Johnson v. Mead

• Citation: 236 Cal.Rptr. 277,191 Cal.App.3d 156
• Court: California Court of Appeals
• Decision Date: 17 April 1987
• Parties: Richard JOHNSON and Betty Johnson, for themselves and as representatives of the Estate of Cynthia Ann Johnson, and guardians of Dawn Johnson, a minor, Plaintiffs and Appellants, v. Douglas Gregory MEAD; Shirley Mead; Herbert Mead; State of California, Department of Motor Vehicles; County of Contra Costa, Department of Probation, Crossroads Crisis Center; City of Concord; Jack Flasher; and Does I Through LX, Defendants and Respondents. A030650.

Page 277

236 Cal.Rptr. 277

191 Cal.App.3d 156

Richard JOHNSON and Betty Johnson, for themselves and as representatives of the Estate of Cynthia Ann Johnson, and guardians of Dawn Johnson, a minor, Plaintiffs and Appellants, v. Douglas Gregory MEAD; Shirley Mead; Herbert Mead; State of California, Department of Motor Vehicles; County of Contra Costa, Department of Probation, Crossroads Crisis Center; City of Concord; Jack Flasher; and Does I Through LX, Defendants and Respondents.

A030650.

Court of Appeal, First District, Division 1, California.

April 17, 1987.

Rehearing Denied May 18, 1987.

Lipscomb & Corse, Linda G. Lipscomb, C. Thorne Corse, San Francisco, for plaintiffs and appellants.

John K. Van de Kamp, Atty. Gen., Kelvin C. Gong, Deputy Atty. Gen., San Francisco, for defendants and respondents.

ELKINGTON, Acting Presiding Justice.

The above-captioned plaintiffs appeal from an order dismissing their action, against the defendants State of California and its Department of Motor Vehicles (Department), for damages arising out of the death of their nine-year-old daughter. The action was dismissed following the superior court's order sustaining, without leave to amend, those defendants' general demurrer to the causes of action affecting them.

Plaintiffs' complaint alleged, among other things, the following.

Defendant Mead, while driving an automobile under the influence of alcohol and drugs, struck and killed plaintiffs' daughter while she was within an intersection's painted crosswalk. "[T]hat prior to and after licensing Mead the [Department] maintained a file on or record concerning Mead which contains information showing Mead was, at the time of licensing and thereafter, an alcoholic, a drug addict, a chronic user of both alcohol and drugs; a mentally disordered person ... subject to violent outbursts and lapses of consciousness; a user of prescribed medication for the regulation of his mental disorder; ... a person unfit to drive upon the roads, ... and a person who had had his license suspended or revoked, the cause of which suspension or revocation continued at the time of the application for the aforementioned driver's license."

It was further alleged that the Department was under a mandatory duty not to issue a driver's license to one such as Mead, or to revoke such a license, if issued, that plaintiffs "are members of the class of people contemplated by the Legislature to be protected by these statutes ...," and that the Department's breach of its mandatory duties was the proximate cause of their injury.

Government Code section 815.6, a provision of the California Tort Claims Act, 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."

However, Government Code section 818.2 immunizes a public entity from liability "for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law." Similarly, section 818.4 of that code provides in pertinent part that "[a] public entity is not liable for an injury caused by the issuance, denial, suspension or revocation of, or by the failure or refusal to issue, deny, suspend or revoke, any permit, [or] license ... where the public entity or an employee of the public entity is authorized by enactment to determine whether or not such authorization should be issued, denied, suspended or revoked."

In construing the relationship of these three statutes, the state's high court has specifically limited the immunity provided by sections 818.2 and 818.4 to instances where the public entity "was under a statutory obligation to make a discretionary decision." (Morris v. County of Marin (1977) 18 Cal.3d 901, 913, 136 Cal.Rptr. 251, 559 P.2d 606, our emphasis.) Where, however, the licensing activity involves a mandatory, nondiscretionary duty, immunity will not attach. ( Morris v. County of Marin, supra, pp. 916-917, 136 Cal.Rptr. 251, 559 P.2d 606.)

The issue thus is whether the Department was under a mandatory or discretionary duty not to issue a driver's license to Mead.

Vehicle Code section 12805 provides in relevant part: "The department shall not [our emphasis] issue a driver's license to, or renew a driver's license of, any person: ... (b) Who, because of alcoholism or excessive and chronic use of alcoholic liquors, is incapable of safely operating a motor vehicle, or who is addicted to the use of, or is an habitual user of, any drug to a degree that the person is rendered incapable of safely operating a motor vehicle."

But nevertheless, in spite of the stern language "shall not" of section 12805, the next succeeding section 12806 states: "(a) Any physical or mental defect of the applicant which...