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District Court of Appeal, Fifth District, California.

HEIECK AND MORAN (OAKLAND), Plaintiff and Appellant, v. CITY OF MODESTO, Defendant and Respondent.

Civ. 442.

Decided: September 29, 1965

Hall, Henry, Oliver & McReavy, by Stephen McReavy and Ronald M. Sohigian, San Francisco, for appellant. Augustus Castro and Stephen H. Slabach, San Francisco, for respondent.

Plaintiff filed this action against the City of Modesto and others, for damages suffered by fire. Only the second and third causes of action are directed against the City of Modesto and pertain to this appeal.

Plaintiff's second cause of action alleges that the Modesto City Fire Department was notified of a fire that occurred at premises adjoining plaintiff's on May 4, 1962. The department promptly responded with sufficient personnel, equipment and facilities to contain the fire, but because a city employee had closed a valve in the water main there was no water in the fire hydrants and consequently the fire spread to plaintiff's premises. The complaint also alleges the valve was turned off to permit relocation of certain water mains, that it was turned off by an employee of the city, that neither he nor any other employee of the city notified plaintiff that the water was shut off. Further, it is alleged that although the repair work was completed four weeks before the date of the fire, the valve was not reopened, and that neither plaintiff nor the fire department was notified that no water was available to extinguish fires in the vicinity of plaintiff's premises.

The third cause of action, insofar as it pertains to defendant city, alleges that the city ‘well knew the County of Stanislaus maintained a fire department, with tank trucks, which was ready, willing and able to respond to said fire * * *; nevertheless said defendants failed and neglected to notify said county fire department of the existence of said fire and negligently and carelessly failed to request its assistance in containing and extinguishing same.’

Defendant city's demurrer to the complaint upon the ground it failed to state a cause of action was sustained without leave to amend, and a judgment was entered accordingly.

Since the case comes to us on appeal from a judgment entered upon an order sustaining demurrer without leave to amend, we must accept the allegations of the complaint as true. (Katenkamp v. Union Realty Co., 6 Cal.2d 765, 769, 59 P.2d 473; Stigall v. City of Taft, 58 Cal.2d 565, 567–568, 25 Cal.Rptr. 441, 375 P.2d 289.)

The fire of May 4, 1962, occurred after Muskopf v. Corning Hospital Dist., 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457, held that the doctrine of governmental immunity no longer shields a public entity from liability for the tortious acts of its agents acting in a ministerial capacity. The Legislature, by Civil Code section 22.3, suspended the rule of Muskopf until the ninety-first day after the final adjournment of the 1963 Regular Session of the Legislature. Corning Hospital Dist. v. Superior Court, 57 Cal.2d 488, at page 493, 20 Cal.Rptr. 621, at page 624, 370 P.2d 325, at page 328, points out that ‘an action may be brought and maintained in the manner prescribed by law on any cause of action which arose on or after February 27, 1961 and before the 91st day after the final adjournment of the 1963 Regular Session, * * *.’ (Emphasis added.) (See also Shakespeare v. City of Pasadena, 230 Cal.App.2d 375, 40 Cal.Rptr. 863; Hayes v. State of California, 231 Cal.App.2d 48, 41 Cal.Rptr. 502; Moxon v. County of Kern, 233 A.C.A. 462, 43 Cal.Rptr. 481.)

The 1963 Legislature added division 3.6 to the Government Code (§§ 810–996.6) to deal comprehensively with the problem of governmental immunity. (County of Los Angeles v. Superior Court, 62 A.C. 889, 893, 44 Cal.Rptr. 796, 402 P.2d 868.) This legislation restored in principle the rule of Muskopf but in some instances restricted governmental liability and limited the remedies in others. The statute was specifically made retroactive to September 15, 1961, the effective date of Civil Code section 22.3.

Respondent questions the constitutionality of retroactive application of division 3.6 of the Government Code insofar as it activates a cause of action arising prior to the effective date of the legislation. The question has been settled since the filing of respondent's brief, by County of Los Angeles v. Superior Court, supra, 62 A.C. page 895, 44 Cal.Rptr. 796, 402 P.2d 868, upholding the constitutionality of the retroactive aspects of the legislation.

Respondent raises as an additional constitutional question whether retroactive application constitutes a gift of public funds. There is no gift: the Legislature created no new cause of action; it merely regulated the manner of enforcing existing causes of action. As pointed out in Thelander v. Superior Court, 58 Cal.2d 811, at page 813, 26 Cal.Rptr. 643, at page 644, 376 P.2d 571, at page 572:

“* * * Absent further legislation, cases coming within the statute should be continued and not brought to trial until after the specified date in 1963. In the interim the parties may file pleadings if they so desire and may resort to proceedings for the discovery and perpetuation of evidence in accordance with the sections of the Code of Civil Procedure (§ 2016 et seq.) relating to that subject.' (Italics added.)'

Since there is no statutory waiver of a claimant's duty to prove both that he had been wronged and that he suffered damages as a result of the wrong, there has been no gift of public funds.

A determination that retroactive application of the statute is constitutional leaves open the basic question whether plaintiff has a cause of action, since under the Act governmental immunity was provided certain public entities. These immunities are retroactive to the extent they can constitutionally be applied (County of Los Angeles v. Superior Court, supra), and fire protection is one of the areas in which limitations were imposed. Respondent calls our attention specifically to Government Code sections 850, 850.2 and 850.4. Looking at these sections, 850 provides:

‘Neither a public entity nor a public employee is liable for failure to establish a fire department or otherwise to provide fire protection service.’

Obviously this section applies to the discretionary act of establishing a fire department or fire service or fire protection, and has no relation to the issues here presented.

Sections 850.2 and 850.4 present a more complex problem. They read as follows:

‘Neither a public entity that has undertaken to provide fire protection service, nor an employee of such a public entity, is liable for any injury resulting from the failure to provide or maintain sufficient personnel, equipment or other fire protection facilities.’ (§ 850.2.)

‘Neither a public entity, nor a public employee acting in the scope of his employment, is liable for any injury resulting from the condition of fire protection or firefighting equipment or facilities or, except as provided in Article 1 (commencing with Section 17000) of Chapter 1 of Division 9 of the Vehicle Code, for any injury caused in fighting fires.’ (§ 850.4.)

However, it is neither the failure to provide fire protection or firefighting equipment or facilities, mentioned in section 850.2, nor the condition of such equipment or facilities, mentioned in 850.4, that forms the basis of plaintiff's complaint; rather, it is the failure of a city employee to notify plaintiff and the fire department that a valve was being closed in the water main that supplied water upon which plaintiff relied for fire protection, together with the failure to reopen the valve even though the repair work had been completed some four weeks before the fire occurred.

Respondent argues that it was the legislative intent to provide governmental immunity for any act relating to fire protection because the negligent act could result in a conflagration of catastropic proportions. The legislative intent can best be gleaned from the Law Revision Commission's comment and recommendation to the Legislature relating to the foregoing statutes. Quoting the comment in part, we find, at pages 465, 467–468, the following:

‘As in the case of failure of public entities to establish any firefighting system, it is also believed that no tort liability should attach for mere insufficiency of fire regulations, equipment, facilities or personnel, as such. * * *

‘If the lack of water in the fire lines, however, was not due to any inherent deficiencies built into the system, but could have been avoided through the exercise of ordinary care in its maintenance and operation, different considerations become relevant. The community is entitled to no greater level of fire protection and water service than it determines through its responsible public officials to acquire, and the threat of tort liability should not be interposed to insist that the system be wholly adequate to all present and future demands made upon it. A negligently conceived or mediocre system may well be better than no system at all. But the community, having determined as a matter of policy to adopt a system having a planned level of performance, should be entitled to rely upon the personnel in charge of that system to maintain and operate it with reasonable prudence and diligence. Liability for negligence of this latter type, which frustrates the reasonable expectations of individuals relying upon the system to supply water for fire-extinguishing purposes, would seem to follow readily under modern tort principles, in the absence of countervailing policy considerations.’ (5 Cal. Law Revision Com., Sovereign Immunity Study.)

The Law Revision Commission followed the above comments with suggestions of a number of ways the Legislature might modify or limit tort liability arising from the negligence of an employee in maintaining a water system or water in fire lines. None was adopted, and we conclude that the negligence of a city employee in turning off a valve without notice to plaintiff who had a reasonable right to rely upon the water for fire protection, and failing for over four weeks after repair work was completed to reopen the valve, does not come within the immunity provisions of Government Code sections 850, 850.2 or 850.4.

The question remains whether the acts were discretionary, thereby providing immunity even under Muskopf (see Lipman v. Brisbane Elementary School Dist., 55 Cal.2d 224, 229, 11 Cal.Rptr. 97, 359 P.2d 465), as codified by Government Code sections 815.2 and 820.2.

We find no completely satisfactory distinction between discretionary and ministerial duties of public employees, nor entirely satisfactory definitions of the two kinds of activity. Those who have made the distinction admit to imperfection in the definition. (See Morgan v. County of Yuba, 230 Cal.App.2d 938, 942–943, 41 Cal.Rptr. 508, citing Prosser on Torts (3d ed.) p. 1015.)

Certainly, turning off a valve in a water line to make repairs entails no personal deliberation, decision or judgment. But if it did, to open the valve after the repair had been completed, so that the water main held the water it was designed to carry, was clearly a ministerial act.

Respondent places great stress on the holding of Stang v. City of Mill Valley, 38 Cal.2d 486, 240 P.2d 980. However, the holding therein that the city was not liable for fire damages for not clearing debris from water mains and fire hydrants was predicated upon the traditional theory of governmental immunity that was discredited by Muskopf. Governmental liability must now be determined under the rationale of Muskopf as modified by the Public Liability Act of 1963. As our discussion above reflects, we find no immunity under the provisions of said Act, for the kind of negligence here involved.

Plaintiff, in a separate cause of action, alleges the Modesto Fire Department negligently failed to call the county fire department upon learning there was no water supply. At first blush it would appear that making a telephone call is a purely ministerial act. Plaintiff cites Morgan v. County of Yuba, supra, wherein the sheriff and deputies of the County of Yuba failed to telephone Elizabeth Morgan that the man who subsequently murdered her was being released on bail. No doubt, as the court said in Morgan, the physical act of dialing the telephone was ministerial, but there was also a request by Morgan to be warned and in response thereto a promise by the sheriff's office to give the warning. As we read the case, it was this duty which impelled the court to hold that reassurance and protection to members of the public who have been threatened with violence is within the scope of a policeman's and a sheriff's employment.

Plaintiff tells us the Morgan case expressed a broad humanitarian doctrine which this court should adopt. The basis for the doctrine, however, is said to be the duty to warn those whom one has promised to warn. Here, there is no pleading that any member of the fire department or any other city employee promised to call the county fire department, nor that plaintiff relied upon any such assurance.

Therefore we conclude that the order sustaining demurrer without leave to amend, to plaintiff's third cause of action, was proper.

Judgment entered pursuant to order sustaining demurrer without leave to amend is reversed as to the second cause of action of the complaint, and affirmed as to the third cause of action.

STONE, Justice.

CONLEY, P. J., concurs.