Morris v. County of Marin

Decision Date03 February 1977
Docket NumberS.F. 23366
Citation559 P.2d 606,136 Cal.Rptr. 251,18 Cal.3d 901
CourtCalifornia Supreme Court
Parties, 559 P.2d 606 Richard MORRIS, Plaintiff and Appellant, v. COUNTY OF MARIN, Defendant and Respondent.

Hoberg, Finger & Brown, by Richard H. Carlson, San Francisco, for plaintiff and appellant.

Douglas J. Maloney, County Counsel, Allen A. Haim, Deputy County Counsel, Boornazian, King & Schulze, George King and James L. McIntosh, Oakland, for defendant and respondent.

TOBRINER, Justice.

Before issuing a building permit, a county is required by Labor Code section 3800 to ensure that the applicant for the permit possesses adequate workers' compensation insurance coverage as defined in various provisions of the Labor Code. Plaintiff, a worker who sustained serious injuries while working on a construction site in Marin County, alleges that the county failed to comply with this statutory obligation and that, as a consequence, he has been unable to obtain compensation for his injuries; he seeks to recover from the county the damages allegedly caused by the county's breach of its statutory duty. The trial court ruled in favor of the county, concluding that even if the county had failed to comply with its statutory obligation, it could not be held liable for monetary damages. Plaintiff appeals from that adverse ruling.

We have concluded that the judgment of the trial court should be reversed. As we explain, under Government Code section 815.6 a public entity is liable for an injury proximately caused by its failure to discharge a mandatory duty designed to protect against the risk of a particular kind of injury; Labor Code section 3800 embodies just such a duty. Although defendant claims that section 3800 is 'directly' rather than 'mandatory,' the 'directory-mandatory' distinction, as we shall point out, does not apply in this context, and past authorities demonstrate beyond question that section 3800 imposes a 'mandatory' duty within the meaning of section 815.6.

Defendant alternatively contends that it is immune from liability under sections 818.4 and 818.2 of the Government Code, provisions which assertedly insulate a public entity from liability for damages caused by Any activity related to the issuance of a permit or the failure to enforce a law. As we explain, however, the language, legislative history, and judicial application of sections 818.4 and 818.2 demonstrate that these provisions do not create the 'absolute immunity' that defendant urges, but instead only shield a public entity from liability flowing from activities involving the exercise of governmental discretion. Because in the present case the county enjoyed no discretion to ignore the dictates of Labor Code section 3800, we conclude that the specific immunities of sections 818.4 and 818.2 constitute no bar to plaintiff's cause of action.

1. The facts of the present case.

The facts of this case, as revealed by the allegations of plaintiff's first amended complaint, are not complex. In July 1972, defendant Marin County issued a building permit to Guy Cahoon authorizing construction work on a building located in Muir Beach. Contrary to the requirements of Labor Code section 3800, the county, in issuing the permit, did not require Cahoon to file a 'certificate of insurance' establishing that he had obtained a valid policy of workers' compensation insurance in a form approved by the Insurance Commissioner. In fact, at the time he received the permit and thereafter Cahoon carried no such insurance.

A little more than a month after the issuance of the permit, plaintiff Richard Morris fell from a platform while performing construction work in the course and scope of his employment for Cahoon. As a result of the fall, Morris sustained severe injuries resulting in permanent paraplegia. If appropriate insurance coverage had been provided as required, Morris would have been entitled to recover more than $200,000 in workers' compensation benefits; because no such insurance was in force, Morris has been unable to obtain any benefits to compensate him for his injuries. 1 Asserting that the county's failure to fulfill its statutory obligation proximately caused his uncompensated injuries, plaintiff contended that the county should be held liable for such damages.

Defendant county demurred to the complaint, contending that Labor Code section 3800 did not impose a 'mandatory' duty on the county, and that, in any event, the county was immune from liability under Government Code sections 818.4 and 818.2. By minute order, the trial court sustained the demurrer without leave to amend, and thereafter entered judgment in favor of defendant.

2. Labor Code section 3800 imposes a 'mandatory duty' on counties to ensure that applicants for building permits carry workers' compensation insurance; under Government Code section 815.6, a county may be held liable for injuries proximately resulting from its failure to discharge such duty.

Labor Code section 3800 provides in relevant part that '(e)very county . . . which requires the issuance of a permit as a condition precedent to the construction, alteration, improvement, demolition or repair of any building . . . shall require that each applicant for such permit have on file or file . . . (a) certificate of insurance (which states) that there is in existence a valid policy of workmen's compensation insurance in a form approved by the Insurance Commissioner. . . .' (Emphasis added.) 2

In contending that the county may be held liable for damages resulting from its alleged failure to comply with section 3800, plaintiff relies on Government Code section 815.6, a provision of the California Tort Claims Act, which reads in full: '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.'

Defendant county concedes, as it must, that the requirements of Labor Code section 3800 were intended to protect against the very risk of uncompensated injury suffered by plaintiff in the instant case; moreover, because this case arises on demurrer, we must assume, as alleged in the complaint, that defendant failed to use reasonable diligence to comply with section 3800. Defendant contends, nonetheless, that section 815.6 is not applicable here, maintaining that Labor Code section 3800 does not impose a 'mandatory duty' on the county within the meaning of section 815.6.

The explicit language of section 3800 refutes defendant's contention. As we have county (which issues a building permit) . . . Shall require that each applicant . . . have on file or file . . . (a) certificate of insurance.' (Emphasis added.) In turn, Labor Code section 15, one of the general provisions governing the interpretation of specific sections of the Labor Code, explicitly declars that "(s)hall' is mandatory and 'may' is permissive.' In light of this clear statutory language, and the evident purpose of the provision, there can be no question but that section 3800 imposes a 'mandatory duty' on the county within the meaning of section 815.6. 3

The numerous cases previously decided under section 815.6, in sustaining the applicability of that section to situations of statutorily mandated duties, uniformly support this conclusion. In Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 117 Cal.Rptr. 241, 527 P.2d 865, for example, we held that Penal Code section 1384 imposed upon a county a mandatory duty to release a prisoner when a criminal action was dismissed, and that the county could be held liable for damages resulting from the breach of such a duty. In reaching this conclusion, we relied upon the language of Penal Code section 1384 which provided that '(i)f a court directs the action to be dismissed, the defendant Must, if in custody, be discharged therefrom . . ..' (Emphasis added.)

Similarly, in Bradford v. State of California (1973) 36 Cal.App.3d 16, 111 Cal.Rptr. 852, the Court of Appeal, applying the obligatory language of sections 11116.6 and 11117 of the Penal Code, held that the sections imposed a 'mandatory duty' on the county to record the fact that criminal charges against plaintiff had been dismissed. Every other decision decided under section 815.6 has held that comparable statutory language imposed a 'mandatory duty' within the meaning of the provision. (See, e.g., Ramos v. County of Madera (1971) 4 Cal.3d 685, 693--696, 94 Cal.Rptr. 421, 484 P.2d 93; Elson v. Public Utilities Commission (1975) 51 Cal.App.3d 577, 581--582, 124 Cal.Rptr. 305; Elton v. County of Orange (1970) 3 Cal.App.3d 1053, 84 Cal.Rptr. 27; Shakespeare v. City of Pasadena (1964) 230 Cal.App.2d 375, 40 Cal.Rptr. 863.)

In an attempt to escape the clear import of section 3800's explicit language and purpose, defendant invokes a series of cases which discuss the question whether statutory requirements are to be accorded 'directory' or 'mandatory' effect (Gowanlock v. Turner (1954) 42 Cal.2d 296, 301, 267 P.2d 310; Castorena v. City of Los Angeles (1973) 34 Cal.App.3d 901, 908, 110 Cal.Rptr. 569; Adler v. City Council (1960) 184 Cal.App.2d 763, 774--775, 7 Cal.Rptr. 805); the county contends that under these cases section 3800 should be interpreted as 'directory' rather than 'mandatory.'

In pressing this argument, however, defendant simply confuses the 'mandatory duty' terminology of section 815.6 with the entirely distinct and unrelated legal doctrine pertaining to 'directory' or 'mandatory' provisions. As used in section 815.6, the term 'mandatory' refers to an obligatory duty which a governmental entity is required to perform, as opposed to a permissive power which a governmental entity may exercise or not as it chooses. By contrast,...

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