Slagle Constr. Co. v. County of Contra Costa

Decision Date28 February 1977
Citation67 Cal.App.3d 559,136 Cal.Rptr. 748
CourtCalifornia Court of Appeals
PartiesSLAGLE CONSTRUCTION COMPANY, INC., Plaintiff and Appellant, v. COUNTY OF CONTRA COSTA, Defendant and Respondent. Civ. 38136.

Robert J. Athey, Ring, Athey, Ginocchio & Ring, Inc., Walnut Creek, for plaintiff and appellant.

Allan E. DeFraga, Gordon, Waltz, DeFraga, Watrous & Pezzaglia, Inc., Martinez, for defendant and respondent.

TAYLOR, Presiding Justice.

Slagle Construction Company (hereafter Slagle) appeals from a judgment of dismissal entered after the court sustained without leave to amend the general demurrer of the County of Contra Costa (hereafter County) to its complaint for damages for the County's wrongful refusal to issue building permits. Slagle contends that once the County planning commission (hereafter Commission) and the board of supervisors (hereafter Board) approved the tentative and final subdivision maps, the Commission had a mandatory duty to issue the building permits, and that the failure to do so imposed tort liability pursuant to Government Code section 815.6. We have concluded that the judgment of dismissal must be affirmed on the authority of Morris v. County of Marin, Cal.App., 136 Cal.Rptr. 251 (filed February 3, 1977).

The complaint alleges the following facts which we must, of course, accept as true for purposes of the demurrer (Selby Realty Co. v. City of San Buenaventura, 10 Cal.3d 110, 124, 109 Cal.Rptr. 799, 514 P.2d 111): Slagle agreed to purchase two contiguous parcels of real property, subject to the approval of a tentative subdivision map by the County. The tentative map of the first parcel was conditionally approved by the Commission, subject to the requirement of underground utility distribution facilities, except along Camino Pablo; the tentative map of the second parcel was similarly conditionally approved by the Commission, subject to the same exception for overhead utility lines on Camino Pable because of the high cost of undergrounding the existing facilities. The final maps for both parcels were approved by the County with above-ground utility lines along Camino Pablo. After Slagle attempted to obtain the building permits to begin construction of single family dwellings on the two subdivided parcels, it was informed by the Commission that as a condition for the permits to be issued, the telephone cable had to be placed underground. The Board sustained the Commission.

Slagle correctly contends that, given a mandatory duty, the liability imposed by Government Code section 815.6 (set forth below) 1 takes precedence over the immunity provisions of Government Code section 818.4 (set forth below). 2 Reference to judicial construction and the legislative history underlying the Tort Claims Act confirm this interpretation.

In Morris v. County of Marin, supra our Supreme Court recently clarified the relationship between sections 815.6 and 818.4, in granting recovery to one who suffered uncompensated injuries as a result of a public entity's failure to discharge its mandatory duty to require a contractor to carry workers' compensation insurance pursuant to Labor Code section 3800. The court held that the statutory immunity of section 818.4 attaches to discretionary licensing activities only and that in the absence of discretion, liability would be imposed. In Morris, the Supreme Court discussed O'Hagan v. Board of Zoning Adjustment, 38 Cal.App.3d 722, 113 Cal.Rptr. 501, in which this court denied recovery for damages in a mandamus action for an allegedly wrongful revocation of a use permit, as the immunity of section 818.4 was applicable. Our reasoning in O'Hagan was supported and interpreted in Morris, supra, at p. 260, as follows: 'in the course of the decision, the O'Hagan court stated that '(the) statutory immunity (of section 818.4) is so strong that it even prevails over the liability imposed by section 815.6 for failure to discharge a mandatory duty.' (Citation.) Although defendant interprets this statement as indicating that the statute's immunity attaches to both discretionary and nondiscretionary licensing activities, O'Hagan applied only to a discretionary activity, and thus the passage quoted above goes no further than to state that when such discretionary activity does result in injury, the public entity incurs no liability even if the entity was statutorily required to render such a discretionary decision. Nothing in the O'Hagan opinion indicates that the section's immunity attaches to a nondiscretionary, ministerial act involved in the licensing or permit process.'

As it is clear that the immunity afforded to licensing decisions by section 818.4 does Not apply to mandatory decisions, Slagle seeks to establish a mandatory duty. The Court in Morris v. County of Marin, supra, at p. 255, defines a 'mandatory duty' as 'an oligatory 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.' Slagle contends that under the applicable County ordinances, once the Commission and Board have approved the final map of a subdivision, the staff of the Commission Must issue building permits to an applicant in conformity with the specifications set out. County code section 92--10.002 gives the Commission 'all powers and...

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14 cases
  • Shelton v. City of Westminster
    • United States
    • California Court of Appeals
    • December 24, 1982
    ...Cal.Rptr. 93; Department of Motor Vehicles v. Superior Court, 105 Cal.App.3d 537, 164 Cal.Rptr. 379; Slagle Constr. Co. v. County of Contra Costa, 67 Cal.App.3d 559, 136 Cal.Rptr. 748.) Such determination however does not resolve our issue. The nature and extent of the duty mandated is the ......
  • Nunn v. State of California
    • United States
    • California Supreme Court
    • March 19, 1984
    ...and interpreted the section to be limited to discretionary licensing activities. (See, e.g., Slagle Construction Co. v. County of Contra Costa (1977) 67 Cal.App.3d 559, 136 Cal.Rptr. 748 (den. of building permit immunized by § 818.4); Burns v. City Council (1973) 31 Cal.App.3d 999, 107 Cal.......
  • Thompson v. City of Lake Elsinore
    • United States
    • California Court of Appeals
    • August 26, 1993
    ...is the sort of discretionary decision covered by Government Code sections 818.4 and 821.2. (See Slagle Constr. Co. v. County of Contra Costa (1977) 67 Cal.App.3d 559, 565, 136 Cal.Rptr. 748; Friedman v. City of Los Angeles (1975) 52 Cal.App.3d 317, 322, 125 Cal.Rptr. 93; see also Cancun Hom......
  • Prokop v. City of Los Angeles
    • United States
    • California Court of Appeals
    • May 21, 2007
    ...duty under section 815.6. Those cases have no applicability to Prokop's case. For example, Slagle Constr. Co. v. County of Contra Costa (1977) 67 Cal.App.3d 559, 562, 136 Cal.Rptr. 748, stated that "given a mandatory duty, the liability imposed by Government Code section 815.6 ... takes pre......
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