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Court of Appeal, Fifth District, California.

Lloyd G. CONNELLY, Plaintiff and Appellant, v. STATE of California et al., Defendants and Respondents.

Civ. 1057.

Decided: June 09, 1969

L. Miles Snyder, Sacramento, and Reginald M. Watt, Chico, for plaintiff and appellant. Thomas C. Lynch, Atty.Gen., Willard A. Shank, Asst. Atty.Gen., Lloyd Hinkelman and Iver E. Skjeie, Deputy Attys.Gen., Sacramento, for defendants and respondents.


For the purposes of this appeal from a judgment entered pursuant to demurrer to the complaint sustained without leave to amend, we assume the allegations of the complaint to be factually correct.

Appellant owns and operates three marinas, two on the Sacramento County side of the Sacramento River and one on the Yolo County side, located near the confluence of the Sacramento and American Rivers. During the latter part of December 1964 heavy rains in Northern California caused the Sacramento River to rise to unusual heights. For several days prior to December 22, appellant periodically telephoned the State Department of Water Resources in Sacramento to inquire about any anticipated change in the level of the swollen river. Appellant alleges that it is the function of this office to supply information about the height and anticipated rise, if any, of the water level of the river, and that people along the river rely upon the information given them by the department.

Appellant last called the department approximately 4 p.m. on December 22, 1964, at which time he was informed the river was expected to rise to a maximum of 24 feet. Relying on this information, appellant set his marina docks so they would float at a maximum river height of 26 feet; within four hours the river rose to 29 feet. It is alleged that by this time it was dark and appellant was unable to do anything to save his docks and apartment structures from extensive damage as the river remained at flood stage of 29 feet for two weeks.

Appellant filed a claim for damages with the State Board of Control, as provided in Government Code sections 910 et seq. He alleged the officers, servants and employees of the Department of Water Resources negligently provided him with inaccurate information as to the anticipated rise in the Sacramento River. The claim was denied, and thereafter appellant commenced this action. His first and fourth causes of action are predicated upon his claim charging negligence in the dissemination of inaccurate river height forecasts. He also pleaded second, third and fifth causes of action alleging negligent release of water from state-operated dams.

Respondents' demurrer to each of the five causes of action alleged in appellant's second amended complaint was sustained without leave to amend, and judgment was entered pursuant thereto. For reasons hereinafter set forth, we conclude that the demurrer should not have been sustained without leave to amend as to the first and fourth causes of action predicated upon erroneous dissemination of information, but was properly sustained as to the other causes of action which were unsupported by a precedent claim as required by the Government Code.

The causes of action for negligence in the dissemination of information as to predicted river levels rest entirely upon whether the activities of the accused employees come within the immunity provided by Government Code section 820.2. That section reads:

‘Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.’

The Legislative Committee Comment—Senate, upon section 820.2, tells us that the section restates the pre-existing California law. (See note to Gov.Code, § 820.2, West's Annotated Cal.Codes.) The difficulty with this exegesis is that the reasoning in the cases dealing with immunity for discretionary acts before enactment of the 1963 California Tort Claims Act is far from uniform, although they generally fall within one of two categories. In some cases immunity is found where to impose liability would create the ‘danger that public employees will be insufficiently zealous in their official duties,’ a theory elaborated by Judge Learned Hand. Other cases purport to distinguish discretionary acts from ministerial acts. Decisions after enactment of section 820.2 in 1963 and up to the filing of Johnson v. California (1968) 69 A.C. 813, 73 Cal.Rptr. 240, 447 P.2d 352, follow one or the other of these two theories and attempt to synthesize the basis for immunity.

The Supreme Court, in Johnson, takes a fresh approach to the question by rejecting the Judge Hand postulate that public officials will be insufficiently zealous unless immunity attaches to their discretionary acts. In so holding, the court states that it is motivated largely by the fact that the 1963 Tort Claims Act, Government Code section 825.6, requires the employee to ‘indemnify the public entity’ only if the employee acted outside the scope of his employment or ‘performed with actual fraud, corruption or malice.’ (Johnson at p. 822, 73 Cal.Rptr. at p. 248, 447 P.2d at p. 359.)

The court also rejected the reasoning of cases that purport to distinguish between discretionary acts and ministerial acts, upon the ground this is an impractical and unrealistic exercise in semantics. (Johnson, at p. 819, 73 Cal.Rptr. 240, 447 P.2d 352.)

After discarding the semantic and zealous-performance criteria for determining when immunity attaches upon exercise of discretion, the Supreme Court formulates its own criterion for acts which are discretionary within the meaning of section 820.2, using the doctrine of separation of powers as the scaffolding to support the new ‘touchstone.’ The court speaks of ‘judicial abstention in areas in which the responsibility for basic policy decisions has been committed to coordinate branches of government’ (p. 825, 73 Cal.Rptr. p. 248, 447 P.2d p. 360), and extrapolates this principle into the language ‘discretion vested in him,’ thus equating an exercise of discretion with ‘policy decisions.’ In its exposition of ‘policy making’ within the ambit of discretion, the court says the distinction is sometimes described as that between the ‘planning’ and ‘operational’ levels of decision-making, and speaks of ‘areas of quasi-legislative policy-making which are sufficiently sensitive to justify a blanket rule that courts will not entertain a tort action alleging that careless conduct contributed to the governmental decision.’

We have some difficulty in reconciling this interpretation of section 80.2 with its legislative history, which reflects that the section restates the pre-existing California law, a difficulty we find accentuated when companion sections 820.4–822.2 are viewed in the light of the Legislative Committee Comment—Senate:

‘In the sections that follow, several immunities of public employees are set forth even though they have been regarded as within the discretionary immunity. These specific immunities are stated in statutory form so that the liability of public entities and employees may not be expanded by redefining ‘discretionary immunity’ to exclude certain acts that had previously been considered as discretionary.' (Emphasis added.)

According to the foregoing ‘Comment’ the designated employees were considered by the Legislature to be within the scope of section 820.2 when it was enacted. It is significant that the immunities provided by sections 820.4–822.2 are not confined to acts at the decision-making level. The sections cover operational employees, functionaries, such as a public employee exercising due care in the execution or enforcement of any law (§ 820.4); a public employee who issues, denies, suspends or revokes, or fails to so act, in regard to any permit, license, certificate, approval, order or similar authorization (§ 821.2); a public employee who fails to make an inspection, or makes an inadequate or negligent inspection of any property (§ 821.4); a public employee instituting or prosecuting any judicial or administrative proceeding within the scope of his employment (§ 821.6); a public employee entering upon property where such entry is expressly or impliedly authorized by law (§ 821.8); a public employee where money is stolen from his official custody unless the loss is sustained as the result of his own negligent or wrongful act or omission (§ 822); a public employee acting in the scope of his employment where an injury is caused by his misrepresentation, whether or not such representation be negligent or intentional, unless he is guilty of actual fraud, corruption or actual malice (§ 822.2).

Having in mind the specific immunities granted by sections 820.4 through 822.2, as contrasted with the interpretation the court has given the general language of section 820.2, the rationale of Johnson seems to be that the Legislature, as a coordinate branch of government, has the power to grant specific immunity to any employee, as it did to those within the ambit of sections 820.4–822.2, but absent such specific statute only an employee at the policy-making or planning level of decision-making has ‘discretion vested in him’ as that language is used in Government Code section 820.2.

To state in another way the upshot of Johnson (p. 829, 73 Cal.Rptr. p. 241, 447 P.2d p. 363), where an action for damages is predicated on the negligence of an employee of a public entity the principle enunciated in Muskopf v. Corning Hospital Dist., 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457, that ‘where there is negligence, the rule is liability, immunity is the exception,’ is controlling unless (a) the employee has acted in a policy-making or decision-making capacity, in which instance section 820.2 immunity applies, or (b) his act or omission to act comes within the scope of a statute specifically bringing the particular employee under the cloak of immunity.

Since there is nothing in the pleadings before us to indicate that the employees charged with negligence were engaged in policy or decision making, or that they were given immunity by a specific statute, the order sustaining demurrer without leave to amend as to the first and fourth causes of action, predicated upon negligent dissemination of river height forecasts, must be reversed.

The second, third and fifth causes of action, predicated upon negligent release of water from state-operated dams, present a different and additional problem. Appellant's claim presented to the State Board of Control alleged that his damages resulted from erroneous information regarding the anticipated rise in the level of the Sacramento River. No mention is made of negligence in the operation of the dams. Hence in the light of the requirement (Gov.Code § 910 et seq.) that an action of this character be preceded by a proper claim, the demurrer as to those causes of action was properly sustained without leave to amend.

The judgment is reversed insofar as the first and fourth causes of action are concerned, and the case is remanded to the trial court with instructions to permit appellant to amend his first and fourth causes of action if he is so disposed. The judgment is affirmed as to the second, third and fifth causes of action.

STONE, Associate Justice.

CONLEY, P. J., and GARGANO, J., concur.