  If not, he or she is left with the defenses of section 50, etc.   I fail to see anything even slightly complicated or offensive about that state of affairs.

Notwithstanding my profound disagreement with the majority's reasoning process, I agree with the result it reaches, albeit for an entirely different reason.   My reason for reversing is one of the reasons advanced by appellant.   The trial court, in its order granting summary judgment, made two points about the pertinence of section 847, subdivision (f), and the limited exception it provides to the immunity otherwise granted by the statute.   It said, first of all, that the complaint did not contain “any allegations that the movants were engaged in any willful, wanton or criminal conduct․”  In this regard, of course, the trial court was correct.   But its next holding went too far, in my opinion.   It said “․ nor does it appear likely that the evidence would reasonably support such amendment․”

I disagree with the last-quoted conclusion.   I would hold, based on the allegations of the appellant summarized in the second paragraph of part II of the majority's opinion, that there is—albeit by a very thin margin—a potential triable issue of material fact as to whether the defendants' conduct was “willful” as that term is interpreted above and in Kwan (assuming, of course, that appellants elect to amend to plead the section 847, subdivision (f), exemption).

For that reason, and that reason only, I would also reverse.


1.   Unless otherwise indicated, all further statutory references are to the Civil Code.

2.   The court solicited and received briefing from the parties on the issue we deem dispositive, which is discussed in Section III of this opinion.

3.   Dieguez is not a party to this appeal.

4.   The court's order stated:  “Both Summary Judgment and Summary Adjudication Motions granted in that there is no triable fact as to the availability of CC § 847 as a complete defense to all movants, who are either owners of ‘an estate’ in real property or agents and employees of such owners.   The evidence is without controversy that the [plaintiff] whose conduct [is] articulated [sic] in CC § 847, entered the establishment with 3 other persons in order to commit a robbery with one of them being armed with a hand gun.   It is unfortunate that the [plaintiff], or anyone, was injured during the course of the robbery but [plaintiff] is precluded from recovering from [defendants] by that section.   Nor does the complaint contain any allegations that the movants were engaged in any willful, wanton or criminal conduct (nor does it appear likely that the evidence would reasonably support such amendment) so as to bring this case within the exceptions in subdivision (f).”

5.   Section 847 provides in relevant part:  “(a) An owner, including, but not limited to, a public entity, as defined in Section 811.2 of the Government Code, of any estate or any other interest in real property, whether possessory or nonpossessory, shall not be liable to any person for any injury or death that occurs upon that property during the course of or after the commission of any of the felonies set forth in subdivision (b) by the injured or deceased person.“(b) The felonies to which the provisions of this section apply are the following:  ․ (19) robbery;  ․ (22) any felony in which the defendant personally used a dangerous or deadly weapon;  ․ (24) grand theft as defined in Sections 487 and 487a of the Penal Code;  and (25) any attempt to commit a crime listed in this subdivision other than an assault.“(c) The limitation on liability conferred by this section arises at the moment the injured or deceased person commences the felony or attempted felony and extends to the moment the injured or deceased person is no longer upon the property.“(d) The limitation on liability conferred by this section applies only when the injured or deceased person's conduct in furtherance of the commission of a felony specified in subdivision (b) proximately or legally causes the injury or death.“(e) The limitation on liability conferred by this section arises only upon the charge of a felony or misdemeanor arising from a charge of a felony listed in subdivision (b) and the subsequent conviction of that felony or a lesser included felony or misdemeanor arising from a charge of a felony listed in subdivision (b).   During the pendency of any such criminal action, a civil action alleging this liability shall be abated and the statute of limitations on the civil cause of action shall be tolled.“(f) This section does not limit the liability of an owner or an owner's agent which otherwise exists for willful, wanton, or criminal conduct, or for willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.“(g) The limitation on liability provided by this section shall be in addition to any other available defense.”

6.   Because we conclude the statute makes no such distinction as a matter of law we find it unnecessary to inquire whether such a distinction would always be clear, so that it would support a tenable legal rule.

7.   The contributory negligence of the victim is also no defense under the criminal law.  (1 Witkin & Epstein, California Criminal Law (2d ed.1988) § 397, at p. 454, and cases there cited.)

8.   The counterpart civil and criminal jury instructions are similar.   The civil instruction appropriate when the affirmative defense of self-defense is asserted, set forth in BAJI No. 7.55, is as follows:“A person may use reasonable force to defend [himself or herself] against harmful or offensive contact which [he or she] honestly and reasonably believes that another is about to inflict upon [him or her].“However, the person who acts in self defense may only use such force as reasonably appears necessary under the existing circumstances.  [If the person resisting a harmful or offensive contact uses excessive force, such person commits a battery as to such excessive force.]“[Words alone no matter how objectionable or insulting, do not give the offended person a right to use physical force against the person who uttered them.]”CALJIC No. 5.43, given in criminal cases, describes the force that may legally be used in defense of property as follows:“When conditions are present which, under the law, justify a person in using force in defense of property, that person may use such degree and extent of force as would appear to a reasonable person, placed in the same position, and seeing and knowing what the resisting person then sees and knows, to be reasonably necessary to prevent imminent injury threatened to the property.   Any use of force beyond that limit is excessive and unjustified, and anyone using such excessive force is legally responsible for the consequences thereof.”This language is virtually identical to that describing the pertinent factual inquiry in civil cases in which self-defense is raised as an affirmative defense to a tort claim.  (See, e.g., Boyer v. Waples, supra, 206 Cal.App.2d 725, 727, 24 Cal.Rptr. 192;  Lowry v. Standard Oil Co. (1942) 54 Cal.App.2d 782, 790–791, 130 P.2d 1.)

9.   A leading treatise states that to justify the use of force by a person in possession of real or personal property against an intruder “it must appear that (1) the actor was in possession of the property, (2) the intruder was not privileged, (3) the force used was reasonably necessary to prevent or terminate the intrusion, (4) a request was made to the other to cease the intrusion, unless such request would be dangerous or futile, and (5) the force employed by the actor was not excessive.”  (1 Harper, James & Gray (3d ed.) § 3.13, citing, inter alia, Riffel v. Letts (1916) 31 Cal.App. 426, 160 P. 845.)

10.   The legal effect of a plea of nolo contendere, “to a crime punishable as a felony, shall be the same as that of a plea of guilty, for all purposes.”  (Pen.Code, § 1016.)

11.   The legislative history shows an intent to include convictions resulting from plea bargains within the scope of the statute.   For example, an analysis of AB 200 states:  “The bill also accommodates those cases in which a felony charge is reduced to a lesser offense by plea-bargaining and a conviction is subsequently obtained.”  (Assem.  Com. on Judiciary analysis, as amended May 30, 1985, p. 4;  see also Sen. Com. on Judiciary analysis of AB 200, as amended July 8, 1985, p. 5.)

1.   All statutory references herein, unless otherwise noted, are to the Civil Code.

2.   The first and third examples which bracket this one are the Redding high school case and the Hollister motorcycle case cited in the majority's opinion.  (See maj. opn., p. 556.)

3.   Indeed, one of our opinions is cited as authority for this proposition.  (See Schonfeld v. City of Vallejo (1975) 50 Cal.App.3d 401, 419, 123 Cal.Rptr. 669.)

4.   If we said anything in Richie that runs contrary to this definition, or to the thrust of Kwan with respect to the generally pejorative thrust of the term “willful,” then to that extent I respectfully disagree with the former decision.

5.   The use of the disjunctive term “or” is of no great moment.   It has long been recognized that legislatures often use “or” and “and” interchangeably and that, in doing their job of legislative interpretation, the courts should not be strongly influenced by which term is used.  (See, e.g., De Sylva v. Ballentine (1956) 351 U.S. 570, 573, 76 S.Ct. 974, 976, 100 L.Ed. 1415;  People v. Bigelow (1984) 37 Cal.3d 731, 755, 209 Cal.Rptr. 328, 691 P.2d 994;  People v. Skinner (1985) 39 Cal.3d 765, 775–776, 217 Cal.Rptr. 685, 704 P.2d 752;  People v. Horn (1984) 158 Cal.App.3d 1014, 1027–1028, 205 Cal.Rptr. 119.)

6.   In this connection, part IV of the majority's opinion shows exactly what should not be happening in cases of this sort.   By virtue of it, this plaintiff is now permitted to proffer some exotic explanation for his nolo plea in the criminal action.   If he had tripped on a loose floorboard and broken his leg while exiting defendants' store he could not do so, at least if I understand the majority's logic correctly.   This result utterly baffles me.

7.   Or, to use the term favored by the majority, section 50's burden of proof directive is a “dead letter” (maj.opn., p. 560) if but only if a defendant asserting section 847 immunity establishes the predicates thereof via demurrer or a motion for summary judgment.

KLINE, Presiding Justice.

SMITH, J., concurs.