EDWARDS v. STEELE (1985)

The City and County of San Francisco and R. Spencer Steele, its former zoning administrator, appeal from that portion of a judgment determining that they are not immune from liability for damages for their refusal to issue respondent Martin Dale Edwards a variance building permit.   We affirm the judgment.

I

The facts underlying this dispute are set forth in Edwards v. Steele (1979) 25 Cal.3d 406, 158 Cal.Rptr. 662, 599 P.2d 1365.   In 1975 respondent applied for a building permit to add a third floor to his home.   After the permit was denied, he applied for a variance permit, which was also denied.   Respondent then filed a timely appeal with the city's board of permit appeals.   The board scheduled a hearing on a date more than 15 days after the appeal was filed;  the hearing was held more than 40 days after the appeal was filed.   The board decided in respondent's favor, ruling in the alternative that the zoning administrator abused his discretion in denying the variance and that in any event a variance was not required.   Nevertheless, appellant Steele refused to issue the building permit.   Respondent petitioned for writ of mandate to compel compliance with the board's decision and for damages.   Ultimately the Supreme Court held that the board's noncompliance with city code provisions governing the timing of the hearing date did not deprive it of jurisdiction to hear and act upon respondent Edwards' administrative appeal.   The court then retransferred the matter to this court for disposition of the appeal on its merits.  (Edwards v. Steele, supra, 25 Cal.3d at pp. 408–413, 158 Cal.Rptr. 662, 599 P.2d 1365.)   In an unpublished opinion filed in May 1980, this court concluded that the evidence supported the board's determination that Edwards was entitled to a variance.

Edwards' building permit was issued in 1981.   He then pursued this claim for damages.   The trial court granted Edwards' motion for summary adjudication of the issue of governmental immunity.   The court concluded that appellants' claim of governmental immunity pursuant to Government Code sections 818.4 and 821.2 was inapplicable, because Steele's refusal to issue the permit did not constitute a failure to perform a discretionary act.   In October 1983, the parties stipulated to the entry of judgment in favor of Edwards in the sum of $125,000, plus interest, subject to appellants' right to appeal that portion of the judgment denying their governmental immunity claim.   This appeal followed.

II

Appellants contend that Steele's 1976 refusal to grant the variance and proceed with processing the permit should not give rise to liability because his act was not the breach of a mandatory duty.  (Gov.Code, § 815.6.)   Appellants reason that Steele acted on the basis of the city attorney's opinion that the board had no jurisdiction to consider respondent's appeal, an opinion which eventually proved to be erroneous when the matter reached the Supreme Court.   Under these unique circumstances, appellants reason, Steele's decision not to issue the variance was an immune discretionary act.

 According to Government Code section 815.6, a public entity is liable for an injury proximately caused by its breach of a mandatory duty.   As used in that section, the term “mandatory” refers to an obligatory duty which a governmental entity is required to perform, as opposed to a permissive power which it may exercise or not, as it chooses.  (Morris v. County of Marin (1977) 18 Cal.3d 901, 908, 136 Cal.Rptr. 251, 559 P.2d 606.)

 In contrast, neither a public entity nor a public employee is liable for an injury resulting from an act or omission which was “the result of the exercise of the discretion vested in [the employee], whether or not such discretion be abused.”  (Gov.Code, §§ 820.2, 815.2, subd. (b).)  Government Code sections 818.4 and 821.2, which confer immunity for injury caused by the refusal to issue a permit or license, among other acts, are specific applications of the discretionary immunity of section 820.2.   (Van Alstyne, Cal. Government Tort Liability (Cont.Ed.Bar 1980) § 2.67.)   Sections 818.4 and 821.2 afford immunity for acts relating to the granting or denial of a permit only where the public entity or employee is authorized to determine whether or not the permit should be issued or denied;  those sections do not provide immunity where issuance of the permit is only a ministerial, nondiscretionary duty.  (Morris v. County of Marin, supra, 18 Cal.3d at p. 912, 136 Cal.Rptr. 251, 559 P.2d 606.)   The act of withholding a permit to which an applicant is clearly entitled is the refusal to perform a ministerial act;  the public employee who refuses to issue the permit under such circumstances is liable for damages sustained by the applicant as a result of the denial of the permit.  (Ellis v. City Council (1963) 222 Cal.App.2d 490, 497–498, 35 Cal.Rptr. 317;  see Code Civ.Proc., § 1095.)

 In San Francisco, the board of permit appeals is not bound by the decision of the zoning administrator granting or denying an application for a permit or for a variance from a zoning or set-back ordinance.   The board may affirm, change, or modify the determination appealed from, or may make its own determination on the matter, subject to the limitations of the city's charter and ordinances.  (Charter of the City and County of San Francisco, §§ 3.651, 7.503;  see City and County of San Francisco v. Padilla (1972) 23 Cal.App.3d 388, 394–396, 100 Cal.Rptr. 223;  Cow Hollow Improvement Club v. Board of Permit Appeals (1966) 245 Cal.App.2d 160, 168–169, 53 Cal.Rptr. 610;  Board of Permit Appeals v. Central Permit Bureau (1960) 186 Cal.App.2d 633, 640–641, 9 Cal.Rptr. 83.)   When the board has overruled a decision of the city's permit bureau and ordered issuance of a building permit, the bureau possesses no more discretion in the matter, and is required to commence processing the permit as directed.   That act, by virtue of the order of the board, becomes merely ministerial, and may be compelled by a writ of mandate.  (Id., at pp. 642–643, 9 Cal.Rptr. 83.)

 The question in this case involves the board's determination that respondent was entitled to a variance, which entitled him to a building permit.   Appellants seem to concede that ordinarily the zoning administrator has a duty to act in accord with the board's decision on the facts in such matters.¹  Appellants argue, however, that the administrator has no similar duty to abide by the board's determination of its own jurisdiction.   Appellants urge that when there is a good faith legal dispute over the board's jurisdiction in a particular case, the zoning administrator has discretion to determine whether or not to comply with the board's directive until the matter is resolved by a court.

In support of the theory, appellants rely on Franklin v. Steele (1982) 131 Cal.App.3d 558, 185 Cal.Rptr. 469 and Plum v. City of Healdsburg (1965) 237 Cal.App.2d 308, 46 Cal.Rptr. 827.  Franklin v. Steele also involved a dispute over the jurisdiction of San Francisco's board of permit appeals.   After Steele refused to comply with the board's decision that an applicant should be granted a variance, the trial court granted the applicant's petition for writ of mandate, ordering that the variance be issued.   This court reversed, on the ground that the applicant's appeal to the board was not timely, and that the board was thus without jurisdiction in the matter.   (Franklin v. Steele, supra, 131 Cal.App.3d at pp. 560–561, 185 Cal.Rptr. 469.)   In Plum v. City of Healdsburg, supra, 237 Cal.App.2d 308, 46 Cal.Rptr. 827, the court held that a city building inspector had no duty to issue a permit despite the local planning commission's determination that the applicant was entitled to the permit, because that determination violated city ordinances and was therefore null and void.  (Id., at pp. 315–319, 46 Cal.Rptr. 827.)

Appellants' reliance on these cases is misplaced.   In each case the court concluded that the employee's refusal to issue a permit was correct;  therefore it was unnecessary to consider the consequences of a wrongful refusal, and neither court reached that issue.   Neither case supports the proposition that a public entity is excused from carrying out a mandatory duty because there is a legal disagreement over whether the duty exists.

We acknowledge the zoning administrator's dilemma when confronted with a directive of the board and an opinion of the city attorney that the board's decision is void.   Under such circumstances, rather than simply refusing to comply with the board's directive, the better course of action may be to pursue a review of the determination of the board by means of a petition for writ of administrative mandamus (Code Civ.Proc., § 1094.5;  see City and County of San Francisco v. Ang (1979) 97 Cal.App.3d 673, 677, 680–681, 159 Cal.Rptr. 56), and to seek a stay of the operation of the board's decision from the trial court.  (See Code Civ.Proc., § 1094.5, subd. (g).)

 For the first time on appeal, appellants contend that they are immune from liability pursuant to Government Code section 820.4 (public employee not liable for act or omission, exercising due care, in execution or enforcement of law), and section 820.6 (public employee not liable for good faith act under apparent authority of enactment that is unconstitutional or invalid).   The general rule, of course, is that points not urged in the trial court may not be advanced on appeal.  (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184–185, fn. 1, 151 Cal.Rptr. 837, 588 P.2d 1261.)   Furthermore, the contention that these statutes somehow immunize Steele's conduct is without merit.   First, section 820.6 is clearly inapplicable;  this case does not involve an unconstitutional or invalid enactment.   As for section 820.4, appellants suggest that Steele's refusal to issue the variance can be characterized as an “act in the execution or enforcement of a law,” and urge that in light of the city attorney's advice, Steele acted with sufficient “due care” to immunize his conduct.  Section 820.4 sets forth a specific immunity to clarify the scope of the discretionary immunity rule set forth in section 820.2.  (See legis. committee com., West's Ann.Gov.Code (1980 ed.) § 820.2, pp. 226–227.)   Even if we assume arguendo that the immunity of section 820.4 applies in situations other than traditional law enforcement activities, the argument that it applies here is unpersuasive, as it is based on the incorrect premise that Steele had discretion to act as he did under the circumstances.   To apply this section in the manner advocated by appellants would eviscerate section 815.6.  (See Elton v. County of Orange (1970) 3 Cal.App.3d 1053, 1059, 84 Cal.Rptr. 27.)

The trial court correctly concluded that appellants' governmental immunity claims are without merit.   Judgment is affirmed.

FOOTNOTES

1.   Despite that apparent concession, elsewhere appellants argue that Steele had no mandatory duty to grant the building permit because section 26 of the city's municipal code provides that any department with power over grants of permits may always exercise its discretion.   However, that section must be read together with the provisions of the charter limiting the power of the zoning administrator by authorizing the board of permit appeals to make its own determination on matters before it.   As has already been discussed, once the board has rendered its decision, the zoning administrator no longer retains discretion in the matter.  (Board of Permit Appeals v. Central Permit Bureau, supra, 186 Cal.App.2d at pp. 640–643, 9 Cal.Rptr. 83.)

SCOTT, Associate Justice.

WHITE, P.J., and BARRY–DEAL, J., concur.