Fenton v. Groveland Community Services Dist.

• Decision Date: 15 September 1982
• Citation: 135 Cal.App.3d 797,185 Cal.Rptr. 758
• Court: California Court of Appeals Court of Appeals
• Parties: Orion L. FENTON, et al., Plaintiffs and Appellants, v. GROVELAND COMMUNITY SERVICES DISTRICT, et al., Defendants and Respondents. Civ. 5319.

Page 758

185 Cal.Rptr. 758

135 Cal.App.3d 797

Orion L. FENTON, et al., Plaintiffs and Appellants, v. GROVELAND COMMUNITY SERVICES DISTRICT, et al., Defendants and Respondents.

Civ. 5319.

Court of Appeal, Fifth District, California.

Sept. 15, 1982.

Strauss, Neibauer & Anderson and John J. Hollenback, Jr., Modesto, for plaintiffs and appellants

Cardozo, Nickerson, Martelli, Curtis & Arata and D. Lee Hedgepeth, Modesto, for defendants and respondents.

OPINION

BIANCHI, Associate Justice. ^*

STATEMENT OF THE CASE

This is an appeal from a judgment dismissing the action for failure to make a timely amendment to the complaint after the sustaining of a demurrer.

On November 8, 1977, appellants were not permitted to vote in Groveland Community Services District in the County of Tuolumne. By letter of November 7, 1977, County Clerk Carlo DeFerrari had informed the precinct election board that probable cause existed to believe that appellant Anne Fenton resided outside the election district. This letter was based on three affidavits filed pursuant to Elections Code section 14216. ¹ The affidavits of Elizabeth Scofield, Fay Hyde, and George Dickens each alleged that Anne Fenton did not reside within the Groveland Community Services District.

Appellants filed a complaint for damages against defendants Groveland Community Services District, the County of Tuolumne, Carlo DeFerrari, Elizabeth Scofield, George Dickens, and Faye Hyde. Appellants alleged they had been denied the right to vote on November 8, 1977 and alleged violations of their constitutional rights to due process and equal protection under the California Constitution. Appellants prayed for $300,000 in general damages, $300,000 in punitive damages, and attorney's fees.

On February 16, 1979, respondents demurred to the complaint on the grounds that: (1) appellants had failed to state a cause of action, and (2) the complaint was vague, ambiguous, and uncertain. Respondents also filed a motion to strike parts of appellant's complaint and prayer for relief.

The demurrer was sustained on the ground that the complaint failed to state facts sufficient to constitute a cause of action. Appellants were granted 15 days leave to amend their complaint.

On April 16, 1979, appellants filed an amended complaint alleging a conspiracy on the part of respondents to deny appellants' right to vote and further that respondents' negligence had resulted in a loss of appellants' right to vote. Finally, appellants alleged violation of unspecified local, state, and federal laws, protective of the right to vote and prayed for $300,000 in general damages, $300,000 in punitive damages, and attorney's fees.

Respondents then filed a general and special demurrer to the amended complaint and a motion to strike as to the costs and punitive damages requested.

On July 5, 1979, the court sustained a general demurrer as to defendant County of Tuolumne, and sustained a special demurrer as to the individually named defendants (DeFerrari, Scofield, and Hyde). The latter demurrer was sustained on grounds of uncertainty. The court denied without prejudice respondents' motion to strike. Appellants were granted 20 days leave to file an amended complaint.

On August 15, 1979, respondents filed a motion to dismiss the case for appellants' failure to timely file an amended complaint. (Code Civ. Proc., § 581, subd. 3.)

On September 21, 1979, the motion to dismiss was granted and judgment was entered on October 11, 1979. This appeal followed.

DISCUSSION

I. WAS THE GENERAL DEMURRER AS TO THE COUNTY DEFENDANTS PROPERLY SUSTAINED AS TO APPELLANTS' CAUSE OF ACTION UNDER THE STATE CONSTITUTION?

Appellants' complaint alleged that the right to vote under state law was abridged by respondents. Respondent County of Tuolumne demurred on the ground that the complaint failed to state facts sufficient to constitute a cause of action. In their supporting points and authorities, the County specifically relied on the governmental immunities provided in Government Code sections 815, 818, and 820.2. In sustaining the general demurrer, the trial court did not indicate which of these statutes was dispositive. Thus, each must be considered, since appellants' failure to amend their complaint after leave granted by the court requires appellants to prove that their complaint was not susceptible of a general demurrer on any ground raised below. (49 Cal.Jur.3d, Pleading, § 170, p. 591.) ²

Government Code section 815 ³ provides that a public entity is not liable for the injuries it causes. However, as the Senate Committee Comment on section 815 makes clear, the public entity will be held liable in those instances where the Legislature has passed a statute assessing liability, or where the state or federal constitution requires liability. (See legis. committee com., West's Ann. Gov. Code (1980 ed.) § 815, p. 168.)

Initially, it should be noted that section 815, enacted as part of the California Torts Claims Act in 1963, typically serves as a bar to causes of action for damages for personal injuries. Here, appellants seek damages for a violation of their constitutional rights.

However, this is not to say that section 815 is inapplicable. Appellants are, by definition, seeking to state a cause of action in tort.

"A tort requires that a plaintiff have a legally protected right which, when invaded by the defendant, is compensable by money damages. The civil remedy for constitutional torts is a direct claim by the victim of the official wrongdoing to secure compensation for the denial of his constitutional rights." (See Comment, Executive Immunity for Constitutional Torts After Butz v. Economu (1980) 20 Santa Clara L. Rev. 453, 455, fn. omitted.)

Thus, respondents were entitled to rely on section 815 in demurring to the complaint. However, the question remains as to whether appellants' cause of action falls within one of the exceptions to the governmental immunity granted by section 815.

As noted above, the Legislature has recognized that the state constitution may provide a cause of action independent from any statute providing for liability. (Legis. committee com., West's Ann. Gov. Code, supra, § 815, p. 168.) Appellants contend the right to vote guaranteed by article II, section 2 of the California Constitution provides a cause of action for damages against the County of Tuolumne. Appellants' position is well taken.

Appellants do not cite any authority which is directly on point, but argue from analogous cases involving the state constitutional right to privacy. In Porten v. Univ. of San Francisco (1976) 64 Cal.App.3d 825, 134 Cal.Rptr. 839, it was held that since the constitutional right to privacy is contained in a self-executing provision, a cause of action for damages will survive a demurrer. (Id., at pp. 829-832, 134 Cal.Rptr. 839; accord, Payton v. City of Santa Clara (1982) 132 Cal.App.3d 152, 183 Cal.Rptr. 17; see also White v. Davis (1975) 13 Cal.3d 757, 120 Cal.Rptr. 94, 533 P.2d 222, demurrer improperly sustained as to a cause of action for injunctive relief for alleged violation of the right to privacy.) As is readily apparent, these cases involve neither the right to vote nor the applicability of section 815.

However, the recently decided case of Laguna Publishing Co. v. Golden Rain Foundation (1982) 131 Cal.App.3d 816, 182 Cal.Rptr. 813, provides strong support for appellants' position. There, plaintiffs alleged violations of their state constitutional rights to free speech and free press. The trial court denied plaintiffs the right to seek damages, and the appellate court deemed this order to have the same legal effect as a general demurrer. (Id., at p. 822, 182 Cal.Rptr. 813.) The court went on to hold that because of the self-executing and important nature of the free speech and free press provision of the California Constitution, plaintiffs were entitled to maintain a cause of action for damages even though no statute granted such a cause of action. (Id., at pp. 851-853, 182 Cal.Rptr. 813.)

Laguna Publishing Co., while not addressing the question of governmental immunity, is persuasive authority for the proposition that section 815 does not bar appellants' state constitutional cause of action. First, the procedural posture in Laguna Publishing Co. is identical to that here. An order having the effect of a general demurrer was imposed as to a constitutional cause of action in both cases. Second, the right to vote would appear to be contained in a self-executing provision of the Constitution as is the right to free speech and free press. ⁴ A constitutional provision is presumed to be self-executing. (Flood v. Riggs (1978) 80 Cal.App.3d 138, 154, 145 Cal.Rptr. 573; Taylor v. Madigan (1975) 53 Cal.App.3d 943, 950, 126 Cal.Rptr. 376.) This presumption will be given effect unless it appears that legislation is required to implement the right granted. (Chesney v. Byram (1940) 15 Cal.2d 460, 462-463, 101 P.2d 1106.) The right to vote contained in article II, section 2, clearly does not require enabling legislation, and must therefore be deemed to be self-executing. (Ibid.)

Since the right to vote provision is self-executing, section 815 does not stand as a bar to appellants' cause of action. As was held in Laguna Publishing Co. v. Golden Rain Foundation, supra, 131 Cal.App.3d 816, 853, 182 Cal.Rptr. 813, "... the special dignity accorded the rights of free speech and free press ..." afforded plaintiffs the right to seek damages without enabling legislation. The right to vote is no less worthy of protection. (See Otsuka v. Hite (1966) 64 Cal.2d 596, 601, 51 Cal.Rptr. 284, 414 P.2d 412, and cases cited therein establishing the fundamental importance of the right to vote.)

Regardless of the foregoing authorities, the law antedating the enactment of section 815 (passed in 1963) is consistent with the position that governmental immunity does not lie in this case. In Rose v. State of California (1942) 19...