BONNER v. CITY OF SANTA ANA

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Court of Appeal, Fourth District, Division 3, California.

Marshone BONNER, Plaintiff and Respondent, v. CITY OF SANTA ANA, Defendant and Appellant.

No. G012674.

Decided: August 31, 1994

Edward J. Cooper, City Atty., and Robert J. Wheeler, Asst. City Atty., for defendant and appellant. Christopher B. Mears, Snell & Wilmer, and Richard A. Derevan, Irvine, for plaintiff and respondent.

OPINION

This case turns on the difference between a tort and a constitutional right.   We reverse because the trial court gave the jury an instruction which effectively obliterated the difference.

I

Marshone Bonner was homeless and kept his worldly goods in a large garbage bag weighing about 50 pounds.   He stored the bag behind some bushes against the wall of a building in the Santa Ana civic center.   The bag could not be seen from the walkway going past the property.   Other bags owned by homeless persons were also stored in the area.

One morning in late July 1989 city workers loaded the bags from the area onto a truck and drove off.   The next day an unidentified city worker told Bonner he had taken the bags to the dump.   Bonner never saw his property again.

In May 1990 Bonner sued the City of Santa Ana for the loss of his property.   While his complaint originally listed five causes of action, including the tort of conversion, he dismissed three of the five at or by the time the case came to trial in March 1992.   The two causes of action remaining for trial were, respectively, violations of the due process and equal protection clauses of our state Constitution.1  There were no traditional tort causes of action.2

At trial the parties presented conflicting evidence as to whether the city had adopted a policy of destroying the property of homeless persons.   Bonner presented a memorandum written by the city's executive director of recreation and community services that stated the city council had “developed a policy that the vagrants are no longer welcome in the City of Santa Ana.”   The memo then mentioned that a special city task force would have the “mission” of “continually removing” the “paraphernalia” of vagrants “from the places they are frequenting in the City.”   On the other hand, the city manager, the mayor, and the city attorney all testified that Santa Ana had no such policy, and the memo did not accurately reflect city policy.

The trial court gave three “respondeat superior” instructions to the jury.   The first simply told the jury that the city's employees were its agents.   (See BAJI 13.00.)   The second told the jury that the conduct of an agent need not be “expressly authorized” by a principal for it to be within the scope of the agent's employment.   Conduct which is “reasonably necessary for the performance of an authorized act” is within the scope of such employment.   (See BAJI 13.01.)   The final instruction declared it was “established that the city council and city employees were the agents” of the city, and “[t]herefore” any act of these “agents was in law the act” of the city.  (See BAJI 13.04.) 3  The court also refused an instruction proffered by the city that it could be found liable for a violation of Bonner's constitutional rights “only” if its own acts caused the violation.4

The special verdict used by the jury consisted of three questions:  First, did the city violate Bonner's right to either due process or equal protection?   Second, if so, what were his economic damages?   Third, what were his “noneconomic” damages?

The jury answered the first question yes, and fixed economic damages at $1,300 and noneconomic damages at $8,000.   Bonner also requested an award of attorney fees on the theory his litigation had, in the words of section 1021.5 of the Code of Civil Procedure (the codification of the “private attorney general doctrine”) enforced “an important right affecting the public interest” and thereby “conferred” a “significant benefit” on a “large class of persons.”   The trial court denied the request.

The city has appealed from the judgment awarding Bonner $9,300, primarily contending that the trial court erred in giving the respondeat superior instructions.   Bonner has cross-appealed from the judgment to the extent it does not provide for attorney fees.

II

The remarkable feature of Bonner's case is that it is limited to a request for money damages based strictly on violations of state constitutional rights to equal protection and due process.   There are no tort claims.   There are no federal civil rights claims.

It is, however, by no means self-evident that a state constitutional “due process” or “equal protection” violation by a city government gives rise to a direct action for money damages.   A review of case law bearing on the recovery of money damages for violations of state constitutional rights is therefore our first task.

Whether and when a plaintiff can obtain a money judgment for the violation of rights set out in our state Constitution has been addressed in only a comparatively small body of cases.   Perhaps this is because it is a relatively “novel” occurrence when a violation of state constitutional rights is treated, in effect, as a kind of tort.   As Justice Kaufman pointed out in his dissent in Laguna Publishing Co. v. Golden Rain Foundation (1982) 131 Cal.App.3d 816, 857, 182 Cal.Rptr. 813, there was (at least up to the time of that decision) not a “single case or authority” for the “novel proposition” that a violation of a newspaper's right to freedom of the press under the state Constitution could give rise to a cause of action for money damages independent of tort or statutory law.   We begin with Laguna Publishing.

The majority in Laguna Publishing held that the exclusion of a throw-away newspaper by a private senior citizens' community constituted a violation of the paper's right to freedom of speech under the state Constitution.5  More relevant to the case at hand, the majority further held that the violation afforded the paper a right to recover a money judgment from the management of the senior community.  (131 Cal.App.3d at pp. 851–854, 182 Cal.Rptr. 813.)

The court gave two reasons for its decision, which operated in conjunction with each other.   First, the right in the state Constitution to pursue happiness (see art. I, § 1) had been interpreted before, in Melvin v. Reid (1931) 112 Cal.App. 285, 297 P. 91 [allowing a reformed prostitute to sue the makers of a silent movie based on her life for money damages under a “right of privacy” theory] to allow a direct cause of action for damages for breach of the right to privacy.   Second, the California Constitution accorded the rights of free speech and free press a “special dignity” (a phrase which the Laguna Publishing court italicized).6  Putting the two ideas together, the Laguna Publishing majority felt it “not illogical” that the throw-away newspaper acquired a right to sue for money damages when it was excluded from the senior citizens' community.  (131 Cal.App.3d at p. 853, 182 Cal.Rptr. 813.)   For good measure the court also mentioned that the tort damage statutes (Civ.Code, §§ 1708 & 3333) served as a “predicate” for the recovery of money damages in instances of “such violations.”  (131 Cal.App.3d at p. 853, 182 Cal.Rptr. 813.)

Laguna Publishing surfaced later in Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 185 Cal.Rptr. 758, which used it as authority to allow the plaintiffs in that case to sue a county clerk and others for money damages for having denied the plaintiffs the right to vote in a local election.   In Fenton, three of the defendants had filed false affidavits alleging that one of the plaintiffs did not reside within the election district.

The case came to the appellate court after a general demurrer.   The court organized the portion of its opinion dealing with the cause of action under the state Constitution for money damages essentially as a rebuttal to two governmental immunity statutes asserted by the defendants in the demurrer.

The Fenton court declared Laguna Publishing “persuasive authority” for the idea that the action was not barred by Government Code section 815, which Fenton interpreted to allow liability for violations of state constitutional rights as long as a statute provides for it or the state or federal Constitution “requires” it.  (Fenton, supra, 135 Cal.App.3d at pp. 803 & 804, 185 Cal.Rptr. 758.)   In this regard Fenton noted that the right to vote is as “self-executing” as the right to free speech and press, and because it was “self-executing,” the tort immunity statute did not affect it.   (Fenton, supra, 135 Cal.App.3d at pp. 804–805, 185 Cal.Rptr. 758.)

The court then confronted Government Code section 820.2, which had been interpreted to require engagement “in a policy-making function” for the immunity to attach.  (Fenton, supra, 135 Cal.App.3d at p. 806, 185 Cal.Rptr. 758, citing Johnson v. State of California (1968) 69 Cal.2d 782, 794–795, fn. 8, 73 Cal.Rptr. 240, 447 P.2d 352.)   Because the county clerk and other defendants were not engaged in “policy-making,” but in “ministerial” tasks, that statute did not apply.

Fenton then concluded the demurrer should not have been sustained:  It was enough that the cause of action was premised on a “self-executing” provision of the state Constitution plus the acts involved were “ministerial rather than policy-making.”  (135 Cal.App.3d at p. 807, 185 Cal.Rptr. 758.)   Except to imply that the deprivation of the right to vote should be equated with the deprivation of one's property (see id. at p. 805, 185 Cal.Rptr. 758), the Fenton court never grappled with the problem of whether, quite independent of the tort immunity statutes raised by the defendants, a violation of a state constitutional right might give rise to a direct action for money damages.

A different and rather more critical approach was adopted in Leger v. Stockton Unified School Dist. (1988) 202 Cal.App.3d 1448, 249 Cal.Rptr. 688.   There, a high school student sued a school district for having failed to protect him from an attack in a school rest room.   The student alleged a cause of action under the provision in the state Constitution (art. I, § 28, subd. (c)) which provides that students in public schools have a right to attend campuses which are safe.

The Leger court focused on the “self-executing” doctrine in the “sense” of whether the constitutional guarantee “provides citizens with a specific remedy by way of damages for its violation in the absence of legislation granting such a remedy.”  (202 Cal.App.3d at p. 1454, 249 Cal.Rptr. 688.)  Leger reasoned that “self-executing” in the “sense of providing a specific method” of enforcement means that the constitutional provision supplies a “sufficient rule by means of which the right given may be enjoyed and protected.”  (Id. at p. 1455, 249 Cal.Rptr. 688, citing Older v. Superior Court (1910) 157 Cal. 770, 780, 109 P. 478, internal quotation marks omitted.)   By contrast, a provision is not self-executing if it “merely indicates principles, without laying down rules by means of which those principles may be given the force of law.”   (Ibid.)

Because the state constitutional provision for safe public campuses merely declares a general right and specifies no “guidelines, mechanisms, or procedures from which a damages remedy could be inferred” (id. at p. 1455, 249 Cal.Rptr. 688), the Leger court concluded the provision was not “self-executing in the sense of supplying a right to sue for damages” (id. at p. 1456, 249 Cal.Rptr. 688).   The Leger court “distinguished” Laguna Publishing on the theory that Laguna Publishing was not “premised upon the self-executing nature of the subject constitutional provision.”   The case allowed damages “without regard” to the problem of self-execution.  Laguna Publishing was also distinguished because it “relied upon” (“tossed in” would have been more accurate) the tort damage statutes (Civ.Code, §§ 1708 & 3333).  (Leger, supra, 202 Cal.App.3d at p. 1457, 249 Cal.Rptr. 688.)

Leger briefly distinguished Fenton on the theory that Fenton had held the right to vote (as provided for in article II, section 2 of the state Constitution) is self-executing, while the right to safe campuses, at issue in Leger, is not.

In the case before us the parties have not cited, and our research has not uncovered, any California case addressing the question of whether a violation of state constitutional guarantees of equal protection or due process can serve as the basis for a direct action for money damages.   The problem has, however, been addressed in a thoughtful opinion by Justice Souter, then of the New Hampshire Supreme Court.

In Rockhouse Mountain Prop. v. Town of Conway N.H. (1986) 127 N.H. 593, 503 A.2d 1385, a group of owners of vacation homes in a small town sued the city government for refusing to go to the expense of laying out and maintaining roads to their homes.   The city government was not willing to “maintain and plow” roads to vacation homes when the owners paid less than one percent of the total local taxes.  (See id. 503 A.2d at p. 1386.)   The owners sued, claiming that the locals were discriminating against them because of their “seasonal residence,” and sought, among other things, money damages for the violation of their rights to equal protection and due process under the state constitution.  (Id. at p. 1387.)   The claims were dismissed and reviewed by the state supreme court.

The court first disposed of the easy question, which was whether the “denial of equal protection demands some vindication in the law.”   Obviously so.   (Id. at p. 1388.)   But that did not solve the problem of whether that vindication should take the form of “a damages remedy modelled on tort law.”   Here the answer was no.  (Ibid.)

The nature of an equal protection claim, noted the court, is not the “harm” that results from the way the plaintiff is treated, but the “contrast between the treatment of the plaintiff and the treatment of others like the plaintiff.”  (Ibid.)  An equal protection violation is “identified by reference to this contrast of respective treatment rather than by reference merely to particular acts, like wounding with a bullet or defaming with a lie.”  (Ibid.)  And because equal protection claims, by nature, depend on a “contrast,” there is “virtually no limit to the variety of activities that can provide the context in which an equal protection claim can at least be raised.”  (Ibid.)  This “variety of contexts” means there is “no exact analogue” between equal protection claims and “the traditional law of torts.”  (Ibid.)

The Rockhouse Mountain court then gave two reasons for rejecting a money damage remedy for the owners' equal protection claim.   One, there was an adequate remedy by way of existing statutory law.  (Ibid.)  Two, money damages were incompatible with the government immunity recognized in New Hampshire state law.  (Id. at p. 1389.)

After elaborating on the immunity issue, the court then added a postscript on the equal protection point.   Even if there were no existing statutory remedy, the owners would still have been required to show a certain “quantum or extent of official action” (id. at p. 1390) to support their action.

The Rockhouse Mountain court disposed of the due process claim by showing there was no due process violation because there was no “taking” of property.   (Ibid.)  Because there was no taking, “any other theory of damages” under the due process clause would “run squarely up against” the same reasons which disposed of the equal protection claim.  (Ibid.)

III

 We have grave doubts that Leger [no money damage remedy allowed for violation of safe campus provision] can be ultimately reconciled with Laguna Publishing [money damage remedy allowed for denial of freedom of speech and press by what was, in effect, a “company town”] or Fenton [money damage remedy allowed for denial of right to vote].   The Leger court distinguished Laguna Publishing on the latter's failure to address the “self-executing nature” of the constitutional provision for freedom of speech and press (see Leger, supra, 202 Cal.App.3d at p. 1457, 249 Cal.Rptr. 688), but that ground hardly distinguishes the case—it merely shows that Laguna Publishing ignored the need for self-execution, and therefore was incorrectly decided.   Perhaps the court in Leger was simply too polite to say that.

As to Fenton—which Leger distinguished on the ground the constitutional provision there was self-executing, when we actually read the text of that provision it is plain that it is no more “self-executing” in the sense in which the Leger court used the phrase (i.e., “wholly devoid of guidelines, mechanisms, or procedures”) than the provision which Leger held not to be self-executing.  (202 Cal.App.3d at p. 1455, 249 Cal.Rptr. 688.)   The right to vote in Fenton was based on a state constitutional provision which merely says, “A United States citizen 18 years of age and resident in this state may vote.”  (Cal. Const., art. II, § 2.)   That is hardly more “self-executing” than a provision that declares that every student has the right to a safe campus.

Neither Laguna Publishing nor Fenton are “persuasive” in the case at bar.   At its best, Laguna Publishing extended existing precedent allowing a quasi-constitutional quasi-tort action for invasion of privacy to a cognate area of constitutional law, freedom of press.   In this respect, the case relied on the existence of a special judicially-created (and relatively long-standing) cause of action which a 1931 Court of Appeal had, at least in part, pulled out of the penumbras of the “pursuit of happiness” language in the state Constitution.7  Regardless of whether the majority in that case properly extrapolated the 1931 decision to the guarantees of free speech and press then at issue,8 it is clear that there is no analogous judicially-created right to money damages on which we can rely in this case.

Fenton, as noted above, never really addressed the problem of self-execution apart from its role as a rebuttal to certain government tort immunity statutes.   The case is thus properly limited to its facts.   Having never determined whether the mere fact that a constitutional provision is self-executing is sufficient to create a right to money damages, Fenton cannot be said to have the force of stare decisis on the issue.  (See In re John B. (1989) 215 Cal.App.3d 477, 481, 263 Cal.Rptr. 607 [point not decided by prior opinion did not constitute controlling precedent].)

Moreover, even if one can extract from Fenton the rule that mere self-execution is sufficient to establish a right to money damages (and we do not believe the case should be so read), we would not follow it.   There is no necessary relationship between the idea that a constitutional provision does not need enabling legislation to be enforceable in court and the idea that the way to enforce the provision by a quasi-tort action for money damages.   Self-executing provisions of our state Constitution can and are given effect in many ways—usually by injunction—without creating a direct action for money damages.   The approach in Leger of requiring some mechanism, guideline or procedure from which a damages remedy may be inferred preserves the need to protect constitutional provisions from becoming a “mere form of words” 9 without tortifying constitutional law and imposing horrendous financial liability on government agencies even when there is nothing in the constitutional text to require that financial liability.10

Dispensing with Laguna Publishing and Fenton, then, it is quite clear that there is nothing in the text of the state equal protection clause from which a damage remedy can be “inferred.”   The equal protection provision is no more specific than the right to safe campuses held not to be self-executing for money damage purposes in Leger.

Moreover, the ideas articulated in Rockhouse Mountain why violations of state equal protection clauses should not give rise to money damage are persuasive.   Because the nature of equal protection is to look to contrasts between the plaintiff and others similarly situated, there are a variety of contexts in which equal protection claims can arise.   For most or all of these, money damages would obviously be an inappropriate and perhaps catastrophic remedy out of all proportion to the task of correcting disparate treatment between similarly situated individuals (see footnote 10 above).

Additionally, there is the alternative remedy of the injunction traditionally available to enforce equal protection, and the incompatibility of money damages with the tort claims statutes.   The latter is especially relevant to the case before us.   While we certainly acknowledge that our state Constitution may provide a cause of action independent of any statute which allows government liability (see Fenton, supra, 135 Cal.App.3d at p. 804, 185 Cal.Rptr. 758), the judiciary should not construe constitutional provisions to allow for an end run around the tort claims statutes.   They could easily become a dead letter if courts interpret constitutional provisions to provide for direct actions for money damages, bypassing the tort claims laws, particularly where, as here, the constitutional provisions are vague enough that a court might be tempted to read a good portion of the substantive tort law into them.   Indeed, something of the sort appears to have happened in Melvin v. Reid, supra, 112 Cal.App. at p. 286, 297 P. 91, on which Laguna Publishing relied.   In Melvin, the court bypassed the truth defense in the law of defamation to create a constitutional tort out of the emanations of perhaps the broadest section in the Constitution, the right to pursue happiness articulated in article I, section 1.

We therefore conclude that Bonner's equal protection claim is not capable, as a matter of law, of supporting his judgment for money damages.

IV

 Bonner's other claim for damages is based on the due process language in article I, section 7, subdivision (a):  “A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws.” 11

The incorporation of the Lockean trilogy life, liberty and property 12 in the due process clause of our state Constitution presents different considerations from those of the equal protection clause as they bear on whether the provision is “self-executing” in the sense of providing for a money damage remedy.   It is self-evident that if, for example, the government commandeers someone's home (or other property) without due process of law, the best an injunction will do is to get it back.   It is equally self-evident, however, that if the government deliberately destroys someone's property without due process of law, a money award is the only practical remedy.   Otherwise, the due process clause would be a “mere form of words.”

The language in article I, section 7 regarding the “due process” clause is thus different from that regarding equal protection.   The latter has only the passive voice “denied” plus the phrase “equal protection” in it.   The former includes the words “deprivation” and “life” “liberty” and “property,” all of which suggest that where an alternative remedy would not be adequate, the provision can only be enforced by an action for money damages for the value of that deprived life, liberty or property.

The due process clause thus provides a “guideline” from which a right to money damages may be “inferred” in those limited instances where, such as the present case, what the government has taken cannot be restored by other means.  (See Rockhouse Mountain, supra, 503 A.2d at p. 1388 [existence of adequate alternative remedy was one of two reasons not to allow money damage claims for equal protection violation].) 13

 But there is more to the analysis of Bonner's due process damage claim than the self-execution and alternative remedy hurdles.   The importance of not allowing the circumvention of the tort immunity statutes, as emphasized in Rockhouse Mountain and our discussion above, remains.   Quite plainly, there is a substantive difference between a tort committed by a government employee that deprives a citizen of his or her life, liberty or property, and official government action that deliberately accomplishes the same thing.   It is the difference between, for example, a city worker who, eager to repair a pothole, negligently backs into someone's car in the city hall parking lot and the deliberate bulldozing of someone's home as part of a street widening project.

Clearly, before a due process violation may serve as the basis for an action for money damages, the violation must be the result of official policy, not negligence.  (Cf. Rockhouse Mountain, supra, 503 A.2d at p. 1390.)   Any other result would subvert the tort claims laws.14

V

 The importance of the respondeat superior jury instruction now becomes apparent.   It must be remembered that the parties presented conflicting evidence as to whether the destruction of Bonner's bag was pursuant to city policy.   The third respondeat instruction, however, told the jury it did not matter whether the unknown city worker who threw out Bonner's bag was acting pursuant to official city policy or not.   The instruction stated the city worker was the agent of the city and “therefore” his act “was in law” the act of the city.

In the context of this case, confined as it was strictly to a constitutional claim for damages, the third instruction effectively deprived the city of its defense that the destruction of Bonner's bag was not, in fact, city policy.   The special verdict form did not require the jury to find on the question specifically, and because the third respondeat superior instruction told them that the acts of the worker were charged to the city anyway, they were not required to pass on the issue in the process of returning their verdict for the plaintiff.15

 Nor was the error harmless.   As explained above, a finding that the city acted pursuant to deliberate policy and not simply negligently is absolutely necessary to the viability of Bonner's constitutional deprivation of property claim.   Only if reasonable minds could not differ as to whether the city had a policy could the error be harmless.   The evidence on the point, however, was in conflict.   We decline Bonner's invitation to, in effect, declare that the city officers who testified there was no policy were unbelievable as a matter of law.

VI

As explained above, the deprivation of property is fundamentally different from the denial of equal protection in that the value of the property supplies a natural guideline from which a right to money damages may be inferred.   Accordingly, Bonner's claim for deprivation of his property without due process remains viable.

 The next question is whether the deprivation of property claim will support noneconomic damages (emotional distress) as well as damages for the value of the property.   The fact that the deprivation was without due process indicates that it may not be a bad idea to allow such damages—surely the deprivation of property without due process is a worse wrong than the deprivation of property with it!

As good an idea as it might be to allow emotional distress damages for a due process deprivation of property claim, there is an insurmountable barrier to such a result—the requirement that constitutional provisions be self-executing before they can afford a remedy by way of money damages.   There is nothing in the actual text of the due process clause of our Constitution from which emotional distress damages may be inferred for a property deprivation.16  Indeed, even in the ordinary tort context, the deprivation of property, apart from a preexisting relationship or intentional tort, will not support emotional distress.  (Cooper v. Superior Court (1984) 153 Cal.App.3d 1008, 1012, 200 Cal.Rptr. 746.)   And while the government's “deprivation” of property without due process is by its nature intentional, there is still nothing in the word “deprivation” to provide a standard to make it self-executing.

It must be remembered that in the ordinary course of things Bonner would have had the opportunity to obtain compensation for the emotional distress caused by the loss of his possessions by timely pressing a tort claim against the city, such as the one he did not prosecute for conversion.   Government entities are not immune from conversion claims.  (Tallmadge v. County of Los Angeles (1987) 191 Cal.App.3d 251, 254, 236 Cal.Rptr. 338 [firearms];  see also Hibbard v. City of Anaheim (1984) 162 Cal.App.3d 270, 278, fn. 9, 208 Cal.Rptr. 733.)   Moreover, the definition of “injury” for the purposes of tort claims against government entities specifically includes “feelings.”  (See Gov.Code, § 810.8.)

VII

Our opinion renders it unnecessary to decide the various other issues raised by the parties, including Bonner's cross-appeal for attorney fees.   The judgment is reversed.

Our conclusions may be summarized this way:  The equal protection claim should be dismissed, leaving the due process deprivation of property claim remaining for retrial.   That claim will ultimately turn on whether the city workers who disposed of Bonner's property were acting pursuant to city policy.   If so, Bonner will be entitled to recover the value of the property of which he was deprived.   He will not be entitled, however, to recover emotional distress damages for the loss of that property, having failed to press his tort claims against the city.

On remand, the city will be entitled to present its defense that the city worker or workers who disposed of Bonner's property were not necessarily acting pursuant to city policy.17  The jury can decide for itself whether they were so acting.

Because Bonner may yet prevail, the issue of who should bear the costs of this appeal is also remanded to the trial court for disposition in accord with the final judgment in the case.

FOOTNOTES

1.   Both clauses are found in article I, section 7 of the California Constitution, which provides in relevant part:  “A person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws․”

2.   The three causes of action originally pled but later dismissed were (1) violation of statutory duties;  (2) conversion;  and (3) conspiracy.

3.   The record does not disclose that the city objected to these instructions.   No matter.   Instructions are deemed objected to under section 647 of the Code of Civil Procedure.  (Lua v. Southern Pacific Transportation Co. (1992) 6 Cal.App.4th 1897, 1904–1905, 9 Cal.Rptr.2d 116 (contrary cases relied on rule based on federal practice);  U.S. Roofing, Inc. v. Credit Alliance Corp. (1991) 228 Cal.App.3d 1431, 1446–1447, 279 Cal.Rptr. 533 (point preserved because appellant contended it was error to give instruction at all);  Enis v. Specialty Auto Sales (1978) 83 Cal.App.3d 928, 940, 148 Cal.Rptr. 255 (“It is settled that the giving of an instruction shall be deemed excepted to, even though the party complaining on appeal made no objection thereto in the trial court.”).)

4.   The instruction was based on Monell v. Department of Social Services (1978) 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611, which held, among other things, that a local government entity could not be sued under federal civil rights laws (42 U.S.C. § 1983) for injury inflicted “solely by its employees or agents.”   Rather, the violation of civil rights must “represent official policy.”  (Monell, supra, 436 U.S. at p. 694, 98 S.Ct. at p. 2037.)

5.   Justice Kaufman saw the case in somewhat less exalted terms.   For him it was a squabble between two newspapers over the right of one of them to be distributed in Leisure World.  (Laguna Publishing, supra, 131 Cal.App.3d at pp. 857–858, fn. 1, 182 Cal.Rptr. 813 (conc. and dis. opn. of Kaufman, J.).)

6.   The court did not elaborate as to why the text of the state Constitution makes some rights more “special” than others.

7.   After “privacy” was explicitly added to our state Constitution in 1972, Porten v. University of San Francisco (1976) 64 Cal.App.3d 825, 134 Cal.Rptr. 839 perpetuated the cause of action.   The Porten court did not discuss the question of how a constitutional provision can give rise to a right to damages except to briefly note, in passing, that the privacy provision was self-executing.  (64 Cal.App.3d at p. 829, 134 Cal.Rptr. 839.)

8.   The dissent argued that the text of the free speech and press guarantees fell short of fixing the extent of the right conferred, much less the liability imposed.  (Laguna Publishing, supra, 131 Cal.App.3d at p. 858, 182 Cal.Rptr. 813 (conc. and dis. opn. of Kaufman, J.).)   The Laguna Publishing majority never refuted this point.

9.   See Rockhouse Mountain, supra, 503 A.2d at page 1388, citing Bivens v. Six Unknown Named Agents of Fed. Bur. of Nar. (2d Cir.1969) 409 F.2d 718, 722–723, reviewed 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619.

10.   Because they involve whole classes of people, denials of equal protection by a government entity create huge numbers of potential litigants.   If individual money damage claims were a viable remedy for equal protection violations, it is easy to imagine that some large-scale equal protection violations (e.g., the exclusion of applicants to the state university system because of their race, see Bakke v. Regents of University of California (1976) 18 Cal.3d 34, 132 Cal.Rptr. 680, 553 P.2d 1152 (applicant who was denied admission to a state medical school because of his race was denied equal protection of the laws)) would have the potential to bankrupt the state.   Of course, no equal protection claim has bankrupted the state so far because, as in the Bakke case, the proper remedy has always been an injunction.  (See 18 Cal.3d at p. 64, 132 Cal.Rptr. 680, 553 P.2d 1152.)

11.   The balance of the text concerns school busing.

12.   See Patterson v. Portch (7th Cir.1988) 853 F.2d 1399, 1404 (“life, liberty, and estate,” quoting Locke's Second Treatise of Civil Government, ch. 7, § 87 (1690)).

13.   The possibility of compensation for the taking or damaging of his private property for public use, as required under article I, section 19 of our state Constitution, comes to mind as a possible alternative remedy.   In pertinent part, article I, section 19 provides:  “Private property may be taken or damaged for public use only when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner.”   In the present case, the city obviously did not first begin condemnation proceedings before it disposed of the trash bag in which Bonner kept his personal possessions.   We need not address whether article I, section 19 (condemnation) provides an alternative remedy to article I, section 7 (no deprivation of property without due process) in contexts outside the present case.

14.   We reach this conclusion as a matter of analysis of the provision in our state Constitution, and independent of whether the United States Supreme Court may have come to an analogous conclusion regarding federal civil rights actions against city governments in Monell v. Department of Social Services, supra, 436 U.S. at page 694, 98 S.Ct. at page 2037.

15.   The first and second respondeat superior instructions do not suffer from the same infirmity.   All they do is allow the jury to find that the city worker might have been acting pursuant to city policy, not that he necessarily was so acting.

16.   Property has an ascertainable market value.   We do not reach the question of whether the deprivation of liberty without due process (e.g., following false arrest and imprisonment) would possibly encompass damages for emotional distress based on the theory that such damages were the substantive equivalent of the actual liberty that had been lost.

17.   The city's so-called Monell instruction, which told the jury the city could be found liable “only” if “the acts or omissions of the city itself” caused the violation, was basically the right idea, though it was not as clear as it should have been.   To cut to the heart of the issue, the jury should be told that the city can only be liable if the city workers were acting pursuant to city policy.

SILLS, Presiding Justice.

WALLIN and SONENSHINE, JJ., concur.

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