Loop v. State

• Decision Date: 07 March 1966
• Citation: 49 Cal.Rptr. 909,240 Cal.App.2d 591
• Parties: Ralph A. LOOP, and Betty J. Loop, his wife, Plaintiffs and Appellants, v. The STATE of California, Defendant and Respondent. Civ. 22492.
• Court: California Court of Appeals Court of Appeals

Page 909

49 Cal.Rptr. 909

240 Cal.App.2d 591

Ralph A. LOOP, and Betty J. Loop, his wife, Plaintiffs and Appellants, v. The STATE of California, Defendant and Respondent.

Civ. 22492.

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

March 7, 1966.

Earl S. Odell, William Struthers, Livermore, for appellants.

Thomas C. Lynch, Atty. Gen., Robert H. Connett, Deputy Atty. Gen., Sacramento, for respondent.

Harry S. Fenton, Chief Counsel, Robert F. Carlson, Asst. Counsel, Kenneth G. Nellis, Sacramento, for State Dept. of Public Works, amicus curiae in support of respondent.

SIMS, Justice.

Plaintiffs purported to appeal from an order of the trial court which sustained the demurrer of the defendant State of California without leave to amend. By stipulation and order for augmentation and correction of the record on appeal, there was brought before this court the judgment of dismissal which was signed and entered following the making and entry of the order first mentioned. The appeal therefore may be and now is considered as from the latter judgment. (Cal.Rules of Court, rule 2(c); Vibert v. Berger (1966) 64 A.C. 67, 70-71, 48 Cal.Rptr. 886, 410 P.2d 390; Evola v. Wendt Construction Co. (1958) 158 Cal.App.2d 658, 660-662, 323 P.2d 158; Willson v. Burner (1964) 230 Cal.App.2d 947, 948, 41 Cal.Rptr. 449.)

The case involves the propriety of the retroactive application of the 1963 amendments to the Government Code which deal comprehensively with problems of governmental immunity to a cause of action which arose between February 27, 1961, the date on which the decision in Muskopf v. Corning Hospital Dist. (1961) 55 Cal.2d 211, 11 Cal.Rptr. 89, 359 P.2d 457 became final, and September 15, 1961, the effective date of Chapter 1404, Statutes of 1961 which provided a moratorium during which the Legislature could study the problems created by the Muskopf decision and enact appropriate legislation on the subject. (See Thelander v. Superior Court (1962) 58 Cal.2d 811, 814, 26 Cal.Rptr. 643, 376 P.2d 571; Corning Hospital Dist. v. Superior Court (1962) 57 Cal.2d 488, 492-495, 20 Cal.Rptr. 621, 370 P.2d 325.)

According to the allegations of the complaint the plaintiffs on May 1, 1961 voluntarily admitted their son to the Napa State Hospital for the purpose of receiving medical care, treatment and attention as a patient, and in reliance on proper and careful supervision of the son during his stay. It is further alleged that the hospital thereupon undertook to care for and attend their son for as long as he might need such care and attendance, and to render such proper and careful supervision; that the hospital was engaging in a proprietary activity and that plaintiffs could have admitted their son to a private institution for like care, but that the hospital accepted him as a normal paying not have been caused had there been proper

It is charged against the State, a fellow patient, the hospital superintendent, and a hospital attendant: 'That defendants, and each of them, so negligently and carelessly failed to provide proper attention and supervision as to allow the * * * [son] to become involved in a fight in a ward of the said hospital on July 27, 1961, with defendant * * * patient at Napa State Hospital; as a proximate result of a negligent conduct and ommissions [sic] of defendants STATE OF CALIFORNIA, [superintendent] and [attendant], the * * * [son] received injuries in the fight as a result of which he died on August 3, 1961; that defendant [patient] did willfully and intentionally strike and hit the * * * [son] causing his head to strike a concrete block wall; that the said fight and injuries would not have been caused had there heen proper and careful supervision by defendants over their patients.' Only the cause of action alleged against the State is involved in this proceeding.

The action was commenced in Sacramento County by complaint verified May 18, 1962 and filed May 23, 1962. On October 14, 1963 the State filed its demurrer, and a notice of motion for an order transferring the action to Napa County, which motion was thereafter made and granted. The court in the latter county sustained the demurrer without leave to amend on each of the grounds asserted by the State, namely: that the complaint does not state facts sufficent to state a cause of action against the State; that the court has no jurisdiction of the subject matter of the action; and that the court has no jurisdiction of the person of the State. This appeal ensued.

The State relies upon the provisions of Chapter 1681, Statutes of 1963 (effective September 20, 1963) found in subdivision (a) of section 45 which declare: 'This act applies retroactively to the full extent that it constitutionally can be so applied' (Stats. 1963, ch. 1681, § 45, subd. (a), p. 3288); and the provisions of section 1 of that statute which are now found in section 854.8 of the Government Code reading as follows: '(a) Notwithstanding any other provision of law, [with exceptions not directly applicable herein] a public entity is not liable for: (1) An injury proximately caused by any person committed or admitted to a mental institution. (2) An injury to any person committed or admitted to a mental institution.' (Stats. 1963, ch. 1681, § 1, p. 3280.) By the provisions of section 810.8 as added to the Government Code 'injury' includes 'death.'

It heretofore has been determined that the foregoing provisions apply to a cause of action for an injury which was suffered prior to the effective date of Muskopf and which was reduced to suit prior to the enactment of the moratorium legislation. (County of Los Angeles v. Superior Court (1965) 62 Cal.2d 839, 844, 44 Cal.Rptr. 796 402 P.2d 868.) ¹ Furthermore, the provisions of these same sections have been held applicable to a cause of action arising after the moratorium legislation and prior to the enactment of the 1963 legislation. (Moxon v. County of Kern (1965) 233 Cal.App.2d 393, 396, 43 Cal.Rptr. 481.) ²

A learned commentator in reviewing the Legislature's power to modify the post-Muskopf law retroactively, prior to the enactment of the 1963 statute, categorized the causes of action which might possibly be affected by such legislation as (1) those recognized under pre-Muskopf law; (2) causes of action not recognized prior to the Muskopf decision, but which accrued prior to the date it became final; (3) causes of action which were not previously recognized but which accrued during the period between the Muskopf decision and the effective date of the moratorium legislation; and (4) similar causes of action which arose during the moratorium period. (Van Alstyne, Governmental Tort Liability: Judicial Lawmaking in a Statutory Milieu, 15 Stan.L.Rev. 163, 234-236.) From the foregoing plaintiffs urge that the sustaining of restrictions upon causes of action in the second and fourth categories cannot affect this cause of action, which falls in the third category, because the right thereto is vested.

After reviewing the authorities touching on the subject the author of the foregoing article concluded as follows: 'Therefore, subject to certain qualifications to be discussed, it would seem to follow that causes of action, whether recognized by statute or grounded in common-law doctrine accruing before September 15, 1961, may not be validly abolished in connection with enactment of a general legislative program relating to governmental tort liability.' (Van Alstyne, op. cit., p. 244.) Before arriving at this conclusion the only significant distinction noted between pre-Muskopf causes of action and interim causes of action was that the latter fell within the language of the 1961 moratorium legislation. It provided that upon the expiration of the moratorium 'an action may be * * * maintained in the manner prescribed by law on any cause of action which arose on or after February 27, 1961 * * * if and only if both of the following conditions are met: * * * (2) the bringing of the action was barred solely by the provisions of this act and is not barred by any other provision of law enacted subsequent to the enactment of this act.' (Stats.1961, ch. 1404, § 4, subd. (a), p. 3210; emphasis added.) The author concluded that this reservation, since it was retroactive itself, could convey no greater authority than the Legislature might otherwise have to abolish or restrict causes of action arising in that period. (Id., p. 244.) In discussing qualifications on his general conclusions, the commentator, does note that in the case of newly recognized pre-Muskopf causes of action there is first a total lack of reliance and secondly an element of 'windfall' benefits which would strengthen the case for sustaining a retrospective elimination of pre-Muskopf claims as compared to post-Muskopf claims (id., pp. 246-247). It is this distinction upon which plaintiffs now rely.

The plaintiffs in Muskopf and those similarly situated with a cause of action arising before February 27, 1961 never had a recognizable cause of action before that decision, and to take away the right created by that decision to enforce the claims by suit may be equated to depriving the claimant of a windfall. ³ There was no reliance in or expectation of a right to sue for tort damages either at the time of entering into the relationship out of which the injury arose or at the time of the injury itself.

In County of Los Angeles the opinion recites: 'It is not unfair to apply the statute retroactively. Potential plaintiffs who were injured before the Muskopf case was decided clearly could not have relied on that case.' (62 Cal.2d at p. 845, 44 Cal.Rptr. at p. 799, 402 P.2d at p. 871.)

The plaintiffs herein, and others similarly situated, may well claim that both at the inception of the relationship out of which the injury arose, and at the time of the injury itself, they were entitled to rely upon the principle that the State as owner of the hospital would respond in...