Bonner v. City of Santa Ana

• Decision Date: 31 May 1996
• Docket Number: No. G012674,G012674
• Citation: 45 Cal.App.4th 1465,53 Cal.Rptr.2d 671
• Court: California Court of Appeals Court of Appeals
• Parties: , 96 Cal. Daily Op. Serv. 3932, 96 Daily Journal D.A.R. 6335 Marshone BONNER, Plaintiff and Respondent, v. CITY OF SANTA ANA, Defendant and Appellant.

Page 671

53 Cal.Rptr.2d 671

45 Cal.App.4th 1465, 96 Cal. Daily Op. Serv. 3932,

96 Daily Journal D.A.R. 6335

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

No. G012674.

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

May 31, 1996.

Review Denied Aug. 28, 1996. ^*

[45 Cal.App.4th 1467] Christopher B. Mears, Snell & Wilmer, Richard A. Derevan and Sean M. Sherlock, Irvine, for Plaintiff and Respondent.

Edward J. Cooper, City Attorney, and Robert J. Wheeler, Assistant City Attorney, for Defendant and Appellant.

OPINION

SILLS, Presiding Justice.

BACKGROUND

Marshone Bonner kept all of his worldly goods in a trash bag. He stored the bag behind some bushes near city hall. When city workers tossed the bag into the trash, Bonner might have sued the city for conversion. (See Collin v. American Empire Ins. Co. (1994) 21 Cal.App.4th 787, 812, 26 Cal.Rptr.2d 391 ["The tort of conversion is an 'act of dominion wrongfully exerted over another's personal property in denial of or inconsistent with his rights therein.' "].) A city is, after all, not immune from conversion claims. (See Tallmadge v. County of Los Angeles (1987) 191 Cal.App.3d 251, 254, 236 Cal.Rptr. 338 [county could be held liable on conversion theory for destruction of confiscated firearms without prior notice]; Kane v. County of San Diego (1969) 2 Cal.App.3d 550, 552-553, 83 Cal.Rptr. 19 [county held liable on conversion theory for immediate destruction of 28 greyhound dogs taken to animal shelter because county should have waited 72 hours].)

In point of fact, Bonner did sue the city for conversion, but, for some reason, dismissed his conversion claim prior to trial. Instead, he sought damages based strictly on the violation of two state constitutional provisions: He claimed the city, by tossing his bag into the trash, denied him both equal protection of the laws and due process of law. (See Cal. Const., art. I, § 7.)

Bonner prevailed on these two causes of action. A jury awarded him $9,300: $1,300 for the contents of the bag, $8,000 for the emotional distress of losing it. The city then appealed.

In a prior opinion, we held that Bonner could not prevail as a matter of law on his equal protection claim, because money damages We remanded the case because of a problem with one of the jury instructions. Bonner's due process claim required proof that the destruction of his property was city policy, as distinct from, say, simple negligence. The trial court had given an instruction which had precluded the jury from considering the evidence presented by the city that it did not have such a policy. Bonner then petitioned the California Supreme Court for review; it granted review and transferred the matter back to this court, concluding that our previous decision had rested on grounds not briefed by the parties. ¹ The interim has afforded us not only an opportunity to consider the arguments of the parties specifically targeted at the rationales set forth in our prior opinion, but also to consider an important new case in the area, Gates v. Superior Court (1995) 32 Cal.App.4th 481, 38 Cal.Rptr.2d 489, a decision arising out of the mob violence that occurred in Los Angeles in April 1992. Gates squarely holds, as did we in our earlier opinion, that money damages are not available for violations of the state equal protection clause. Bonner tries to distinguish Gates on the ground that the alleged equal protection violation in that case involved government in action, while the violation here involved affirmative mis action. The distinction, as we will later explain, is unconvincing.

are not available for equal protection violations. Nevertheless, we also held that Bonner could prevail on his due process claim, but was limited, like any other owner whose property is taken by the government, to just the value of the property; he could not recover for his emotional distress.

As to the due process violation, we have also (at the city's remonstrance) taken the Gates decision to heart. Gates demonstrated that in construing our state Constitution, the California Supreme Court has mandated that courts look to the intent of the voters who ratified the document. And when we do, we find we must reappraise our previous determination that Bonner could obtain money damages for a violation of the state due process clause.

In particular, in 1974, the voters were told that in enacting the due process clause into our state Constitution, they were etching into stone rights already present in the federal Constitution. As it turns out, the federal Constitution does allow causes of action for violations of the due process clause--but not when there is an effective alternative judicial remedy. That cannot be said here, where, as related above, Bonner had the right to sue the city for conversion.

FACTS

Our statement of the basic facts of the case remains the same as our earlier opinion:

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 remaining causes of action were, respectively, violations of the due process and equal protection clauses of our state Constitution. ² There were no traditional tort causes of action. ³

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 stating 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.) 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. Bonner has cross-appealed from the judgment to the extent it does not provide for attorney fees.

THE PLAINTIFF HAS NO RIGHT TO MONEY DAMAGES FOR VIOLATIONS OF THE EQUAL PROTECTION OR DUE PROCESS CLAUSES OF THE STATE CONSTITUTION

As we noted in our earlier opinion, 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.

Outside the right to privacy and eminent domain contexts, only a couple of California appellate court opinions have held that there is a right to damages for violations of state constitutional provisions, although neither involved the equal protection or due process clauses. (Fenton v. Groveland Community Services Dist. (1982) 135 Cal.App.3d 797, 185 Cal.Rptr. 758 [right to vote]; Laguna Publishing Co. v. Golden Rain Foundation (1982) 131 Cal.App.3d 816, 182 Cal.Rptr. 813 [free press].) These decisions rested on the rationale that the constitutional provisions at issue were self-executing in the sense that they provided a specific method by which they might be enforced. (See Leger v. Stockton Unified School Dist. (1988) 202 Cal.App.3d 1448, 1455, 249 Cal.Rptr. 688 [self-execution means there is "a specific method" for their enforcement].) In our previous opinion, we discussed the Fenton and Laguna Publishing decisions at length, and wondered aloud whether they were ultimately reconcilable with Leger v. Stockton Unified After we issued our previous opinion, Gates...