Taylor v. Mitzel

• Decision Date: 10 July 1978
• Citation: 82 Cal.App.3d 665,147 Cal.Rptr. 323
• Parties: Andrew Martin TAYLOR et al., Plaintiffs and Appellants, v. Margaret MITZEL et al., Defendants and Respondents. Civ. 17120.
• Court: California Court of Appeals Court of Appeals

Page 323

147 Cal.Rptr. 323

82 Cal.App.3d 665

Andrew Martin TAYLOR et al., Plaintiffs and Appellants, v. Margaret MITZEL et al., Defendants and Respondents.

Civ. 17120.

Court of Appeal, Third District, California.

July 10, 1978.

Hearing Denied Sept. 14, 1978.

Maxim N. Bach, Oroville, for plaintiffs and appellants.

Price, Burness, Price & Davis, Chico, for defendants and respondents Mitzel and Butte County.

Evelle J. Younger, Atty. Gen., John M. Morrison, Craig Modlin, and Darryl L. Doke, Deputy Attys. Gen., for defendants and respondents Ken Brundage and State of Cal.

REGAN, Associate Justice.

In this action plaintiffs appeal from a judgment of dismissal entered upon an order sustaining defendants' general demurrers to plaintiffs' first amended complaint, without leave to amend.

This complaint alleged three causes of action. First, a conspiracy was asserted among defendants to deprive plaintiff Andrew Martin Taylor (Taylor) of his federal civil rights (consisting of entitlement to Medi-Cal services). Second, intentional injuries were alleged to the hearts and nervous systems of Taylor's mother and aunt, Mary Taylor and Catherine Hutek, respectively. These injuries were assertedly caused by wilful misconduct of defendants in refusing Medi-Cal benefits to Taylor. Mary and Catherine were allegedly present with Taylor, and in attendance upon him, when he suffered a high fever and other suffering resulting from lack of Medi-Cal services. Mary and Catherine were thereby put in fear for their own safety and suffered great emotional shock, disturbance and injury to their nervous systems. Third, negligent conduct of defendants in failing or refusing to accord Medi-Cal benefits to Taylor caused emotional disturbance, shock and physical injury to the hearts and nervous systems of Mary and Catherine, causing great physical and mental pain and suffering.

The complaint alleges defendant Ken Brundage (Brundage), presiding as a hearing examiner for defendant State of California (state), in conspiracy with others, failed or refused to hear certain issues at Taylor's fair hearing, and failed to rule on all the issues properly before him.

The record reveals that in November 1973, Taylor, while receiving Medi-Cal and attendant care (homemaker) services, was notified by defendants that his attendant care services would be reduced and no Medi-Cal card would be issued after December 1, 1973; Taylor requested a fair hearing; prior to this hearing Taylor became ill but was unable to obtain medical attention because he had no Medi-Cal card. Further, Taylor could not get a pelvic band because defendant Margaret Mitzel (Mitzel) failed to issue or authorize the issuance of a Medi-Cal card.

On January 29, 1974, Brundage presided as hearing officer at a fair hearing and on February 26, 1974, issued his proposed decision granting a Medi-Cal card to Taylor, retroactive to January 1, 1974. The decision was adopted by the Director of the State Department of Health on April 12, 1974.

Taylor requested a rehearing which was held on July 3, 1974, before hearing examiner Coughlin. Additional evidence and testimony was introduced and the examiner's proposed decision adopted by the Director of the State Department of Health, granted a Medi-Cal card to Taylor retroactive to December 1, 1973, and held Taylor was entitled to the attendant care services he sought. Taylor did not object to this disposition.

Defendants State of California and Brundage.

The causes alleged as to the state insofar as they are founded upon asserted violations of the federal Civil Rights Act (42 U.S.C. § 1983, et seq.), ¹ are a nullity. A state cannot be sued as a "person" under the Act in circumstances such as alleged or shown here. (Meyer v. State of New Jersey (3d Cir. 1969) 460 F.2d 1252, 1253; Bennett v. People of State of California (9th Cir. 1969) 406 F.2d 36, 39; Monroe v. Pape (1961) 365 U.S. 167, 190-192, 81 S.Ct. 473, 485-486, 5 L.Ed.2d 492, 506-507.) ²

Defendant Brundage is immune from liability, both under the federal Civil Rights Act and in tort, since his acts were those of a quasi-judicial officer acting in his official capacity as a hearing examiner employed by the state through the Office of Administrative Hearings. It was at an official fair hearing on Medi-Cal entitlement and attendant care (homemaker) services on behalf of Taylor that Brundage, as presiding hearing examiner, allegedly wilfully failed or refused to hear the issues properly and failed to rule as required by law. The fair hearing was a regular administrative hearing pursuant to Welfare and Institutions Code sections 10950 to 10965. Brundage had the statutory authority to conduct the hearing and to render a decision. (Welf. & Inst.Code, §§ 10953-10955.) The complaint and its attached exhibits show that Brundage did no more or less than exercise his statutory authority in the usual manner, acting in his official capacity as a quasi-judicial officer of the State of California.

It is clear that a judge is not liable under the Civil Rights Act or under any other theory for judicial acts committed within his judicial jurisdiction. (See, e. g., Pierson v. Ray (1967) 386 U.S. 547, 553-555, 87 S.Ct. 1213, 1217-1218, 18 L.Ed.2d 288, 294-295; Stump v. Sparkman (1978) --- U.S. ----, 98 S.Ct. 1099, 55 L.Ed.2d 331. The judicial immunity doctrine has been extended by the courts to persons who are not technically judges but who act in a judicial or quasi-judicial capacity. (See, e. g., Silver v. Dickson (9th Cir. 1968) 403 F.2d 642, 643, parole board members; Sykes v. State of California (Dept. of Motor Vehicles) (9th Cir. 1974) 497 F.2d 197, 201, De partment of Motor Vehicles hearing officer.) The case of Washburn v. Shapiro (S.D.Fla.1976) 409 F.Supp. 3, 8, is also on point. There a civil damage suit under the federal Civil Rights Act was filed against several persons, including an administrative law judge. The court concluded such administrative judges are immune from any suit for civil damages, on the basis of judicial immunity. Brundage was acting in a quasi-judicial capacity irrespective of his title. (See Sykes v. State of California (Dept. of Motor Vehicles), supra, 497 F.2d at p. 201; Reif v. Commonwealth of Pa. (E.D.Pa.1975) 397 F.Supp. 345, 348; Butz v. Economou (1978) --- U.S. ----, 98 S.Ct. 2894, 56 L.Ed.2d ----.)

The second and third causes of action in the complaint are tort actions in the nature of actions for personal injury intentionally (wilfully) and negligently inflicted upon plaintiffs by defendants. With respect to the state and its officers, claims in such actions must be filed with the State Board of Control as a prerequisite to a lawsuit within 100 days after the cause of action arises. (Gov.Code, §§ 905.2, 911.2, 945.4, 950.2.) Moreover, the statute of limitations on personal injury torts is one year. (Code Civ.Proc., § 340.) The state and Brundage did not specifically raise these limitation bars in demurrer, but the defendant County of Butte did both in writing and at oral argument. The matter is not waived on appeal since noncompliance with the 100-day requirement bars an action irrespective of whether a given party of several fails to raise it at trial. (See Chavez v. Sprague (1962) 209 Cal.App.2d 101, 106-107, 25 Cal.Rptr. 603.) Moreover, compliance with the 100-day requirement must be alleged, and this complaint shows noncompliance on its face.

The acts complained of by plaintiffs in their lawsuit occurred in November and December 1973, and in January 1974. That was more than two years prior to filing of the claim with the state on April 20, 1976, and nearly three years prior to the filing of the complaint. ³ The last act conceivably performed by any of the defendants was the decision of defendant Ken Brundage issued on February 26, 1974, and adopted by the State Department of Health on April 12, 1974, still more than two years prior to the filing of the claim and the complaint.

Defendants County of Butte and Margaret Mitzel.

The County of Butte is immune from this action based on the federal Civil Rights Act. The acts complained of were not alleged to have been done in the implementation or execution of any policy statement, ordinance, regulation or decision officially adopted or promulgated as public policy, or as part of a government "custom"; nor is it anywhere indicated in the record that such was the case. (See Monell v. Department of Social Services of the City of New York, supra, --- U.S. ----, 98 S.Ct. 2018; cf. Monroe v. Pape, supra, 365 U.S. 167, 81 S.Ct. 473, 5 L.Ed.2d 492.) This disposes of the first cause of action as against the county, based on an alleged conspiracy to violate the Civil Rights Act.

As to the second and third causes of action, each is for the infliction (either wilfully or negligently) of emotional distress amounting to personal injury. When a personal injury action is brought against a county and a county employee who has acted in his official capacity a prerequisite to a valid cause of action is the filing of a claim with the county within 100 days after the alleged cause of action arises. (Gov.Code, §§ 905.2, 911.2, 945.4, 950.2; Tietz v. Los Angeles Unified Sch. Dist. (1965) 238 Cal.App.2d 905, 911, 48 Cal.Rptr. 245; City of San Jose v. Superior Court (1974) 12 Cal.3d 447, 454, 115 Cal.Rptr. 797, 525 P.2d 701.) All of the acts of the county which allegedly wronged the plaintiffs occurred in November and December 1973 and January 1974, and were principally under the direction of defendant Margaret Mitzel, who was Chief of the General Eligibility Division of the Butte County Department of Social Welfare. In addition, plaintiffs set forth in their amended complaint that Margaret Mitzel failed to take part in the fair hearing commencing on January 29, 1974, but later appeared at the rehearing commencing on July 3, 1974 (which ultimately resulted in a retroactive granting of a Medi-Cal card and attendant home care...