Nunn v. State of California

Decision Date19 March 1984
Citation200 Cal.Rptr. 440,35 Cal.3d 616,677 P.2d 846
CourtCalifornia Supreme Court
Parties, 677 P.2d 846, 16 Ed. Law Rep. 947 Ceola NUNN, as Administratrix, etc. Plaintiff and Appellant, v. The STATE of California et al., Defendants and Respondents. L.A. 31732.

Andrew Stein, Yusim, Stein & Hangar, Beverly Hills, for plaintiff and appellant.

David S. Poole, Deputy Atty. Gen., Los Angeles, for the State.

Herbert F. Blanck, Encino, Victoria S. Chaney, Veatch, Carlson, Grogan & Nelson, Los Angeles, for other defendants and respondents.

REYNOSO, Justice.

Plaintiff Ceola Nunn, administratrix of the estate of Jethro G. Nunn, appeals from a judgment on the pleadings in favor of defendants State of California (State); Douglas Faigin, as head of the Bureau of Collection and Investigative Services; and the Los Angeles Community College District (District).

The immunity provisions set forth in the California Tort Claims Act, we hold, shields all defendants from liability. With respect to defendants State and Faigin, we hold that their alleged delay in promulgating regulations constitute discretionary activity which is not subject to judicial review. We further conclude that no mandatory duty was imposed upon defendants State and Faigin pursuant to Government Code section 815.6 which would give rise to statutory liability. And with respect to defendant district the complaint fails to reveal any basis for liability; as a matter of law, defendant District is immune from liability for alleged negligent administration of its testing procedure.


The trial court entered a judgment on the pleadings against plaintiff. The first amended complaint states four causes of action which concern this appeal.

The first and second causes of action alleged in the complaint--for wrongful death and survival, respectively--set out plaintiff's primary theory of liability. On January 8, 1976, plaintiff's decedent was fatally shot while patrolling a manufacturing plant. At the time of his death, decedent was acting in the course and scope of his employment as a uniformed security guard and was not armed with a gun. It is alleged that the State (through the Department of Consumer Affairs and its Bureau of Collection and Investigative Services (Bureau)) and defendant Faigin (as chief of the Bureau of Collection and Investigative Services) negligently delayed the promulgation of regulations governing a course of instruction in firearms use for employees of licensed private patrol agencies. The delay denied decedent a "reasonable opportunity" to complete the course and obtain a license to carry a firearm by the statutory deadline of January 1, 1976. As a proximate result, decedent was obliged to perform his job without the protection of a firearm. Consequently, he was placed in a "dangerous condition" which resulted in his death.

The complaint also alleges that Nunn enrolled in a firearms qualification course which was "negligently conducted, planned[,] inspected, implemented and administered" by the District and that decedent was "refused ... an opportunity to complete his first test" in order to obtain his license prior to the January 1, 1976, deadline. As a proximate result of this negligence plaintiff was compelled to work without protection, thus he was placed in "a dangerous condition" resulting in his death.

The third and fourth causes of action--again, for wrongful death and survival, respectively--assert another basis for holding the State and defendant Faigin liable. It cites Bureau's failure to disclose to private patrol employers that it had advised law enforcement agencies to defer enforcement of the statutory certification requirement notwithstanding earlier public announcements that security guards violating the law would be subject to arrest. Thus, "[A]s a proximate result of this omission decedent, who had not yet obtained a firearms license, was compelled on January 8, 1976 to patrol as a security guard without the protection of his weapon and was placed in a dangerous condition."

Since a motion for judgment on the pleadings on the ground that no valid cause of action is stated performs the same function as a general demurrer, the facts alleged in the complaint must be accepted as true for the purposes of review. (Tiffany v. Sierra Sands Unified School Dist. (1980) 103 Cal.App.3d 218, 222-223, 162 Cal.Rptr. 669.)


We turn first to an examination of plaintiff's cause against defendants State and Faigin. Are they liable due to their failure to more promptly promulgate regulations required by Business and Professions Code section 7514.1? 1 State and Faigin argue that the promulgation of the regulation in question is governed by Government Code sections 818.2 2 and 821 3 which provide immunity for public entities and employees, respectively, for injuries caused by either (1) the adoption of an enactment, or (2) the failure to adopt or enforce a law. The primary issue with which we deal, therefore, is whether the defendants' actions in promulgating corresponding regulations to Business and Professions Code section 7514.1 fall within the immunity provisions of the cited code sections. In the following, we first discuss the applicability of the above immunity provisions, and second, any possible statutory liability of defendants State and Faigin. 4

The immunity afforded by Government Code sections 818.2 and 821 attaches only to discretionary functions. (Morris v. County of Marin (1977) 18 Cal.3d 901, 916, 136 Cal.Rptr. 251, 559 P.2d 606; Roseville Community Hospital (1977) 74 Cal.App.3d 583, 586-587, 141 Cal.Rptr. 593.) In Johnson v. State of California (1968) 69 Cal.2d 782, 789, 73 Cal.Rptr. 240, 447 P.2d 352, we rejected a purely mechanical approach to the determination of what is discretionary. Rather we "articulated a functional approach in distinguishing immunized 'discretionary' actions from nonimmunized 'ministerial' actions. We focused on the underlying reason for granting immunity--to ensure 'judicial abstention in areas in which the responsibility for basic policy decisions has been committed to coordinate branches of the government'." (Id., at p. 793, 73 Cal.Rptr. 240, 447 P.2d 352, italics in original.) We recognized that immunity attaches to quasi-legislative policy decision-making areas which are sufficiently sensitive to justify blanket immunity. (Id., at p. 793, 73 Cal.Rptr. 240, 447 P.2d 352.) Leaning heavily upon the language of Dalehite v. United States (1953) 346 U.S. 15, 35-36, 73 S.Ct. 956, 967-68, 97 L.Ed. 1427, we described the difference as that between the "planning" and "operational" levels of decision making. (Id., 69 Cal.2d at p. 794, 73 Cal.Rptr. 240, 447 P.2d 352; see Connelly v. State of California (1970) 3 Cal.App.3d 744, 750, 84 Cal.Rptr. 257.)

The Legislature determined that "private patrol [employees] shall complete a course of training [in the] ... carrying and use of firearms." (Bus. & Prof.Code, § 7514.1, subd. (a).) The Bureau's subsequent promulgation of regulations, as directed by section 7514.1, implemented that decision. Such implementation necessarily involves "planning" rather than nondiscretionary "operational" or "street level" decisions. As such, the quasi legislative implementation of basic legislative decision is protected.

The cases cited by plaintiff in support of its argument--that defendants lack immunity for its implementation of the Legislature's "basic policy decisions"--all involved distinguishable "operational" or "street level" decisions. (See McCorkle v. City of Los Angeles (1969) 70 Cal.2d 252, 74 Cal.Rptr. 389, 449 P.2d 453 [policeman allegedly negligent in allowing the plaintiff, driver of one of the cars, to join him in examining collided vehicles in intersection]; Clemente v. State of California (1980) 101 Cal.App.3d 374, 161 Cal.Rptr. 799, disapproved in Williams v. State of California (1983) 34 Cal.3d 18, 28, 192 Cal.Rptr. 233, 664 P.2d 137 [policeman negligent in failing to record identity of motorcyclist involved in accident investigated]; Johnson v. State of California, supra, 69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352 [Youth Authority placement officer's failure to warn foster parents of ward's violent background]; Elton v. County of Orange (1977) 3 Cal.App.3d 1053, 84 Cal.Rptr. 27 [probation department's negligent placement of dependent child in foster home where she suffered mistreatment and failure to perform state-mandated inspection, supervision and control]; Sava v. Fuller (1967) 249 Cal.App.2d 281, 57 Cal.Rptr. 312 [state botanist's negligent performance of chemical analysis].)

In contrast, the formulation of regulations involved holding public hearings and the review of public comments. (The Administrative Procedure Act; Gov.Code, Tit. 2, div. 3, pt. 1, ch. 4.5.) The Bureau was presented with two contending interests requiring judgment. First, it had an interest in having maximum input into the drafting of the regulations in order to ensure their adequacy. On the other hand, it recognized the necessity of implementing regulations as soon as possible in order that the required courses could be provided. Subjecting the Bureau to the possibility of tort liability for its exercise of discretion in accommodating these contending interests would interfere with the Bureau's deliberative process. 5 In addition, permitting such an action would contravene the doctrine of separation of powers which underlies immunity (Johnson v. State of California, supra, 69 Cal.2d at pp. 793-94, 73 Cal.Rptr. 240, 447 P.2d 352); it would circumvent the long standing judicial policy of deference to the special competence of administrative agencies. (Cf. Ralphs Grocery Co. v. Reimel (1968) 69 Cal.2d 172, 70 Cal.Rptr. 407, 444 P.2d 79.)

The question of the length of time governmental bodies may take to decide a matter submitted to it for decision has been held to be "discretionary." (See Engel v. McCloskey (1979) 92 Cal.App.3d 870, 879, 155...

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