NUNN v. STATE (1982)

Ceola Nunn, administratrix of the estate of Jethro G. Nunn, appeals from judgments on the pleadings in favor of the State of California;  Douglas Faigin, as head of the Bureau of Collection and Investigative Services;  and the Los Angeles Community College District.¹

The first amended complaint alleged six counts, all involving either wrongful death or survival.   Appellant's decedent was fatally assaulted and battered on January 8, 1976, while employed as a security guard.   He did not have a firearm at the time.   The complaint alleges that the negligence of respondents State of California, Faigin, and the Los Angeles Community College District prevented appellant's decedent from being licensed to arm and protect himself, thus causing his death.

As to the State of California and Faigin, appellant alleged that they negligently delayed announcing the nature and scope of new regulations and procedures involving firearm licenses for security guards until September 1975, knowing that the regulations were to be implemented January 1, 1976.   As a result of the negligence, it was alleged that decedent was denied a reasonable opportunity to obtain his license prior to January 1, 1976, patrolled without a weapon, and was thereby placed in a dangerous condition.

As to the Los Angeles Community College District, it was alleged that decedent had enrolled in a firearms qualification course at Pierce College, and that the Los Angeles Community College District and other defendants “negligently conducted, planned[,] inspected, implemented and administered the testing procedures of said course and refused to give plaintiff's decedent an opportunity to complete his first test.   As a result of the acts and omissions ․, plaintiff's decedent was denied a reasonable opportunity to obtain his firearm license prior to the December 31, 1975 deadline.”

Further allegations regarding the State of California and Faigin involved their alleged failure to notify either appellant's decedent or his employer prior to January 8, 1976, that the firearm license requirement “was not to be enforced indefinitely, contrary to the earlier public announcements” that “after [December 31, 1975,] any security guard who carried a weapon on the job without a license would be subject to arrest.”   The complaint alleged “[a]s a proximate result of this omission [appellant's] decedent, who had not yet obtained a firearms license, was compelled on January 8, 1976 to patrol as a security guard without the protection of his weapon and was placed in a dangerous condition.”

Demurrers to the first amended complaint, one filed by the Los Angeles Community College District and the other filed by the State of California and Faigin, asserted that the complaint did not state facts sufficient to constitute a cause of action.   The State of California specifically invoked governmental immunity provisions of Government Code section 818.2.   The demurrers were overruled January 24, 1977.   Answers were then filed by respondents.

In October 1980, respondents filed motions for judgment on the pleadings.   The State argued that it was immune under Government Code section 818.2, and that its behavior was not the proximate cause of appellant's decedent's injuries.

The motion by respondent Los Angeles Community College District argued that there was no actionable duty of care owed by the district;  that the complaint did not establish respondent's conduct constituted the “cause in fact” or “proximate cause” of decedent's injuries;  and that the acts alleged were discretionary so that immunity of Government Code section 818.4 applied.   Appellant filed opposition to both motions.

On October 23, 1980, the trial court granted each motion for judgment “on the pleadings on the grounds stated in the moving papers.”   This appeal followed.

Appellant contends:

1. Neither Government Code section 818.2 nor 818.4 immunize respondents from liability for damages caused by their negligence.

2. The first amended complaint establishes an actionable duty of care owed by the Los Angeles Community College District.

3. Proximate cause is a factual issue, and the first amended complaint demonstrates that the negligence of respondents was a substantial factor in causing decedent's death.

We have concluded that the trial court improperly granted judgment in favor of respondents.   Their conduct is not protected by governmental immunity and the causes of action in negligence against them are properly pleaded.   Whether that negligence, in fact, was the proximate cause of the death of the decedent raises triable issues of fact.

I

Respondents' asserted entitlement to governmental immunity arises from the following facts:

On January 1, 1975, the Legislature enacted Business and Professions Code section 7514.1, which required that all security guards who carry firearms shall be licensed to do so by the State of California.   The statute stated in part:  “The department [of Consumer Affairs] shall prescribe the minimum standards for a course of training in the exercise of powers of arrest.”   It also provided that, after January 1, 1976, no security guard could work carrying a firearm unless he had successfully completed the course of training and been issued a certificate.

Thereafter, the Department of Consumer Affairs, through its Bureau of Investigation and Investigative Services, headed by respondent Douglas Faigin, promulgated regulations concerning the subject matter, contents and curricula of the required course to be offered by educational institutions approved by the state.  (Cal.Admin.Code, tit. 16, § 669, ch. 7, art. 5.)   Those regulations were adopted September 16, 1975.

Although appellant contends that the delay in issuing the required regulation made it impossible for decedent to acquire the required license by the January 1, 1976 deadline, respondents State of California and Faigin contend that they are immune from liability for such conduct by virtue of the language of Government Code section 818.2, which provides:  “A public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law.”

 Although not expressly so stated in the statute, appellant contends, and respondents concede, that its immunity encompasses only discretionary activity.   Immunity is not provided under this section for the performance of mandatory duties.  (Morris v. County of Marin (1977) 18 Cal.3d 901, 916, 136 Cal.Rptr. 251, 559 P.2d 606.)

Appellant contends that the language of Business and Professions Code section 7514.1, which requires that the course of training “shall be prescribed by the Department of Consumer Affairs” imposes a mandatory obligation on the department to promulgate the necessary regulations.   Thus, the conduct complained of was not an exercise of discretion, but the carrying out of a duty, and for that reason no protective immunity applies.   Respondents, on the other hand, argue that the board did comply with its mandatory obligation to promulgate regulations.   What is challenged here is the length of time which the board took in releasing them.   Since no precise timetable was prescribed by the Legislature, the argument goes, the decision when to adopt the regulations was a discretionary one, and thus the conduct of the state in making that decision comes within the purview of Government Code section 818.2.

Neither of these arguments fully resolves the problem presented here.   Merely distinguishing between acts which are discretionary and those which are mandatory is an unsatisfactory yardstick.  (Johnson v. State of California (1968) 69 Cal.2d 782, 794, 73 Cal.Rptr. 240, 447 P.2d 352.)   In Johnson, the California Supreme Court suggested that a distinction be drawn between the planning and operational levels of decision making.   In Johnson, the Youth Authority had decided to release a juvenile and place him in a foster home.   A probation officer selected a home, but failed to inform the prospective foster parents of the youth's criminal record, nor of his violent tendencies.   In an action by the parents for damages for personal injuries sustained when the youth assaulted them, the Supreme Court rejected the argument that the decision not to provide certain information was a discretionary one subject to immunity.   The court explained at pages 796–797, 73 Cal.Rptr. 240, 447 P.2d 352:

“This analysis, allowing immunity for basic policy decisions by the Youth Authority but rejecting it for the ministerial implementation of that basic policy, receives support from a long line of cases in California and in federal courts, interpreting similar ‘discretionary’ language in section 2680, subdivision (a), of the Federal Tort Claims Act.   In Sava v. Fuller, supra, 249 Cal.App.2d 281, 290, 57 Cal.Rptr. 312, a suit for malpractice against a state-employed botanist and the state, the court said:  ‘In the instant case ․ Dr. Fuller had already exercised discretion by agreeing to analyze the possible ingested plant substance to determine its toxicity․  [E]xercise-of-discretion had ended at that point and thereafter the inquiry would be limited to whether there had been an exercise of due care under a duty assumed․  [O]nce the determination has been made that a service will be furnished and the service is undertaken, then public policy demands (except when the Legislature specifically decrees otherwise) that government be held to the same standard of care the law requires of its private citizens in the performance of duties imposed by law or assumed.’  [¶]  ․  [¶]  These cited cases establish the principle that, although a basic policy decision (such as standards for parole) may be discretionary and hence warrant governmental immunity, subsequent ministerial actions in the implementation of that basic decision still must face case-by-case adjudication on the question of negligence.   Indeed, most of these cases, like the instant situation, involve failure to warn of foreseeable, latent dangers flowing from the basic, immune decision.”   (Emphasis added.)

 Under this analysis, it is apparent that the act of the Legislature in enacting Business and Professions Code section 7514.1 was entitled to governmental immunity.   However, the conduct of the licensing board in promulgating regulations as directed by the Legislature, was lower-level implementation of the statute, and was not immune from judicial review.   Liability for negligence in carrying out the legislative directive attaches, whether the ministerial acts could be described as mandatory or discretionary.

In McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 261, 74 Cal.Rptr. 389, 449 P.2d 453, the Supreme Court explained that in determining if conduct is entitled to governmental immunity, one must look to see “․ whether it was ministerial because it amounted ‘only to an obedience to orders, or the performance of a duty in which the officer is left no choice of his own,’ or discretionary because it required ‘personal deliberation, decision and judgment.’  [Citations.]  [¶] However, classification of the act of a public employees as ‘discretionary’ will not produce immunity under [Government Code] section 820.2 if the injury to another results, not from the employee's exercise of ‘discretion vested in him’ to undertake the act, but from his negligence in performing it after having made the discretionary decision to do so.  [Citations.]”

The court then concluded that the officer in McCorkle was not immune because the injury resulted not from his exercise of discretion, but from his negligence after the discretion had been exercised.  “Because the essential requirement of [Government Code] section 820.2—a causal connection between the exercise of discretion and the injury—did not exist, the statutory immunity does not apply.”  (McCorkle, supra, 70 Cal.2d at p. 262, 74 Cal.Rptr. 389, 449 P.2d 453.)

 Here, the plaintiff's complaint alleged that the state, after having undertaken to enact regulations, then did so negligently, creating a situation where compliance with the law on the part of appellant's decedent was impossible.   As noted, the regulations were adopted on September 15, 1975.   Those regulations required, inter alia, that institutions wishing to offer a course in the carrying and useage of firearms must apply to the bureau for approval of the course, at least two months before the course is to be given.   (Admin.Code, tit. 16, § 699.6.)   This would authorize the commencement of the course no sooner than November 15, 1975, and leave approximately six weeks' time within which a security guard was to enroll, take and complete the course, take and pass the required tests, and apply for and receive a certificate of training.   Appellant's complaint alleges injury, as in McCorkle, not as a result of the employee's exercise of discretion vested in him, but as a result of negligence in performing his duties after having made the discretionary decision to do so.

This distinction was explained in Elton v. County of Orange (1970) 3 Cal.App.3d 1053, 84 Cal.Rptr. 27.   There, a minor sued the county and its department of social welfare for injuries she sustained after having been placed in a foster home where she was severely beaten.   The court found no governmental immunity existed to protect the employee who had selected the placement, explaining at page 1058, 84 Cal.Rptr. 27:

“While the Orange County Probation Department performs functions with respect to dependent children which could be classified as involving basic policy decisions (such as recommending a child be, or not be, declared a dependent child), and hence warrant immunity, it does not follow its subsequent ministerial acts in implementing such decisions rise to the same level.   Here plaintiff does not complain that she was made a dependent child.   The gravamen of her complaint, in both causes of action, is, after that decision was made, she was negligently placed in a home where she was subject to torture and abuse and negligently maintained, cared for and supervised.”

Another similar situation in which the court distinguished between the discretionary decision to perform a particular act and the mandatory obligation to perform it properly is found in Clemente v. State of California (1980) 101 Cal.App.3d 374, 379, 161 Cal.Rptr. 799.   There, a pedestrian was injured when struck by a motorcycle.   The officer who investigated the accident did not detain the driver of the motorcycle, nor record his license number, so that when the driver left the scene, the plaintiff was without redress.   The court reversed the trial court's decision dismissing the action against the California Highway Patrol, explaining:

“What is involved under these allegations is not the discretion of Officer Loxsom in deciding whether to investigate the traffic accident, pursuant to the discretionary authority invested in him by Vehicle Code section 2412 [citation], but instead only his negligence in his conduct of the discretionary investigation.   Neither the discretionary immunity of Government Code section 820.2, nor the more specific discretionary immunity of failure to enforce a statute [citation] immunizes the officer and the state from the legal consequences of this negligence.  [Citations.]  Government, through its agents, is held to the same standard of care the law requires of private citizens in the performance of duties imposed or assumed.  [Citation.]”

We have concluded that once the state, through its Bureau of Investigation and Investigative Services and its employee, Douglas Faigin, undertook to enact regulations prescribing a course of training, it was not immune from liability if it performed those duties negligently.   The complaint alleges negligent performance, and thus a cause of action is stated against those respondents, alleging conduct which is not protected by governmental immunity.

Nor is the state immune from liability with respect to the second charge of negligence against these respondents.   The complaint alleges that prior to December 31, 1975, Faigin announced publicly and informed security guard employers that after December 31, 1975, any security guard who carried a weapon on the job without a license would be subject to arrest.   The complaint further alleges that on or about January 1, 1976, Faigin notified local police departments that the firearm license requirement was for an indefinite period of time, not to be enforced, contrary to earlier public announcements, and that no notice of this delay in enforcement was ever communicated to appellant's decedent or to his employer prior to January 8, 1976, the date of death.

The decision to inform police departments but not employers or security guards was not an exercise of discretion of the nature cloaked in governmental immunity.   Rather, as in Johnson v. State of California, supra, 69 Cal.2d at page 797, 73 Cal.Rptr. 240, 447 P.2d 352, the notification was a ministerial act performed after the decision not to enforce the law had been made.   Having apparently determined that the institutions offering courses could not possibly train and test the students within the existing time constraints, and having determined that the enforcement of the statute should be postponed, the state was under a duty to provide notice in a manner most likely to reach interested persons.²  Therefore, neither the delayed enactment of regulations nor the failure to notify appellant's decedent of their suspension was conduct immune from liability for damages.

 With respect to the school district, it is argued by respondent that the district enjoys governmental immunity under the language of Government Code section 818.4.   That section provides that a public entity is not liable for injury caused by the issuance or failure to issue any permit, license, or certificate.   As with Government Code section 818.2, this section provides immunity only for general discretionary acts.  (Slagle Constr. Co. v. County of Contra Costa (1977) 67 Cal.App.3d 559, 136 Cal.Rptr. 748.)   Respondent argues that the conduct complained of here, the failure to offer the decedent an opportunity to take and complete a test within the time prescribed by the Legislature, was an exercise of discretion vested in the school, inasmuch as the school had authority to determine which examinees were deemed to have successfully completed the course and passed its test.   That argument begs the issue, since the gravamen of the complaint here is not that appellant's decedent took and failed the test, but that the test was not offered within a reasonable time.   The school was in fact granted no discretion with respect to the time constraints.   The provisions of the statute and the regulations required the school district to offer a prescribed course, followed by a prescribed test, all by December 31, 1975.

Section 818.4 “explicitly limits immunity to instances ‘where the public entity or an employee of the public entity is authorized to determine whether or not such [permit] should be issued [or] denied․’  [Citations.]”  (Morris v. County of Marin, supra, 18 Cal.3d at p. 912, 136 Cal.Rptr. 251, 559 P.2d 606.)   If the language of section 818.4 is applicable to the instant case (an issue we need not resolve), the school district here did not have the discretion to determine whether or not to offer a test to its students before the end of 1975.   The presentation of the course and the testing of its students were ministerial acts mandated by statute, and thus no governmental immunity protects the school district in this case.

II

It is possible that the trial court granted the motions for judgment on the pleadings not on the grounds of governmental immunity, but rather on the basis that the complaint failed to state causes of action in negligence.   Both immunity and failure to state a cause of action in negligence were asserted as grounds for the motion.   The trial court's order states only that the motions are granted on all grounds stated in the moving papers.   Therefore, having determined that a judgment on the grounds of governmental immunity would have been error, we must decide whether the judgment can be upheld on the ground that no cause of action for negligence is properly stated in the complaint.   The court must sustain a lower court ruling if it is a correct ruling on any ground.  (Davey v. Southern Pacific Co. (1897) 116 Cal. 325, 329, 48 P. 117.)

 One of the bases for the motion of respondent school district was its contention that the school owes no duty to appellant's decedent, and that thus there exists no relationship giving rise to a cause of action in negligence.   Respondent relies on two cases for its broad proposition that “policy considerations ․ negate an actionable ‘duty of care’ in persons and agencies who administer the academic phases of the public educational process.”   Those cases, Peter W. v. San Francisco United Sch. Dist. (1976) 60 Cal.App.3d 814, 131 Cal.Rptr. 854, and Smith v. Alameda County Social Services Agency (1979) 90 Cal.App.3d 929, 153 Cal.Rptr. 712, are distinguishable from the instant case.

In Peter W., plaintiff was an 18-year-old high school graduate who alleged that the school district had failed to provide him with an adequate education in that he was graduated from high school, although he was functionally illiterate.   In Smith, plaintiff was placed in a series of foster homes by defendant;  he sued alleging that defendant failed to take reasonable action to bring about his adoption, as a result of which he was deprived of a stable environment, parental nurturing, etc.   In both instances, the courts found no conceivable, workable rule of care against which defendants' conduct could be measured.   The courts were there confronted with defining and describing a duty and its breach during 12 years of educational decisions on the one hand and 17 years of social work on the other.   The inability to fashion such a rule is understandable.   Here, the school had a clearly defined statutory duty, i.e., to offer a course of training culminating in a test within a specified period of time.   The duty is thus narrowly circumscribed and its breach could be readily determined by a finder of fact.

In addition, in both Smith and Peter W., the court was confronted with a serious problem in assessing damages.   Damages which flow from not having been adopted or properly educated are difficult to ascertain and speculative at best.   Here, on the other hand, we are presented with an action for wrongful death.   Damages for wrongful death have long been recognized as ascertainable and capable of measurement.   Therefore, judgment could not lie on the basis of a finding of absence of duty on the part of respondent school district.

III

Both respondents also argued below and here that their conduct did not cause the death of the decedent and that, therefore, lacking the requisite element of proximate causation, no cause of action in negligence could properly be stated against either of them.   We address first the issue of causation with respect to respondents State of California and Faigin.

 Respondents contend that their negligence, if any, did not cause the damage here, because of the intervening criminal conduct of the assailant, which conduct cuts off respondents' liability.   It is true that an intervening criminal act is less foreseeable than an intervening negligent act, and ordinarily will be regarded as a superseding cause.  (Gonzales v. Derrington (1961) 56 Cal.2d 130, 133, 14 Cal.Rptr. 1, 363 P.2d 1.)   However, in some circumstances, intervening criminal conduct is highly foreseeable, in which case the original liability of a defendant will not be superseded.  “If the likelihood that a third person may act in a particular manner is the hazard or one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious or criminal does not prevent the actor from being liable for harm caused thereby.”  (Rest., 2d Torts, § 449;  see Mosley v. Arden Farms Co. (1945) 26 Cal.2d 213, 219, 157 P.2d 372.)   Courts have frequently recognized that a criminal act will not cut off the liability of a negligent defendant if that criminal conduct was foreseeable.   For example, in Lillie v. Thompson (1947) 332 U.S. 459, 68 S.Ct. 140, 92 L.Ed. 73, a woman railroad telegrapher was negligently placed in an isolated building late at night.   She successfully sued the railroad for liability for injuries she sustained when assaulted by a stranger.   The criminal assault was foreseeable under the circumstances, and thus the employer was liable.

Here, the foreseeable harm which might occur to an unarmed night watchman is that he will be attacked by criminals.   Respondent cannot escape liability by placing the blame on the very conduct against which it should have protected.

 Respondents also argue that their conduct, in any event, did not cause the decedent's death;  that too many unknown factors exist which interfere with the imposition of liability.   It is true that we cannot tell from the face of the complaint whether appellant's decedent owned a gun, ordinarily carried a gun while he worked, would have been armed with a gun on the night in question but for the respondents' negligence, and, finally, would have been able to protect himself had he been so armed.   However, with rare exceptions, causation is a question of fact for the jury.  (Hoyem v. Manhattan Beach City Sch. Dist. (1978) 22 Cal.3d 508, 520, 150 Cal.Rptr. 1, 585 P.2d 851.)   The standard of appellate review from a judgment on the pleadings is the same as the standard for a judgment of dismissal which follows the sustaining of a general demurrer.   The sole issue on appeal from such a judgment is whether a cause of action has been stated, and the allegations in the complaint must be treated as true.  (Gill v. Curtis Publishing Co. (1952) 38 Cal.2d 273, 275, 239 P.2d 630.)  “For purposes of review, the motion for judgment on the pleadings is confined to the face of the pleading under attack.  [Citations.]”  (Tiffany v. Sierra Sands Unified School Dist. (1980) 103 Cal.App.3d 218, 224, 162 Cal.Rptr. 669.)   The allegations in the complaint of duty, breach, causation, and damages are legally sufficient to state a cause of action in negligence, and the court erred if it determined that the respondents' conduct could not have been a proximate cause of the decedent's death.

 With respect to the liability of the school district, similar contentions are raised concerning proximate causation.   The district argues that where, as here, facts are uncontroverted, the question of proximate cause becomes one of law.   Proximate cause becomes a legal issue, however, where only one inference can be reasonably drawn from those uncontroverted facts.   (Sanders v. Atchison, Topeka & Santa Fe Ry. Co. (1977) 65 Cal.App.3d 630, 649, 135 Cal.Rptr. 555.)   Here, it is apparent to us that more than one inference arises concerning the causal connection between the negligence of the school district and the decedent's death.   For example, an issue is raised concerning whether the subsequent negligence of the board, in failing to warn the decedent of the delay in enforcement of the statute, was an unforeseeable intervening act which would prevent the imposition of liability on the school district.   The issue of foreseeability is a question of fact for the jury.   (Weirum v. RKO General, Inc. (1975) 15 Cal.3d 40, 46, 123 Cal.Rptr. 468, 539 P.2d 36.)

In Bigbee v. Superior Court (1979) 93 Cal.App.3d 451, 155 Cal.Rptr. 545, plaintiff's complaint alleged that the improper siting of a telephone booth in a potentially dangerous location, and defects in the creation and maintenance of the booth, gave rise to tort liability.   There, plaintiff had been unable to escape from the booth in time and was struck by a vehicle.   On appeal from an order sustaining a demurrer, the reviewing court held that whether the intervening act of the negligent driver in striking the telephone booth operated as a concurrent cause of the injury or as a superseding cause which would prevent liability was a question of fact for the jury.

 Respondent contends that in order to establish a causal connection between the conduct of the school district and the death, appellant would have to show that but for respondent's negligence in administering the testing procedure:  (1) decedent would have completed his first test;  (2) decedent would have passed the test;  (3) decedent would have applied for a firearm license;  (4) the State of California would have issued a firearm license to decedent;  (5) decedent would have purchased a firearm or at least possessed one on January 8;  and (6) he would have been able successfully to defend himself and thereby prevent his death.

Even accepting the foregoing premise, it is not unreasonable to speculate that appellant could introduce evidence at trial establishing each of the foregoing elements.   It appears that the negligence of the school district, forced to operate under the limited time constraints imposed by co-respondents, will not be easily established by appellant at trial.³  Nonetheless, appellant's complaint is adequate to allow her to present the issue to a jury.   We cannot say as a matter of law that respondent's conduct did not cause the decedent's death.

Therefore, the judgment is reversed.

FOOTNOTES

1.   Defendants, other than the named respondents, were named in the first amended complaint.   However, according to appellant's opening brief, none of the other named defendants was served or appeared in the action.

2.   Faigin's knowledge of the identity of security guard employers and his ability to notify each of them is evident from the allegation in the complaint that, prior to December 31, Faigin informed security guard employers that the regulation would be enforced and that untrained armed security guards would be arrested.

3.   A finding of negligence on the part of the school district is particularly unlikely in view of the information contained at footnote 6 of appellant's opening brief.   There, appellant states that “through extensive pretrial discovery, plaintiff has ascertained that two objective testing procedures were employed:  (1) a written multiple choice examination, and (2) a range firearm test requiring a passing score of 200 out of a possible 300 score.   Plaintiff's decedent successfully passed both procedures according to the testing documents produced during pretrial discovery.”   That evidence produced at trial may well destroy appellant's cause of action based on the negligent failure of the school district to offer a timely test to appellant's decedent.   Nonetheless, our review examines only the face of the complaint, which does state a cause of action.

WOODS, Presiding Justice.

KINGSLEY and McCLOSKY, JJ., concur.