Corona v. State of California, E044951.

• Decision Date: 23 October 2009
• Docket Number: No. E044951.,E044951.
• Citation: 100 Cal. Rptr. 3d 591,178 Cal.App.4th 723
• Court: California Court of Appeals Court of Appeals
• Parties: RAY CORONA, SR., et al., Plaintiffs and Appellants, v. THE STATE OF CALIFORNIA et al., Defendants and Respondents.

178 Cal.App.4th 723

100 Cal. Rptr. 3d 591

RAY CORONA, SR., et al., Plaintiffs and Appellants, v. THE STATE OF CALIFORNIA et al., Defendants and Respondents.

No. E044951.

Court of Appeals of California, Fourth District, Division Two.

October 23, 2009.

The Law Offices of John Burton and John Burton for Plaintiffs and Appellants.

Edmund G. Brown, Jr., Attorney General, James M. Schiavenza, Assistant Attorney General, Marsha S. Miller, Karen S. Darling and Donna M. Dean, Deputy Attorneys General, for Defendants and Respondents.

OPINION

RAMIREZ, P. J.—

Plaintiffs and appellants Ray Corona, Sr., and his wife, Arlene Corona, appeal from the trial court's judgment dismissing their lawsuit after sustaining the demurrer of defendants and respondents State of California, Department of Consumer Affairs, and State Athletic Commission (collectively, the State). Specifically, the Coronas argue the trial court erred when it found that Government Code section 818.4,¹ which applies to discretionary decisions by public officials, applies here to immunize the State from liability. As discussed below, we conclude that California's State Athletic Commission (the Commission) has a mandatory duty to license and/or allow to participate in boxing matches only those boxers who present proof of a negative human immunodeficiency virus (HIV) test. Thus, the State can be held liable under section 815.6 for failing to carry out this duty and is not immune from liability under section 818.4.

STATEMENT OF FACTS² AND PROCEDURE

Ray Corona is a professional boxing referee licensed by the State of California. On June 3, 2005, he refereed a match to which he was assigned by the Commission. By letter dated June 9, 2005, the Commission's executive director informed Ray Corona that one of the boxers in the June 3, 2005, match "`was licensed and allowed to fight without having the results of the blood tests for detection of HIV.'" The fighter at some point did test positive for HIV. The letter also stated, "`you may have unwittingly been exposed to a transmittable blood-borne disease,'" "`the Commission strongly encourages you to be tested,'" and "`[y]ou should also think about what might happen if, before you receive your test results, you engage in activities in which you might transmit one of those diseases to someone else.'"

The FAC alleges that "[l]ike most fights, this one involved numerous cuts and splashing of blood. During the week following the bout, plaintiffs engaged in their regular marital activities, including unprotected sexual intercourse."

After complying with the requirements of the Tort Claims Act (§ 810 et seq.), the Coronas filed the FAC on April 4, 2007. The complaint alleged two causes of action, for violation of a mandatory duty under section 815.6 and vicarious liability for the negligence of state employees, agents, etc., under sections 815.2, subdivision (a), 815.4 and 820, subdivision (a).

The State filed a demurrer to the FAC on May 3, 2007. The Coronas filed their points and authorities in opposition on May 16, 2007. The State replied to the Coronas' opposition on May 22, 2007.

At the hearing on the demurrer set for May 29, 2007, the court indicated its tentative ruling was to sustain the demurrer based on governmental immunity under section 818.4, but stated it wanted to more closely examine the issue. The court denied the Coronas' motion to file a supplemental memorandum.

At the continued hearing on June 21, 2007, the court confirmed its tentative ruling to sustain the demurrer. The court held that the State did have a mandatory duty to the public and the Coronas under Business and Professions Code section 18712, subdivision (a) to "appropriately license and regulate boxers." However, the court also held that the State's actions in sanctioning boxing matches are immune from liability under section 818.4 because they involved the issuance of a license, permit, approval or authorization. On December 3, 2007, the court entered an order sustaining the demurrer without leave to amend and dismissing the action. This appeal followed.

DISCUSSION

The Coronas argue that the State was not immune under section 818.4 because the Commission "did not have the authority to issue `a license, permit, approval, or authorization of the fight in question' without first obtaining a negative test for HIV/AIDS."

(1) Before determining whether the State was immune under section 818.4, we must first examine, as did the trial court, whether the Commission had a mandatory duty imposed by statute. This is because, under section 815, a governmental agency is not liable for injuries unless the liability is specifically imposed by statute. "This section abolishes all common law or judicially declared forms of liability for public entities, except for such liability as may be required by the state or federal constitution, e.g., inverse condemnation. In the absence of a constitutional requirement, public entities may be held liable only if a statute (not including a charter provision, ordinance or regulation) is found declaring them to be liable. . . . [¶] . . . [¶] . . . [T]here is no liability in the absence of a statute declaring such liability." (Legis. Com. com., 32 West's Ann. Gov. Code (1995 ed.) foll. § 815, p. 167.)

1. Section 815.6—Mandatory Duty

(2) Section 815.6 further provides: "Where a public entity is under a mandatory duty imposed by an enactment that is designed to protect against the risk of a particular kind of injury, the public entity is liable for an injury of that kind proximately caused by its failure to discharge the duty unless the public entity establishes that it exercised reasonable diligence to discharge the duty." "[A]pplication of section 815.6 requires that the enactment at issue be obligatory, rather than merely discretionary or permissive, in its directions to the public entity; it must require, rather than merely authorize or permit, that a particular action be taken or not taken. [Citation.] It is not enough, moreover, that the public entity or officer have been under an obligation to perform a function if the function itself involves the exercise of discretion. [Citation.]" (Haggis v. City of Los Angeles (2000) 22 Cal.4th 490, 498 [93 Cal.Rptr.2d 327, 993 P.2d 983].) Whether an enactment is intended to impose a mandatory duty, as opposed to a mere obligation to perform a discretionary function, is a question of law for the court. (Id. at p. 499.)

Here, the statute in question provides, in relevant part, as follows: "[A]ny person applying for a license or the renewal of a license as a professional boxer . . . shall present documentary evidence satisfactory to the commission that the applicant has been administered a test, by a laboratory in the United States that possesses a certificate under the Clinical Laboratory Improvement Act (42 U.S.C. Sec. 263a), to detect . . . the human immunodeficiency virus (HIV)[,] . . . hepatitis C virus (HCV) and . . . hepatitis B virus (HBV) within 30 days prior to the date of the application and that the results of all three tests are negative. A negative report for all three tests shall also be required of a professional boxer . . . prior to competing in a match that will occur 180 days or more after the date of the tests submitted for the issuance or renewal of his or her license." (Bus. & Prof. Code, § 18712, subd. (a), italics added.)

(3) We read Business and Professions Code section 18712 as imposing a mandatory duty upon the Commission to require a boxer to provide a negative HIV test from an approved laboratory before issuing the annual boxing license. The Commission must also require a negative test before allowing the boxer to participate in a match that takes place more than six months after the date of the previous negative test. Business and Professions Code section 18712 uses mandatory language when it provides that a boxer "shall present documentary evidence" of a negative HIV test. Business and Professions Code section 18712 again uses mandatory language when it provides that "[a] negative report for [HIV] shall also be required . . ." of a boxer prior to competing in a boxing match that will occur more than six months after the date of a previous HIV test. In addition, the statute simply does not grant the Commission any discretion to waive the HIV test requirement or to grant a license or allow a boxer to participate in a later match without providing a negative HIV test.

This is quite similar to the statute that was interpreted by our Supreme Court in Morris v. County of Marin (1977) 18 Cal.3d 901 [136 Cal.Rptr. 251, 559 P.2d 606] (Morris). In Morris, the Legislature mandated in Labor Code section 3800 that counties require applicants for a building permit to have workers' compensation insurance. The statute provided that "[e]very county . . . which requires [a building permit] . . . shall require that each applicant for [such] permit" have on file a certificate of workers' compensation insurance. The court found that, in using this language, the Legislature "intended the filing of a `certificate of insurance' to constitute a condition precedent to the issuance of a building permit" and thus imposed a mandatory duty under section 815.6. (Morris, supra, at p. 907 & fn. 3, italics added.) In the same way, the Legislature clearly intended that the filing of a negative HIV test with the Commission be a condition precedent to the issuance of a boxing license or authorization to participate in a later boxing match. Just as counties had no discretion to issue a building permit unless the applicant provided a certificate of insurance, the Commission has no discretion to allow a boxer to box unless the boxer provides a negative HIV test.

The State understandably seeks to characterize the language in Business and Professions Code section 18712 as imposing a duty solely on the applicant to present negative HIV test results, rather than on the...