McAllister v. South Coast Air Quality etc. Dist.

• Decision Date: 21 July 1986
• Citation: 228 Cal.Rptr. 351,183 Cal.App.3d 653
• Court: California Court of Appeals Court of Appeals
• Parties: , 42 Empl. Prac. Dec. P 36,964 Cynola McALLISTER, Plaintiff and Appellant, v. the SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT, Defendant and Respondent. B013210.

Page 351

228 Cal.Rptr. 351

183 Cal.App.3d 653, 42 Empl. Prac. Dec. P 36,964

Cynola McALLISTER, Plaintiff and Appellant, v. the SOUTH COAST AIR QUALITY MANAGEMENT DISTRICT, Defendant and Respondent.

B013210.

Court of Appeal, Second District, Division 7, California.

July 21, 1986.

As Modified Aug. 11, 1986.

[183 Cal.App.3d 654] Sandy English, Oakland, for plaintiff and appellant.

Goldstein & Kennedy, and Gregory G. Kennedy, Los Angeles, for defendant and respondent South Coast Air Quality Management Dist.

THOMPSON, Associate Justice.

This is an appeal from an order striking plaintiff's punitive damages claim from her first amended complaint for damages and/or injunctive relief against defendant The South Coast Air Quality Management District. The sole issue on this appeal is whether Government Code section 818, which precludes the imposition of punitive damages against a public entity, violates the equal protection clauses of the Fourteenth Amendment of the United States Constitution, and Article I, Section 7 of the California Constitution. We shall conclude that because the complaint only alleges ad hoc acts of misbehavior by employees of a public agency, the statutory preclusion against the imposition of punitive damages is not in this instance violative of equal protection. We do not reach the issue of whether such a statutory preclusion should be upheld were a plaintiff to allege the harm resulted from legislation, rules or policies the public agency itself enacted.

FACTUAL & PROCEDURAL BACKGROUND

Plaintiff has been employed since November 1980, as a personnel analyst by defendant, a public entity created pursuant to Health & Safety Code section 40400, et seq., with the responsibility for controlling air pollution. Plaintiff, a black female, alleges that she has been discriminated against on the basis of sex and/or race, that she has been wrongfully denied a pay increase, and that she has received unwarranted warnings, written reprimands and negative comments in her performance evaluations. She claims she was harassed, intimidated and retaliated against for filing claims, grievances, or complaints alleging discrimination due to her race and/or sex. She contends that although she was qualified for promotions, she was denied the right to interview for the openings.

Plaintiff filed a claim of discrimination with the Department of Fair Employment and Housing on or about January 17, 1983; the claim file was closed on or about July 2, 1983. The complaint was filed within one year thereafter.

The first amended complaint alleges causes of action for: (1) discrimination in employment pursuant to Government Code section 12940, et. seq.; (2) retaliation in employment pursuant to Government Code section 12940, et seq.; (3) breach of the implied covenant of good faith and fair dealing; (4) intentional infliction of emotional distress; and (5) negligent infliction of emotional distress.

Plaintiff claims she suffered "loss of wages, mental anguish and emotional distress, irritability, inability to sleep, difficulty in relationships with others, unnecessary difficulty in employment relations The trial court sustained, with leave to amend, defendant's demurrers to the third, fourth, and fifth causes of actions, and ordered stricken from the amended complaint all references to and requests for punitive damages.

profound shock to the nervous system, and inability to heal from injuries or illness that existed prior to the acts and omissions of defendants."

DISCUSSION

Government Code section 818, codified as part of the 1963 Government Tort Claims Act (claims statute or Tort Claims Act), states: "Notwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant." Insofar as defendant is a public agency (Govt.Code, § 20009, et seq.), the trial court was compelled by Government Code section 818 to strike those portions of the complaint which sought punitive damages against defendant. (Austin v. Regents of University of California (1979) 89 Cal.App.3d 354, 358, 152 Cal.Rptr. 420.)

Plaintiff contends that "modern public policy" now demands that section 818's governmental immunity against punitive damages be abolished. Plaintiff contends that because private employers are subject to compensatory and punitive damage awards for breach of the implied covenant of good faith and fair dealing (see Cleary v. American Airlines, Inc. (1980) 111 Cal.App.3d 443, 453, 168 Cal.Rptr. 722), section 818's proscription against the imposition of punitive damages against public entity employers creates an arbitrary and unreasonable classification in violation of public policy.

We have found no case, nor have the parties directed us to any, wherein the statutory proscription against punitive damages was ruled unconstitutional. In fact, the majority of jurisdictions has concluded that punitive damages against a public entity are not allowed, absent a specific statute expressly allowing them. (See, e.g., Euge v. Trantina (8th Cir.1970) 422 F.2d 1070, 1074; Fox v. City of West Palm Beach (5th Cir.1967) 383 F.2d 189, 195; Smith v. District of Columbia (D.C.App.1975) 336 A.2d 831; Ranells v. City of Cleveland (Ohio 1975) 41 Ohio St.2d 1, 321 N.E.2d 885, 887-889; Foss v. Maine Turnpike Authority (Me.1973) 309 A.2d 339, 345-346; Cole v. City of Houston (Tex.Civ.App.1969) 442 S.W.2d 445, 451; Chappell v. City of Springfield (Mo.1968) 423 S.W.2d 810, 812-815; Fisher v. City of Miami (Fla.1965) 172 So.2d 455; Brown v. Village of Deming (1952) 56 N.M. 302, 243 P.2d 609, 618; Desforge v. City of West Saint Paul (Minn.1950) 231 Minn. 205, 42 N.W.2d 633, 634; Lineberger v. City of Greenville (S.C.1935) 178 S.C. 47, 182 S.E. 101, 102.) Only a minority of states allow punitive damages. (See, e.g., Hennigan v. Atlantic Refining Company (E.D.Pa.1967) 282 F.Supp. 667, 682-683, aff'd (3d Cir.1968) 400 F.2d 857; Young v. City of Des Moines, 262 N.W.2d 612; Mastrodonato v. Town of Chili (1972) 333 N.Y.S.2d 89, 90, 39 A.D.2d 824.) (See generally, Annot., Recovery of Exemplary or Punitive Damages from Municipal Corporation (1980) 1 A.L.R.4th 448.)

Plaintiff's counsel relies upon several cases in other jurisdictions, each of which we distinguish below.

In Bonsignore v. City of New York (S.D.N.Y.1981) 521 F.Supp. 394, aff'd 683 F.2d 635, a New York City police officer shot and injured his wife and then killed himself with the gun that he was required by city regulations to carry while off duty. The wife sued the city, alleging that the city, through a psychological testing program, should have discovered that her husband was not fit to carry a gun. The jury awarded her punitive and compensatory damages. The district court denied defendant's motion to set aside the award of punitive damages, stating the following reasons upon which plaintiff herein relies: "[T]he jury could have concluded that an award of punitive damages was necessary as a deterrent, to prod the Department into However, plaintiff fails to recognize that both the trial court and the appellate court stressed that the defendant in Bonsignore had failed to object to the punitive damages instruction at trial. (Id., at p. 402; 683 F.2d at p. 638.) The appellate court reasoned that because the law in New York on municipal liability for punitive damages was as of that time unclear, it would not attempt to predict the ultimate resolution of the issue in a diversity case where the city failed to object to the instruction at trial. Thus we distinguish Bonsignore on the ground that California, unlike New York, has a clear cut statutory proscription against the imposition of punitives against a public entity. Bonsignore does not address the constitutionality of a statutory scheme such as ours.

                adopting meaningful measures to prevent the recurrence of tragedies like this one."  (521 F.Supp. at p. 402.)   The trial court found the award to be "a moderate but firm expression of the seriousness with which the jury regarded the insufficiency of defendant's efforts to deal with a persistent but readily manageable problem."  (Id., at pp. 402-403.)
                

Plaintiff points out that the New York Court of Claims stated in Hayes v. State (1975) 80 Misc.2d 498, 363 N.Y.S.2d 986, rev'd 50 A.D.2d 693, 376 N.Y.S.2d 647, aff'd 392 N.Y.S.2d 282, 40 N.Y.2d 1044, 360 N.E.2d 959, that no language in the state Constitution or in section 8 of the New York Court of Claims Act prohibits the imposition of punitive damages. The court in Hayes thus refused to hold the state immune from punitive damages, stating: "[T]o hold that the State of New York is not subject to an award for punitive damages is to impress a judicial limitation upon the clear and unequivocal language of the Legislature." (Id., 363 N.Y.S.2d at p. 994.) However, because Hayes was reversed on other grounds, the Appellate Division did not reach the issue of punitive damages (50 A.D.2d 693, 694, 376 N.Y.2d 647), and the Court of Appeals affirmed (40 N.Y.2d 1044, 392 N.Y.S.2d 282, 360 N.E.2d 959).

In any event, in 1982, the New York Court of Appeals subsequently held, in Sharapata v. Town of Islip (1982) 56 N.Y.2d 332, 452 N.Y.S.2d 347, 437 N.E.2d 1104, that the waiver of sovereign immunity contained in the Court of Claims Act does not permit punitive damages to be assessed against the state or its political subdivisions. (Id., at p. 334, 452 N.Y.S.2d at p. 348, 437 N.E.2d at 1105.) Thus, plaintiff's reliance on earlier New York cases to the contrary is misplaced.

Young v. City of Des Moines (Ia.1978) 262 N.W.2d 612, also fails to address the issue before us. In Young, the Iowa Supreme Court upheld an award of punitive damages against a municipal corporation in an action brought under the Iowa Governmental Subdivision Tort Claims Act, Iowa Code section 613A. Unlike chapter 25A of the Iowa State Tort...